State v. Blye

• Decision Date: 20 April 2020
• Docket Number: No. 79233-4-I,79233-4-I
• Parties: STATE OF WASHINGTON, Respondent, v. NICCO DANIEL BLYE, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. NICCO DANIEL BLYE, Appellant.

No. 79233-4-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

April 20, 2020

UNPUBLISHED OPINION

SMITH, J. — Nicco Daniel Blye appeals his conviction for possession of a controlled substance. He contends that the trial court erred by denying his motion to suppress two bags of heroin found in his vehicle. He also contends that because he is indigent, the trial court erred by imposing a criminal filing fee and interest accrual on nonrestitution legal financial obligations (LFOs).

We conclude that the investigative detention of Blye was not supported by reasonable and articulable suspicion and, thus, constituted an unlawful seizure, and that the heroin found in Blye's vehicle was the fruit of the unlawful detention. Therefore, the trial court erred by denying Blye's motion to suppress. Accordingly, we reverse.

FACTS

On the evening of March 26, 2016, Sergeant Jon Elton of the Marysville Police Department was working a patrol shift when he saw a vehicle legally parked on the shoulder of a public road. The vehicle was parked in a location with "frequent criminal activity." At first, the vehicle's lights were on, but as Sergeant Elton drove by, he saw the lights turn off. Sergeant Elton pulled his vehicle behind the parked vehicle, did not block the vehicle's egress, and did not engage his vehicle's emergency lights or siren. He "initiated contact with the vehicle and its occupant because of criminal activity in the area." Blye, who was sitting in the driver's seat, was the sole occupant of the vehicle.

Sergeant Elton later testified that upon approaching the driver's side window,¹ he stood at an angle behind the driver's side door next to the B pillar. He explained that that position allows a better vantage point into the vehicle and allows the driver to open the door freely if they choose. Blye, on the other hand, testified that if he had opened the door, he would have hit Sergeant Elton, who had his hand on his pistol. He also testified that although Sergeant Elton's police vehicle did not block him, if he had tried to drive away, Sergeant Elton would have had to step away from Blye's vehicle.

Sergeant Elton "asked the person in the driver's seat what he was doing." And Blye "responded that he had pulled over to text someone." Sergeant Elton testified that he asked for identification. However, Blye testified that Sergeant Elton demanded it. Blye presented his state identification card—rather than a driver's license—to Sergeant Elton. While standing next to the vehicle, Sergeant Elton held on to Blye's identification card and "ran a records check throughdispatch." Sergeant Elton testified that while running the records check, he recognized Blye's name from his time working with officers who worked undercover in the department's narcotics division. Sergeant Elton asked Blye whether there were any drugs in the car; Blye answered that he had marijuana in the vehicle but no other drugs.

Dispatch then advised Sergeant Elton that there was a warrant for Blye's arrest for "Driving While License Suspended in the Third Degree." Sergeant Elton confirmed the warrant and requested a backup officer. When the additional officer arrived, Blye exited the vehicle and was placed under arrest. Sergeant Elton observed a bag of a brown powdery substance consistent with heroin on the driver's seat where Blye had been sitting. Sergeant Elton later requested a search warrant for the vehicle, which was impounded. The court granted the request, and Sergeant Elton searched the vehicle, removing the bag of suspected heroin he observed earlier and a similar one on the center console.

The State later charged Blye with possession of a controlled substance. Blye moved to suppress the heroin evidence, and the court conducted a CrR 3.6 hearing. Following the hearing, the court concluded that the contact between Sergeant Elton and Blye was a "social contact" but that Sergeant "Elton was permitted to briefly detain [Blye] pursuant to Terry v. Ohio² to determine the status of the defendant's driving privilege because he had reason to believe . . . the defendant had recently been driving." The court also concluded that the detention was "a permissible Terry stop, [and] therefore Sgt. Elton's detention byholding the identification card was lawful." Finally, the court determined that Sergeant Elton's observation of "the suspected heroin in the front driver's seat as [Blye] exited[ the vehicle] . . . was sufficient . . . to obtain a search warrant for the vehicle." The court thus denied Blye's motion to suppress the physical evidence.

A jury later found Blye guilty as charged. At sentencing, the court imposed a criminal filing fee and interest accrual on nonrestitution LFOs despite finding Blye indigent. Blye appeals.

ANALYSIS

Denial of Motion To Suppress

Blye contends that the trial court erred by concluding that he was lawfully detained and, thus, by denying his motion to suppress the bags of heroin found in the vehicle. We agree.

"We review the denial of a motion to suppress to determine whether substantial evidence supports the trial court's findings of fact and whether the findings of fact support the trial court's conclusions of law." State v. Boisselle, 194 Wn.2d 1, 14, 448 P.3d 19 (2019). "'Evidence is substantial when it is enough to persuade a fair-minded person of the truth of the stated premise.'" State v. Russell, 180 Wn.2d 860, 866-67, 330 P.3d 151 (2014) (internal quotation marks omitted) (quoting State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009)). "We review conclusions of law relating to the suppression of evidence de novo." State v. Eserjose, 171 Wn.2d 907, 912, 259 P.3d 172 (2011).

Here, Blye assigns error to only two of the trial court's findings of fact: (f) "Elton stood next to the B pillar of the vehicle away from the driver's door" and(h) "Elton asked the driver if he would mind handing him his identification." Sergeant Elton testified that he stood next to the B pillar at the door jamb behind the driver's door and that he "asked [Blye] if he would provide his identification" in a conversational tone. Although Blye's testimony conflicted with Sergeant Elton's, the court found Sergeant Elton's testimony "compelling" and made findings in accordance therewith. Because "we defer to the trier of fact on issues of conflicting testimony[ and] witness credibility," State v. Ramirez-Estevez, 164 Wn. App. 284, 294, 263 P.3d 1257 (2011), we conclude that Sergeant Elton's testimony constitutes substantial evidence supporting the trial court's findings. Thus, we consider findings (f) and (h) "binding" on this court and the trial court's remaining unchallenged findings "verities on appeal." State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).

We next turn to the trial court's conclusions of law that (1) Blye was not seized until Sergeant Elton held on to Blye's identification and (2) that seizure was a lawful Terry stop and, thus, the evidence found during the subsequent search was not the fruit of an unlawful seizure.

Where, as here, the findings of fact are upheld or verities on appeal, "'the ultimate determination of whether those facts constitute a seizure is one of law and is reviewed de novo.'" State v. Harrington, 167 Wn.2d 656, 662, 222 P.3d 92 (2009) (internal quotation marks omitted) (quoting State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997)). Blye has the burden of proving that a seizure in violation of his constitutional rights occurred. O'Neill, 148 Wn.2d at 574.

Here, Blye contends that he was seized at the point that Sergeant Elton asked for his identification. We disagree with this contention but agree with Blye that he was seized at the point that Sergeant Elton retained his identification.

A "'police officer's conduct in engaging a defendant in conversation in a public place and asking for identification does not, alone, raise the encounter to an investigative detention.'" See State v. Young, 135 Wn.2d 498, 511, 957 P.2d 681 (1998) (quoting Armenta, 134 Wn.2d at 11). Here, the trial court found that Sergeant Elton was located away from the driver's door, he had not activated his vehicle's emergency lights or sirens, and he did not demand identification. In other words, the trial court's findings do not include any of the common facts indicative of a seizure, such as "'the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.'" See Young, 135 Wn.2d at 512 (quoting United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)). Therefore, the trial court's findings support its conclusion that Blye was not seized when Sergeant Elton asked him for identification.

Blye was seized, however, when Sergeant Elton retained his identification. Specifically, because "[a] police encounter may ripen into a seizure in circumstances, for example, where the police officer retains the identification such that the defendant is not free to leave or becomes immobilized," State v. Beito, 147 Wn. App. 504, 509, 195 P.3d 1023 (2008), we agree with the trialcourt that an investigative detention, and thus a seizure, occurred when Sergeant Elton retained Blye's identification card to run a records check.

Turning next to whether this seizure was lawful, "a police officer may, without a warrant, briefly detain an individual for questioning if the officer has reasonable and articulable suspicion that the person is or is about to be engaged in criminal activity." State v. Carriero, 8 Wn. App. 2d 641, 663, 439 P.3d 679 (2019). Such a detention is referred to as a Terry stop. In determining the reasonableness of a Terry stop, "a court must evaluate the totality of circumstances presented to the investigating officer." State v. Doughty, 170 Wn.2d...