State v. Jackson

• Decision Date: 10 June 2019
• Docket Number: No. 76974-0-I,76974-0-I
• Parties: STATE OF WASHINGTON, Respondent, v. SHOMARI MASHINDA JACKSON, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. SHOMARI MASHINDA JACKSON, Appellant.

No. 76974-0-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

June 10, 2019

UNPUBLISHED OPINION

DWYER, J. — Shomari Jackson appeals from the judgment entered on a jury's verdict finding him guilty of unlawful possession of a firearm in the first degree. On appeal, he contends that evidence of the firearm should have been suppressed and his statement disclaiming ownership thereof should have been admitted. These contentions lack merit. However, he properly challenges the trial court's imposition of a DNA (deoxyribonucleic acid) collection fee at sentencing. We affirm the conviction but remand this matter to the sentencing court regarding the DNA fee.

I

Just after 1:00 a.m. on December 5, 2016, Officer Jesse Thomas of the Seattle Police Department was on duty and in uniform. He observed Shomari Jackson riding a bicycle without a helmet or proper lighting. Jackson was riding along Dearborn Street in an area known to be a site of frequent vehicle prowls. Officer Thomas observed as Jackson, oddly wearing a backpack across his chest, peered into several parked vehicles in a manner suggestive of prowling. Officer Thomas was aware that vehicle prowlers often carry tools to facilitate entry to vehicles and frequently wear backpacks across their chests to facilitate easy storage of tools and stolen items.

Officer Thomas, concerned both that Jackson was committing a traffic infraction and might be prowling vehicles, activated his vehicle's overhead lights, approached Jackson, and asked him to stop. When the officer did so, he observed Jackson trying to conceal the backpack and became further concerned that Jackson was manipulating an object inside the backpack.

After detaining Jackson, Officer Thomas informed him that he was being stopped for riding a bicycle without wearing a helmet. Officer Thomas did not mention his concern about vehicle prowling. Immediately, Jackson declared that he did not have any arrest warrants, that he had just purchased a bag of chips, and that he was returning to the homeless encampment on Airport Way where he was living. The officer knew this encampment to be a high crime area.

Jackson showed Officer Thomas an identification card from the Union Gospel Mission and gave his date of birth. The officer entered this information into a computer and discovered that Jackson had an extensive criminal history, including multiple felony convictions, and from an online police report learned that Jackson had recently been arrested after threatening a woman with a firearm. Officer Thomas was of the mistaken belief that the firearm Jackson was alleged to have possessed had not yet been recovered.

Another Seattle police officer, Joseph Belfiore, heard Thomas call for backup assistance over the police radio and arrived on the scene shortly thereafter. Officer Thomas's observations raised the suspicion that Jackson could be carrying a firearm in his backpack; thus, the officer decided that he would frisk Jackson for weapons before citing or releasing him. Officer Thomas informed Jackson that he wanted to frisk both Jackson and the backpack for weapons. He then directed Jackson to move to the front of his patrol car. Officer Thomas reached for the backpack, which Jackson was still holding. When Jackson attempted to retain the backpack, Officer Thomas took it from him and handed it to Officer Belfiore, who placed it on the ground.

Immediately before being patted down, Jackson admitted that he was carrying a Taser in his pocket. Officer Thomas removed the Taser but became concerned that Jackson might have a backup weapon on his person. A pat-down of Jackson's outer clothing led the officer to conclude that he did not.

However, Officers Thomas and Belfiore both formed the belief that the backpack was a possible safety risk. While Jackson had stated that the backpack contained a bag of chips, Officer Thomas thought that the weight of the backpack indicated that more than a bag of chips was inside. Although Officer Thomas had planned to return the backpack after citing Jackson, he and Officer Belfiore wished to check its contents for weapons. Officer Belfiore, now in possession of the backpack, believed that patting it down could risk discharging any firearm therein.

Thus, Officer Belfiore opened the front pocket of the backpack. Seeing nothing, he then opened the partially unzipped center pocket, shined his flashlight inside, and saw a .22 caliber revolver. Immediately, the officer said "firearm," prompting Jackson to state "That—that firearm is not mine." Officer Belfiore removed the revolver, noting that it was fully loaded with the hammer already cocked—meaning that only a short pull on the trigger was needed to fire the gun. This was the only item that Officer Belfiore found in the backpack.

Jackson was arrested for unlawful possession of a firearm. He did not present any testimony at the pretrial evidentiary hearing. Jackson's attorney, however, made several arguments for admitting Jackson's statement "That firearm is not mine." All were rejected by the trial court. In a police camera video of the incident, all audio was muted after Officer Belfiore said "firearm," and Jackson's statement was deemed excluded from the evidence at trial as inadmissible hearsay.

In a ruling on Jackson's motion to suppress the firearm, the trial court concluded that Officer Belfiore's visual inspection of the inside of the backpack was necessary, in view of the risk that Jackson might be armed, to neutralize the threat of harm to the officers and to the public. In doing so, the court rejected Jackson's argument that a bag must always be patted down before a visual inspection can be warranted. Instead, the judge concluded, officers have the authority to neutralize a threat in any manner reasonable under the totality of the circumstances. The circumstances identified by the trial court in its ruling were as follows:

First, the officer suspected the defendant of being in the parking lot for the purpose of car prowling.

Second, the defendant was wearing dark, baggy clothing, which was consistent with what a car prowler might be expected to wear.

Third, he was wearing a backpack on his front, unusual way to wear the backpack, which allowed it to be as what they described as a tactical vest to carry weapons and car prowl tools.

Fourth, the officers knew that car prowlers typically carry such weapons and tools to break in to cars.

Fifth, when Officer Thomas initially approached the defendant off camera, the officer testified that when he first approached the defendant, the defendant made furtive movements to place the backpack out of the officer's view.

The parking lot was in a high crime area.

The defendant said he was riding his bicycle back to his quarters at the nearby homeless encampment, which also was a high crime area.

The officer discovered that—during the database search that the defendant had a history of several felony convictions.

The defendant had been arrested only weeks earlier on allegations that he had threatened someone with a gun at the homeless encampment, which was where he was going at that moment, he said.

The defendant admitted that he had a Taser gun in his pocket, which suggested to the officers that the defendant likely also may have had a backup weapon on his person or in his backpack.

The backpack was heavy. That was inconsistent with the defendant's statement or implication that all he had in the pack was a bag of potato chips. It would have been imprudent for the officers not to investigate further to find out if that heavy object or objects was or were weapons. Although the defendant earlier had shown Officer Thomas a bag of chips in one of the compartments, that was by no means sufficient to dispel the officer's reasonable suspicion that were no—that there were weapons in the backpack. The backpack had several other compartments that could hold a weapon, including a large central compartment.

Under these circumstances, the court concluded:

I think it was reasonable for the officers [to] believe that merely patting down the backpack would not reveal a handgun or other weapon, especially if it were small. And I think it also was reasonable for the officers to be concerned that a vigorous patdown of the backpack might place them and the defendant in serious danger because it could cause the gun to discharge.

Thus, the court ruled not that police would always be entitled to visually search any bag but, rather, that looking into Jackson's backpack was a reasonable action under the totality of the circumstances then prevailing.

At trial, Officers Belfiore and Thomas, as well as Detective Nathan Janes, testified. Defense counsel's attempts to question Officer Belfiore as to whether Jackson had admitted to knowing the firearm was in the backpack was met with a sustained objection, with the trial court reasoning that such questioning was intended to elicit introduction of Jackson's hearsay statement ("That firearm is not mine."). Detective Janes testified that a revolver with the hammer fully drawn is significantly easier to accidentally discharge than is a revolver with the hammer in a forward position.

Jackson testified, claiming that he had rushed from his tent at the encampment to purchase groceries for his wife, who had just suffered a miscarriage. In his haste, he asserted, he had grabbed the wrong backpack and was returning from the store with a bag of chips when he was stopped. He also claimed that he had not noticed the revolver inside.

The jury returned a verdict of guilty. At sentencing, the judge deemed Jackson eligible for a special drug offender sentencing alternative, pursuant to RCW 9.94A.660, and waived imposition of a standard range sentence. Jackson was sentenced to 44.75 months in prison, to be followed by 44.75 months of community custody. The court imposed a $100 DNA collection fee. Jackson now appeals.

II

Jackson first...