No. 30120-6-III

IN THE COURT OF APPEALS

OF THE

STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

RICHARD STONE,

Appellant.

ON APPEAL FROM THE SUPERIOR COURT OF THE

STATE OF WASHINGTON FOR YAKIMA COUNTY

The Honorable Judges Elofson and Gibson

APPELLANT’S OPENING BRIEF

KRISTINA M. NICHOLS

Attorney for Appellant

P.O. Box 19203

Spokane, WA 99219

(509) 280-1207

Fax (509) 299-2701

Wa.Appeals@gmail.com

i

TABLE OF CONTENTS

A. SUMMARY OF ARGUMENT .............................................................1

B. ASSIGNMENTS OF ERROR ...............................................................2

C. ISSUES PERTAINING TO ASSIGNMENTS OF ERROR .................3

D. STATEMENT OF THE CASE ..............................................................4

E. ARGUMENT .........................................................................................5

Issue 1: Whether the court erred by denying Mr. Stone’s motion

to suppress because: (a) the Terry stop was not justified by particularized

suspicion of criminal activity; (b) the officers lacked reasonable suspicion

to perform a Terry frisk; or (c) the officers exceeded the scope of a proper

Terry stop and frisk when they continued Mr. Stone’s invasive restraint,

knowing he was unarmed, in order to investigate possible criminal

activity…………………………………………………………………..…5

(a) Whether the initial seizure of Mr. Stone at gunpoint was justified by

his presence in a high crime area in the middle of the night, a lighter or

dome light flickering, and/or his “furtive movements” within the

vehicle upon being unexpectedly spotlighted by some unknown

entity......................................................................................................9

(b) Whether officers had reasonable suspicion to warrant a Terry frisk...14

(c) Whether, alternatively, officers exceeded the scope of a proper Terry

stop and frisk when they continued Mr. Stone’s invasive restraint,

knowing he was unarmed, in order to question him about otherwise

unsupported criminal activity……….……...16

Issue 2: Whether Mr. Stone’s conviction must be vacated because

he never waived his right to a jury trial, the court never consented to any

such waiver and no findings of fact or conclusions of law were entered to

support a conviction based on stipulated facts……..18

Issue 3: Whether the court erred by including erroneous

“boiler-plate” community custody conditions in Mr. Stone’s sentence…22

F. CONCLUSION.....................................................................................27

ii

TABLE OF AUTHORITIES

Washington Supreme Court

City of Bellevue v. Acrey, 103 Wn.2d 203, 691 P.2d 957 (1984) ……….19

State v. Armendariz, 160 Wn.2d 106, 156 P.3d 201 (2007)…………….23

State v. Armenta, 134 Wn.2d 1, 948 P.2d 1280 (1997)……………….7, 10

State v. Barnett, 139 Wn.2d 462, 987 P.2d 626 (1999)…………………23

State v. Day, 161 Wn.2d 889, 168 P.3d 1265 (2007)……………..8, 11, 14

State v. Duncan, 146 Wn.2d 166, 43 P.3d 513 (2002)…………………..16

State v. Garcia, 125 Wn.2d 239, 883 P.2d 1369 (1994)…………………12

State v. Gatewood, 163 Wn.2d 534, 182 P.3d 426 (2008)………...7, 10-13

State v. Graham, 130 Wn.2d 711, 927 P.2d 227 (1996)…………………13

State v. Harrington, 167 Wn.2d 656, 222 P.3d 92 (2009)……………...6, 7

State v. Head, 136 Wn.2d 619, 964 P.2d 1187 (1998)…………………..21

State v. Hill, 123 Wn.2d 641, 870 P.2d 313 (1994)………………………7

State v. Kennedy, 107 Wn.2d 1, 726 P.2d 445 (1986)………...9, 10, 13, 15

State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999)…………………...7

State v. Mulcare, 189 Wn. 625, 66 P.2d 360 (1937)……………………..25

State v. O'Neill, 148 Wn.2d 564, 62 P.3d 489 (2003)……………………..7

State v. Rankin, 151 Wn.2d 689, 92 P.3d 202 (2004)…………………….7

State v. Riley, 121 Wn.2d 22, 846 P.2d 1365 (1993)……………………23

State v. Setterstrom, 163 Wn.2d 621, 183 P.3d 1075 (2008)……...8, 14, 18

iii

State v. Sieler, 95 Wn.2d 43, 621 P.2d 1272 (1980)……………………..13

State v. Wicke, 91 Wn.2d 638, 591 P.2d 452 (1979)…………………19-21

State v. Young, 135 Wn.2d 498, 957 P.2d 681 (1998)………………….7, 8

Washington Courts of Appeals

State v. Adams, 144 Wn. App. 100, 181 P.3d 37 (2008)…………….12, 13

State v. Bliss, 153 Wn. App. 197, 222 P.3d 107, 110 (2009)………..10, 13

State v. Gantt, 163 Wn. App. 133, 257 P.3d 682 (2011)………………….7

State v. Henry, 80 Wn. App. 544, 910 P.2d 1290 (1995)………………..11

State v. Hos, 154 Wn. App. 238, 225 P.3d 389 (2010)………………19-21

State v. Jackson, 82 Wn. App. 594, 918 P.2d 945 (1996)………………...8

State v. Johnston, 38 Wn. App. 793, 690 P.2d 591 (1984)………….10, 17

State v. Jones, 118 Wn. App. 199, 76 P.3d 258 (2003)……………..23, 24

State v. Martinez, 135 Wn. App. 174, 143 P.3d 855 (2006)……………..12

State v. McKee, 141 Wn. App. 22, 167 P.3d 575 (2007)………………...24

State v. Otis, 151 Wn. App. 572, 213 P.3d 613 (2009)……………...21, 22

State v. Ramirez–Dominguez, 140 Wn. App. 233, 165 P.3d 391 (2007)...19

State v. Sansone, 127 Wn. App. 630, 111 P.3d 1251 (2005)…………….25

State v. Sweet, 44 Wn. App. 226, 721 P.2d 560 (1986)………………….13

State v. Vasquez, 109 Wn. App. 310, 34 P.3d 1255 (2001)……………...19

State v. Wilkerson, 107 Wn. App. 748, 31 P.3d 1194 (2001)……………26

State v. Williams, 97 Wn. App. 257, 983 P.2d 687 (1999)…………..25, 26

iv

State v. Williams, 148 Wn. App. 678, 201 P.3d 371 (2009)………………7

Federal Authorities

Adams v. Wms, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)…..13

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)……18

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)….passim

United States v. Loy, 237 F.3d 251, 266 (3rd

Cir. 2001)…………………25

United States v. Mohammad, 53 F.3d 1526 (7th

Cir. 1995)……………...25

U.S. Const. Amend. IV……………………………………………………7

U.S. Const. Amend. VI…………………………………………………..19

U.S. Const. Amend. XIV………………………………………………….7

Washington Constitution, Statutes & Court Rules

CrR 6.1(a)…………………………………………………………….19-21

RCW 9.94A.703……………………………………………………..23, 24

RCW 9.94A.704……………………………………………………..23, 25

RCW 9.94A.737…………………………………………………………23

RCW 9.94A.660(6)………………………………………………………23

RCW 9.94A.664………………………………………………………....23

RCW 9.94A.030(10)…………………………………………………24, 25

Wash. Const. Art. I, §7……………………………………………………7

Wash. Const. Art. I, §21…………………………………………………21

pg. 1

A. SUMMARY OF ARGUMENT

Richard Stone was convicted of possession of methamphetamine

after informing officers that he had methamphetamine in his vehicle,

which officers did locate following a warrant. But this evidence should

have all been suppressed, because it was obtained following Mr. Stone’s

unlawful seizure. Specifically, Mr. Stone’s initial stop was not supported

by articulable suspicion of criminal activity, his subsequent frisk was not

justified based on the circumstances of this case, and the ongoing invasive

encounter exceeded the scope of a proper Terry stop and frisk after

officers confirmed that no safety concern existed. Based on any of the

foregoing reasons, Mr. Stone’s suppression motion should have been

granted.

Alternatively, Mr. Stone’s conviction should be reversed because

the “stipulated facts trial” was procedurally inadequate. Mr. Stone never

stipulated to the facts supporting conviction in writing or on the record;

Mr. Stone never waived his write to a jury trial in writing or verbally on

the record; and the trial court failed to enter the findings and conclusions

that are required following a proper stipulated facts trial.

Finally, in the unlikely event that Mr. Stone’s conviction stands or

is re-imposed, the community custody conditions that are unauthorized by

the SRA should be stricken.

pg. 2

Ultimately, Mr. Stone requests that his conviction be reversed and

dismissed for lack of lawfully obtained evidence to support the crime.

B. ASSIGNMENTS OF ERROR

1. The court erred by denying Mr. Stone’s motion to suppress. [See

Conclusion of Law 20 and 21 (CP 79).]

2. The court erred by finding that Mr. Stone’s initial stop was justified

based on the facts set forth in FF 3-14 and entering CL 10-17. (CLCP 75-

76, 78).

3. The court erred by presumably finding that Mr. Stone’s investigatory

detention was lawful based on the facts set forth in FF 3-14. (CP 75-76).

Significantly, the court erred by failing to enter particular conclusions of

law as to whether a reasonable safety concern existed to justify a frisk for

weapons.

4. The court erred by presumably finding that the continued restraint of

Mr. Stone was lawful based on the facts set forth in FF 15-22. (CP 76)

The court also erred by finding that the defendant had smoked meth from

the pipe in his vehicle earlier that day, since the particular means of Mr.

Stone’s earlier ingestion was never discussed. (FF 24; CP 76)

Significantly, the court erred by failing to enter particular conclusions of

law as to whether Mr. Stone’s continued restraint while officers pursued

their criminal investigation was lawful. (CL 18-19; CP 79)

5. The court erred by admitting incriminating evidence obtained

following the unlawful seizure. (CL 20-21; CP 79)

6. The court erred by convicting Mr. Stone based on facts he did not

stipulate to verbally or in writing. (RP 87-89; CP 50-63)

7. The court erred by proceeding with a stipulated facts trial without first

obtaining a proper jury waiver. (RP 87-89; CP 50-63)

8. The court erred by failing to enter findings of fact or conclusions of law

following Mr. Stone’s “stipulated facts trial.” (RP 87-89; CP 50-63)

9. The court erred by prohibiting Mr. Stone from possessing alcohol while

on community custody. (Sentence Condition 4.C.2[17]; CP 68)

pg. 3

10. The court erred by delegating the determination of whether Mr. Stone

should engage in drug treatment or a drug/alcohol evaluation to DOC.

(Sentence Condition 4.C.2[11 and 14]; CP 68)

11. The court erred by convicting and sentencing Mr. Stone for

possession of a controlled substance, to wit, methamphetamine. (CP 65-

73)

C. ISSUES PERTAINING TO ASSIGNMENTS OF ERROR

Issue 1: Whether the court erred by denying Mr. Stone’s motion

to suppress because (a) the Terry stop was not justified by particularized

suspicion of criminal activity; (b) the officers lacked reasonable suspicion

to perform a Terry frisk; or (c) the officers exceeded the scope of a proper

Terry stop and frisk when they continued Mr. Stone’s invasive restraint,

knowing he was unarmed, in order to investigate possible criminal

activity.

(a) Whether the initial seizure of Mr. Stone at gunpoint was

justified by his presence in a high crime area in the middle of

the night, a lighter or dome light flickering, and/or his “furtive

movements” within the vehicle upon being unexpectedly

spotlighted by some unknown entity.

(b) Whether officers had reasonable suspicion to warrant a

weapons frisk.

(c) Whether, alternatively, officers exceeded the scope of a proper

Terry stop and frisk when they continued Mr. Stone’s invasive

restraint, knowing he was unarmed, in order to question him

about otherwise unsupported criminal activity.

Issue 2: Whether Mr. Stone’s conviction must be vacated because

he never waived his right to a jury trial, the court never consented to any

such waiver and no findings of fact or conclusions of law were entered to

support a conviction based on stipulated facts.

Issue 3: Whether the court erred by including erroneous “boiler-

plate” community custody conditions in Mr. Stone’s sentence.

pg. 4

D. STATEMENT OF THE CASE

On the morning of September 6, 2010, at 2:48 a.m., Officers

Urlacher and Pepper were patrolling in their marked police vehicle near a

recreational lake in Yakima County that they knew to be a high crime

area. (RP 7, 48-49) The officers drove with their headlights off as they

rounded a corner, and, upon seeing a single parked vehicle on the side of

the road, the officers turned on their spotlights to fully illuminate the

interior of the vehicle. (RP 7-8, 18, 24, 49) The officers had also seen a

flicker of light in the vehicle consistent with a lighter and/or a dome light

turning on and then off. (RP 22-23, 52, 57)

A male (Richard Stone) and a female occupied the front seats of

the vehicle. (RP 8, 25, 50) According to the officers, the individuals

immediately began making “furtive movements,” reaching below and to

the sides of their seats. (RP 8, 19, 30, 51) The officers approached the

vehicle from beyond the spotlight so that the occupants could not see them

coming, and the officers pointed their guns at the occupants in “ready

position” while giving commands to put their hands on the dash,

apparently due to the officers’ safety concerns. (RP 8-9, 31)

Mr. Stone began to exit the vehicle, but Officer Urlacher pushed

his door shut and instructed him and the female at gunpoint to put their

hands on the dash. (RP 8-9, 32-33) The officers then had Mr. Stone and

pg. 5

the female exit the vehicle, frisking them to ensure they had no weapons,

which they did not. (RP 9-10, 35) Mr. Stone followed all commands

during the frisk, and the officers confirmed that they no longer had safety

concerns. (RP 37, 39)

During the frisk, Mr. Stone informed Officer Urlacher that he was

on DOC supervision. (RP 10, 38) Officer Urlacher noticed that Mr. Stone

appeared shaky and sweaty with red glassy eyes, and he believed Mr.

Stone was under the influence of some stimulant, though the officer did

not smell or notice any alcohol or illegal substances. (RP 10, 23-24, 38)

Officer Urlacher asked Mr. Stone if there were any drugs or paraphernalia

in the car, and Mr. Stone answered that there was a meth pipe above the

driver’s visor. (RP 11, 53) The officers could see the pipe in plain view

from outside the vehicle and asked for consent to search the vehicle,

which Mr. Stone refused. (RP 11, 12, 42, 53) Officer Urlacher then told

Mr. Stone he thought he was “high” and asked Mr. Stone when he last

smoked. (RP 11-12) Mr. Stone answered earlier that day. (Id.) Officer

Urlacher arrested Mr. Stone for possession of drug paraphernalia. (RP 12,

43)

Mr. Stone was read his Miranda rights, after which Mr. Stone told

the officers that there was meth in the car. (RP 13, 40, 43) The car was

impounded and, after execution of a telephonic search warrant, the officers

pg. 6

located methamphetamine in an empty cigarette package in the vehicle.

(RP 13-14, 22, 44-46)

Mr. Stone moved to suppress the evidence as the fruit of an

unlawful seizure. The court denied his motion to suppress. (CP 74-80)

Mr. Stone was convicted of possession of methamphetamine following a

cursory stipulated facts trial. (CP 50-63; 87-95) This appeal timely

followed. (CP 84)

E. ARGUMENT

Issue 1: Whether the court erred by denying Mr. Stone’s

motion to suppress because (a) the Terry stop was not justified by

particularized suspicion of criminal activity; (b) the officers lacked

reasonable suspicion to perform a Terry frisk; or (c) the officers

exceeded the scope of a proper Terry stop and frisk when they

continued Mr. Stone’s invasive restraint, knowing he was unarmed, in

order to investigate possible criminal activity.

The court erred by denying Mr. Stone’s motion to suppress. The

initial seizure was not justified by particularized suspicion of criminal

activity. Alternatively, there was not sufficient basis to restrain Mr. Stone

in order to perform a weapons search. Regardless, once officers

confirmed Mr. Stone was unarmed, the defendant should have been

released rather than still restrained while officers questioned him in an

effort to uncover some evidence of a crime.

Whether a person was unlawfully seized is a mixed question of law

and fact. State v. Harrington, 167 Wn.2d 656, 662-63, 222 P.3d 92 (2009)

pg. 7

(citing State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997)). “‘The

[trial court’s] factual findings [are] entitled to great deference’ [and

reviewed for substantial evidence, while] ‘the ultimate determination of

whether those facts constitute a seizure is one of law and is reviewed de

novo.’” Id. (internal quotations omitted); State v. Gatewood, 163 Wn.2d

534, 539, 182 P.3d 426 (2008) (citing State v. Hill, 123 Wn.2d 641, 647,

870 P.2d 313 (1994); State v. Rankin, 151 Wn.2d 689, 694, 92 P.3d 202

(2004)).

Generally, warrantless searches and seizures are unconstitutional.1

State v. Williams, 148 Wn. App. 678, 683, 201 P.3d 371 (2009);

Gatewood, 136 Wn.2d at 539 (citing State v. Ladson, 138 Wn.2d 343, 349,

979 P.2d 833 (1999)). When a person establishes that he was seized,2 the

State must establish that the seizure was justified by a warrant or one of

the “jealously and carefully drawn exceptions” to the warrant requirement.

State v. Gantt, 163 Wn. App. 133, 257 P.3d 682, 686 (2011) (citing

1 Wash. Const. Art. I, §7 (“No person shall be disturbed in his private affairs, or his home

invaded, without authority of law.”); U.S. Const. Amend. IV (forbidding “unreasonable

searches and seizures.”); U.S. Const. Amend. XIV (applying Fourth Amendment to the

states); Harrington, 167 Wn.2d at 663 (internal citations omitted) (explaining, it is well

established that “Washington State Constitution affords individuals greater protections

against warrantless searches than does the Fourth Amendment.”)

2 A person is seized when, “considering all the circumstances, an individual's freedom of

movement is restrained and the individual would not believe he or she is free to leave or

decline a request due to an officer's use of force or display of authority.” Rankin, 151

Wash.2d at 695, 92 P.3d 202 (citing State v. O'Neill, 148 Wn.2d 564, 574, 62 P.3d 489

(2003)). See also State v. Young, 135 Wn.2d 498, 512, 957 P.2d 681 (1998) (seizure

occurs where officer displays weapon or uses language or a tone of voice compelling

compliance with officer requests).

pg. 8

Young, 135 Wn.2d at 510; State v. Jackson, 82 Wn. App. 594, 601–02,

918 P.2d 945 (1996)).

One exception to the warrant requirement, which is at issue in this

case, is the Terry3 investigative stop and protective frisk. In order to

justify a Terry stop and frisk, the State must show that: (1) the initial stop

is legitimate, (2) a reasonable safety concern exists to justify a protective

frisk for weapons, and (3) the scope of the frisk was limited to the

protective purpose.” State v. Day, 161 Wn.2d 889, 895, 168 P.3d 1265

(2007). The failure of any of these makes the frisk unlawful and the

evidence seized inadmissible. State v. Setterstrom, 163 Wn.2d 621, 626,

183 P.3d 1075 (2008).

Here, Mr. Stone was seized – that is, a reasonable person in his

position would not have felt free to leave – when the officers approached

him at gunpoint, shut his vehicle door while he was trying to exit and

commanded him and his passenger to put their hands on the dash.4 The

trial court agreed, and the State has not contested, that Mr. Stone was

seized at least by the time officers approached at gunpoint while issuing

3 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

4 Mr. Stone argued below that he was seized upon the initial spotlighting of his vehicle,

but this argument was rejected by State v. Young, 135 Wn.2d at 513-14. It should be

noted that the only evidence obtained between the spotlighting and the uncontested

seizure at gunpoint, was the officers witnessing “furtive movements” by Mr. Stone and

the passenger.

pg. 9

commands. Thus, the question for these purposes is whether the seizure

was justified.

At the time of Mr. Stone’s seizure, the officers were aware of the

following facts: a single vehicle was parked in the middle of the night in a

high crime area with its lights off; an unknown male and female were

sitting in the front of the vehicle; a lighter flickered once; a dome light

flashed on then off; and, upon being spotlighted, the vehicle occupants

made “furtive movements” by reaching under and toward the sides of their

seats.

The issue herein is whether the above facts (1) justified the initial

stop, (2) justified a protective weapons frisk and (3) supported the

continued restraint of Mr. Stone while officers questioned him regarding

possible drug activity. Since at least one or more of these factors was

unsupported, the evidence obtained following Mr. Stone’s improper

seizure should have been suppressed.

(a) Whether the initial seizure of Mr. Stone at gunpoint was

justified by his presence in a high crime area in the middle

of the night, a lighter or dome light flickering, and/or his

“furtive movements” within the vehicle upon being

unexpectedly spotlighted by some unknown entity.

“Whether defendant's rights were violated begins with the stop of

the car.” State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986) (internal

citations omitted). “If the initial stop was unlawful, the subsequent search

pg. 10

and fruits of that search are inadmissible as fruits of the poisonous tree.”

Id.

“A person may be briefly seized, that is, a police officer may make

an investigative stop, if articulable suspicion exists that the person has

committed, is committing, or is about to commit, a crime.” State v.

Johnston, 38 Wn. App. 793, 798, 690 P.2d 591 (1984) (citing Terry, 392

U.S. 1). There must be more than “a mere generalized suspicion that the

person detained may have been up to no good.” State v. Bliss, 153 Wn.

App. 197, 204, 222 P.3d 107, 110 (2009) (internal citations omitted).

“The officer must have an ‘articulable suspicion,’ meaning ‘a substantial

possibility that criminal conduct has occurred or is about to occur.’” Id.

(quoting Kennedy, 107 Wn.2d at 6). “The officer must be able to identify

specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant the intrusion.” Id. (internal citations

omitted). Innocuous facts do not justify a stop. Armenta, 134 Wn.2d at

13). “In determining whether the officer’s suspicion was reasonable,

courts look to the totality of the circumstances.” Bliss, 153 Wn. App. at

204. “The officers’ actions must be justified at their inception.”

Gatewood, 163 Wn.2d at 539 (internal citations omitted).

“Startled reactions to seeing the police do not amount to reasonable

suspicion.” Gatewood, 163 Wn.2d at 540 (citing State v. Henry, 80 Wn.

pg. 11

App. 544, 552, 910 P.2d 1290 (1995) (nervousness is not sufficient for

Terry stop)). In State v. Gatewood, supra, the Supreme Court found an

alleged Terry stop invalid where it was after midnight, a defendant

appeared startled to see police drive by, he twisted his body in a manner as

if he was trying to conceal something, he jaywalked away from the area

after police passed, and he refused to stop when officers circled back and

requested he do so. Id. at 537-40. The Court reversed the defendant’s

conviction based on the unlawful seizure, holding in pertinent part:

“Officers’ seizure of Gatewood was premature and not justified by

specific, articulable facts indicating criminal activity. Although

circling back to investigate Gatewood’s furtive movements was

proper, the officers did not have reasonable suspicion that he

committed or was about to commit a crime. They could have

continued to follow Gatewood or engaged in a consensual

encounter to further investigate the activity5 Longley observed in

the bus shelter… Since Gatewood did not flee from the officers, it

was not necessary to take swift measures…

“Officers seized Gatewood to conduct a speculative criminal

investigation. Our constitution protects against such warrantless

seizures and requires more for a Terry stop. Since the initial stop of

Gatewood was unlawful, the ‘subsequent search and fruits of that

search are inadmissible.’”

Gatewood, 163 Wn.2d at 541-42 (internal quotations omitted) (emphases

added).

Likewise, presence in a high crime area at night is also not enough

to create reasonable suspicion of criminal activity and perform a Terry

5 See also Day, 161 Wn.2d 889 (Court held that, since there were no grounds for a Terry

stop based on a parking infraction, the subsequent Terry frisk was invalid. Court noted

that officers should have instead conducted further investigation since they had not yet

observed facts to justify a Terry stop.)

pg. 12

stop. State v. Martinez, 135 Wn. App. 174, 180, 143 P.3d 855 (2006);

Gatewood, 163 Wn.2d at 541-42. “The circumstances must suggest a

substantial possibility that the particular person has committed a specific

crime or is about to do so.” Martinez, 135 Wn. App. at 180 (citing State v.

Garcia, 125 Wn.2d 239, 242, 883 P.2d 1369 (1994)). See also State v.

Adams, 144 Wn. App. 100, 106, 181 P.3d 37 (2008) (reiterating that even

a brief seizure is not justified by mere proximity to criminal activity.)

Here, Mr. Stone was parked in a high crime area at night and he

made “furtive movements” – i.e. he reached below and/or to the sides of

his seat – upon the spotlighting of his vehicle. But, based on Martinez and

Gatewood, supra, neither furtive movements nor presence in a high crime

area at night justify an initial Terry stop. It was just as likely that any

surprised movements or nervousness by Mr. Stone resulted from being

unexpectedly spotlighted in the middle of the night by some unknown

person(s).

Regardless, even had the defendant suspected that officers were

controlling the spotlight, it is well settled that a person’s nervous reactions

to seeing officers do not justify a Terry stop. In other words, innocuous

facts are not enough to justify this initial seizure. Such innocuous facts

included the aforementioned “furtive movements” and “known crime

area” information along with the fact that the officers saw some flicker of

pg. 13

light. All of these circumstances, even when taken as a whole and

considering the officers’ experience, could have been attributed to any

number of lawful activities. Like in Gatewood, supra, where the

defendant appeared nervous and tried to conceal something from officers

before walking away, the minimal indicia of criminality in this case cannot

support a valid Terry stop. There was not reasonable suspicion that Mr.

Stone was engaged in or about to engage in any criminal activity; his

initial seizure was unlawful.

Finally, the officers may have suspected that Mr. Stone was “up to

no good” (Bliss, 153 Wn. App. at 204), but such a belief would not justify

the full, commanding seizure at gunpoint that occurred in this case.

Unlike proper Terry stops where officers have had some articulable reason

to stop a suspect in order to pursue a criminal investigation,6 the officers in

this case stopped Mr. Stone in order “to conduct a speculative criminal

investigation.” Gatewood, 163 Wn.2d at 541-42. Like explained in

Gatewood, supra, the officers here did not have to take swift measures.

6 See e.g. State v. Graham, 130 Wn.2d 711, 927 P.2d 227 (1996) (Terry stop justified

based on suspicion of criminal activity where officers saw defendant carrying a wad of

money and apparent baggie of rock cocaine.) State v. Sweet, 44 Wn. App. 226, 721 P.2d

560 (1986) (Terry stop justified where officers responded to a call about a suspicious

truck and found only defendant in area, hiding in bushes and subsequently fleeing at

officers’ approach). State v. Adams, 144 Wn. App. at 104 (officers legitimately stopped

defendant driver based on fact that car was reported stolen.) Adams v. Williams, 407 U.S.

143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (initial stop lawful based on reliable tip of

criminal activity from informant.) Kennedy, 107 Wn.2d 1 (same as previous); State v.

Sieler, 95 Wn.2d 43, 621 P.2d 1272 (1980) (same as previous).

pg. 14

Our constitution protects against the seizure that occurred in this

case. Since the initial stop cannot be justified by articulable suspicion of

criminal activity by Mr. Stone, this Court need not determine the

appropriateness of the officers’ subsequent and progressive search actions.

The ongoing encounter and evidence derived as a result were tainted by

this initial illegal stop. Thus, the trial court erred by denying Mr. Stone’s

motion to suppress. Mr. Stone respectfully urges this Court to reverse his

conviction and dismiss due to a lack of lawfully obtained evidence.

(b) Whether officers had reasonable suspicion to warrant a

weapons frisk.

As set forth above, this Court need not determine whether Mr.

Stone’s frisk for weapons was lawful since Mr. Stone’s initial stop was

unlawful, thus tainting the subsequent encounter. But, in the event this

Court deems the initial stop valid, Mr. Stone argues that the evidence

should nonetheless be suppressed since there was not sufficient basis for

the weapons frisk.

To reiterate, a Terry stop is authorized if police have a reasonable

suspicion of criminal activity. Day, 161 Wn.2d at 895. But a frisk for

weapons requires something more. Id. “To justify a frisk without

probable cause to arrest, an officer must have a reasonable belief, based on

objective facts, that the suspect is armed and presently dangerous.”

Setterstrom, 163 Wn.2d at 626 (internal citation omitted). “‘Reasonable

pg. 15

belief that the suspect is armed and presently dangerous means, ‘some

basis from which the court can determine that the detention was not

arbitrary or harassing.’” Id. (internal quotations omitted). Ultimately,

even if a reasonable safety concern justified a weapons frisk, the evidence

remains inadmissible if the initial Terry stop was unjustified. Kennedy,

107 Wn.2d at 9 (“No [weapons] search can be reasonable if the initial

detention is unlawful.”)

Here, the officers acted in an arbitrary and harassing manner

without legal justification. Officer Urlacher testified that, in his

experience, he and his colleagues have approached other vehicles in the

same aggressive manner that they approached Mr. Stone’s vehicle

“hundreds of times.” In other words, it appears the officers engage in a

common practice of surprising vehicle occupants when they are parked in

a known crime area at night, blinding the occupants with spotlights and

then rushing up to the nervous occupants in a secretive manner with guns

in ready position, all in an effort to pursue speculative criminal

investigations. This Court should not sanction such intrusive behaviors by

law enforcement.

The officers’ basis for conducting a weapons frisk in this case was

no more justified than the initial stop itself. The officers were not

investigating any tips that the vehicle occupants possessed weapons, no

pg. 16

weapons were ever seen, the officers were not investigating any particular

dangerous crime, and there was never any sign of aggression from the

vehicle occupants. Without something more, the weapons frisk should not

be upheld.

Regardless, no weapons search can be upheld where the initial

detention was unlawful. Mr. Stone maintains that both the initial stop and

subsequent frisk were unlawful, either of which required the evidence to

be suppressed in this case.

(c) Whether, alternatively, officers exceeded the scope of a

proper Terry stop and frisk when they continued Mr.

Stone’s invasive restraint, knowing he was unarmed, in

order to question him about otherwise unsupported

criminal activity.

The officers exceeded the scope of Terry at least when they

continued questioning the unarmed and restrained Mr. Stone about

possible drug activity.

“Terry does not authorize a search for evidence of a crime…” Day,

161 Wn.2d at 895. Instead, “officers are allowed to make a brief,

nonintrusive search for weapons if, after a lawful Terry stop, ‘a reasonable

safety concern exists to justify the protective frisk for weapons’ so long as

the search goes no further than necessary for protective purposes.” Id.

(emphases added) (quoting State v. Duncan, 146 Wn.2d 166, 172, 43 P.3d

513 (2002)). If the initial stop is not lawful, or if the officer’s professed

pg. 17

belief of danger does not objectively justify the frisk, or if the search

exceeds its proper bounds, then the fruits of the search may not be

admitted. Id. (internal citations omitted).

Where criminal activity is suspected, officers must use the least

intrusive means reasonably available to verify or dispel their suspicions.

Johnston, 38 Wn. App. at 799 (holding, officer was not justified in

ordering suspects out of house at gunpoint before verifying his suspicions

that a burglary had been committed). “[A]n investigative detention must

be temporary and last no longer than is necessary to effectuate the purpose

of the stop.” Id. (internal citations omitted).

Here, the initial stop and subsequent frisk were unlawful and

warrant suppression of the evidence. In the event this Court disagrees,

Mr. Stone argues that the ongoing restraint after officers confirmed he was

unarmed and when he was fully cooperative with law enforcement was

improper. The scope of the supposed Terry stop was exceeded. Once the

officers dispelled their suspicions that Mr. Stone was unarmed, the

defendant should not have remained subject to the invasive seizure so that

officers could search for evidence of a crime.

The officers used Mr. Stone’s frisk as an opportunity to pursue

their speculative criminal investigation and seek evidence of any

unspecified crime. They questioned Mr. Stone regarding drug activity

pg. 18

during and after the frisk, never attempting to segue into a consensual

encounter after confirming that Mr. Stone was unarmed. The progressive

questioning and ongoing restraint7 went much further than necessary to

effectuate the supposed purpose of the protective frisk, namely “officer

safety.” Mr. Stone’s restraint did not constitute a brief and nonintrusive

frisk for weapons, nor did it constitute a brief investigative stop based on

reasonable suspicion of any particular criminal activity.

The overall methods employed by the officers in this case were not

the least intrusive means reasonably available. Either the initial stop was

unlawful, the weapons frisk unsupported or, at a minimum, the scope of a

proper Terry stop and frisk were exceeded. Mr. Stone respectfully

requests that his conviction be reversed and the matter dismissed for lack

of any admissible evidence to support the crime charged. See Mapp v.

Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

Issue 2: Whether Mr. Stone’s conviction must be vacated

because he never waived his right to a jury trial, the court never

consented to any such waiver and no findings of fact or conclusions of

law were entered to support a conviction based on stipulated facts.

Mr. Stone was convicted following a “stipulated facts trial,” yet the

required procedures for such a bench trial were never followed.

Specifically, Mr. Stone never waived his right to a jury trial, either in

7 Mr. Stone’s ongoing restraint could not be justified by the officer’s belief that Mr.

Stone appeared to be under the influence since this is not a crime in itself. Setterstrom,

163 Wn.2d at 626 (officer’s belief that suspect was under the influence of

methamphetamine did not justify frisk without probable cause to arrest.)

pg. 19

writing and/or on the record; the court did not consent to any such jury

waiver; the defendant never verbally or in writing stipulated to the facts in

support of conviction; and the trial court failed to enter any findings or

conclusions following the stipulated facts trial. Mr. Stone’s conviction

must be vacated.

In order to proceed with a stipulated facts bench trial, any case that

is required to be tried by a jury, like the criminal matter herein, “shall be

so tried unless the defendant files a written waiver of a jury trial, and has

consent of the court.” CrR 6.1(a). “The State bears the burden of

establishing the validity of the defendant's jury trial waiver, and [the

reviewing Court] must indulge every reasonable presumption against such

waiver, absent a sufficient record.” State v. Hos, 154 Wn. App. 238, 249,

225 P.3d 389 (2010) (citing State v. Wicke, 91 Wn.2d 638, 645, 591 P.2d

452 (1979)). The validity of a jury trial waiver is reviewed de novo. State

v. Ramirez–Dominguez, 140 Wn. App. 233, 239, 165 P.3d 391 (2007);

State v. Vasquez, 109 Wn. App. 310, 319, 34 P.3d 1255 (2001).

Given that the right to a jury trial is constitutional,8 any waiver of

the right to a jury must be “voluntary, knowing, and intelligent.” Hos, 154

Wn. App. at 249 (citing City of Bellevue v. Acrey, 103 Wn.2d 203, 207,

691 P.2d 957 (1984)); Vasquez, 109 Wn. App. at 319. In the event that

8 U.S. Const. Amend. VI; Wash. Const. art. I, §21.

pg. 20

there is no written jury waiver as required by CrR 6.1(a), the error can

only be excused where “the record is otherwise sufficient to show a valid

waiver under the rule.” Id. at 250. To satisfy the constitutional safeguard

of the right to a jury, “the record must contain the defendant's personal

expression of waiver; counsel's waiver on the defendant's behalf is not

sufficient.” Id. (citing Wicke, 91 Wn.2d at 644).

For instance, a defendant’s conviction was reversed in State v.

Hos, supra, where the defendant did not sign a written jury trial waiver,

and the court did not “question [the defendant] on the record to determine

whether she knowingly, intelligently and voluntarily waived her right to a

jury trial, or even whether she had discussed the issue with her defense

counsel or understood what rights she was waiving.” Hos, 154 Wn. App.

at 252. See also Wicke, 91 Wn.2d at 644-45 (reversed where court did not

question defendant about whether he had discussed the jury waiver with

defense counsel or agreed to the waiver, and where no written jury waiver

was filed)).

Here, there is no evidence in the record that Mr. Stone stipulated to

the facts supporting his conviction or waived his right to a jury trial in

writing or otherwise. Indeed, the stipulated facts bench trial only

consisted of the trial court indicating that it had reviewed the “stipulated”

documents, which included the police reports and Mr. Stone’s booking

pg. 21

information, and thereafter finding Mr. Stone guilty. (RP 87-89; CP 50-

63) There is no written or verbal stipulation by the defendant to any of the

facts supporting his conviction.

Furthermore, and perhaps most significantly, there is no written

waiver of jury trial document in the trial court’s file. And the court did not

conduct a colloquy with Mr. Stone regarding the existence of the right to a

jury trial, whether he had discussed the waiver with defense counsel or

whether he understood the rights he was waiving. The court neither

complied with CrR 6.1(a) nor the constitutional requirement that any jury

waiver be knowingly, voluntarily and intelligently made. Given the

absence of a written waiver or any discussion with the defendant on the

record regarding the jury trial waiver, Mr. Stone’s conviction must be

reversed like in State v. Hos, supra, and State v. Wicke, supra.

Finally, “in a case tried without a jury, the court shall enter

findings of fact and conclusions of law. In giving the decision, the facts

found and the conclusions of law shall be separately stated.” CrR 6.1(d).

“[T]he trial court's failure to enter written findings of fact and conclusions

of law following a criminal bench trial requires [reversal of] judgment and

sentence and remand.” State v. Otis, 151 Wn. App. 572, 576-577, 213

P.3d 613 (2009) (citing State v. Head, 136 Wn.2d 619, 620-21, 964 P.2d

1187 (1998)). “Because written findings and conclusions facilitate

pg. 22

appellate review, reviewing courts will generally refuse to address issues

raised on appeal in the absence of such findings and conclusions.” Id.

Here, the absence of any factual stipulation by the defendant or

proper jury waiver is exacerbated by the complete absence of any findings

of fact or conclusions of law. Mr. Stone is unable to address any other

errors that may have existed given the absence of such findings and

conclusions. Based on the multiple errors at this stipulated facts trial, this

matter cries for reversal.

Issue 3: Whether the court erred by including erroneous

“boiler-plate” community custody conditions in Mr. Stone’s sentence.

It is expected that Mr. Stone’s conviction following the erroneous

“stipulated facts trial” will be reversed and vacated. Furthermore, given

that the evidence supporting his conviction should have been suppressed,

the matter should ultimately be dismissed. However, in the event that

further proceedings occur, the erroneous “boiler-plate” community

custody conditions should be removed from any future judgment and

sentence form. Specifically, the trial court cannot order the defendant not

to possess alcohol since this condition was not crime-related or otherwise

authorized by the SRA. And, DOC cannot be given the authority to

determine if treatment or evaluations are necessary for Mr. Stone as this

would constitute an improper delegation of judicial powers.

pg. 23

As a threshold matter, defendants can object to community custody

conditions for the first time on appeal. State v. Jones, 118 Wn. App. 199,

204, 76 P.3d 258 (2003). Whether a crime-related prohibition is justified

based on the evidence presented is reviewed for abuse of discretion. State

v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993). An abuse of discretion

occurs where the trial court’s decision to impose a condition is manifestly

unreasonable or based on untenable grounds, including conditions

unauthorized by law. Id. Where the defendant challenges a condition as

unauthorized under the SRA, this Court’s review hinges on statutory

interpretation and, as such, de novo review is appropriate. State v.

Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).

The trial court may impose a sentence only if it is authorized by

statute. State v. Barnett, 139 Wn.2d 462, 464, 987 P.2d 626 (1999).

When a defendant receives a residential DOSA (Drug Offender

Sentencing Alternative) sentence, as here, the trial court may impose

certain community custody conditions pursuant to RCW 9.94A.703, .704

and .737. RCW 9.94A.660(6); RCW 9.94A.664. For instance, pursuant

to RCW 9.94A.703, the court may order an offender to “[p]articipate in

crime-related treatment or counseling services;” “[r]efrain from

consuming alcohol” (emphasis added); or “[c]omply with any crime-

pg. 24

related prohibitions.” RCW 9.94A.703(3)(c), (e), (f). “Crime-related

prohibition” means:

“an order of a court prohibiting conduct that directly relates to the

circumstances of the crime for which the offender has been

convicted, and shall not be construed to mean orders directing an

offender affirmatively to participate in rehabilitative programs or

to otherwise perform affirmative conduct. However, affirmative

acts necessary to monitor compliance with the order of a court may

be required by the department.”

RCW 9.94A.030(10).

Here, the condition requiring that Mr. Stone not consume alcohol

appears valid since this prohibition is specifically authorized by RCW

9.94A.703(e) and does not have to be crime-related. However, Mr. Stone

cannot be refrained from possessing alcohol since such a condition is not

authorized by the SRA and there is no evidence that alcohol contributed to

Mr. Stone’s crime. Jones, 118 Wn. App. at 202–03; State v. McKee, 141

Wn. App. 22, 34, 167 P.3d 575 (2007). The particular community custody

condition that Mr. Stone not possess alcohol should be stricken.

Next, Mr. Stone argues that the conditions that he attend and

participate in a crime-related counseling program if ordered to do so by

the corrections officer and that he complete a chemical dependency

evaluation as ordered by DOC (CP 68) are improper because they

constitute an improper delegation of the trial court’s authority to DOC.

pg. 25

The imposition of crime-related prohibitions must be made by the

Court, not DOC. See RCW 9.94A.030(10), supra. Sentencing courts do

have the power to delegate some aspects of community placement to

probation. State v. Sansone, 127 Wn. App. 630, 642, 111 P.3d 1251

(2005).9 For instance, DOC may require certain affirmative acts in order

to monitor compliance with the order of the court. RCW 9.94A.030(10).

See also State v. Riles, 86 Wn. App. 10, 16-17, 936 P.2d 11 (1997)

(polygraph testing permissible condition to monitor offender’s compliance

with court-ordered conditions). However, sentencing courts may not

delegate excessively. Sansone, 127 Wn. App. at 642; RCW 9.94A.704. A

sentencing court “may not wholly ‘abdicate [] its judicial responsibility’

for setting the conditions of release.” Sansone, 127 Wn. App. at 643

(quoting United States v. Loy, 237 F.3d 251, 266 (3rd

Cir. 2001) (quoting

United States v. Mohammad, 53 F.3d 1526, 1538 (7th

Cir. 1995))).

In State v. Williams, the defendant argued that that it was an

improper delegation of judicial authority to allow the probation

department to establish the specific conditions of his probation. State v.

Williams, 97 Wn. App. 257, 264, 983 P.2d 687 (1999). The Court agreed

9 While it is the function of the judiciary to determine guilt and impose sentences, “the

execution of the sentence and the application of the various provisions for the mitigation

of punishment and the reformation of the offender are administrative in nature and are

properly exercised by an administrative body, according to the manner prescribed by the

Legislature.” Sansone, 127 Wn. App. at 642 (quoting State v. Mulcare, 189 Wn. 625,

628, 66 P.2d 360 (1937)).

pg. 26

that the precise delineation of the terms of probation is a core judicial

function. Id. at 264-65. “The task cannot be delegated to a probation

officer, treatment provider, or other agency.” Williams, 97 Wn. App. at

264.10

Here, if Mr. Stone’s conviction stands or is re-imposed upon future

proceedings, the delegation of authority to DOC to impose treatment and

substance abuse evaluation conditions should be stricken. While DOC

may require certain affirmative acts in order to monitor Mr. Stone’s

compliance with conditions, the necessity of these community custody

treatment conditions should first be established by the court since this is a

core judicial function. This task cannot be delegated to a probation officer

or treatment provider, particularly where the defendant has not been

advised of his right to a hearing, and no procedure is apparently in place

for the trial court to ratify and adopt DOC’s conditions as its own like in

Williams, supra.

Based on the foregoing, Mr. Stone respectfully requests that the

offending conditions be stricken.

10

Although the Court agreed that delineating terms of probation is a core judicial

function, it ultimately concluded that no reversible error occurred where the sentencing

court advised probationer of the right to a hearing, the conditions of probation were clear

and understandable, and the court ratified the terms recommended by the probation

officer or treatment agency and adopted them as its own. Williams, 97 Wn. App. at 265.

See also State v. Wilkerson, 107 Wn. App. 748, 756, 31 P.3d 1194 (2001).

pg. 27

F. CONCLUSION

Mr. Stone’s conviction for possession of methamphetamine should

be reversed because it was based on unlawfully obtained evidence. Mr.

Stone’s initial seizure, subsequent frisk, and ongoing restraint while police

performed a speculative criminal investigation were all improper. Any

one of these improprieties can and should justify the suppression of the

incriminating evidence in this case. Alternatively, Mr. Stone’s conviction

must be reversed and vacated because he did not stipulate to the facts

supporting his conviction, he never waived his right to a jury and the trial

court never entered the required findings fact and conclusions of law

following the bench trial. Finally, in the unlikely event that Mr. Stone is

resentenced or his conviction stands, he requests that the unsupported

community custody conditions be stricken since they lack authority under

the SRA.

Respectfully submitted this 21st day of November, 2011.

/s/ Kristina M. Nichols ________________

Kristina M. Nichols, WSBA #35918

Attorney for Appellant