                                                                        FILED 

                                                                    OCTOBER 14,2014 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 31608-4-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
JOHN WILLIAM WALLACE JR.,                     )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, C.J. - John William Wallace Jr. appeals his conviction of unlawful

possession of a controlled substance. He argues that methamphetamine found in his

pocket, resulting in the charge, was discovered in a search incident to an unlawful arrest

and, alternatively, that the arrest was the result of an unlawful detention. He also argues

that the State failed to present evidence ofprior convictions supporting the offender score

relied upon by the sentencing court and that he is entitled to be resentenced.

       We affirm his conviction but agree that Mr. Wallace is entitled to remand for

resentencing, although with an opportunity for the State to present evidence of Mr.

Wallace's criminal history.
No. 31608-4-111
State v. Wallace


                     FACTS AND PROCEDURAL BACKGROUND

       On October 19,2012, the Benton County Sheriffs Office was contacted by Linda

Wallace-Lincoln, who asked that deputies do a welfare check on her son, John William

Wallace Jr., based on a report to her that he might be suicidal and overdosing on drugs in

a trailer in rural Benton County. She stated that the trailer was condemned and

uninhabitable, and that no one was supposed to be staying there.

       Deputy Jean-Paul Benitez and his partner traveled to the address given and located

a small pull trailer, where they saw Mr. Wallace at the doorway. When they made eye

contact, he stepped back inside. Mr. Wallace was wearing jeans but no shirt and they

could see that he had cuts and blood on his knuckles. He was moving around,

"spin[ning] around in uncontrollable motions with the limbs and the body," a behavior

that the deputy referred to at trial as "tweaking out," and that he had learned was

indicative of being under the influence of some type of stimulant. Report of Proceedings

(RP) at 28. When the deputies asked Mr. Wallace to step out of the trailer, he did so with

"much difficulty." Clerk's Papers (CP) at 24. The deputy contacted dispatch and asked

that medics be sent to the trailer location.

       While awaiting the arrival of medics, the deputy noticed that one of the trailer's

side windows had been smashed and asked Mr. Wallace about it. Mr. Wallace told the

deputy that he had been sleeping when a sharp pain in his side caused him to jump and,

upset at the pain, he punched out the window.

                                               2

    No. 31608-4-III
    State v. Wallace


1
           When medics arrived, they bandaged Mr. Wallace's injured knuckles. They asked

I   Mr. Wallace what he had been taking, to which he responded that he had taken nothing


I   and that he was fine. Mr. Wallace refused further medical treatment, stated that he was

    not trying to hurt himself or anyone else, and "that he just wanted to go ... back to bed."

    Id.

           After the medics left, Deputy Benitez called Ms. Wallace-Lincoln, as the "original

    reporting party," to "let her know the status of her son and just basically give her

    disposition of what we found so far on the property and his condition that we observed."

    RP at 31. When Ms. Wallace-Lincoln learned that Mr. Wallace was indeed at the trailer

    and had broken a window, she told the deputy that she wanted her son charged with

    malicious mischief for damaging the trailer. She told the deputy that Mr. Wallace had

    repeatedly ignored her instructions to stay away from the property and that she had

    previously screwed the trailer doors shut-a claim that was consistent with the deputy's

    observation that the trailer door appeared to have been secured at one point but then

    forced open.

           According to Deputy Benitez's contemporaneous police report, "After speaking

    with Linda, I re-contacted John." CP at 24. The deputy advised Mr. Wallace that his

    mother had stated he was not supposed to be on the property. Mr. Wallace claimed that

    the trailer was "technically" his and his brother'S, that it had not been secured when he

    arrived, and that he had not forced his way in. Id. Deputy Benitez again called Ms.

                                                  3

No. 31608-4-III
State v. Wallace


Wallace-Lincoln, who insisted that the trailer had been left on the property by one of her

acquaintances, that she was the   ~~responsible   owner" of the property and trailer, and that

Mr. Wallace had no stake or claim to it. Id.

       Based on Ms. Wallace-Lincoln's representation that she was the responsible

owner, Mr. Wallace's admission that he had broken the window, and the deputy's own

observation of Mr. Wallace's injured knuckles and blood on the outside of the door to the

trailer as well as around the shattered window, Deputy Benitez arrested Mr. Wallace for

malicious mischief. When he conducted a search of Mr. Wallace incident to the arrest, he

found a small baggie containing a white crystalline substance in Mr. Wallace's front

pants pocket. It field tested positive for methamphetamine.

      Mr. Wallace was charged with unlawful possession of a controlled substance and

third degree malicious mischief. He moved to suppress the methamphetamine, relying on

Deputy Benitez's police report. While conceding that the deputy's initial contact with

him was justified as community caretaking, Mr. Wallace argued that the detention

exceeded the community caretaking function when the deputy continued to investigate

after Mr. Wallace was treated for his injured knuckles and refused further care. The

motion was denied.

      A jury found Mr. Wallace not guilty of the malicious mischief charge but guilty of

possession of a controlled substance. Based on an offender score of five, he was

sentenced to a year and a day in custody. He appeals.

                                                  4

No. 31608-4-111
State v. Wallace


                                        ANALYSIS

       Mr. Wallace contends that (1) probable cause did not exist for Deputy Benitez to

arrest him, (2) the detention was not lawful under the community caretaking exception,

and (3) the evidence was insufficient to support his offender score. We address the

claimed errors in turn.

                   1.     Was the search incident to an unlawful arrest?

       A search incident to arrest is one of the few specifically established and well-

delineated exceptions to the warrant requirement, derived from interests in officer safety

and evidence preservation that are typically implicated in arrest situations. State v.

MacDicken, 179 Wn.2d 936, 943, 319 P.3d 31 (2014) (Gordon McCloud, J., dissenting)

(quoting Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009)).

Only a lawful custodial arrest provides authority to search incident to arrest under article

I, section 7 of the Washington Constitution. State v. O'Neill, 148 Wn.2d 564, 585,62

P.3d 489 (2003). The lawfulness of an arrest stands on the determination of whether

probable cause supports the arrest. State v. Moore, 161 Wn.2d 880, 885, 169 P.3d 469

(2007). Mr. Wallace contends that Deputy Benitez lacked probable cause to arrest him

for malicious mischief in light of the conflicting information the deputy had received

about ownership of the trailer.!



       ! The State analyzes the facts under RCW 10.31.100, which governs whether a
police officer having probable cause to believe that a person has committed a crime may

                                              5

No. 31608-4-111
State v. Wallace


       Probable cause for arrest exists where an officer knows of circumstances that

would lead a reasonably cautious person to believe that the suspect has committed a

crime. State v. Terrovona, 105 Wn.2d 632,643, 716 P.2d 295 (1986). Probable cause is

not knowledge of evidence sufficient to establish guilt beyond a reasonable doubt but,

rather, is "reasonable grounds for suspicion coupled with evidence of circumstances to

convince a cautious or disinterested person that the accused is guilty." State v. Bellows,

72 Wn.2d 264,266,432 P.2d 654 (1967). We determine whether an arresting officer's

belief was reasonable after considering all the facts within the officer's knowledge at the

time of the arrest as well as the officer's special expertise and experience. State v. Fricks,

91 Wn.2d 391,398,588 P.2d 1328 (1979).

       Deputy Benitez's basis for arresting Mr. Wallace was largely information

provided by Ms. Wallace-Lincoln. In determining whether information provided by a

citizen informant furnishes probable cause for an arrest, we look to the Aguilar-SpinellP

test, which recognizes that an informant's information can furnish probable cause for



arrest him or her without a warrant. Mr. Wallace does not challenge the absence of a
warrant for his arrest, likely because Mr. Wallace's admitted breaking of the window
constituted "physical harm ... to ... property," which would support a warrantless arrest
under RCW 10.31.100(1). We will not address this issue further, since it is not the basis
of any assignment of error or argument by Mr. Wallace.
       2 Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli
v. United States, 393 U.S. 410, 89 S. Ct. 584,21 L. Ed. 2d 637 (1969). Both Aguilar and
Spinelli were abrogated by Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d
527 (1983), but adhered to by State v. Jackson, 102 Wn.2d 432,688 P.2d 136 (1984).

                                              6

No. 31608-4-111
State v. Wallace


arrest if the State establishes (1) the basis of the informant's information and (2) the

credibility of the informant or the reliability of the informant's information. State v.

Gaddy, 152 Wn.2d 64,71-72,93 PJd 872 (2004). In applying the second prong, if the

identity of an informant is known (as opposed to being anonymous or professional) the

necessary showing of reliability is relaxed, due to the lessened risk that the information is

rumor or irresponsible conjecture. Id. at 72. Citizen informants are deemed

presumptively reliable. Id. at 73.

       In this case, the deputy had a number of reasons for deeming Ms. Wallace­

Lincoln's information reliable, even though it later appeared that she had overstated her

interest in the property. Before the date of her request for the welfare check and the

arrest, Deputy Benitez had participated in an earlier call with Ms. Wallace-Lincoln, in

which she was requesting information from the sheriffs department about the legal steps

required to get her son off the property. He was aware that she had been provided with

information on the process, even though she had not followed it. He knew that Ms.

Wallace-Lincoln was the defendant's mother, and that the original purpose of her call had

been a request for a welfare check. Ms. Wallace-Lincoln's information had proved

reliable; Deputy Benitez and his partner found Mr. Wallace at the trailer, high on some

unknown substance, just as Ms. Wallace-Lincoln had anticipated he would be. Her claim

that the trailer had been secured with screws was consistent with the deputy's observation




                                              7

No. 31608-4-111
State v. Wallace


that the door appeared to have been formerly screwed into the doorframe but then forced

open.

        Mr. Wallace, on the other hand, did not inspire belief. His explanation that he

broke the window and cut his knuckles when he punched out the window in anger was a

bizarre response to being awakened by acute side pain. He told medics he had taken

nothing and was fine while visibly "tweaking out." RP at 28. When told of Ms. Wallace­

Lincoln's accusation that he was not allowed on the premises, Mr. Wallace initially stated

he was homeless and had nowhere else to go; it was only when told that his mother

wished to press criminal charges that he claimed that the trailer was "technically" his and

his brother's. CP at 24.

        Given Ms. Wallace-Lincoln's reasonably perceived credibility as the owner or

person responsible for the trailer and Mr. Wallace's admission that he had broken the

window, the deputy had probable cause to arrest him for malicious mischief.

                    II. Was the arrest the result ofan unlawful detention?

        Mr. Wallace concedes that the deputy's travel to the property and initial detention

was justified by the community caretaking exception to the warrant requirement, but

argues that the community caretaking function ended when the medics advised Deputy

Benitez that nothing further could be done unless Mr. Wallace sought medical treatment,

which he refused. He argues that the deputy should have ended his encounter with Mr.

Wallace at that point but instead continued to detain Mr. Wallace.

                                              8

No.31608-4-II1
State v. Wallace


       The State responds that Deputy Benitez's contact with Mr. Wallace was initially

lawful under the community caretaking exception and, based on what the deputy

observed, continuing contact was justified as a valid TerrI detention for suspicion of

criminal trespass and malicious mischief.

       When the community caretaking exception to the warrant requirement applies,

"police officers may conduct a noncriminal investigation so long as it is necessary and

strictly relevant to performance of the community caretaking function." State v. Kinzy,

141 Wn.2d 373, 388, 5 P.3d 668 (2000). "The noncriminal investigation must end when

reasons for initiating an encounter are fully dispelled." Id. The community caretaking

function must not be used as a pretext for an evidentiary search of criminal activity. State

v. Schlieker, 115 Wn. App. 264, 270, 62 P.3d 520 (2003).

       A Terry stop permits officers to briefly detain a person for questioning without

grounds for arrest if they reasonably suspect, based on "specific, objective facts" that the

person detained is engaged in criminal activity or a traffic violation. State v. Day, 161

Wn.2d 889,896, 168 P.3d 1265 (2007). A stop should be minimally intrusive so that the

seizure is "'reasonably related in scope to the justification for its initiation.'" State v.

Armenta, 134 Wn.2d 1, 16,948 P.2d 1280 (1997) (internal quotation marks omitted)

(quoting State v. Kennedy, 107 Wn.2d 1, 17, 726 P.2d 445 (1986) (Dolliver, C.J.,



       3   Terry v. Ohio, 392 U.S. 1,21,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968).

                                               9

No. 31608-4-III
State v. Wallace


dissenting)). "[T]he scope of a permissible Terry stop will vary with the facts of each

case, but ... it is 'clear' that Terry requires that an investigative detention must be

temporary, lasting no longer than is necessary to effectuate the purpose of the stop."

State v. Williams, 102 Wn.2d 733,738,689 P.2d 1065 (1984) (citing Florida v. Royer,

460 U.S. 491, 500, 103 S. Ct. 1319,75 L. Ed. 2d 229 (1983)).

       In evaluating the lawfulness of a Terry stop, we inquire whether the temporary

seizure was justified at its inception, and whether it was reasonably related in scope to the

circumstances that justified the initial interference. Williams, 102 Wn.2d at 739.

       In some cases, what begins as a noninvestigative detention under the community

caretaking function can evolve into an investigative detention. State v. Moore, 129 Wn.

App. 870, 874-75, 120 P.3d 635 (2005). In Moore, an officer stopped a vehicle that was

registered to an owner who was reported "'missing/endangered.'" Id. at 874. The officer

briefly detained the driver and passengers for the community caretaking purpose, during

which her interaction with one of the passengers led her to suspect that he was the subject

of an outstanding felony warrant. Id. After the officer verified his identity through the

alias he gave police and distinctive tattoos on his forearms, he was arrested and searched,

which revealed his possession of a controlled substance. Id. The court recognized that

the entire detention could not be justified as community caretaking but, given the

seamless introduction of a separate and valid basis for detention, it held that the

detention, resulting arrest, and search were all lawful. Id. at 874-75.

                                              10 

No. 31608-4-III
State v. Wallace


         In this case, we question as an initial matter whether the record supports Mr.

Wallace's implicit contention that he was "detained" after the medics left. Mr. Wallace

had no interest in leaving the trailer's location; he told Deputy Benitez that he had been

sleeping in the trailer before the deputies arrived and wanted to go back to bed-so the

deputy was not preventing Mr. Wallace from going anywhere. Indeed, while the record

is not entirely clear, the deputy's police report suggests that Mr. Wallace might have gone

back inside the trailer while the deputy called Ms. Wallace-Lincoln to report on her son's

condition. The police report states that after the deputy spoke with Ms. Wallace-Lincoln

on the telephone, "I re-contacted John." CP at 24.

         In any event, just as in Moore, the constitutionally permissible community

caretaking contact lasted long enough for the deputy to observe the broken window at a

trailer that the deputy knew Ms. Wallace-Lincoln had undertaken to trespass her son from

in the past, and that she had described to dispatch as condemned and off-limits. He was

told by Mr. Wallace before the medics completed their care that he had punched out the

trailer's window. These specific and articulable facts gave rise to a reasonable suspicion

that Mr. Wallace had engaged in criminal activity. The additional detention lasted only

as long as it took for the deputy to speak further with Ms. Wallace-Lincoln on the

telephone and examine the trailer further. Mr. Wallace's brief detention following his

refusal of further medical assistance-if there was a detention-was reasonable under

Terry.

                                              11 

No. 31608-4-III
State v. Wallace


                                    Ill.   Offinder score.

         Finally, Mr. Wallace argues that at the time of sentencing the State presented no

evidence of his prior convictions, with the result that his offender score should have

been 0, leading to a standard range of 0-6 months. The State concedes that it did not

present sufficient evidence of the prior convictions and that Mr. Wallace's conduct did

not amount to a waiver of the issue, but it points out that Mr. Wallace did not object in

the trial court. It concedes that the case should be remanded. The only point of

contention is whether Mr. Wallace's offender score should be "zero" on remand as a

result of the State's failure to meet its burden, as Mr. Wallace contends, or whether-as

the State argues-it should be given the opportunity to present evidence of Mr. Wallace's

past convictions.

         State v. Mendoza, 165 Wn.2d 913,930,205 P.3d 113 (2009) is controlling, and

holds:

         When a defendant raises a specific objection at sentencing and the State
         fails to respond with evidence of the defendant's prior convictions, then the
         State is held to the record as it existed at the sentencing hearing. But where
         ... there is no objection at sentencing and the State consequently has not
         had an opportunity to put on its evidence, it is appropriate to allow
         additional evidence at sentencing.

(Citation omitted.) Here, as in Mendoza, Mr. Wallace made no specific objections and

the sentencing court had no opportunity to correct any error. We therefore remand with a

full opportunity for the State to prove Mr. Wallace's criminal history at resentencing.


                                               12 

     No. 31608-4-111
     State v. Wallace


            We affirm the conviction and remand for further proceedings consistent with this

     OpInIOn.


           A majority of the panel has determined that this opinion will not be printed in the

     Washington Appellate Reports but it will be filed for public record pursuant to RCW

     2.06.040.




I

J
t    WE CONCUR:



     Brown, 1.



     Lawrence-Berrey.   J\




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