                                                                        FILED
                                                                   FEBRUARY 25, 2020
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )        No. 36450-0-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
SHILOH KORACK KELLEY,                         )        UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. — Shiloh Kelley appeals his convictions for possession of a

controlled substance and making a false statement, arguing that all of the evidence

against him was the product of an illegal seizure. Agreeing with the trial court that no

unlawful seizure occurred, we affirm.

                                         FACTS

       Spokane Police Officer Brandon Rankin was on patrol at 3:00 a.m. on June 26,

2018. He pulled into a gas station and observed a woman suddenly leave her car and

enter the convenience store. Officer Rankin approached her vehicle and shined his

flashlight through the window. Inside he observed a methamphetamine smoking device,

a white crystalline substance on the floor, and a male—later identified as the appellant—

in the backseat. Upon returning, the woman claimed she did not have drugs and did not
No. 36450-0-III
State v. Kelley


know the man. Officer Rankin requested a search warrant for the vehicle and asked the

male occupant for his name, which he claimed was “Ryan Ogden.” A records check

showed the male was not Ryan Ogden. Officer Rankin arrested the man for obstruction

and, during a search incident to arrest, found a bag containing heroin. Another officer

identified the male as Mr. Kelley.

       The defense moved to suppress both Mr. Kelley’s statements and evidence

uncovered by the search, claiming that the seizure was unlawful. The court found no

seizure occurred until law enforcement had reasonable suspicion to detain the appellant.

       A jury convicted Mr. Kelley for making a false or misleading statement and

possession of controlled substance. The court imposed a residential chemical

dependency treatment sentence.

       Mr. Kelley timely appealed to this court. A panel considered his appeal without

hearing argument.

                                       ANALYSIS

       The sole issue presented is whether the trial court properly denied the motion to

suppress.

       We review findings entered following a suppression hearing for substantial

evidence. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). “Evidence is

substantial when it is enough ‘to persuade a fair-minded person of the truth of the stated

premise.’” State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009) (quoting State v.

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No. 36450-0-III
State v. Kelley


Reid, 98 Wn. App. 152, 156, 988 P.2d 1038 (1999)). The appellate court reviews de

novo the conclusions derived from the factual findings. State v. Armenta, 134 Wn.2d 1,

9, 948 P.2d 1280 (1997). It is the defendant’s burden in a suppression hearing to

establish that he was seized. State v. O’Neill, 148 Wn.2d 564, 575, 62 P.3d 489 (2003).

Once a seizure has been established, it is the State’s burden to show it was justified.

State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 (2006).

       A police officer’s conduct—not the officer’s intent—determines whether a seizure

occurred. State v. Harrington, 167 Wn.2d 656, 663-664, 222 P.3d 92 (2009). A seizure

does not occur when police approach publically parked cars if the occupants are free to

leave. State v. Mote, 129 Wn. App. 276, 289-290, 120 P.3d 596 (2005). It is not a search

for an officer to use a flashlight to view inside a vehicle. State v. O’Neill, 148 Wn.2d at

578. A contact may escalate to a seizure so long as there is a valid basis to seize a

suspect. Id. at 582. Police may detain a suspect through an investigative stop. State v.

Johnson, 8 Wn. App. 2d 728, 746-747, 440 P.3d 1032 (2019). An officer must have

reasonable, articulable suspicion the individual is actively involved in criminal activity

and may not detain a suspect longer than necessary to confirm or dispel suspicion. Id.

       The trial court found that Mr. Kelley was not seized when Officer Rankin merely

shined a flashlight into the vehicle. All observations were made in public and no

evidence suggests the appellant could not freely leave during this initial contact. Officer

Rankin observed potential drug paraphernalia and knew the gas station was a high drug

                                              3
No. 36450-0-III
State v. Kelley


use area. These observations led Rankin to detain Kelley and request his name to

investigate drug possession. When Kelley gave a false name, the officer had probable

cause to arrest him and could lawfully search incident to arrest. 1

       Because the trial court did not err concluding the appellant was not unlawfully

seized, we affirm.

       A majority of the panel has determined 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.




WE CONCUR:




      Pennell, A.C.J.




       1
        Because we conclude there was no unlawful seizure, we do not address whether
the evidence obtained from the search would still be admissible due to the new offense
committed by the appellant-giving a false name-after the seizure.

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