                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           June 13, 2017




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                             No. 48907-4-II

                          Respondent,

           v.                                                  UNPUBLISHED OPINION

    DENNIS JASON WAYNE FISHER,

                          Appellant.


          MAXA, A.C.J. – Dennis Fisher appeals his conviction for possession of a controlled

substance other than marijuana–heroin. Fisher was arrested after law enforcement officer Julie

Goode found heroin in his possession during a Terry1 stop and frisk. Fisher argues that he

received ineffective assistance of counsel because his defense counsel failed to move to suppress

the heroin, cash found in a search incident to arrest, and statements he made to Goode. Fisher

claims that the trial court would have suppressed the evidence because Goode violated his

constitutional rights by (1) frisking him without a basis to believe that he was armed and

dangerous; and (2) lifting his shirt and retrieving a plastic baggie containing the heroin from the

coin pocket of his jeans, both actions that were outside the scope of a permissible Terry frisk.

          We hold that the record is insufficient to determine whether Goode had reason to believe

Fisher was armed and dangerous, whether Goode impermissibly lifted Fisher’s shirt, and whether


1
    Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
No. 48907-4-II


Goode was justified in seizing the baggie of heroin based on the plain view doctrine. Therefore,

we decline to consider Fisher’s ineffective assistance of counsel claims and we affirm Fisher’s

conviction.

                                                FACTS

        On October 13, 2015 at approximately 9:00 PM, Goode received a dispatch to a residence

in Forks concerning a disturbance. The reporting party indicated that Fisher had kicked in a

bedroom door and was leaving in a black vehicle. Goode located the vehicle, which she knew

belonged to Fisher from previous contacts. Fisher was driving and there were two other

occupants. Goode stopped the vehicle, had Fisher exit, detained him, and patted him down for

weapons.

        Goode briefly described her search of Fisher in a probable cause report and in her trial

testimony. During her pat down, Goode lifted Fisher’s shirt to better see the right front pocket of

Fisher’s jeans because it contained a big bulge. Goode did not clearly say in her report or at trial

whether she patted the bulge before lifting the shirt. At trial, she stated that she lifted the shirt

because “[a]s this is for weapons, I didn’t want to poke myself on anything or if maybe there

were knives or some unknown weapon.” Report of Proceedings (RP) at 125.

        In her probable cause statement, Goode stated, “I saw a ‘dime’ bag sticking out of the

small inner pocket with a dark colored substance inside. I immediately seized the bag and based

on my training and experience believed the substance to be heroin.” Clerk’s Papers (CP) at 97.

At trial, Goode stated that there was a dime bag in Fisher’s pocket that had a black tarry-like

substance in it, and that she “immediately seized the baggie from his pocket” based on her

suspicion that the item in the baggie was heroin. RP at 128. But her cross-examination



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No. 48907-4-II


testimony suggested that she may not have seen the black substance until she removed the baggie

from Fisher’s pocket.

       Goode read Fisher his Miranda rights as soon as she saw the baggie. She advised Fisher

that he was under arrest for possession of a controlled substance. Goode then searched Fisher

incident to the arrest and found over $7,000 in $50 and $100 bills in the right pocket.

       The State charged Fisher with residential burglary and possession of a controlled

substance other than marijuana–heroin. The State subsequently dismissed the burglary charge.

Apparently because of the dismissal, the parties agreed before trial not to address the

circumstances leading up to Goode’s detention and search of Fisher. Fisher did not move to

suppress evidence of the heroin or the cash.

       At trial, Goode provided some testimony about the search and the trial court admitted

evidence that the baggie Goode found contained heroin. The jury found Fisher guilty of

possession of a controlled substance other than marijuana–heroin.

       Fisher appeals his conviction.

                                            ANALYSIS

A.     LEGAL PRINCIPLES

       1.    Ineffective Assistance of Counsel

       We review ineffective assistance of counsel claims de novo. State v. Clark, 187 Wn.2d

641, 649, 389 P.3d 462 (2017). To prevail on an ineffective assistance claim, the defendant must

show both that (1) defense counsel’s representation was deficient and (2) the deficient

representation prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260

(2011). Representation is deficient if, after considering all the circumstances, it falls below an



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No. 48907-4-II


objective standard of reasonableness. Id. at 33. Prejudice exists if there is a reasonable

probability that, except for counsel’s errors, the result of the proceeding would have been

different. Id. at 34.

        When arguing ineffective assistance for failure to seek suppression of evidence, the

defendant must show from the record that a motion to suppress likely would have been granted.

State v. Walters, 162 Wn. App. 74, 81, 255 P.3d 835 (2011). However, an ineffective assistance

claim will fail when the parties did not have an opportunity to make their respective records and

therefore the record lacks a factual basis for determining the merits of a suppression motion. Id.

In that situation, we decline to consider the issue. Id.

        If a defendant needs to rely on evidence outside the record to support an ineffective

assistance of counsel claim, the appropriate means to obtain review is to file a personal restraint

petition. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

        2.   Terry Stop and Frisk

        Under the Fourth Amendment of the United States Constitution and article I, section 7 of

the Washington Constitution, a law enforcement officer generally cannot seize a person without

a warrant. State v. Fuentes, 183 Wn.2d 149, 157-58, 352 P.3d 152 (2015). One established

exception is a Terry stop, a brief investigatory detention of a person. Id. at 158. Under this

exception, an officer may briefly detain a person for questioning without a warrant if the officer

has a reasonable suspicion based on specific and articulable facts that the person has been or is

about to be engaged in criminal activity. Id.

        However, without a warrant, an officer who makes a lawful investigatory stop of a person

has no general authorization to search that person. See State v. Russell, 180 Wn.2d 860, 867, 330



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No. 48907-4-II


P.3d 151 (2014). An officer may conduct a protective frisk for weapons only if the officer has

reasonable grounds, based on specific and articulable facts, to believe that the person is armed

and presently dangerous. Id. It is enough that the officer reasonably believes that a search

should be conducted to protect his or her own safety and the safety of others. Id. The officer is

not required to be absolutely certain that the person is armed – only a founded suspicion is

necessary. State v. Harrington, 167 Wn.2d 656, 668, 222 P.3d 92 (2009).

       Even if an officer may lawfully frisk a person during an investigatory stop, the scope of

the frisk must be limited to protective purposes. Russell, 180 Wn.2d at 869. “The frisk must be

brief and nonintrusive.” Id. It generally must be limited to a pat down of the outer clothing to

determine if any weapon is present. State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994).

If the officer feels an object that, based on its size and density, might be a weapon, the officer

may take action necessary to examine that object. Russell, 180 Wn.2d at 869. But the purpose

of the protective frisk cannot be to search for evidence of a crime. Hudson, 124 Wn.2d at 112.

And once the officer determines that the detained person has no weapon, the frisk must end.

Russell, 180 Wn.2d at 869-70.

       Despite these limitations, when conducting a lawful Terry stop and frisk an officer may

see other contraband. Under the plain view exception, the officer can seize an item seen in plain

view if the officer was conducting a constitutionally permissible search and immediately

recognizes that the item was associated with criminal activity. State v. Weller, 185 Wn. App.

913, 926, 344 P.3d 695, review denied, 183 Wn.2d 1010 (2015). The immediacy requirement

asks whether, considering the surrounding circumstances, the officer can reasonably conclude

that the item is incriminating evidence. Id. If recognition is immediate, the plain view exception



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No. 48907-4-II


applies and no impermissible invasion of the person’s privacy has occurred when the item is

seized. Hudson, 124 Wn.2d at 114.

       When reviewing an officer’s decision to conduct a search, we are reluctant to substitute

our judgment for an officer’s judgment exercised in the field. Russell, 180 Wn.2d at 867-68.

But we must ensure that there is some basis for determining that the detention and search was not

arbitrary or harassing. Id. at 868.

       Evidence recovered from a frisk following an investigative stop is inadmissible if the

initial stop was not lawful, if the officer did not have a reasonable belief that the person detained

was armed and dangerous, or if the frisk exceeded its proper scope. State v. Day, 161 Wn.2d

889, 895, 168 P.3d 1265 (2007).

B.     INITIATING A TERRY FRISK

       Fisher concedes that Goode’s investigatory stop was lawful. But he argues that Goode’s

frisk was not justified because she had no reasonable grounds to believe that he was armed and

presently dangerous. We hold that the record is not sufficient to determine whether the

circumstances justified Goode’s frisk and therefore is not sufficient to determine whether

Fisher’s ineffective assistance of counsel claim has merit.

       The record in this case lacks any information about whether Goode had reasonable

grounds to believe that Fisher was armed and presently dangerous before she decided to frisk

Fisher. Goode did not provide any explanation in her probable cause report, but she also noted

that does not include all the facts in that report. Neither party asked Goode at trial whether she

had reasonable grounds to believe that Fisher was armed and presently dangerous, which was not




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No. 48907-4-II


relevant to the trial issues. And because Fisher did not file a suppression motion, the State did

not have an opportunity to develop a record on this issue.

       We hold that the record is not sufficient to determine whether the circumstances justified

Goode’s search, and therefore is not sufficient to determine whether the trial court would have

granted a motion to suppress the evidence on this basis. Accordingly, we decline to consider

Fisher’s ineffective assistance of counsel claim based on the initiation of the frisk.

C.     SCOPE OF A TERRY FRISK

       Fisher argues that Goode’s search exceeded the scope of a constitutionally permissible

Terry frisk both when she (1) lifted his shirt without first completing a pat down of the bulge and

(2) removed the baggie from his pocket. We hold that the record is not sufficient to determine

whether Goode’s search exceeded the scope of a lawful Terry frisk when she lifted Fisher’s shirt

or whether the plain view exception applied when she removed the baggie from his pocket. We

therefore hold that the record is not sufficient to determine whether Fisher’s ineffective

assistance of counsel claim has merit.

       1.    Moving Clothing During a Terry Frisk

             a.   Applicable Case Law

       The general rule, recited in multiple Supreme Court cases, is that “[t]he scope of a valid

Terry frisk is limited to protective purposes.” Russell, 180 Wn.2d at 869; see also State v.

Garvin, 166 Wn.2d 242, 250, 207 P.3d 1266 (2009); State v. Duncan, 146 Wn.2d 166, 172, 43

P.3d 513 (2002). The Supreme Court also has stated repeatedly that the frisk must be

“nonintrusive.” Russell, 180 Wn.2d at 869; see also Garvin, 166 Wn.2d at 254; Day, 161 Wn.2d




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No. 48907-4-II


at 895. The frisk is allowed “so long as the search goes no further than necessary for protective

purposes.” Day, 161 Wn.2d at 895.

       Two cases have indicated that a valid Terry frisk involves only a pat down of a person’s

clothing. In Hudson, the court stated, “A valid weapons frisk is strictly limited in its scope to a

search of the outer clothing; a patdown to discover weapons which might be used to assault the

officer.” 124 Wn.2d at 112 (emphasis added). In State v. Bee Xiong, the court stated that an

officer may perform “a protective frisk in the nature of a pat-down in order to ascertain if the

suspect is carrying a weapon.” 164 Wn.2d 506, 513-14, 191 P.3d 1278 (2008) (emphasis added).

Other cases assume that a frisk involves feeling for weapons. See Russell, 180 Wn.2d at 869

(referring to when an officer feels an item). Equating a frisk with a pat down is consistent with

the premise of Terry, which is that “ ‘officers will be able to detect the presence of weapons

through the sense of touch.’ ” Hudson, 124 Wn.2d at 116 (quoting Minnesota v. Dickerson, 508

U.S. 366, 376, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993)).

       In Hudson, the court stated that an officer may go beyond a pat down in two situations.

First, an officer may reach into the detainee’s clothing “where the patdown is inconclusive” –

such as when the detainee is wearing heavy clothing – and reaching into the clothing is the “only

reasonable course of action.” Hudson, 124 Wn.2d at 112. Second, an officer who feels an object

that might or might not be a weapon can take action necessary to examine it. Id. at 113; see also

Russell, 180 Wn.2d at 869. For example, “the discovery of an unidentified ‘bulge’ in the course

of the patdown would entitle the officer to assure himself that it was not a weapon.” State v.

Allen, 93 Wn.2d 170, 172, 606 P.2d 1235 (1980). But the court assumed that in these situations

the officer would first conduct a pat down.



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No. 48907-4-II


       On the other hand, no Washington case has expressly addressed whether using some

method of determining whether a detainee has a weapon other than a pat down is beyond the

scope of a valid Terry frisk. The State argues that an officer should be able to use another

method depending on the particular circumstances of the detention as long as it is limited to

protective purposes and is nonintrusive. See Russell, 180 Wn.2d at 869. This argument is

consistent with a statement by the United States Supreme Court that an officer conducting a

Terry frisk should employ “the least intrusive means reasonably available to verify or dispel the

officer’s suspicion in a short period of time.” Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct.

1319, 75 L. Ed. 2d 229 (1983).

       Courts in other jurisdictions have held that a lawful Terry frisk is not limited to a pat

down search, and that lifting a detainee’s shirt is not beyond the scope of a lawful frisk. United

States v. Reyes, 349 F.3d 219, 225 (5th Cir. 2003); United States v. Baker, 78 F.3d 135, 138 (4th

Cir. 1996); United States v. Hill, 545 F.2d 1191, 1193 (9th Cir. 1976); Parks v. State, 2013-KA-

00810-COA, 172 So. 3d 1237, 1241 (Miss. Ct. App. 2015); State v. Michael, 2013-Ohio-3889,

995 N.E.2d 286, 292-95 (Ct. App. 2013); State v. Taveras, 39 A.3d 638, 650 (R.I. 2012).

       But other courts have noted that in most cases a Terry frisk is limited to the traditional pat

down search and have held that lifting the detainee’s shirt is beyond the scope of a lawful search

when it is more intrusive than a pat down. United States v. Aquino, 674 F.3d 918, 925-26 (8th

Cir. 2012); Commonwealth v. Flemming, 76 Mass. App. Ct. 632, 925 N.E.2d 39, 44 (2010); State

v. Privott, 203 N.J. 16, 999 A.2d 415, 424 (2010); see also United States v. Casado, 303 F.3d

440, 447-49 (2d Cir. 2002) (holding that a pat down search was less intrusive than reaching into

the detainee’s pocket to remove an item).



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            b.   Analysis

       Fisher argues that we should strictly apply the rule in Hudson limiting a lawful Terry

frisk to a pat down of a detainee’s outer clothing unless that pat down is inconclusive or reveals

an object that might be a weapon. Under this approach, Goode would have been required to pat

down Fisher before taking any additional action. The State argues that whether an officer can lift

a detainee’s shirt should depend on the facts and circumstances of each case.

       But the record does not indicate whether Goode patted down the bulge in Fisher’s pocket

before she lifted his shirt. Goode’s report stated that “as I patted [Fisher] down for weapons I

lifted his shirt to expose his right front pocket” without stating whether she touched the bulge

during the pat down. CP at 97. At trial she stated that she patted down Fisher’s back area and

then when she went to the front she moved his shirt. The prosecutor next asked why she moved

the shirt “upon feeling a bulge,” and she did not object to that characterization. RP at 125

(emphasis added).

       The record is unclear about when and why Goode lifted Fisher’s shirt. She may have

patted down the bulge first and thought it might be weapon, or she may not have patted down the

bulge. And because Fisher did not file a suppression motion, the State did not have an

opportunity to develop a record on this issue.

       We hold that the record is insufficient to determine whether Goode could lawfully lift

Fisher’s shirt, and therefore whether the trial court would have granted a motion to suppress the

evidence on this basis. Accordingly, we decline to consider Fisher’s ineffective assistance of

counsel claim based on Goode’s lifting of Fisher’s shirt.




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         2.   Seizing an Item During a Terry Frisk

         Fisher argues that Goode exceeded the scope of a lawful frisk by removing the bag from

his pocket when it clearly was not a weapon. He claims that the plain view exception did not

exempt Goode’s search from the warrant requirement.2 We hold that the record is not sufficient

to determine whether Goode could lawfully seize the bag under the plain view exception and

therefore to determine whether Fisher’s ineffective assistance of counsel claim has merit.

         Goode’s written report indicated that once she lifted Fisher’s shirt she saw a plastic bag

containing heroin. The report stated, “I saw a ‘dime’ bag sticking out of the small inner pocket

with a dark colored substance inside.” CP at 97. Goode further stated that she “immediately

seized the bag and based on my training and experience believed the substance to be heroin.” CP

at 97. These statements support application of the plain view exception. They suggest that she

was able to see the bag and immediately recognized the heroin in it during the course of her

frisk.

         However, the record is insufficient to resolve this question for two reasons. First, the

plain view exception applies only when an officer is conducting a constitutionally permissible

search. Weller, 185 Wn. App. at 926. As discussed above, the record does not show whether

Goode’s Terry search was proper. Second, Goode’s trial testimony was somewhat ambiguous

about when she could see and recognize the heroin.

         Q And your testimony is that you found a plastic baggie in that coin pocket of the
         jeans he was wearing?
         A Yes.

2
 Fisher also argues that the “plain feel” exception does not apply. See Garvin, 166 Wn.2d at
251-54 (discussing a “plain touch” exception to the warrant requirement). Because it is unclear
whether Goode patted down Fisher’s pocket, the record is insufficient to determine whether the
plain feel exception applies.


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No. 48907-4-II


        Q   During this pat down?
        A   Yes.
        Q   Removed it and saw a black substance inside which you believed to be heroin?
        A   Correct.

RP at 133-34 (emphasis added). This testimony implies that she may not have seen the heroin

until she removed the bag from Fisher’s pocket. If that was the case, the plain view doctrine

would not apply.

        The record in this case is unclear about how Goode discovered the heroin. She may have

seen the heroin as soon as she lifted the shirt, or she may have seen the heroin only after

removing the baggie from Fisher’s pocket. And because Fisher did not file a suppression

motion, the State did not have an opportunity to develop a record on this issue.

        We hold that the record is insufficient to determine whether the circumstances justified

Goode’s seizure of the bag, and therefore whether the trial court would have granted a motion to

suppress the evidence on this basis. Accordingly, we decline to consider Fisher’s ineffective

assistance of counsel claim based on the seizure of the bag.

D.      APPELLATE COSTS

        Fisher asks that this court refrain from awarding appellate costs if the State seeks them.

We refer the issue of appellate costs to a court commissioner under RAP 14.2 if the State decides

to file a cost bill and if Fisher objects to that cost bill.

                                             CONCLUSION

        The record is insufficient for us to determine whether Fisher received ineffective

assistance of counsel because of defense counsel’s failure to move to suppress the heroin and

cash Goode discovered during her search and statements he made to Goode. Therefore, we




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decline to consider Fisher’s ineffective assistance of counsel claims. The appropriate means for

Fisher to obtain review is to file a personal restraint petition. See McFarland, 127 Wn.2d at 335.

        We affirm Fisher’s conviction.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      MAXA, A.C.J.



 We concur:




 LEE, J.




 SUTTON, J.




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