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                                                                  2013 AUG 26 AH 9=36

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                    No. 68709-3-


                     Respondent,                        DIVISION ONE


              v.



CHRISTOPHER M. SMITH, SR.,                              UNPUBLISHED


                     Appellant.                         FILED: August 26. 2013




       Cox, J. — A Terry stop requires a well-founded suspicion that the

defendant has committed or is about to commit a crime.1 The State has the

burden to show by clear and convincing evidence that under the totality of the

circumstances, a Terry investigatory stop is justified.2 And a defense of
necessity instruction requires sufficient evidence to support that defense.

       Here, the State established that the investigatory stop of Christopher

Smith by a sheriff's deputy was proper. He does not challenge the search

incident to his subsequent arrest. And Smith fails to show that there was




       1 State v. Doughty, 170 Wn.2d 57, 62, 239 P.3d 573 (2010) (citing Terry v. Ohio.
392 U.S. 1, 21, 88 S. Ct. 1868, 20 L Ed. 2d 889 (1968)).

       2jd; State v. Glover. 116 Wn.2d 509, 514, 806 P.2d 760 (1991).
       3See State v. Jeffrey 77 Wn. App. 222, 224-25, 889 P.2d 956 (1995) (noting that
a defendant may only obtain a defense of necessity instruction if he can prove four
factors by a preponderance of the evidence).
No. 68709-3-1/2


sufficient evidence to support his requested instruction of necessity to the charge

of unlawful possession of a firearm. We affirm.

       King County Sheriff's Deputy Benjamin Callahan observed Smith riding his

bike without a helmet while the deputy was patrolling an area in the city of

Shoreline. The deputy was aware of recent reports of car prowling in a nearby

area. As Smith rode along the sidewalk, he peered into the windows of the cars

parked along the street. Deputy Callahan testified at the suppression hearing

that after Smith passed him on his bike, he turned his car around to follow Smith.

He did so both to conduct an investigatory stop based on Smith's conduct and

because of his failure to wear a bike helmet. Deputy Callahan attempted to talk

to Smith, who ignored him. The deputy then turned on his patrol car's lights and

told Smith to "stop." Smith ignored this command and continued to bike toward

his house. Deputy Callahan ran after Smith and physically seized him. In a

search incident to arrest, the deputy discovered a gun in the fanny pack around

Smith's waist. Following Miranda warnings, Smith admitted that he was not

supposed to have a firearm because of his felony convictions. He claimed he

needed the gun to protect his family.

       The State charged Smith with first degree unlawful possession of a

firearm. Smith moved to suppress evidence of the gun as well as his statements

to the deputy on the basis that the investigatory stop was unconstitutional. The
court disagreed, denying the motion. Thereafter, the court entered written

findings offact and conclusions of law, which incorporated his oral rulings

denying the motion.
No. 68709-3-1/3


       The State moved in limine to prevent Smith from arguing a defense of

necessity at trial. Smith, in an offer of proof to the trial court, argued that his

possession of the gun was necessary because of threats made to his son two

weeks before the night in question. The trial court ruled that Smith had not

shown by a preponderance of the evidence that he met any of the requirements

to present a defense of necessity. Thus, it granted the State's motion.

       Smith then waived his right to a jury trial and agreed to a trial on stipulated

evidence. Based on this evidence, the court found Smith guilty of unlawful

possession of a firearm.

       Smith appeals.

                              SUPPRESSION MOTION

       Smith argues that the trial court erred in denying his motion to suppress

the gun as evidence. We disagree.

                                      Terry Stop

       Smith first argues that the trial court erred when it concluded that Deputy

Callahan had a reasonable suspicion based on articulable facts to conduct an

investigatory stop. We hold that the stop was valid.

       Article I, section 7 of the Washington Constitution states that "[n]o person

shall be disturbed in his private affairs, or his home invaded, without authority of

law."4 The Fourth Amendment to the United States Constitution provides "the

right of the people to be secure in their persons, houses, papers, and effects,




        Wash. Const, art. I, §7.
No. 68709-3-1/4


against unreasonable searches and seizures . . . ."5 Thus, under both the
Washington and federal constitutions, warrantless searches and seizures are

presumptively unconstitutional, unless they fall within several narrow exceptions.6
ATerry investigatory stop is such an exception.7
       We review de novo whether a warrantless stop is constitutional.8
Similarly, we review de novo whether the trial court's conclusions of law are

supported by the findings offact.9 The trial court's findings offact are reviewed
for substantial evidence.10 Unchallenged findings of fact are verities on appeal.11
       Here, Smith does not challenge the trial court's findings of fact, and thus

they are verities on appeal. Rather, he challenges the trial court's conclusions of

law on the validity of the stop. We reject this argument.

       As noted above, a Terry stop requires a well-founded suspicion that the

defendant has committed or is about to commit a crime.12 "The officers' actions

must be justified at their inception."13 "'[I]n justifying the particular intrusion the


       5 U.S. CONST, amend. IV.

       6 Doughty, 170 Wn.2d at 61.

       7 State v. Gatewood. 163 Wn.2d 534, 539, 182 P.3d 426 (2008).

       8State v. Martinez. 135 Wn. App. 174, 179, 143 P.3d 855 (2006) (citing State v.
Rankin. 151 Wn.2d 698, 694, 92 P.3d 202 (2004)).

       9id (citing State v. Mendez. 137 Wn.2d 208, 214, 970 P.2d 722 (1999)).
       10 ]d (citing State v. Hill, 123Wn.2d 641, 647, 870 P.2d 313(1994)).
       11 State v. Luther, 157 Wn.2d 63, 78, 134 P.3d 205 (2006).

       12 Doughty, 170 Wn.2d at 62 (citing Terry. 392 U.S. at 21).

       13 Gatewood, 163 Wn.2d at 539.
No. 68709-3-1/5


police officer must be able to point to specific and articulable facts which, taken

together with rational inferences from these facts, reasonably warrant that

intrusion.'"14 The State has the burden to show by clear and convincing evidence
that under the totality ofthe circumstances, the Terry stop was justified.15
       In Terry v. Ohio,16 the United States Supreme Court determined that an
officer can detain a suspect for an investigatory stop without probable cause if

the officer has a well-founded suspicion that criminal activity is taking place.17 In
Terry, a detective noticed Terry and another man standing on a street corner.18
       [The detective] saw one of the men leave the other one and walk
       southwest. . . past some stores. The man paused for a moment
       and looked in a store window, then walked on a short distance,
       turned around and walked back toward the corner, pausing once
       again to look in the same store window. He rejoined his companion
       at the corner, and the two conferred briefly.... The two men
       repeated this ritual alternatively between five and six times
       apiece—in all, roughly a dozen trips.[19]
       The United States Supreme Court held that the actions of Terry and the

other man constituted facts sufficient to substantiate the deputy's articulable

suspicion, justifying the investigatory stop.20


       14
            Doughty. 170 Wn.2d at 62 (alteration in original) (quoting Terry. 392 U.S. at
21).

       15 Id.: Glover. 116 Wn.2d at 514.

       16 392 U.S. 1, 88 S. Ct. 1868, 20 L Ed. 2d 889 (1968).

       17 id at 27.

       18 id at 5.

       19 Id at 5-6.

       20 Id. at 27-28.
No. 68709-3-1/6


       Given the totality of the circumstances here, Deputy Callahan had a

reasonable and articulable suspicion that Smith had committed or was going to

commit a crime: car prowling. It was an undisputed fact that Deputy Callahan

knew of a rash of recent car prowl reports near the area where he encountered

Smith riding his bike. The trial court also found that Smith "rode along the

sidewalk . . . peering into windows of cars parked along the street."21 The trial

court concluded that Smith's "action of peering into cars as he rode along was a

reasonable basis to conclude this was consistent with car prowling."22 We agree.

       Smith relies on state authority reaching contrary results. The cases on

which he relies are distinguishable.

       In State v. Doughty, the supreme court held that the accused's actions did

not support a Terry stop.23 There, a police officer observed Doughty at 3:20
a.m., "park his car, approach a house, return to his car less than two minutes

later, and drive away."24 The officer did not see eitherwhat Doughty did at the
house or with whom he interacted.25 But the officer was concerned because

neighbors had reported "'large quantities of short stay traffic' at the house,




       21
            Clerk's Papers at 91.

       22 Id.

       23170 Wn.2d 57, 60, 239 P.3d 573 (2010).

       24 Id

       25 Id.
No. 68709-3-1/7


prompting police to identify it as a 'drug house.'"26 The officer consequently
stopped Doughty based on suspicion ofdrug activity.27
       The State argued that Doughty was not unconstitutionally stopped. It

pointed to (1) law enforcement's identification of the house where Doughty

stopped as a drug house; (2) the previous complaints received by police from

neighbors about the house; (3) Doughty's visit to the house at 3:20 a.m.; and (4)
                                                         28
the fact that this visit lasted less than two minutes.

       The supreme court held that these facts were insufficient for a stop, given

the totality of the circumstances.29 Doughty's presence "in a high-crime area at a
'late hour'" [did] not, by itself, give rise to a reasonable suspicion" that justified
detaining him.30 The court viewed the stop as one based on Doughty's visiting a
location—even a suspected drug house —at 3:20 a.m. for only a few minutes.31
That was not enough for a valid stop.

       Similarly, in State v. Martinez. Division Three ofthis court held that the
mere fact that Martinez was walking at 12:46 a.m. in a "high crime" area where

vehicle prowls had been reported did not justify a Terry stop.32 "The problem
here is not with the officer's suspicion; the problem is with the absence of a

       26 Jd

       27 id

       28 id at 62-63.

        29 id at 63.

        30 id at 62.

        31 ]d at 63.
        32 135 Wn. App. 174, 177-78, 181-82, 143 P.3d 855 (2006).
No. 68709-3-1/8


particularized suspicion."33 Thus, "there must be some suspicion ofa particular
crime or a particular person, and some connection between the two" to warrant a

Terry stop.34
       As demonstrated by Doughty and Martinez, any one of the unchallenged

facts supporting the stop in this case, by itself, would not have provided a

constitutional basis for Smith's stop.35 If, as in Martinez, Deputy Callahan had
only observed Smith riding his bike down the street in an area where car prowls

had been reported, that fact alone would not have been sufficient to justify a

Terry stop.36 But Deputy Callahan also observed Smith peering into cars as he
rode down the sidewalk. Together with the other facts, including the deputy's

knowledge of recent car prowls in a nearby area, there was sufficient information

to justify Deputy Callahan's investigatory stop of Smith. Thus, the trial court did

not err when it concluded that:

               Deputy Callahan had a reasonable suspicion, based on
       articulable facts, to detain the defendant to investigate his action of
       peering into cars as he rode along the street. The deputy's attempt
       to stop the defendant to investigate was a reasonable 'Terry' stop,
       given the defendant's actions and the information the officer knew
       about recent car prowls in the area.[37]




       33 id at 181-82 (some emphasis added) (citing State v. Duncan, 146 Wn.2d 166,
179, 43 P.3d 513 (2002); State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986)).

       34 id at 182.
       35 See e^, Martinez. 135 Wn. App. at 179-80; Doughty. 170Wn.2d at 62.
       36 See Martinez. 135 Wn. App. at 179-80.

       37 Clerk's Papers at 91-92.

                                              8
No. 68709-3-1/9


       Smith contends that the fact that he appeared to be looking into parked

cars "is innocuous." He states that:


      Bicycle riders are wise to be aware of any nearby motor vehicles in
      order to protect themselves. This is even true of parked cars ....
      The best way to prevent being "doored" is "a continued eye
      scanning and seeking on the part of the biker to see if there are
      people in the upcoming parked cars, and to give enough room in
      case a door does swing open to avoid getting clipped.^381
But even "innocuous" behavior may provide the basis for an investigatory stop. 39

Thus, though looking in car windows while riding a bike could be an effort to

avoid being "doored," it may also be consistent with car prowling, as the trial

court determined. This was a valid investigatory stop on the basis the trial court

decided.


       Because this investigatory stop was valid on the basis we just discussed,

there is no need to consider whether the stop was also valid on the basis that

Smith was allegedly violating a King County ordinance for not wearing a bicycle

helmet.


       Smith does not challenge the search incident to his subsequent arrest.

Because the stop was valid, we need not discuss this aspect of this case.

                              Pretextual Investigation

       Smith next argues that the Terry stop was unconstitutional because the

alleged civil infraction of riding without a helmet was a pretext to investigate




        38 Brief of Appellant at 11-12 (quoting
http://www.colbachlaw.com/portland_bicycle_lawyers.html (last viewed 12/3/12)).

       39 Kennedy. 107 Wn.2d at 6.
No. 68709-3-1/10


unrelated alleged criminal activity. We hold that there was no pretextual stop

here.


        We discussed earlier in this opinion why the seizure of Smith was a valid

Terry stop based on the deputy's suspicion that Smith was car prowling. Smith's

claim of pretext does nothing to diminish that conclusion.

        Relying primarily on State v. Ladson40 and its progeny, Smith argues that
the stop was pretextual. We disagree.

        This court reviews de novo conclusions of law, such as whether a stop is

pretextual.41

        As the supreme court explained in Ladson, a pretextual stop occurs when:

        the police [pull] over a citizen, not to enforce the traffic code, but to
        conduct a criminal investigation unrelated to the driving. Therefore
        the reasonable articulable suspicion that a traffic infraction has
        occurred which justifies an exception to the warrant requirement for
        an ordinary traffic stop does not justify a stop for criminal
        investigation.1421

        Under Ladson, a court determines whether a stop is pretextual by

considering the totality of the circumstances.43 In doing so, the court must
consider "both the subjective intent of the officer as well as the objective

reasonableness of the officer's behavior."44




        40138 Wn.2d 343, 979 P.2d 833 (1999).

        41 State v. Arreola. 176 Wn.2d 284, 291, 290 P.3d 983 (2012).

        42 Ladson. 138 Wn.2d at 349.

        43 id at 358-59.

        44 id

                                               10
No. 68709-3-1/11


       Here, the trial court made an oral ruling on the claim of pretext. In its

ruling, the court appears to have decided that both the objective and subjective

elements of this test supported the validity of the stop.45 And the trial court's

written findings and conclusions expressly incorporated the court's oral rulings.

In reviewing this record, we conclude that Ladson does not control.

       Moreover, the supreme court's most recent opinion on pretextual stops,

State v. Arreola.46 further supports the validity ofthis investigatory stop. In
Arreola, the supreme court held that a traffic stop motivated primarily by an

uncorroborated tip "is not pretextual so long as the desire to address a suspected

traffic infraction (or criminal activity) for which the officer has a reasonable

articulable suspicion is an actual, conscious, and independent cause of the traffic

stop."47 In Arreola, Officer Valdivia's primary motivation in pulling the defendant's
car over was to investigate a reported DUI.48 But, because his secondary
motivation, the car's altered exhaust in violation of RCW 46.37.390, was an

actual reason to stop the defendant, the stop was not pretextual.49
       In this case, a valid reason for the stop existed: suspected car prowling.

Even if we assume Smith's alleged violation of the King County ordinace played




       45 Report of Proceedings at 149-151.
       46 176 Wn.2d 284, 290 P.3d 983 (2012).

       47 id at 288.

       48 id at 289.

       49 k_ at 299-300.

                                              11
No. 68709-3-1/12


a role in the decision to stop Smith, it makes no difference to the validity of the

stop. An independent basis for the stop existed. There was no pretext.

       Smith argues that "'it is not enough for the State to show there was a

traffic violation. The question is whether the traffic violation was the real reason

for the stop.'"50 Smith quotes State v. Montes-Malindas,51 a Division Three
opinion. But in view of the supreme court's holding in Arreola, this case does not

control here.


       The Montes-Malindas court, in holding that a stop was pretextual and

unconstitutional, stated that "[t]o satisfy an exception to the warrant requirement,

the State must show that the officer, both subjectively and objectively, is actually

motivated by a perceived need to make a community caretaking stop aimed at

enforcing the traffic code."52 This is no longer the law after the supreme court's
holding in Arreola. In sum, this stop was valid.53
                       DEFENSE OF NECESSITY INSTRUCTION


       Smith argues that the trial court erred when it ruled that he was not

entitled to an instruction on the defense of necessity. We disagree.




       50 Brief of Appellant at 19 (quoting State v. Montes-Malindas, 144 Wn. App. 254,
261, 182 P.3d 999 (2008)).

       51 144 Wn. App. 254, 182 P.3d 999 (2008).

       52 id at 260.

       53 See Arreola, 176 Wn.2d at 298-99.


                                              12
No. 68709-3-1/13


       Acriminal defendant has a constitutional right to present a defense.54 "A
defendant raising an affirmative defense must offer sufficient admissible

evidence to justify giving an instruction on the defense. In evaluating whether the

evidence is sufficient to support such an instruction, the trial court must interpret

the evidence most strongly in favor of the defendant."55
       This court reviews de novo a claim of a denial of Sixth Amendment rights,

including the denial of a defendant's right to present a defense.56
       In State v. Jeffrey, Division Three of this court was the first Washington

court to address whether necessity is an available defense for a violation of

unlawful possession of a firearm.57 It held that to obtain a defense of necessity
instruction, a defendant must demonstrate that: (1) he "reasonably believed he or

another was under unlawful and present threat of death or serious bodily injury;"

(2) he "did not recklessly place himself in a situation where he would be forced to
engage in criminal conduct;" (3) he "had no reasonable legal alternative;" and (4)
"[t]here was a direct causal relationship between the criminal action and the
avoidance of the threatened harm."58




       54 Holmes v. South Carolina. 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L Ed. 2d
503 (2006).

       55 State v. Otis. 151 Wn. App. 572, 578, 213 P.3d 613 (2009) (citing State v.
Janes. 121 Wn.2d 220, 237, 850 P.2d 495 (1993); State v. May. 100 Wn. App. 478, 482,
997 P.2d 956 (2000)).

        56 State v. Jones. 168 Wn.2d 713, 719, 230 P.3d 576 (2010).

        57 77 Wn. App. 222, 224, 889 P.2d 956 (1995).

        58 id at 224.

                                              13
No. 68709-3-1/14


       The Jeffrey court concluded that the defendant in that case was not

entitled to an instruction on the defense of necessity.59 Skip Jeffrey and his wife
saw an individual directly outside their kitchen window and called the police.60
The police arrived and searched the area, but, finding no one, left.61 Jeffrey then

called a friend who came overto the house and stayed for about an hour.62
Before leaving, the friend left a handgun under the Jeffreys' couch.63 The
Jeffreys later heard noises outside the house and saw a figure outside the

window.64 Jeffrey fired the gun left by his friend through the headboard ofthe
bed.65 The Jeffreys then called the police again.66 The police subsequently
charged Jeffrey with unlawful possession ofa firearm.67
       Division Three concluded that the evidence presented did not support an

instruction on the defense of necessity. "There was no verification of an

individual actually lurking outside the house."68 Nor was there "evidence he or
she was capable of immediately entering the home or in any way posed a threat

       59 id   at 227.


       60 id   at 223.


       61 id

       62 id

       83 id

       64 id

       85 id

       66 id

       87 id

       88 Id. at 227.


                                             14
No. 68709-3-1/15


of imminent serious bodily injury or death to the Jeffreys."69 And, the Jeffreys
had an adequate alternative to the possession of a gun, a phone call to the

police.70
       Here, Smith presents even less evidence to support a defense of

necessity instruction than Jeffrey did.

       The trial court's unchallenged findings of fact state that:

                Approximately two weeks prior to September 13, 2011, the
       defendant's son, Kenneth Smith . .. had gotten into an altercation
       at a park with another teenager. . . . When Kenneth refused to
       fight, the other teenager called his father. Kenneth could overhear
       the father say that he was going to come to the park with a gun.[71]
       Kenneth then went home and told Smith what had happened at the park.

"Approximately two weeks later... the defendant got into an argument with
Kenneth. Kenneth left the house."72 Thus, Smith argues, he reasonably believed

his son "was under a present, unlawful threat of death or serious bodily injury."73
But Smith cannot demonstrate that his son was under a present threat.

Likewise, he cannot point to any evidence to substantiate the other three Jeffrey
factors. Smith had a reasonable legal alternative to leaving his house. If he was

truly concerned about his son, he could have called the police. And, as the court
trial found, Smith "had owned the gun for at least a month prior to September


        69 id

        70 id

        71 Clerk's Papers at 94-95.

        72 id at 95.

        73 Brief of Appellant at 28.

                                              15
No. 68709-3-1/16


13th."74 Thus, based on this unchallenged finding of fact, Smith could not
demonstrate that any violence he might have feared was imminent. There was

no basis to support the giving of the instruction he requested.

       In arguing that the trial court erred in its exclusion of evidence regarding a

defense of necessity, Smith relies on United States v. Newcomb.75 This case is

not helpful because its facts are distinct from Smith's. Newcomb argued he only

had possession of the gun at issue in the case because he had taken it and the

ammunition from another individual.76 He had done so, he argued, because he
felt "an obligation to prevent [that individual's] imminent violence toward an

unknown third party."77 He was thus able to demonstrate a fear of imminent
violence, which Smith is not able to do. Thus, Newcomb is not helpful.

       We affirm the judgment and sentence.

                                                          ^TX.^T
WE CONCUR:




       74 Clerk's Papers at 95.

       756F.3d 1129 (6th Cir. 1993).

       76 id at 1131.

       77 Id


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