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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

STATE OF WASHINGTON,                                                             No. 43736 -8 -II


                                      Respondent,


          V.



LANCE WILLIAM EVANS,                                                         UNPUBLISHED OPINION


                                        Abbellant.


           JOHANSON, J. —        Following a stipulated facts bench trial, Lance William Evans appeals

his   second   degree      unlawful     firearm   possession     conviction.   Evans   claims   that ( 1)     the police



unlawfully arrested him without probable cause and ( 2) his trial counsel provided ineffective
assistance.    We affirm because Evans failed to preserve the probable cause challenge for appeal

and his trial counsel performed reasonably.

                                                         FACTS

                                                                                                                        Grants

           On March 14, 2012,           at   5: 58 PM, Lakewood Police Officers        Jeremy    Prater      and




responded to unit 17 in the Avalon Place Apartments after the neighbor living in unit 18 called

911.      The neighbor had reported that the woman from unit 17, later identified as Karen Rojo,




1
    The   record   does   not provide   Officer Grant'   s   first   name.
No. 43736 -8 -II



came to his apartment and asked him to call 911 because a man was in Rojo' s apartment waving

a gun at her daughter.


         Hearing          this information, Officer Prater believed he                          was    responding to     a "   high- risk"


incident.      When Officers Prater and Grant arrived at the complex two minutes later, at 6: 00 PM,

                                                                                                                                   2
                          to    unit     17    and      observed    a    white       male    through the      open   front door,       later
they    proceeded




identified     as   Evans, sitting            on a chair       just inside the        apartment.      The officers took positions of


cover outside the apartment and directed Evans to walk out and lay face down on the ground.

Evans    complied.          A third officer then handcuffed Evans while Officers Prater and Grant cleared

the   apartment,      finding      no other occupants —Rojo'                  s daughter was not in the apartment.


             After the officers secured the area, Officer Prater contacted the neighbor who called 911,

and    he located Rojo.            Rojo informed Officer Prater that her daughter'                        s   friend " Lance" came to


her    apartment      carrying      a    bag      she   described   as a " man purse,"          and that Lance was upset because


her daughter owed him money. Clerk' s Papers ( CP) at 68. Rojo stated that Evans waved a small

black   gun around and said, "                No    one   is   leaving   until   I   get   my money."     CP at 68.


             At 6: 09 PM, Officer Prater returned to where Evans was detained, confirmed with Evans

that   his   name was          Lance,       and   then   advised   Evans      of     his Miranda3 rights. Evans indicated that he


understood          his   rights   and agreed            to   speak with      Officer Prater.         When Officer Ryan Hamilton


arrived,      he    secured      the "      man purse"         for safekeeping because the residents of unit 17 denied

ownership          and    wanted       it   removed.           Evans eventually            admitted   owning the "    man purse"        and




2 The 911 report did not identify any other details about the man, other than his being a male.
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

                                                                          2
No. 43736 -8 -II



being    a convicted       felon.     Officer. Hamilton advised Evans of his Ferrier4 warnings, and Evans


consented        to him searching the "          man purse."       Officer Hamilton found three knives and a small


black handgun. The officers then placed Evans in a patrol car and transported him to jail.5

           The     State    charged Evans with              second degree        unlawful firearm possession     and


unlawfully carrying a weapon capable of producing bodily harm.7 Evans moved to suppress his
statements, and he moved to suppress the gun due to an improper warrantless search; but he did

not challenge        the   legality   of   his   arrest.   After a CrR 3. 5 and 3. 6 hearing, the trial court found

Evans' s statements and gun admissible at trial.


              After the trial   court      denied Evans'       s   suppression   motions,   Evans stipulated that the


evidence police obtained at the apartment would be admissible at trial and that the State had

sufficient evidence to convict him of second degree unlawful firearm possession; in exchange for

the stipulation, the State dismissed the unlawful carrying charge. Evans specifically reserved the

right    to   appeal   the evidentiary       suppression rulings.       The trial court accepted Evans' s stipulation


and found him guilty of second degree unlawful firearm possession. Evans appeals.

                                                            ANALYSIS


                                                      I. PROBABLE CAUSE


              Evans argues, for the first time on appeal, that officers unlawfully arrested him without

probable cause.            We disagree because based on the record before us, the officers had probable




4 State v. Ferrier, 136 Wn.2d 103, 960 P. 2d 927 ( 1998).

 5 The record does not indicate when the officers considered Evans formally arrested.
 6
     RCW 9. 41. 040( 2)( a)( i).

 7
     RCW 9. 41. 270( 1).
                                                                    3
No. 43736 -8 -II



cause     to   arrest   Evans. Therefore, Evans did not preserve this issue for appeal because he cannot


show actual prejudice, and he does not satisfy RAP 2. 5( a).

                                  A. STANDARD OF REVIEW AND RULES OF LAW

                                                                                                 before the trial. court.      RAP
              Generally,   we will not entertain a claim of error not raised




2. 5(   a).     An   exception   to   that   general       rule     is RAP 2. 5(   a),   which requires an appellant to


demonstrate          a manifest error   affecting     a constitutional right.            State v. Gordon, 172 Wn.2d 671,


676, 260 P. 3d 884 ( 2011).           Stated another way, the appellant must identify a constitutional error

and show how the alleged error actually affected the appellant' s rights at trial. State v. O' Hara,

167 Wn.2d 91, 98, 217 P. 3d 756 ( 2009).

              To determine if an error is of constitutional magnitude, we look to whether, if the

defendant' s alleged error is true, the error actually violated the defendant' s constitutional rights.

O' Hara, 167 Wn.2d at 98 -99. An error is manifest if it is so obvious on the record that the error

warrants appellate review. O' Hara, 167 Wn.2d at 99 -100. But appellants must also demonstrate

  actual prejudice,"        meaning the defendant must plausibly show the asserted error had practical

and      identifiable      consequences      at   trial.     Gordon,      172 Wn.2d         at    676.    For an appellant to


demonstrate actual prejudice by trial counsel' s failure to move to suppress a warrantless arrest,

she or        he   must show   that the trial     court    likely   would   have   granted       the   motion   if   made.   State V.


McFarland, . 27 Wn.2d 322, 333 -34, 899 P. 2d 1251 ( 1995).
           1                                                                         To determine actual prejudice, that


the trial court likely would have granted the motion if made, we necessarily must preview the

merits of an appellant' s alleged error. See State v. Walsh, 143 Wn.2d 1, 8, 17 P. 3d 591 ( 2001).

               Probable cause exists where the facts and circumstances within the arresting officer' s


 knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a

 person of reasonable caution           to believe that           an offense   has been    or    is   being   committed.     State v.


                                                                     in
No. 43736 -8 -II



Knighten, 109 Wn.2d 896, 899, 748 P. 2d 1118 ( 1988).                     We must consider the arresting officer' s

special experience and expertise in evaluating the reasonableness of the officer' s probable cause

determination. Knighten, 109 Wn.2d at 899.


          A custodial arrest occurs if a reasonable detainee under the circumstances would consider


himself or herself under full custodial arrest; the subjective perception of the arresting officers is

irrelevant.    State     v.   Glenn, 140 Wn.      App. 627,     638, 166 P. 3d 1235 ( 2007).                  We look to several


factors to determine if a detainee could reasonably consider himself or herself under full

custodial     arrest:    whether the suspect is handcuffed, whether the suspect is placed in a patrol

vehicle   for transport,        and whether       the suspect   is told that he       or   she   is    under     arrest.   State v.


Radka, 120 Wn. App. 43, 49, 83 P. 3d 1038 ( 2004).

                                                          B. ANALYSIS


          Here, even assuming without deciding that an arrest without probable cause is an error of

constitutional magnitude,             Evans fails to demonstrate        actual prejudice.         Evans cannot show that


the trial court likely would have granted the motion to suppress the arrest had Evans made the

motion. Thus, he cannot satisfy RAP 2. 5( a).

          In Glenn, Division One of this court held that officers have probable cause to arrest a


person when they receive a citizen' s report that someone is pointing a gun at a person, and the

facts and circumstances known to the arresting officers would cause a reasonable person to

believe that the identified           person either pointed     the   gun or still possessed          the     gun.   140 Wn. App.

at 638 -39. In Glenn, a seven -year -old boy told his mother that a man driving by pointed a gun at

him,   and    the   boy' s    mother called police.         140 Wn.     App.   at   631.   The boy' s mother saw a car

matching      what      her   son   described,   copied   the license   plate, and reported           it to   police.   Glenn, 140


 Wn.   App.    at   631.      When police arrived and interviewed the boy, a car drove by and the boy

                                                                E
No. 43736 -8 -II


identified it    as   the same car      from       which   the   man pointed           the   gun.   Glenn, 140 Wn. App. at 631.

The officers stopped the car, found that the plates matched the plates reported by the boy' s

mother, and arrested           the driver.         Glenn, 140 Wn.          App.   at   631.    Division One held that probable


cause supported the driver' s arrest because the citizen' s report, combined with the matching

vehicle plates, would cause a reasonable person to believe that the driver pointed the weapon


from his car and still had the weapon on his person. Glenn, 140 Wn. App. at 638 -39.

           Like Glenn, officers here responded to a high -
                                                         risk, firearm- related citizen' s report that a

man was      waving          a gun at   a    female in     unit   17   at   the Avalon Place Apartments.            Within two


minutes of receiving the call, officers observed a male in unit 17, verifying a portion of the

citizen' s report.       After the officers secured the scene, they confirmed the 911 call and learned

that " Lance" had waved the gun in the apartment. Officer Prater then confirmed with Evans that

his name was Lance and advised him of his Miranda rights; after Officer Hamilton found

Evans'     s gun   in his "    man purse,"         the officers placed him in a patrol car and transported him to

jail. Like Glenn, probable cause supported Evans' s arrest based on ( 1) the citizen' s initial report

that   a   man   waved a        gun    at a woman       in   apartment        17, ( 2) the officers observed Evans inside


apartment     17, (   3) the officers confirmed what happened with the citizen informant 911 caller and

Rojo identified the           gunman        as "   Lance," and ( 4) the officers identified the man removed from


apartment        17   as "   Lance."    Those facts, taken together, as in Glenn, would lead a reasonable


person to believe that Evans waved a gun and still had a gun on his person. See 140 Wn. App. at

638 -39. Thus, the officers had probable cause for the arrest.




                                                                       n
No. 43736 -8 -II



        Evans cannot demonstrate from the record that the officers unreasonably arrested him by
                                                                                  8
immediately       ordering him to the       ground     and   handcuffing   him.       The record shows that the


officers ordered Evans to the ground and handcuffed him because he allegedly brandished a

firearm just      moments     before they   arrived.    The officers placed Evans in a patrol vehicle and


transported him to jail only after confirming with Rojo that Evans had waved a firearm at her

daughter.     The record does not indicate that officers ever told Evans he was under arrest when


they first handcuffed him to secure the area, and merely handcuffing a suspect in a high - isk
                                                                                         r
situation,   by   itself, does   not constitute an arrest.       See Radka, 120 Wn.    App.   at   49. Accordingly,


based on the record before us, we cannot say that the trial court would have found an absence of

probable cause to arrest Evans. Accordingly, Evans fails to demonstrate that the trial court likely

would have granted the motion to suppress the arrest had he challenged it at trial; therefore, he

does not demonstrate prejudice and fails to preserve this issue for appeal. See RAP 2. 5( a)( 3).

                                           II. INEFFECTIVE ASSISTANCE


         Evans next argues that defense counsel provided ineffective assistance by failing to

challenge the legality of his arrest and encouraging him to sign the stipulation. Defense counsel

was not ineffective because, as discussed above, challenging the defendant' s arrest would have

been futile and agreeing to a stipulation was a strategic, tactical decision designed to achieve a

favorable outcome.




8
    Evans    conflates probable cause and reasonable suspicion —            he argues that officers unlawfully
arrested     him,   yet   he mistakenly   relies on reasonable suspicion cases.         For example, he relies on
State   v.   Sieler, 95 Wn.2d 43,                    to argue that the officers improperly
                                          621 P. 2d 1272 ( 1980),
detained and questioned him based on an unreliable tip; he argues that the officers needed
knowledge of the source' s reliability and needed to independently corroborate the tip before
 detaining    him.        But Sieler is inapplicable here because it involved an officer detaining or
 questioning someone, not having probable cause to arrest a suspect. 95 Wn.2d at 45.
                                                             7
No. 43736 -8 -II


            To    demonstrate ineffective                 assistance,    the appellant must satisfy the two -
                                                                                                            pronged

Strickland test. Strickland v. Washington, 466 U. S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674

 1984); State       v.    Cienfuegos, 144 Wn.2d 222, 226 -27, 25 P. 3d 1011 ( 2001).                     For the first prong,

the appellant must show that counsel' s performance was deficient, meaning that counsel' s

performance         falls below         an objective         standard of     reasonableness.   Strickland, 466 U.S. at 688.


For the second prong, the appellant must show that counsel' s deficient performance prejudiced

his   or   her defense. Strickland, 466 U. S.                 at   688. If trial counsel' s conduct can be characterized as


legitimate trial strategy              or   tactics, it   cannot substantiate an     ineffective   assistance claim.   State v.


McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002), cent. denied, 547 U. S. 1151 ( 2006).


            First, Evans claims that defense counsel failed to provide effective assistance because he

did not challenge the legality of Evans' s arrest. But as reasoned above, the officers had probable

cause      to   arrest   Evans.    Because police had probable cause, any attempt by counsel to challenge

the   legality      of    Evans'   s    arrest       would   have been futile.       Therefore, counsel' s decision not to


challenge Evans' s arrest was reasonable and does not constitute ineffective assistance.

            Second, Evans claims that defense counsel failed to provide effective assistance by

encouraging him to stipulate not only that the evidence against him was admissible, but that it

sufficiently       supported       his      guilt.    He claims this " hybrid" guilty plea and fact stipulation is not a

legally recognized method of resolving criminal prosecutions and deprived him of due process.

But Evans' s decision to stipulate to the admissibility and sufficiency of the evidence was a

strategic choice          to   obtain more           favorable treatment —Evans       knowingly and voluntarily stipulated

to the admissibility and sufficiency of the evidence against him in order to appeal the

 suppression        issue.      And in exchange for Evans' s stipulation, the State dismissed the unlawful


 carrying       of a     fireman   charge.           Because Evans' s stipulation strategically allowed him to appeal

                                                                        N.
No. 43736 -8 -II



the suppression issue and avoid an unlawful carrying of a firearm conviction, it cannot serve as a

basis for   an   ineffective   assistance claim.   See McNeal, 145 Wn.2d   at   362.   Accordingly, Evans' s

ineffective assistance of counsel claim fails.


        We affirm.


        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.


                                                                                              i




                                                                  ON, J.




                                                        6
