                                                               FILED 

                                                            MARCH 28, 2013 

                                                       In the Office of the Clerk of Court 

                                                     W A State Court of Appeals, Division [II 




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                           )         No. 30549-0-III
                                               )
                      Respondent,              )
                                               )
                v.                             )         UNPUBLISHED OPINION
                                               )
DA WES MICHAEL MARLATT,                        )
                                               )
                      Appellant.               )

       KlTLIK,   J. - Dawes Michael Marlatt appeals his conviction for the crime of

unlawful possession of a controlled substance, methamphetamine. Mr. Marlatt contends

the trial court erred by denying his motion to suppress the evidence obtained from a

Terryl frisk. He specifically argues that trial counsel was ineffective for failing to argue

that a law enforcement officer exceeded the permissible scope of a weapons search when

he continued to search Mr. Marlatt's pocket after determining that Mr. Marlatt was not

armed. We reverse the conviction, as the evidence was the product of an unlawful search

and should have been suppressed.



       1   Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968).
No.30549-0-II1
State v. Marlatt


                                          FACTS

       During the early morning of June 1,2010, Sheriffs Deputy Robert Brooke stopped

Mr. Marlatt for driving a car with a defective headlight. Mr. Marlatt showed the deputy

his license, but was unable to produce the car's registration. A computer check revealed

that the registration had expired in 2007, although the license plate had 2010 tabs.

       Deputy Brooke asked Mr. Marlatt to get out of the car so that he could question

Mr. Marlatt outside the presence of a passenger in the car. As Mr. Marlatt exited the car,

he reached behind his back with his right hand, prompting the deputy to grab Mr.

Marlatt's hand. Deputy Brooke then noticed the handle of a wrench sticking out of Mr.

Marlatt's right rear pocket and decided to search Mr. Marlatt for weapons.

       During a pat down of Mr. Marlatt's left front pants pocket, the deputy felt a large

folding knife. He removed the knife and proceeded to search Mr. Marlatt's right front

pants pocket where he felt a small soft bulge inside the coin pocket that he suspected was

a baggie of drugs. Mr. Marlatt became fidgety, tried to pull his hands from the deputy's

grasp, and protested the search. However, the deputy continued the search, later stating in

his incident report, "It is common for drug users to package their drugs in plastic baggies

and carry the baggie in their coin pockets." Clerk's Papers (CP) at 17. To confirm his

suspicion, the deputy manipulated the item between his thumb and forefinger and asked


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State v. Marlatt


Mr. Marlatt what was in his coin pocket. Mr. Marlatt, responded, '" 1 don't know.'"

CP at 17. Deputy Brooke asked Mr. Marlatt ifhe could remove the item. Mr. Marlatt

sighed and said, " , Yeah, go ahead.'" CP at 17. The deputy then removed the item,

which was later established to be methamphetamine.

       The State charged Mr. Marlatt with possession of a controlled substance. Mr.

Marlatt moved to suppress the evidence, arguing the deputy exceeded the scope of a

routine traffic stop by asking Mr. Marlatt to exit the car and then searching him. He

argued that the issue of the expired car tabs could have been handled with Mr. Marlatt

sitting in the car and that Mr. Marlatt's possession of a wrench in his back pocket was

insufficient to trigger a suspicion that he was involved in criminal activity or armed.

       The court denied the motion, finding that the discrepancy between the 2007

expired registration date and 2010 tabs on the vehicle justified the deputy's decision to

question Mr. Marlatt and that the deputy's request for Mr. Marlatt to exit the car was a de

minimis intrusion and lawful within the scope of the traffic stop. It also found that the

Terry frisk, after discovery of the wrench, was not unreasonable.

       Mr. Marlatt was found guilty of possession of methamphetamine after a bench trial

on stipulated facts.




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State v. Marlatt


                                        ANALYSIS

       When reviewing the denial of a suppression motion, we determine whether

substantial evidence supports the challenged findings of fact and whether the findings

support the conclusions of law. State v. Hill, 123 Wn.2d 641,644, 870 P.2d 313 (1994).

Conclusions oflaw are reviewed de novo. State v. Duncan, 146 Wn.2d 166, 171,43 PJd

513 (2002).

       Here, Mr. Marlatt does not contest the legality of the initial stop or the frisk for

weapons; instead, Mr. Marlatt argues that the deputy exceeded the narrow scope of a

Terry weapons frisk by continuing to manipulate the contents of his pocket after

determining that he was not armed. He raises the issue for the first time on appeal by

claiming the manifest constitutional error of ineffective assistance of counsel. His trial

counsel moved to suppress on the unsuccessful ground that the Terry search for weapons

was not justified at its inception because there was no basis to ask Mr. Marlatt to exit the

car or to search him for weapons. Mr. Marlatt contends that effective counsel would have

instead challenged the scope of the Terry weapons frisk.

       Generally, we do not review evidentiary objections that were not presented to the

trial court unless the alleged error involves a manifest error affecting a constitutional

right. RAP 2.5(a)(3); State v. Horton, 136 Wn. App. 29, 36, 146 PJd 1227 (2006).



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No.30S49-0-III
State v. Marlatt


Ineffective assistance of counsel is a manifest error affecting a constitutional right and so

we must review Mr. Marlatt's claim even ifit is raised for the first time on appeaL State

v. Brown, 159 Wn. App. 1, 17,248 P.3d 518 (2010) (citing RAP 2.5).

       We review a claim of ineffective assistance de novo. State v. Rainey, 107 Wn.

App. 129, 135,28 P.3d 10 (2001). Mr. Marlatt is required to show that his lawyer's

representation was deficient and that the deficiency prejudiced him; that is, the error

likely changed the outcome of the trial. Stricklandv. Washington, 466 U.S. 668,687,104

S. Ct. 2052,80 L. Ed. 2d 674 (1984).

       Because Mr. Marlatt tries to raise a suppression issue not considered by the trial

court, he must establish that the trial court would likely have granted the motion if it had

been made, and that defense counsel had no legitimate tactical basis for not raising the

argument in the trial court. State v. McFarland, 127 Wn.2d 322, 333-35, 899 P.2d 1251

(1995). This court has noted that suppression of drug evidence often results in the

dismissal of drug possession charges, thus satisfYing both Strickland prongs if defense

counsel failed to raise an argument during a suppression motion that likely would have

succeeded. Horton, 136 Wn. App. at 36.

       Generally, warrantless searches and seizures are per se unreasonable, subject only

to a few well established exceptions, including a Terry stop. Terry v. Ohio, 392 U.S. 1,



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No. 30549-0-II1
State v. Marlatt


88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). A Terry stop, although less intrusive than an

arrest,is nevertheless a seizure and, therefore, must be reasonable under the Fourth

Amendment and article I, section 7 of the Washington Constitution. State v. Kennedy,

107 Wn.2d 1,4, 726 P.2d 445 (1986). A Terry stop must be justified not only in its

inception, but also in its scope. State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160

(1994).

       Under Terry, an officer is allowed to conduct a brief and nonintrusive search to

discover potential weapons if the officer has reasonable safety concerns. Terry, 392 U.S.

at 29; State v. Serrano, 14 Wn. App. 462, 468, 544 P.2d 101 (1975). The search must be

"confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or

other hidden instruments for the assault of the police officer." Terry, 392 U.S. at 29. A

protective search for weapons may not be used as a pretext for a more general search to

discover evidence of a crime. Minnesota v. Dickerson, 508 U.S. 366,373, 113 S. Ct.

2130, 124 L. Ed. 2d 334 (1993); State v. Setterstrorn, 163 Wn.2d 621,626, 183 P.3d 1075

(2008). Thus, as soon as an officer determines that the suspect has no weapon(s), the

search must stop. Hudson, 124 Wn.2d at 113 (quoting State v. Allen, 93 Wn.2d 170, 173,

606 P.2d 1235 (1980)).




                                             6

No.30549-0-III
State v. Marlatt


       State v. Garvin, 166 Wn.2d 242,207 P.3d 1266 (2009) is directly on point. In that

case, a police officer conducted a lawful Terry stop and weapons search. During the

weapons frisk, the police officer felt a plastic baggie inside the defendant's front pants

coin pocket and immediately determined there was no weapon. Id. at 245,254-55.

Nevertheless, the officer continued to squeeze the contents of the defendant's pocket

because he suspected the baggie contained narcotics. Id. at 247.

       The court held that as soon as the officer ascertained the defendant did not have a

weapon, any continuing search was unreasonable: "[i]t is unlawful for officers to continue

squeezing ... after they have determined a suspect does not have a weapon, to find

whether the suspect is carrying drugs or other contraband." Id. at 255. The court

cautioned that if such a general search for contraband were permitted, "one of the

narrowly drawn exceptions to the warrant requirement would swallow the rule." Id.

       Like Garvin, the deputy here exceeded the permissible scope of a weapons search

when he continued to manipulate the contents of Mr. Marlatt's coin pocket after

determining there was no weapon in the pocket. The deputy admitted that he "suspected

the soft bulge was a plastic baggie containing drugs" and continued to manipulate the

item in the baggie to confirm his suspicions. CP at 17. Under Garvin, as soon as the

deputy knew Mr. Marlatt was not armed, the search should have stopped. Garvin, 166


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No.30549-0-III
State v. Marlatt


Wn.2d at 255.

       The State argues that because Mr. Marlatt consented to the search, no

constitutional protections are implicated. However, as discussed in the remaining

analysis, Mr. Marlatt's consent was obtained through exploitation of the prior illegal

search and therefore did not purge the taint of the prior illegal search.

       A search that exceeds the proper scope of a Terry stop is improper unless the

defendant's "subsequent consent to the search ... sufficiently purged the taint of the

illegal detention." State v. Tijerina, 61 Wn. App. 626, 629, 811 P.2d 241 (1991). The

State must demonstrate that a defendant's consent was not obtained by the exploitation of

a prior illegal search. State v. Jensen, 44 Wn. App. 485,490, 723 P.2d 443 (1986)

(quoting Wong Sun v. United States, 371 U.S. 471, 487-88,83 S. Ct. 407, 9 L. Ed. 2d 441

(1963».

       The U.S. Supreme Court has framed the issue

       "whether, granting establishment of the primary illegality, the evidence to
       which instant objection is made has been come at by exploitation of that
       illegality or instead by means sufficiently distinguishable to be purged of
       the primary taint."

Wong Sun, 371 U.S. at 487-88 (quoting JOHN MAcARTHUR MAGUIRE, EVIDENCE

OF GUILT   221 (1959».




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No. 30549-0-111
State v. Marlatt


       In determining the effect of the consent, we apply the following factors: (I) the

temporal proximity of the detention and subsequent consent, (2) the presence of

significant intervening circumstances, (3) the purpose and flagrancy of the official's

conduct, and (4) the giving of Miranda 2 warnings. Jensen, 44 Wn. App. at 490.

       In Jensen, a defendant's consent to search his car was deemed valid; despite a prior

illegal search of the car where the defendant was (1) allowed to make a telephone call,

(2) given Miranda warnings, (3) twice advised he did not have to consent to the search,

and (4) not subjected to intimidating police conduct. ld. at 490-91. This court considered

advisement of the defendant's right to withhold consent a "crucial" significant

intervening circumstance. ld. We also noted that the defendant had not given up due to

the futility of resistance after the illegal prior search. ld. at 491.

       In contrast to Jensen, Mr. Marlatt was not advised that he could withhold consent

nor was he given Miranda warnings prior to obtaining consent. Moreover, whereas the

interaction between the defendant and police in Jensen was characterized as "cooperative

and friendly," Mr. Marlatt was subjected to intimidating police conduct. ld. at 491. In his

incident report, the deputy described grabbing Mr. Marlatt's arms, Mr. Marlatt becoming

"fidgety" and attempting to pull his hands from the deputy's grasp, and Mr. Marlatt


       2 Miranda   v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                                9

No. 30549-0-111
State v. Marlatt


"protest[ ing] the search." CP at 17.

       Tijerina supports our conclusion. In that case, a police officer exceeded the scope

of a traffic stop, obtained the defendant's consent to search his car, and then found drugs

in the car. Tijerina, 61 Wn. App. at 628. This court concluded that the defendant's

consent had not purged the taint of the illegal search, citing: (1) the close temporal

proximity between the detention and the consent, (2) the lack of significant intervening

circumstances between the illegal detention and the consent to search, i.e., the defendant

was not advised of his right to refuse to consent to a search, and (3) the officer did not

advise the defendant of his constitutional rights. Id. at 630.

       Here, the deputy candidly admitted that a search for weapons shifted to a search

for drugs. However, the purpose of the stop was satisfied as soon as the deputy realized

that Mr. Marlatt did not have a weapon. By the time the deputy asked Mr. Marlatt for

permission to remove the item in Mr. Marlatt's pocket, the officer knew the item was not

a weapon, and Mr. Marlatt knew it was useless to continue to resist. Applying the factors

outlined above, Mr. Marlatt's consent cannot be deemed voluntary. It was obtained by

exploitation of the prior illegality.

       If trial counsel had argued that the deputy exceeded the scope of the weapons

search, it is likely the court would have granted the suppression motion. We find no


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No. 30S49-0-II1
State v. Marlatt


tactical basis to explain defense counsel's failure to do so, which was both erroneous and

prejudicial. But for the illegal search, the deputy would not have obtained Mr. Marlatt's

consent. Thus, the evidence should have been suppressed.

       We reverse and remand for an order of dismissal.

      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.




                                                         Kulik,1.

We concur:




Brown, J.                                          Siddoway, A.C.J.




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