                                                                  FILED 

                                                                FEB. 20,2014 

                                                        In the Office of the Clerk of Court 

                                                      W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STA1E OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                           )
                                               )         No. 30439-6-III
                      Respondent,              )
                                               )
               v.                              )         UNPUBLISHED OPINION
                                               )
ANGEL A. FREGOSO-GUERRERO,                     )

                                               )

                      Appellant.               )


       SIDDOWAY, A.C.J. - After the trial court entered findings and conclusions on an

accomplice's suppression motion, Angel Fregoso-Guerrero stipulated to those findings

and conclusions for purposes of his own suppression motion, which was denied. He

argues on appeal that the stipulation to findings from a hearing he did not attend violated

his right to be present at all critical stages of the proceedings, that no evidence was

presented in the hearing on his own suppression motion, and that the court's fmdings do

not support a conclusion that his detention was lawful. The parties' arguments on these

issues reveal a probable misunderstanding on everyone's part about the extent and effect

of the parties' stipulation.
No.30439-6-III
State v. Fregoso-Guerrero


       Supplementally, and with our leave, Mr. Fregoso-Guerrero demonstrates that he

never validly waived his right to trial by jury. A new trial will therefore be required.

       Because a new trial is required, and in light of what we perceive to be a genuine

misunderstanding over the extent and effect of the stipulation to facts and conclusions

from another defendant's suppression hearing, we grant Mr. Fregoso-Guerrero's request

for a new hearing on his suppression motion.

       We reverse and remand for proceedings consistent with this opinion.

                    FACTS AND PROCEDURAL BACKGROUND

       The State charged Mr. Fregoso-Guerrero and Enrique Retana Gonzalez with

second degree burglary and second degree theft after sheriffs Deputy Lee Risdon found

a stolen boat motor in the men's sport utility vehicle (SUV). Both men filed CrR 3.6

motions to suppress. The court ruled on Mr. Retana Gonzalez's motion first, and denied

it.

       At the hearing on Mr. Fregoso-Guerrero's motion, the State and Mr. Fregoso-

Guerrero agreed to adopt the findings and conclusions from Mr. Retana Gonzalez's

hearing. An interpreter read the findings and conclusions to Mr. Fregoso-Guerrero and

he signed a copy of them.

       The trial court's key findings at Mr. Retana Gonzalez's suppression hearing

supporting Deputy Risdon's decision to pull over the SUV were of specific facts leading

the deputy to "suspect[ ] the driver[, Retana Gonzalez,] might be under the influence of

                                              2

No. 30439-6-UI
State v. Fregoso-Guerrero


alcohol based on the erratic driving and the location ofthe vehicle having been parked

along the fog line facing the wrong direction." Clerk's Papers (CP) at 28 (Finding of

Fact 10).1

       The trial court's conclusions of law based on its findings addressed only "the

suspect," meaning Mr. Retana Gonzalez. It concluded:



       IThe following findings provided support for the deputy's suspicion that Mr.
Retana Gonzalez was impaired:
              1.     . .. [A]t approximately 1: 10 a.m., Deputy Risdon was
      traveling ... on [Highway] 97A.
             2.     Deputy Risdon observed a vehicle's brake lights illuminate in
      the area of 405 Ohme Road near ... Ohme Road Storage. There were no
      residences in the area and the businesses were closed.

              4.      Deputy Risdon stopped ... some distance from the vehicle
       and activated his spotlight onto the vehicle.
               5.     Deputy Risdon observed the front passenger door partially
       open and a Hispanic male starting to get out. He then observed the brake
       lights ofthe vehicle illuminate.
               6.     As the male started to exit the vehicle, he looked back at
       Deputy Risdon. [I]t seemed suspicious to Deputy Risdon who then placed
       his vehicle in reverse and backed away in case the male ... had a weapon.
               7.     As soon as Deputy Risdon started to back his patrol vehicle
       up, the male passenger quickly got back inside the vehicle and shut the
       door.
               8.     The vehicle then quickly accelerated ... and abruptly
       swerved up onto the pavement.
               9.     Deputy Risdon immediately accelerated behind the vehicle
       and activated his emergency lights.

             11.    The vehicle continued west ... for a short distance and then
       came to an immediate stop.
CP at 27-28.

                                            3

No. 30439-6-III
State v. Fregoso-Guerrero


               1.     The court finds the initial interference with the suspect's
      freedom of movement was justified at its inception. Here, Deputy Risdon's
      initial contact with the vehicle consisted of the use of his spotlight simply
      to illuminate the vehicle. There was no interference with the suspect's
      freedom of movement at that point.
              2.      When the vehicle and its occupants, acting in a suspicious
      manner, rapidly accelerated and drove in an erratic manner across the
      roadway and down Ohme Road, Deputy Risdon possessed reasonable
      suspicion to stop the vehicle.
              3.      The court concludes that a traffic stop on this vehicle was a
      reasonable interference with the suspect's freedom of movement. The
      vehicle was stopped in the middle of the road with the motor running and
      the keys in the ignition. The occupants, including the driver, fled the
      vehicle and it was reasonable for the deputy to make contact with the
      driver to find out at that point whether the driver was under the influence of
      intoxicants or exactly what was going on in this situation.
              4.      The court further concludes that based on the totality of the
      circumstances, the deputy's interference with the suspect's freedom of
      movement was reasonably related in scope to the circumstances which
      justified the interference in the frrst place. The court considered the
      deputy's training and experience, the deputy being a 5-year veteran of the
      Chelan County Sheriffs Office, the location of the stop, the time of the
      stop (1:10 a.m.), the conduct of the suspect which included his attempted
      flight, and the erratic driving of the vehicle by the suspect/defendant in
      determining that reasonable suspicion existed for a detention of the driver.

CP at 30-31 (emphasis added). The court made additional findings in support of the

deputy detaining Mr. Retana Gonzalez following the stop, including that he smelled

strongly of intoxicants and had bloodshot eyes.

      Deputy Risdon had actually chased and captured Mr. Fregoso-Guerrero first,

however. The trial court's fmdings relating to Mr. Fregoso-Guerrero were that after Mr.

Retana Gonzalez stopped in the middle of the roadway "[t]hree individuals fled from the

vehicle" and Deputy Risdon "caught the driver's side passenger .... He was later

                                            4

No. 30439-6-111
State v. Fregoso-Guerrero


identified as Angel A. Fregoso-Guerrero." CP at 28-29. The officer also later discovered

what appeared to be a stolen boat motor in plain view from outside the SUV, but that was

after he had already chased, captured, and handcuffed Mr. Fregoso-Guerrero.

       Having considered the parties' stipulation to the facts and conclusions, the trial

court accepted them and ruled that Deputy Risdon had lawfully seized Mr. Fregoso-

Guerrero.

       Following the ruling, the prosecutor informed the court that ''the second portion of

our hearing this morning ... is actually to do a stipulated facts trial on this case." Report

of Proceedings (RP) at 3. The stipulated facts trial consisted in its entirety of the State

offering police reports into evidence without objection and the trial court, on the basis of

the police reports, finding Mr. Fregoso-Guerrero guilty and sentencing him.

       Mr. Fregoso-Guerrero appeals.

                                            ANALYSIS

       Mr. Fregoso-Guerrero raises four issues: that (1) the trial court's reliance on the

facts and conclusions from Mr. Retana Gonzalez's suppression hearing violated his right

to be present at all critical stages of the proceeding, (2) there was no evidence in the

record of Mr. Fregoso-Guerrero's case sufficient to sustain the findings, (3) the stipulated

findings do not demonstrate reasonable suspicion for chasing and seizing Mr. Fregoso-

Guerrero after he fled the SUV, and (4) there is no evidence of a knowing and voluntary

waiver by Mr. Fregoso-Guerrero of his right to a jury trial. We first address Mr. Fregoso­

                                              5

No. 30439-6-III
State v. Fregoso-Guerrero


Guerrero's argument that he did not validly waive his right to a jury trial. We then

consider, collectively, the issues relating to the hearing on his motion to suppress.

                I. Does the record demonstrate a knowing and voluntary
                            waiver ofthe right to a jury trial?

       Mr. Fregoso-Guerrero argues that there is an insufficient showing that he

voluntarily and knowingly waived his right to a jury trial.

       The federal and state constitutions both guarantee the right to a jury trial. U.S.

CONST. amend VI; CONST. art. I, § 21. The right may be waived, but it must be done so

voluntarily, knowingly, and intelligently. City ofBellevue v. Acrey, 103 Wn.2d 203, 207,

691 P.2d 957 (1984). The State has the burden to demonstrate that the waiver is valid.

State v. Wicke, 91 Wn.2d 638,645,591 P.2d 452 (1979). If the record is insufficient to

demonstrate that the waiver was valid, the court will make every reasonable presumption

against validity. Id. Whether the waiver is valid is an issue oflaw that we review de

novo. State v. Ramirez-Dominguez, 140 Wn. App. 233, 239, 165 P.3d 391 (2007).

       The record is sufficient to demonstrate a valid waiver only if it shows that the

defendant personally waived the right. State v. Hos, 154 Wn. App. 238, 250,225 P.3d

389 (2010) (citing Wicke, 91 Wn.2d at 644). Although CrR 6.1 requires a written waiyer,

a record showing that the defendant orally waived the right may be sufficient to prove a

valid waiver for constitutional purposes. Id. However, a statement by defense counsel

that the defendant waived the right is insufficient. Id. In Wicke and Hos, defense counsel


                                              6

    No. 30439-6-111 

    State v. Fregoso-Guerrero 



    stated that their clients waived the right to a jury trial while their clients stood silently by.

    Wicke, 91 Wn.2d at 641; Hos, 154 Wn. App. at 244. In both cases, the court reversed

    because the record did not show that the defendant had personally expressed the waiver.

    Wicke, 91 Wn.2d at 645; Hos, 154 Wn. App. at 252. Even if waiver was implied by the

    defendant's conduct, the conduct was not strong enough evidence of waiver to meet

    constitutional requirements. Wicke, 91 Wn.2d at 645.

           Here, the record includes no written or oral waiver ofjury trial by Mr. Fregoso-

    Guerrero, or even a purported waiver by his lawyer-the subject simply never came up.

           The State nonetheless argues, based on United States v. Ferreboeuf, 632 F.2d 832

    (9th Cir. 1980), that Mr. Fregoso-Guerrero signed a stipulation and, without evidence to

    the contrary, the trial court was free to assume that he knew about and agreed to its

    contents. Resp. to Appellant's Suppl. Br. at 3. First of all, the document signed by Mr.

    Fregoso-Guerrero said nothing about waiving his right to jury trial; the most that can be

    said for it is that it was prepared for signature by a judge. Secondly, Ferreboeuf did not
"




    raise any issue of waiving a jury trial-in fact, the defendant in Ferreboeufwas tried by a

    jury. The decision dealt instead with whether the court was required to establish that a

    defendant's stipulation to a critical fact was voluntary (it answered "no"). Since a

    stipulated facts trial can be presented to ajudge or a jury, the mere act of stipulating to

    facts says nothing about jury waiver.




                                                    7

No. 30439-6-III
State v. Fregoso-Guerrero


       As pointed out by Mr. Fregoso-Guerrero, the record here is even less adequate

than the records in Wicke and Hos to demonstrate a knowing and voluntary waiver of Mr.

Fregoso-Guerrero's right to trial by jury. A new trial is required.

              II. Should the trial court's denial ofMr. Fregoso-Guerrero's
                            suppression motion be affirmed?

       Mr. Fregoso-Guerrero makes three related arguments challenging the trial court's

denial of his motion to suppress following an unusual, and ultimately unclear, stipulation

to the facts and conclusions from Mr. Retana Gonzalez's suppression hearing.

       He first argues that his right to be present at all critical stages was violated. He

contends this is so because evidence was presented at the Retana Gonzalez suppression

hearing; Mr. Fregoso-Guerrero was not present at that hearing; and he did not voluntarily,

knowingly, and intelligently waive his right to be present at that hearing. 2

       A defendant's right to be present in court is protected by the Sixth Amendment's

confrontation clause and the Fourteenth Amendment's due process clause. United States




       2 He  raises this argument for the first time on appeal. Generally, this court will not
review issues raised for the first time on appeal. RAP 2.5(a). An exception is manifest
error affecting a constitutional right. RAP 2.5(a)(3). The right to be present at one's
criminal trial is a constitutional issue that may be raised for the first time on appeal. State
v. Easterling, 157 Wn.2d 167, 173 n.2, 137 P.3d 825 (2006). While we reject the
suggestion that Mr. Retana Gonzalez's suppression hearing somehow became part ofthe
proceedings in Mr. Fregoso-Guerrero's case by virtue of the stipulation, the error as
framed implicates a constitutional right and may be raised for the fITst time on appeal.

                                              8

No. 30439-6-III
State v. Fregoso-Guerrero


v. Gagnon, 470 U.S. 522,526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985) (per curiam).3

The confrontation clause guarantees a criminal defendant the right to be present when

evidence is presented. In re Pers. Restraint ofLord, 123 Wn.2d 296,306,868 P.2d 835

(1994) (quoting Gagnon, 470 U.S. at 526). The due process clause guarantees the right

to be present when the defendant is not actually confronting the evidence, but the

defendant's presence "'has a relation, reasonably substantial, to the fullness of his

opportunity to defend against the charge.'" Gagnon, 470 U.S. at 526 (quoting Snyder v.

Massachusetts, 291 U.S. 97, 105-06, 108,54 S. Ct. 330, 78 L. Ed. 674 (1934), overruled

in part on other grounds by Malloy v. Hogan, 378 U.S. 1,84 S. Ct. 1489, 12 L. Ed. 2d

653 (1964)).

       Mr. Fregoso-Guerrero was present at the CrR 3.6 hearing on his own motion to

suppress. He personally signed the stipulated fmdings and conclusions, which stated that

he, his lawyer, and the State "are hereby adopting the findings and conclusions from the

hearing held on October 18,2011, in the Enrique Retana Gonzalez matter." CP at 27.

When the signed findings and conclusions were presented to the court, it inquired:

              THE COURT: Mr. Redal, Mr. Riesen's handed up to me Findings
       of Fact, Conclusions of Law regarding a 3.6 hearing. And Mr. Riesen's
       signed. It looks like you have signed it and looks like your client has
       signed it.
              MR. REDAL: That's correct.


       3 This court applies federal constitutional law when addressing the right to be
present. State v. Irby, 170 Wn.2d 874, 880,246 P.3d 796 (2011).

                                             9

No.30439-6-II1
State v. Fregoso-Guerrero


              THE COURT: Anything you want to say?
              MR. REDAL: No. We agree with those Findings and Conclusions.

RP at 2.

       A stipulation to facts is an express waiver conceding for the purposes of trial that

the facts are true and there is no need to prove the facts. State v. Wolf, 134 Wn. App.

196, 199, 139 P.3d 414 (2006) (quoting Key Design, Inc. v. Moser, 138 Wn.2d 875, 893­

94,983 P.2d 653 (1999)). Whether to stipulate to facts is a tactical decision and an

attorney can decide whether a stipulation is appropriate. State v. Mierz, 127 Wn.2d 460,

476,901 P.2d 286 (1995); State v. Goodin, 67 Wn. App. 623, 633, 838 P.2d 135 (1992).

       Rather than draft findings from scratch, parties sometimes rely for stipulated facts

on police reports or on a fair statement of facts in a party's brief. Ultimately, the State is

seeking language and content sufficient to meet its burden of proof. The defendant will

want the language and content to be limited to what he or she believes the State will

inevitably prove. Myriad sources of language and content are conceivable. We see no

reason why the findings from a hearing or a trial in a related prosecution would not be a

reasonable source of language and content when parties elect to stipulate to facts.

       Mr. Fregoso-Guerrero does not explain why the fmdings from the Retana

Gonzalez suppression hearing would not be a reasonable source of language and content

for a stipulation in his own hearing. Instead, he treats the fact that the parties

appropriated those findings as if the underlying hearing thereby assumed significance in



                                              10 

No. 30439-6-III
State v. Fregoso-Guerrero


his case. Neither the document that he signed nor statements made during the

suppression hearing suggested he was agreeing to be bound by the record of the Retana

Gonzalez hearing. We would not regard the record of that hearing as having any role in

the trial court's decision on Mr. Fregoso-Guerrero's suppression motion or in this appeal.

We would therefore reject this argument out of hand except for the fact, discussed below,

that in connection with one of Mr. Fregoso-Guerrero's other arguments, the State treats

the record of the Retana Gonzalez hearing as incorporated for some purposes in this

appeal.

      Mr. Fregoso-Guerrero next argues that evidence did not support the trial court's

fmdings because no evidence was offered in his suppression hearing. We agree that the

court should not have relied on evidence in the Retana Gonzalez hearing as support for its

fmdings on Mr. Fregoso-Guerrero's suppression motion, but it never had to: Mr.

Fregoso-Guerrero stipulated to the fmdings. As the United States Supreme Court

observed in Christian Legal Society v. Martinez, _   U.S.       130 S. Ct. 2971, 177 L.

Ed. 2d 838 (2010):

              Litigants, we have long recognized, "[a]re entitled to have [their]
      case tried upon the assumption that ... facts, stipulated into the record,
      were established." H. Hack/eld & Co. v. United States, 197 U.S. 442, 447,
      25 S. Ct. 456, 49 L. Ed. 826 (1905). This entitlement is the bookend to a
      party's undertaking to be bound by the factual stipulations it submits. See
      post, at 3005 (ALITO, J., dissenting) (agreeing that "the parties must be
      held to their Joint Stipulation"). As a leading legal reference summarizes:




                                            11 

No. 30439-6-III
State v. Fregoso-Guerrero


              "[Factual stipulations are] binding and conclusive ... , and
              the facts stated are not subject to subsequent variation. So,
              the parties will not be pennitted to deny the truth of the facts
              stated, . . . or to maintain a contention contrary to the agreed
              statement, . . . or to suggest, on appeal, that the facts were
              other than as stipulated or that any material fact was omitted.
              The burden is on the party seeking to recover to show his or
              her right from the facts actually stated." 83 C.J.S.,
              Stipulations § 93 (2000) (footnotes omitted).

Christian Legal Soc)!, 130 S. Ct. at 2983 (alterations in original) (footnote omitted).

      Finally, Mr. Fregoso-Guerrero argues that while there might have been reasonable

suspicion for the stop and detention ofMr. Retana Gonzalez, there was no independent

basis for seizing Mr. Fregoso-Guerrero, who merely ran away when the car stopped.

Whether the court's conclusion was correct is an issue of law that we review de novo.

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

      Article I, section 7 provides that "[n]o person shall be disturbed in his private

affairs ... without authority oflaw." When a car is stopped for a driving offense, the

driver, but not the passenger, has been stopped based upon probable cause. State v.

Mendez, 137 Wn.2d 208,217-18,970 P.2d 722 (1999), abrogated on other grounds by

Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).

Stopping the car and its occupants is lawful as long as the seizure does not extend beyond

what is necessary to secure the scene or respond to exigent circumstances. State v. Rehn,

117 Wn. App. 142, 151,69 P.3d 379 (2003) (quoting State v. Byrd, 110 Wn. App. 259,

263,39 P.3d 1010 (2002)). An officer may exert additional control over a passenger for

                                             12 

No. 30439-6-II1
State v. Fregoso-Guerrero


investigative purposes only if the officer has an independent basis for doing so. State v.

Rankin, 151 Wn.2d 689,699,92 P.3d 202 (2004). Whether there is a reasonable

suspicion to stop someone depends on the totality of the circumstances, including the

defendant's conduct, the stop's location, and the officer's training, experience, and

preexisting knowledge. State v. Villarreal, 97 Wn. App. 636,640,984 P.2d 1064 (1999).

       Here, the only independent basis for seizing Mr. Fregoso-Guerrero identified in

the stipulated facts was that he ran away from the car after Mr. Retana Gonzalez stopped

in response to Deputy Risdon activating his lights. The parties cite five cases as bearing

on whether Mr. Fregoso-Guerrero's flight supported a suspicion of criminal activity on

his part sufficient to support his seizure. The State cites Villarreal, 97 Wn. App. 636;

State v. Swaite, 33 Wn. App. 477, 656 P.2d 520 (1982); and United States ex rei.

Richardson v. Rundle, 461 F.2d 860 (3rd Cir. 1972). Mr. Fregoso-Guerrero cites State v.

Walker, 66 Wn. App. 622,834 P.2d 41 (1992), abrogated on other grounds by State v.

Randall, 73 Wn. App. 225, 868 P.2d 207 (1994); State v. Thompson, 93 Wn.2d 838, 613

P.2d 525 (1980); and State v. Larson, 93 Wn.2d 638,611 P.2d 771 (1980).

       Turning first to the cases cited by the State, Villarreal does not address flight as

providing reasonable suspicion; in that case, the court found that the stop was justified

where an officer observed the defendant violating a city ordinance and, alternatively,

defacing or damaging private property. In Swaite, the defendant was stopped when he

was spotted in the area of a burglary that had just been reported and fit a detailed

                                             l3
No. 30439-6-II1
State v. Fregoso-Guerrero


description of a stranger seen immediately prior to the burglary. His attempt to evade

police was relied upon as an additional basis for suspicion but only in combination with

the other articulable reasons for suspecting him of the burglary.

       Richardson, a 42-year-old decision involving defendants stopped in Philadelphia,

comes closest to being helpful to the State, since a Terry4 stop was found justified on the

basis of four men's observed flight from a drug store. But in that case, the court found it

significant that the men were seen fleeing the drug store in a "high crime district," where

department policy required officers to monitor the drug store and other area businesses

for possible crime and officers were "always on the lookout for robberies of business

establishments." Richardson, 461 F.2d at 863. In affirming the validity of the stop, the

court observed that deliberately furtive actions and flight at the approach of law officers

are strong indicia of mens rea, '" and when coupled with specific knowledge on the part

ofthe officer relating the suspect to evidence ofcrime, they are proper factors to be

considered in the decision to make an arrest.'" ld. at 864 (emphasis added) (quoting

Sibron v. New York, 392 U.S. 40, 66, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968)). In Mr.

Fregoso-Guerrero's case, by contrast, one ofthe trial court's stipulated fmdings was that

"[t]he area ofOhme Road is not considered to be a high crime area." CP at 30 (Finding

of Fact 20).



       4   Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968).

                                             14 

No. 30439-6-III
State v. Fregoso-Guerrero


       The three Washington decisions cited by Mr. Fregoso-Guerrero more clearly apply

to these facts. In Walker, the court recognized that an unreliable tip could not be

buttressed as the basis for a seizure by a defendant's attempt to evade police, explaining:

       The only corroborative observation made by the officer was that the
       defendant appeared startled when he saw the officer and attempted to evade
       him by turning onto a dead-end street. Flight from, or an obvious attempt
       to avoid police officers may be considered along with other factors in
       determining whether the officer possessed a reasonable suspicion of
       criminal activity. State v. Little, 116 Wn.2d 488,806 P.2d 749 (1991);
       State v. Glover, 116 Wn.2d 509,806 P.2d 760 (1991). However,jlight
       alone is not enough, see Little, 116 Wn.2d at 504 (Utter, J., dissenting).

Walker, 66 Wn. App. at 629 (emphasis added).

       Thompson is even more analogous to the facts of this case. In Thompson, police

had an articulable basis for following a Cadillac meeting the description of a car whose

occupants had been seen brandishing a gun. When officers detained the occupants of the

Cadillac, it was parked next to a Chrysler in an isolated section of a mall parking lot. As

officers ordered the occupants out of the Cadillac, Thompson, the owner of the Chrysler,

got out of his own car and began walking hurriedly toward the mall before being ordered

by officers to stop. Contraband was found on his person and in his car. The State

defended the seizure on the basis of "the brandishing of a pistol, the driver ofthe

implicated Cadillac pulling up next to petitioner's car in an isolated part of the lot, and

the petitioner's 'hurried' walking away 'without even looking back.'" 93 Wn.2d at 841.

Our Supreme Court held that facts supporting a reasonable suspicion of Thompson's



                                              15 

No. 30439-6-III
State v. Fregoso-Guerrero


apparent associates in the Cadillac, coupled with Thompson's hasty retreat, "do not create

a reasonable suspicion that petitioner was involved in criminal conduct." ld.

       Finally, the court in Larson reversed the conviction of a passenger based on the

fruits ofa stop ofthe driver for a parking infraction. The court held:

       Assuming arguendo that a parking violation can be characterized as a traffic
       offense, as contemplated in [Delaware v. Prouse, 440 U.S. 648, 99 S. Ct.
       1391,59 L. Ed. 2d 660 (1979)], then the police officers would have acted
       properly in stopping the car and questioning the driver on the ground that it
       had been illegally parked. However, a stop based on a parking violation
       committed by the driver does not reasonably provide an officer with
       grounds to require identification ofindividuals in the car other than the
       driver, unless other circumstances give the police independent cause to
       question passengers. To hold otherwise would restrict the Fourth
       Amendment rights of passengers beyond the perimeters of existing case
       law.

Larson, 93 Wn.2d at 642 (emphasis added) (footnote omitted). The driver ofthe car in

Larson had also pulled away as officers approached, and the court again observed, citing

Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979), that "a suspect's

leaving at the time that a police cruiser arrives does not necessarily lead to the conclusion

that it is reasonable to suspect that person of a crime." Larson, 93 Wn.2d at 645.

       The State argues that another circumstance, in addition to Mr. Fregoso-Guerrero's

flight, supported the seizure-and this is where the State relies on evidence from the

Retana Gonzalez suppression hearing, as Mr. Fregoso-Guerrero feared it would. The

State claims that "[t]he officer felt there may have been a weapon involved" and "[t]he

officer was initially going to pursue the driver, but had to run past the passenger in order

                                             16 

No. 30439-6-III
State v. Fregoso-Guerrero


to get to the direction the driver went, so it was necessary for the officer to detain the

passenger for officer safety purposes." Second Am. Br. ofResp't at 7. While these facts

may be supported by the transcript of the Retana Gonzalez hearing, which the State filed

as part of the record in this appeal, no mention of these facts was made in the findings to

which Mr. Fregoso-Guerrero stipulated. s The transcript of the Retana Gonzalez hearing

was not a part of the record in the trial court and was not stipulated to as evidence by Mr.

Fregoso-Guerrero.

       To further muddy the parties' intentions in resolving the suppression motion by

stipulation, they stipulated to conclusions of law. Stipulations of law are not binding on a

court. See, e.g., Folsom v. County o/Spokane, 111 Wn.2d 256,261, 759 P.2d 1196

(1988). The State appears to have concluded that by stipulating to the conclusions from

the Retana Gonzalez suppression hearing, Mr. Fregoso-Guerrero either waived his right

to challenge the outcome, or agreed that the outcome could be defended on the basis of

evidence presented at the Retana Gonzalez hearing. It is unclear what Mr. Fregoso-

Guerrero thought he was doing by stipulating to conclusions of law.




       S The only mention in the findings of a weapon is in explaining why Deputy
Risdon pulled his car back early in his observation of the SUV. A different passenger, in
the front seat (Mr. Fregoso-Guerrero was sitting in the rear) had begun to step out of the
SUV and looked back at the deputy, which "seemed suspicious," causing the deputy to
back up "in case the male exiting the vehicle had a weapon." CP at 27 (emphasis added).

                                              17 

No. 30439-6-111
State v. Fregoso-Guerrero


       Given what we determine was the parties' genuine confusion about the extent and

effect of their stipulation, we conclude that it is appropriate to grant Mr. Fregoso­

Guerrero's request for a new hearing on his suppression motion, free of any effect of the

prior stipulation.

       We reverse the judgment and sentence and the order denying Mr. Fregoso­

Guerrero's motion to suppress, and remand for proceedings consistent with this opinion.

       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.


                                               Siddoway, A.C.J.

WE CONCUR:




Brown, J.                                      Kulik, J.P.T.




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