       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )   No. 79233-4-I
                     Respondent,            )
                                            )   DIVISION ONE
              v.                            )
                                            )   UNPUBLISHED OPINION
NICCO DANIEL BLYE,                          )
                                            )
                     Appellant.             )
                                            )

       SMITH, J. — Nicco Daniel Blye appeals his conviction for possession of a

controlled substance. He contends that the trial court erred by denying his

motion to suppress two bags of heroin found in his vehicle. He also contends

that because he is indigent, the trial court erred by imposing a criminal filing fee

and interest accrual on nonrestitution legal financial obligations (LFOs).

       We conclude that the investigative detention of Blye was not supported by

reasonable and articulable suspicion and, thus, constituted an unlawful seizure,

and that the heroin found in Blye’s vehicle was the fruit of the unlawful detention.

Therefore, the trial court erred by denying Blye’s motion to suppress.

Accordingly, we reverse.

                                       FACTS

       On the evening of March 26, 2016, Sergeant Jon Elton of the Marysville

Police Department was working a patrol shift when he saw a vehicle legally

parked on the shoulder of a public road. The vehicle was parked in a location




 Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79233-4-I/2


with “frequent criminal activity.” At first, the vehicle’s lights were on, but as

Sergeant Elton drove by, he saw the lights turn off. Sergeant Elton pulled his

vehicle behind the parked vehicle, did not block the vehicle’s egress, and did not

engage his vehicle’s emergency lights or siren. He “initiated contact with the

vehicle and its occupant because of criminal activity in the area.” Blye, who was

sitting in the driver’s seat, was the sole occupant of the vehicle.

       Sergeant Elton later testified that upon approaching the driver’s side

window,1 he stood at an angle behind the driver’s side door next to the B pillar.

He explained that that position allows a better vantage point into the vehicle and

allows the driver to open the door freely if they choose. Blye, on the other hand,

testified that if he had opened the door, he would have hit Sergeant Elton, who

had his hand on his pistol. He also testified that although Sergeant Elton’s police

vehicle did not block him, if he had tried to drive away, Sergeant Elton would

have had to step away from Blye’s vehicle.

       Sergeant Elton “asked the person in the driver’s seat what he was doing.”

And Blye “responded that he had pulled over to text someone.” Sergeant Elton

testified that he asked for identification. However, Blye testified that Sergeant

Elton demanded it. Blye presented his state identification card—rather than a

driver’s license—to Sergeant Elton. While standing next to the vehicle, Sergeant

Elton held on to Blye’s identification card and “ran a records check through



       1 Blye testified at the suppression hearing that there were 14 backup
officers present and that the officer that approached his vehicle was not Sergeant
Elton. However, he does not challenge the trial court’s finding that Sergeant
Elton was the officer who approached him that night. Thus, we refer to the officer
as Sergeant Elton throughout this opinion.
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No. 79233-4-I/3


dispatch.” Sergeant Elton testified that while running the records check, he

recognized Blye’s name from his time working with officers who worked

undercover in the department’s narcotics division. Sergeant Elton asked Blye

whether there were any drugs in the car; Blye answered that he had marijuana in

the vehicle but no other drugs.

       Dispatch then advised Sergeant Elton that there was a warrant for Blye’s

arrest for “Driving While License Suspended in the Third Degree.” Sergeant

Elton confirmed the warrant and requested a backup officer. When the additional

officer arrived, Blye exited the vehicle and was placed under arrest. Sergeant

Elton observed a bag of a brown powdery substance consistent with heroin on

the driver’s seat where Blye had been sitting. Sergeant Elton later requested a

search warrant for the vehicle, which was impounded. The court granted the

request, and Sergeant Elton searched the vehicle, removing the bag of

suspected heroin he observed earlier and a similar one on the center console.

       The State later charged Blye with possession of a controlled substance.

Blye moved to suppress the heroin evidence, and the court conducted a CrR 3.6

hearing. Following the hearing, the court concluded that the contact between

Sergeant Elton and Blye was a “social contact” but that Sergeant “Elton was

permitted to briefly detain [Blye] pursuant to Terry v. Ohio[2] to determine the

status of the defendant's driving privilege because he had reason to believe . . .

the defendant had recently been driving.” The court also concluded that the

detention was “a permissible Terry stop, [and] therefore Sgt. Elton's detention by



       2   392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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holding the identification card was lawful.” Finally, the court determined that

Sergeant Elton’s observation of “the suspected heroin in the front driver’s seat as

[Blye] exited[ the vehicle] . . . was sufficient . . . to obtain a search warrant for the

vehicle.” The court thus denied Blye’s motion to suppress the physical evidence.

       A jury later found Blye guilty as charged. At sentencing, the court

imposed a criminal filing fee and interest accrual on nonrestitution LFOs despite

finding Blye indigent. Blye appeals.

                                      ANALYSIS

                            Denial of Motion To Suppress

       Blye contends that the trial court erred by concluding that he was lawfully

detained and, thus, by denying his motion to suppress the bags of heroin found

in the vehicle. We agree.

       “We review the denial of a motion to suppress to determine whether

substantial evidence supports the trial court’s findings of fact and whether the

findings of fact support the trial court’s conclusions of law.” State v. Boisselle,

194 Wn.2d 1, 14, 448 P.3d 19 (2019). “‘Evidence is substantial when it is

enough to persuade a fair-minded person of the truth of the stated premise.’”

State v. Russell, 180 Wn.2d 860, 866-67, 330 P.3d 151 (2014) (internal quotation

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

(2009)). “We review conclusions of law relating to the suppression of evidence

de novo.” State v. Eserjose, 171 Wn.2d 907, 912, 259 P.3d 172 (2011).

       Here, Blye assigns error to only two of the trial court’s findings of fact:

(f) “Elton stood next to the B pillar of the vehicle away from the driver’s door” and



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(h) “Elton asked the driver if he would mind handing him his identification.”

Sergeant Elton testified that he stood next to the B pillar at the door jamb behind

the driver’s door and that he “asked [Blye] if he would provide his identification” in

a conversational tone. Although Blye’s testimony conflicted with Sergeant

Elton’s, the court found Sergeant Elton’s testimony “compelling” and made

findings in accordance therewith. Because “we defer to the trier of fact on issues

of conflicting testimony[ and] witness credibility,” State v. Ramirez-Estevez, 164

Wn. App. 284, 294, 263 P.3d 1257 (2011), we conclude that Sergeant Elton’s

testimony constitutes substantial evidence supporting the trial court’s findings.

Thus, we consider findings (f) and (h) “binding” on this court and the trial court’s

remaining unchallenged findings “verities on appeal.” State v. O'Neill, 148 Wn.2d

564, 571, 62 P.3d 489 (2003).

       We next turn to the trial court’s conclusions of law that (1) Blye was not

seized until Sergeant Elton held on to Blye’s identification and (2) that seizure

was a lawful Terry stop and, thus, the evidence found during the subsequent

search was not the fruit of an unlawful seizure.

       Where, as here, the findings of fact are upheld or verities on appeal, “‘the

ultimate determination of whether those facts constitute a seizure is one of law

and is reviewed de novo.’” State v. Harrington, 167 Wn.2d 656, 662, 222 P.3d

92 (2009) (internal quotation marks omitted) (quoting State v. Armenta, 134

Wn.2d 1, 9, 948 P.2d 1280 (1997)). Blye has the burden of proving that a

seizure in violation of his constitutional rights occurred. O’Neill, 148 Wn.2d at

574.



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No. 79233-4-I/6


       Here, Blye contends that he was seized at the point that Sergeant Elton

asked for his identification. We disagree with this contention but agree with Blye

that he was seized at the point that Sergeant Elton retained his identification.

       A “‘police officer’s conduct in engaging a defendant in conversation in a

public place and asking for identification does not, alone, raise the encounter to

an investigative detention.’” See State v. Young, 135 Wn.2d 498, 511, 957 P.2d

681 (1998) (quoting Armenta, 134 Wn.2d at 11). Here, the trial court found that

Sergeant Elton was located away from the driver’s door, he had not activated his

vehicle’s emergency lights or sirens, and he did not demand identification. In

other words, the trial court’s findings do not include any of the common facts

indicative of a seizure, such as “‘the threatening presence of several officers, the

display of a weapon by an officer, some physical touching of the person of the

citizen, or the use of language or tone of voice indicating that compliance with the

officer’s request might be compelled.’” See Young, 135 Wn.2d at 512 (quoting

United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870, 64 L. Ed.

2d 497 (1980)). Therefore, the trial court’s findings support its conclusion that

Blye was not seized when Sergeant Elton asked him for identification.

       Blye was seized, however, when Sergeant Elton retained his identification.

Specifically, because “[a] police encounter may ripen into a seizure in

circumstances, for example, where the police officer retains the identification

such that the defendant is not free to leave or becomes immobilized,” State v.

Beito, 147 Wn. App. 504, 509, 195 P.3d 1023 (2008), we agree with the trial




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court that an investigative detention, and thus a seizure, occurred when Sergeant

Elton retained Blye’s identification card to run a records check.

       Turning next to whether this seizure was lawful, “a police officer may,

without a warrant, briefly detain an individual for questioning if the officer has

reasonable and articulable suspicion that the person is or is about to be engaged

in criminal activity.” State v. Carriero, 8 Wn. App. 2d 641, 663, 439 P.3d 679

(2019). Such a detention is referred to as a Terry stop. In determining the

reasonableness of a Terry stop, “a court must evaluate the totality of

circumstances presented to the investigating officer.” State v. Doughty, 170

Wn.2d 57, 62, 239 P.3d 573 (2010). And the totality of “‘[t]he circumstances

must suggest a substantial possibility that the particular person has committed a

specific crime or is about to do so.’” State v. Moreno, 173 Wn. App. 479, 492,

294 P.3d 812 (2013) (alteration in original) (quoting State v. Martinez, 135 Wn.

App. 174, 180, 143 P.3d 855 (2006)). Specifically, “‘[i]n justifying the particular

intrusion the police officer must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably

warrant that intrusion.’” Doughty, 170 Wn.2d at 62 (alteration in original) (quoting

Terry, 392 U.S. at 21). And “[t]he State must show by clear and convincing

evidence that the Terry stop was justified.” Doughty, 170 Wn.2d at 62. We

review the court’s conclusions of law regarding the Terry stop de novo. Eserjose,

171 Wn.2d at 912.

       Here, Sergeant Elton testified that he approached Blye’s vehicle because

it was “parked in kind of a suspicious area, where a lot of people like to drive



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No. 79233-4-I/8


through and kind of avoid police contact” and that Blye parked his vehicle in “an

area that [Sergeant Elton] usually go[es] to look for criminal activity.” Sergeant

Elton also testified that “[he] just saw the vehicle was occupied, and when the

lights turned off, [he] just kind of felt maybe they’re just trying to avoid [police]

contact.” He further agreed with defense counsel’s characterization that the

location was “within walking distance of a smoke shop that sells crack pipes.”

And he testified that after learning Blye’s name, he “had prior knowledge . . .

about a narcotic activity with Mr. Blye.”

       In short, according to his own testimony, Sergeant Elton suspected that

Blye was involved in a drug crime based solely on Blye’s presence in a high

crime area and the fact that Blye turned off his headlights. But this amounts to

no more than a hunch. And these facts, even taken together, do not support

Sergeant Elton’s detention of Blye because “‘[a] person's presence in a high-

crime area at a “late hour” does not, by itself, give rise to a reasonable suspicion

to detain that person.’” State v. Diluzio, 162 Wn. App. 585, 590, 254 P.3d 218

(2011) (quoting Doughty, 170 Wn.2d at 62); see also State v. Fuentes, 183

Wn.2d 149, 161, 352 P.3d 152 (2015) (“An officer’s hunch does not justify a

stop.”). Because Sergeant Elton’s suspicion was not particularized to Blye’s

criminal activity or a particular crime, the trial court erred in concluding that the

Terry stop was justified. See State v. Z.U.E., 183 Wn.2d 610, 618, 352 P.3d 796

(2015) (“The available facts must substantiate more than a mere generalized

suspicion that the person detained is ‘up to no good’; the facts must connect the

particular person to the particular crime that the officer seeks to investigate.”



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(quoting State v. Bliss, 153 Wn. App. 197, 204, 222 P.3d 107 (2009))).

       The State disagrees and points out that the trial court determined that the

detention was lawful based on Sergeant Elton having “had reason to believe from

[all of] the . . . facts that [Blye] had recently been driving . . . [and he] was

permitted to briefly detain” Blye to run his identification and determine whether he

had a valid driver’s license. In other words, the trial court, apparently relying on

the totality of the circumstances, formed its own justification for the stop, i.e., that

Sergeant Elton had reason to believe Blye had been driving without a license.

But Sergeant Elton never testified that he was concerned that Blye was driving

without a license or that such a concern informed his decision to detain Blye. In

fact, the court itself found that Sergeant “Elton initiated contact with the car and

its occupant because of criminal activity in the area.” And the officer must point

to specific and articulable facts that reasonably warrant the investigative

detention. That is, although the trial court must consider the totality of the

circumstances to determine whether the suspicion relied on by the officer was

reasonable, the trial court here erred by relying on the totality of the

circumstances to divine a suspicion never even articulated by the officer.

       In short, Sergeant Elton’s warrantless seizure of Blye does not fall within

the Terry stop exception. Therefore, we must next consider whether the heroin

discovered after Sergeant Elton arrested Blye and obtained a search warrant for

the vehicle should have been suppressed as the fruit of that unlawful seizure.

       Under the exclusionary rule, “the evidence obtained as a result of [an

unlawful] seizure must be suppressed.” Moreno, 173 Wn. App. at 491. And



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“[s]uppression is an integral component of the right to privacy itself, and

‘whenever the right is unreasonably violated, the remedy must follow.’” State v.

Mayfield, 192 Wn.2d 871, 887, 434 P.3d 58 (2019) (quoting State v. White, 97

Wn.2d 92, 110, 640 P.2d 1061 (1982)). But “our state exclusionary rule applies

only to ‘fruit of the poisonous tree’ and therefore does not operate on a strict ‘but

for’ causation basis.” Mayfield, 192 Wn.2d at 891. Instead, “[t]here must be

some proximate causal connection between official misconduct and the

discovery of evidence for the exclusionary rule to apply.” Mayfield, 192 Wn.2d at

891. And “[i]f unconstitutionally obtained information provides the only basis for a

warrant, the court must suppress evidence seized under the warrant. ” State v.

VanNess, 186 Wn. App. 148, 154, 344 P.3d 713 (2015). We conclude here that

the heroin evidence was the fruit of the poisonous tree and, thus, should have

been suppressed.

       Doughty is instructive. There, Officer Derek Bishop pulled over Walter

Moses Doughty’s vehicle after witnessing him exit “a suspected drug house at

3:20 in the morning.” Doughty, 170 Wn.2d at 60-61. Officer Bishop ran a

records check on Doughty’s license, discovered that “Doughty was driving with a

suspended license,” and arrested him. Doughty, 170 Wn.2d at 60. When he

searched Doughty’s car incident to arrest, he found a plastic bag filled with a

crystal substance that tested positive for methamphetamine. Doughty, 170

Wn.2d at 60. The court concluded that the officer’s initial pulling over of Doughty

was an unlawful Terry stop because the officer “lacked sufficient specific and

articulable facts to seize Doughty.” Doughty, 170 Wn.2d at 65. It therefore



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suppressed the evidence obtained through the subsequent arrest and the search

incident to that arrest. Doughty, 170 Wn.2d at 65. In other words, although the

officer lawfully arrested Doughty pursuant to a valid warrant, there was a close

causal connection between the initial unlawful stop and the subsequent arrest

and search.

       Similarly, in State v. Johnson, two officers initiated an unlawful detention

of Louis Johnson Jr. 8 Wn. App. 2d 728, 733, 745-46, 440 P.3d 1032 (2019).

Johnson, who was in the driver’s seat, handed the officers an identification card

rather than a driver’s license, which made the officers “suspicious that his license

might be suspended.” Johnson, 8 Wn. App. 2d at 734. While running a

background check on Johnson, one officer noticed a gun in the vehicle.

Johnson, 8 Wn. App. 2d at 734. The officer removed Johnson from the vehicle,

and police dispatch soon after informed the officers of an outstanding warrant for

Johnson. Johnson, 8 Wn. App. 2d at 734. Johnson was detained, and the State

later charged him with unlawful possession of a firearm. Johnson, 8 Wn. App. 2d

at 734. However, the trial court suppressed the physical evidence. Johnson, 8

Wn. App. 2d at 734. We affirmed the trial court’s suppression. Johnson, 8 Wn.

App. 2d at 750.

       Here, as in Doughty, Sergeant Elton arrested Blye pursuant to a valid

warrant. And, as in Doughty, where the officer found evidence during a lawful

search incident to arrest, here, Sergeant Elton found the heroin while searching

Blye’s vehicle pursuant to a warrant. Nevertheless, as in Doughty, there was a

close causal connection between Sergeant Elton’s unlawful seizure of Blye and



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the heroin found in his car. Specifically, Sergeant Elton would not have seen the

heroin on the driver’s seat had he not arrested Blye pursuant to the warrant he

discovered only because he unlawfully seized Blye. And based on the trial

court’s conclusion that “the suspected heroin [discovered] in the front driver’s

seat as [Blye] exited[ the vehicle] . . . was sufficient . . . to obtain a search

warrant for the vehicle,” it is clear that the justification for the search warrant was

the heroin on the seat.

       Thus, while it is true that once Sergeant Elton learned of Blye’s arrest

warrant, he “not only had the right but the duty to . . . arrest him,” State v.

Rothenberger, 73 Wn.2d 596, 599, 440 P.2d 184 (1968), we see little difference

between this evidence and the evidence seen by the officers in Johnson: had

Sergeant Elton seen the evidence prior to Blye’s exiting the vehicle, the evidence

clearly would be the result of the unlawful detention and thus taint the search

warrant application. In short, while Blye’s arrest was lawful and the subsequent

search warrant provided a lawful basis to search the vehicle, the search warrant

was the fruit of the poisonous tree, and the trial court erred when it denied Blye’s

motion to suppress the seized evidence.

       Furthermore, this case is distinguishable from other cases concluding that

evidence obtained after a lawful arrest and pursuant to a search warrant was

admissible despite the fact that some aspect of the officer’s contact was unlawful.

For example, in State v. Gaines, 154 Wn.2d 711, 718, 116 P.3d 993 (2005), the

court upheld the admission of physical evidence seized following an unlawful

search of a locked trunk because the officers submitted a four-page affidavit for a



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search warrant with only one fact obtained from the unlawful search. And in

Moreno, the court upheld the admission of evidence seized following a search

warrant being issued because the warrant application was based on evidence

outside of that which was obtained via the unlawful arrest. 173 Wn. App. at 491.

In other words, in Gaines and Moreno, the evidence used to obtain warrants was

separate and distinguishable from the evidence that was obtained unlawfully.

Here, by contrast, the trial court concluded that the evidence for the search

warrant resulted from Sergeant Elton taking Blye into custody. And because

Sergeant Elton would not have known that there was an arrest warrant for Blye

and therefore would not have taken him into custody had he not unlawfully

detained Blye, the evidence used to obtain the warrant is not separate from the

unlawful evidence.

      Because we reverse Blye’s conviction, we do not address Blye’s LFO-

related arguments.

      We reverse.




WE CONCUR:




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