                                                                          FILED 

                                                                        DEC 12,2013 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                         )
                                             )         No.307S7-3-III
                     Respondent,             )
                                             )
      v.                                     )
                                             )         UNPUBLISHED OPINION
CARL D. JOHNSON,                             )
                                             )
                     Appellant.              )



      KORSMO,    C.J. -   Carl D. Johnson showed up to a Special Weapons and Tactics

(SWAT) raid and would not leave despite being free to go. He remained at the site,

voluntarily spoke with officers, and admitted to having a controlled substance in his

possession. A subsequent search of his vehicle yielded a small amount of

methamphetamine. This appeal challenges the denial of his motion to suppress the

methamphetamine. We affirm.

                                         FACTS

      In the morning hours of July 21,2011, Mr. Johnson drove up the driveway ofa

property where law enforcement was in the middle of executing a search warrant. Mr.
No. 30757-3-111
State v. Johnson


Johnson did not immediately see the officers. The officers, however, did see him. One

of the officers then approached Mr. Johnson's vehicle in order to learn his purpose. Mr.

Johnson responded that he was there for business purposes, at which point the officer

cleared him to leave.

       When Mr. Johnson did not leave, two other officers approached his vehicle. One

of them, Detective Joshua Mathena, recognized Mr. Johnson from previous encounters

and spoke with him. During the course of this conversation, the detective asked if Mr.

Johnson had any drugs in his vehicle. Mr. Johnson responded that he might have some

marijuana and a pipe.

      The detective then asked Mr. Johnson to step out of the vehicle and requested

permission to search the vehicle. Also at this time the detective read Mr. Johnson his

Ferrier l warnings. Mr. Johnson asked ifhe could refuse consent. Detective Mathena

said that Mr. Johnson could refuse consent, but told him that he believed he had enough

information to establish probable cause for a search warrant. Mr. Johnson then consented

to a search of his vehicle. The search yielded a small amount of methamphetamine.

      The State thereafter charged Mr. Johnson with one count of possession of a

controlled substance: methamphetamine. Mr. Johnson sought suppression of the

methamphetamine as the fruit of an unlawful search. The trial court denied the motion




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

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No.30757-3-III
State v. Johnson


and Mr. Johnson proceeded to a bench trial. After the court found him guilty, Mr.

Johnson timely appealed to this court.

                                         ANALYSIS

       Mr. Johnson presents two issues for review. He argues that his consent was not

voluntary because he had been unlawfully seized prior to telling the detective that he

might have drugs in the vehicle. Second, he argues that his consent was not voluntary

because of the detective's statement about getting a warrant was coercive. We address

both of these issues in tum. 2

       Under article 1, section 7, of the Washington State Constitution, a person is seized

when by means of physical force or show of authority his or her freedom of movement is

restrained and a reasonable person would not have believed he or she is (1) free to leave,

given all the circumstances, or (2) free to otherwise decline an officer's request and

terminate the encounter. State v. O'Neill, 148 Wn.2d 564,574,62 P.3d 489 (2003). The

question of whether a seizure occurred is a mixed question oflaw and fact. We review

the underlying factual circumstances for substantial evidence, but review de novo the

ultimate determination of whether the circumstances amount to a seizure under the law.

State v. Harrington, 167 Wn.2d 656, 662, 222 P.3d 92 (2009).




       2 Mr.Johnson presents additional arguments in his statement of additional
grounds, which we decline to review as meritless.

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No. 30757-3-111
State v. Johnson


       In this case it is undisputed that Mr. Johnson was seized when Detective Mathena

asked him to step out of the vehicle. It is further undisputed that this seizure was lawful

following Mr. Johnson's admission that he might have marijuana in the vehicle. The

question that Mr. Johnson presents is whether he was actually seized earlier at the point

when Detective Mathena asked him the question about the drugs. Mr. Johnson argues

that this question combined with the surrounding circumstances constituted a seizure that

triggered the detective's duty to read Mr. Johnson his Miranda 3 rights. If the seizure

occurred at that point then Mr. Johnson's answer to the detective's question would have

to be suppressed, which in tum would eliminate the detective's probable cause to seek

permission to search the vehicle.

       The State counters that the question was merely part of a social contact that had

not yet ripened to a seizure. We agree.

       In   a 'Neill, the court held that an officer who asks for identification from a person
sitting in a parked car does not seize the person even if the officer suspects illegal

activity. O'Neill, 148 Wn.2d at 579. On the opposite end of the spectrum is Harrington,

where the court held that a request to frisk a person constitutes a seizure. Harrington,

167 Wn.2d at 669-70.

       Toward the middle of those two cases lie Thorn, Soto-Garcia, and this case. In

Thorn, the court concluded that asking a question about illicit activity does not constitute


       3   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).
                                               4
No.30757-3-III
State v. Johnson


a seizure unless there was something coercive in the way the question was asked. State v.

Thorn, 129 Wn.2d 347,354,917 P.2d 108 (1996) (holding that the question, "Where is

the pipe," was not a seizure), overruled on other grounds by O'Neill, 148 Wn.2d at 571.

However, in Soto-Garcia it was implied that asking a person on the street ifhe had

cocaine on his person was a seizure. State v. Soto-Garcia, 68 Wn. App. 20, 25, 841, P.2d

1271 (1992).

       Mr. Johnson argues that his case is closer to Soto-Garcia than Thorn. However,

he ignores an important limitation in Soto-Garcia. When the Washington Supreme Court

later interpreted Soto-Garcia in Harrington, it noted that the seizure occurred at the point

when the officer asked to search the defendant and that the question about the drugs was

just part of the combined acts that aggregated to ripen the contact into a seizure.

Harrington, 167 Wn.2d at 668.

       Reviewing all the circumstances in this case we agree that there was no seizure at

the point that Detective Mathena asked Mr. Johnson ifhe had any drugs. Mr. Johnson

was questioned by two officers who were part ofa larger SWAT raid. Mr. Johnson

voluntarily drove to the location while the raid was in progress; he was at all times safely

inside his vehicle and only on the edge of the property that was the subject of the police

search. Furthermore, there is no evidence that Mr. Johnson's vehicle was blocked in, that

he was surrounded, or that he was being held at gunpoint. Mr. Johnson had also been

explicitly cleared to leave. Finally, there is no evidence that Detective Mathena asked the

                                             5

No.30757-3-III
State v. Johnson


question in a coercive manner. Given all the circumstances, a reasonable person in Mr.

Johnson's circumstances would feel free to terminate the second encounter.

      Next, Mr. Johnson argues that the detective's statement about having probable

cause to get a warrant rendered his consent involuntary. An officer cannot obtain consent

through use of an unlawful threat. O'Neill, 148 Wn.2d at 589-90. However, an officer's

statement that he would seek a warrant if the defendant did not consent is not an unlawful

threat. State v. Smith, 115 Wn.2d 775, 790, 801 P.2d 975 (1990). Accordingly, the

detective's response to Mr. Johnson's question did not invalidate his consent.

      Affirmed.

      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.



                                                 I     Korsmo, C.1.

WE CONCUR:


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