      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                             No. 73422-9-1


                    Respondent,                  DIVISION ONE


                    v.



JAHROD BESHAH JIMMA,                             UNPUBLISHED OPINION

                    Appellant.                   FILED: August 1,2016


      Appelwick, J. — Jimma challenges his jury conviction for possession of

marijuana and first degree unlawful possession of a firearm. He contends that he
was unlawfully detained and that he was interrogated without being advised of his

rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). He argues that the trial court erred in denying his CrR 3.5 and 3.6 motions

to suppress the marijuana and the firearm. We affirm.

                                      FACTS

      Around 10:45 p.m. on October 31, 2013, Officer Rex Miller observed a car

driving 53 miles per hour in a 40 mile per hour zone. Officer Miller stopped the car

and the driver provided Officer Miller with an identification card listing her age as

19. Because it was dark, Officer Miller shone a flashlight into the car in order to
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see the car's other occupants.      The passengers, two females and a male,

"appeared to be the same age as the driver."

      While speaking with the driver, Officer Miller smelled "a very strong odor of

marijuana." Believing that all of the car's occupants were not of legal age to

possess marijuana, Officer Miller asked "if there was anybody in the vehicle that's

21 or older."1 Allfourof the car's occupants admitted they were under 21. Officer

Miller asked the occupants "where the marijuana was at." The occupants all

denied having marijuana. Officer Miller told them he "had been doing the job for

quite a while" and "knew what the smell of marijuana was." He asked the car's

occupants a second time if anyone had marijuana.          At this point, the male

passenger, later identified as Jahrod Jimma, admitted that he had marijuana.

Jimma reached into hisjacket pocketand handed Officer Miller a small bag ofwhat

appeared to be marijuana. Officer Miller asked Jimma for identification. Jimma

gave Officer Miller an instruction permit showing his age as 20. .

       Officer Miller returned to his patrol car and called for backup. He waited in

his patrol car until an additional officer arrived a few minutes later. The officers
told Jimma that he was under arrest for possession of marijuana and handcuffed

him. During a search incident to arrest, the officers found a handgun and several

additional bags of marijuana in Jimma's jacket pockets. Officer Miller placed

Jimma in his patrol car and advised Jimma of his Miranda rights. Jimma agreed



       1 Possession of less than 40 grams of marijuana by anyone under the age
of 21 is a misdemeanor offense. RCW 69.50.4013(4), RCW 69.50.4014.
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to answer questions. He admitted the gun was his and that he had purchased the

marijuana.

      At a CrR 3.5 and 3.6 hearing, Jimma moved to suppress the marijuana and

the firearm.   The trial court denied the motion.   A jury convicted Jimma of

possession of marijuana and first degree unlawful possession of a firearm. Jimma

appeals.

                                 DISCUSSION


       Jimma argues that the trial court erred by denying his CrR 3.5 and 3.6

motions to suppress evidence. He contends that Officer Miller unlawfully enlarged

the scope of the initial traffic stop by asking questions about marijuana because

he lacked a specific, individualized suspicion that Jimma possessed marijuana.

He also claims that the stop constituted a custodial interrogation and thus his

statements and actions during the stop—admitting to having marijuana and giving

the marijuana to Officer Miller—were inadmissible because he had not been

advised of his Miranda rights beforehand.

       "When reviewing the denial of a suppression motion, an appellate court

determines whether substantial evidence supports the challenged findings of fact

and whether the findings support the conclusions of law." State v. Garvin, 166

Wn.2d 242, 249, 207 P.3d 1266 (2009). We review a trial court's conclusions of

law de novo. Id.
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  I.   Terry2 Stop

       As a general rule, the Fourth Amendment to the United States Constitution

and article I, section 7 of the Washington Constitution prohibit unreasonable

searches and seizures.      Id.   Warrantless searches and seizures are per se

unreasonable absent an exception to the warrant requirement. State v. Ladson,

138 Wn.2d 343, 349, 979 P.2d 833 (1999). One such exception is an investigative

detention, or Terry stop. State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426

(2008).

       A Terry stop is permissible whenever an officer has a reasonable suspicion,

grounded in specific and articulable facts, that the person stopped has been or is

about to be involved in a crime. State v. Acrev, 148 Wn.2d 738, 747, 64 P.3d 594

(2003). The stop must be temporary and last no longer than necessary to

effectuate the stop's purpose. State v. Williams, 102 Wn.2d 733, 738, 689 P.2d

1065 (1984). However, a stop "may be enlarged or prolonged ... if the stop

confirms or arouses further suspicions." State v. Guzman-Cuellar, 47 Wn. App.

326, 332, 734 P.2d 966 (1987).        An officer may " 'maintain the status quo

momentarily while obtaining more information.' " Williams, 102 Wn.2d at 737

(quoting Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612

(1972)).

          In reviewing the reasonableness of a stop, we "evaluate the totality of

circumstances presented to the investigating officer." State v. Glover, 116 Wn.2d


2Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L Ed. 2d 889 (1968).
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509, 514, 806 P.2d 760 (1991). Ifthe initial stop was unlawful or if officers exceed

the scope of a valid stop, the evidence discovered during the unlawful portion of

that stop is inadmissible. State v. Saggers, 182 Wn. App. 832, 839, 332 P.3d 1034

(2014).

       Here, there is no dispute that the initial traffic stop was valid based on Officer

Miller's reasonable suspicion that the driver was speeding. During the traffic stop,

Officer Miller smelled what he knew, based on past law enforcement experience,

to be marijuana. Officer Miller also had reason to believe that none of the car's

occupants were of legal age to possess marijuana. Officer Miller therefore had a

reasonable suspicion that a crime was being committed: that a minor was in

possession of marijuana. This suspicion reasonably justified extending the initial

detention to investigate the possible presence of marijuana in the car.

          Citing State v. Grande, 164Wn.2d 135,187 P.3d 248 (2008), Jimma argues

that continued detention was unjustified because even if Officer Miller reasonably

believed that someone in the car had marijuana, he lacked individualized suspicion

with respect to any particular passenger.        Grande does not control here. In

Grande, an officer performed a routine traffic stop on a car with two occupants. ]d.

at 138. The officer smelled marijuana emanating from the car and arrested both

the driver and the passenger based solely on the odor. Id. at 139. The court held

that the officerlacked probable cause to arrest both occupants without establishing

individualized probable cause as to either occupant, id. at 146. But, an officer

may have reasonable suspicion to conduct a Terry stop based on less evidence
73422-9-1/6




than is needed for probable cause to make an arrest. Acrev, 148 Wn.2d at 746-

47; see also State v. Heritage, 152 Wn.2d 210, 218-19, 95 P.3d 345 (2004)

(officers who smelled marijuana emanating from a group of juveniles and saw one

of the juveniles holding what appeared to be a marijuana pipe were entitled to ask

all the members of the group about ownership of the marijuana pipe as part of a

valid Terry stop).

         Here, Officer Miller had a reasonable suspicion that one of the car's

underage occupants had marijuana. He was therefore entitled to ask a moderate

number of questions to confirm or dispel his suspicions as part of a Terry stop.

See Grande, 164 Wn.2d at 146 (an officer is not required to "simply walk away

from a vehicle from which the odor of marijuana emanates and in which more than

one occupant is present if the officer cannot determine which occupant possessed

or used the illegal drug."). Officer Miller's brief amount of questioning did not

exceed the valid scope of a Terry stop.

 II.     Miranda

         The Fifth Amendment privilege against compelled self-incrimination

requires that custodial interrogation be preceded by advice to the accused that he

or she has a right to remain silent and a right to counsel. Miranda, 384 U.S. at

478-9.    If officers conduct a custodial interrogation without Miranda warnings,

statements made by the suspect during the interrogation must be suppressed. Id.

at 479. An interrogation is "custodial" if, after considering the circumstances, a

reasonable person would feel that his or her freedom was curtailed to a degree

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associated with formal arrest. State v. Short, 113 Wn.2d 35, 40, 775 P.2d 458

(1989).

      Jimma argues that at the time of the traffic stop, he was in custody for

Miranda purposes because he did not feel "free to leave." But, by definition, a

person subject to a traffic stop or a Terry stop is not free to leave. State v.

Kennedy. 107 Wn.2d 1, 4, 726 P.2d 445 (1986). " '[F]or the duration of a traffic

stop ... a police officer effectively seizes everyone in the vehicle.'" State v.

Marcum, 149 Wn. App. 894, 910, 205 P.3d 969 (2009) (second alteration in

original) (quoting Arizona v. Johnson, 555 U.S. 323, 327, 129 S. Ct. 781, 172 L

Ed. 2d 694 (2009). But, this does not make a stop comparable to a formal arrest

for Miranda purposes, because traffic or Terry stops occur in public and are

"presumptively temporary and brief." Berkemer v. McCartv, 468 U.S. 420, 437,

104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). Thus, a "detaining officer may ask a

moderate number of questions during a Terry stop to determine the identity of the

suspect and to confirm or dispel the officer's suspicions without rendering the

suspect 'in custody' for the purposes of Miranda." Heritage, 152 Wn.2d at 218.

          Here, Jimma was not in custody when he admitted to possessing marijuana

and gave Officer Miller the bag of marijuana. The stop occurred on a public road
and lasted only a few minutes. Officer Miller asked the car's occupants a limited

numberof questions, all directed toward confirming or disproving his suspicion that

one of the occupants illegally possessed marijuana.       Jimma argues that the

encounter was custodial because Officer Miller was in uniform, carried a firearm,
73422-9-1/8




and shone a bright flashlight in the car. But, Jimma does not explain how these

facts differ from any routine traffic stop. The scope and duration of the stop was

reasonably related to its legitimate purposes: determining whether a traffic

infraction had been committed and whether any of the car's occupants were

committing a crime. Accordingly, the trial court did not err by admitting Jimma's

statements and actions during the stop.

      We affirm.




WE CONCUR:




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