                                                               FILED
                                                             MAY 30, 2019
                                                     In the Office of the Clerk of Court
                                                    WA State Court of Appeals, Division III



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                          )         No. 35932-8-III
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
ERIC SHANE BUCK,                              )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, C.J. — Eric Buck appeals his conviction for the crime of

identity theft in the second degree. We affirm his conviction but remand for resentencing

because the trial court exceeded its authority when it imposed a sentence beyond the

statutory maximum and when it imposed the deoxyribonucleic (DNA) collection fee.

                                          FACTS

       The State charged Mr. Buck with second degree identity theft and third degree

possession of stolen property. Prior to trial, Mr. Buck unsuccessfully sought to suppress

the evidence. He does not assign error to any of the trial court’s factual findings from the

suppression hearing. Therefore, those findings are verities on appeal. State v. O’Neill,

148 Wn.2d 564, 571, 62 P.3d 489 (2003). We summarize those findings below.
No. 35932-8-III
State v. Buck


          On October 31, 2016, at 10:30 p.m., Spokane Sheriff Deputy Brent Miller drove

past the Rosauers grocery store on Division Street in Spokane, Washington. He noticed a

unique truck in the Rosauers parking lot next to a Goodwill Industries donation trailer.

Deputy Miller knew that the Goodwill donation trailer closed at 6:00 p.m. and was not

staffed after that time. He also knew that the Goodwill donation trailer had experienced

thefts in the evening after the trailer closed and that Goodwill wished to prosecute the

thefts.

          Two hours later, Deputy Miller again drove past the Rosauers parking lot. He saw

the same unique truck in the Rosauers parking lot, but he noticed it had moved from the

Goodwill trailer to a donation shed not affiliated with Goodwill. As he approached the

truck in his marked patrol car, the truck’s driver attempted to drive away. Deputy Miller

parked his patrol car in front of the truck to prevent this. The detention eventually

resulted in Deputy Miller obtaining probable cause to arrest the driver, Mr. Buck, on

suspicion of presenting false identification and possession of stolen property.

          Based on its findings, the trial court concluded that Deputy Miller had a reasonable

suspicion that Mr. Buck was engaging in criminal activity and denied Mr. Buck’s motion

to suppress.




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No. 35932-8-III
State v. Buck


       The matter proceeded to a jury trial. The jury found Mr. Buck guilty of second

degree identity theft, a class C felony, but not guilty of third degree possession of stolen

property. The trial court sentenced Mr. Buck to 50 months’ confinement and 12 months

of community custody—a total of 62 months. The trial court also imposed a $100 DNA

collection fee.

       Mr. Buck timely appeals.

                                        ANALYSIS

       A.     THE ARRESTING DEPUTY LAWFULLY DETAINED MR. BUCK

       Mr. Buck first argues the trial court erred when it denied his motion to suppress.

The constitutionality of a warrantless stop is a question of law that we review de novo.

State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008).

       Under the Fourth Amendment to the United States Constitution and article I,

section 7 of the Washington Constitution, an officer generally may not seize a person

without a warrant. “As a general rule, warrantless searches and seizures are per se

unreasonable, in violation of the Fourth Amendment and article I, section 7 of the

Washington State Constitution.” State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513

(2002). “There are, however, a few ‘jealously and carefully drawn exceptions’ to the

warrant requirement which provide for those cases where the societal costs of obtaining a


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No. 35932-8-III
State v. Buck


warrant . . . outweigh the reasons for prior recourse to a neutral magistrate.” State v.

Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984) (internal quotation marks omitted)

(quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980)). The State must

establish by clear and convincing evidence that the search falls within one of the narrowly

drawn exceptions. State v. Garvin, 166 Wn.2d 242, 250, 207 P.3d 1266 (2009). One

such exception is the Terry1 investigative stop. Id. at 249-50.

       In a Terry stop, a police officer may briefly stop and detain an individual without a

warrant if the officer reasonably suspects the person is engaged in or about to be engaged

in criminal conduct. Garvin, 166 Wn.2d at 250. For the Terry stop to be valid, the

officer must have a reasonable suspicion of criminal activity based on specific and

articulable facts known to the officer at the inception of the stop. State v. Weyand, 188

Wn.2d 804, 811, 399 P.3d 530 (2017). To evaluate the reasonableness of the officer’s

suspicion, we look at the totality of the circumstances known to the officer including: the

officer’s training and experience, the location of the stop, the conduct of the person

detained, the purpose of the stop, and the amount of physical intrusion on the suspect’s

liberty. Id. at 811-12.




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

                                               4
No. 35932-8-III
State v. Buck


        In Weyand, the arresting officer saw a car parked near 95 Cullum Avenue,

Richland, Washington, that had not been there 20 minutes earlier. Id. at 807. He ran the

license plate and it revealed nothing of consequence. Id. The officer parked his car and

saw Wesley Weyand and a friend leave 95 Cullum Avenue. Id. As the men walked

quickly toward the car, they looked up and down the street. Id. The driver looked around

a second time before getting into the car. Id. Weyand got in the passenger seat. Id.

Based on these observations and the officer’s knowledge of the extensive drug history of

the home Weyand had exited, he conducted a Terry stop. Id. The Washington Supreme

Court held that the late night, short stay at the known drug house and the defendant’s

glances up and down the street did not justify a Terry stop. Id. at 812.

        In State v. Fuentes, 183 Wn.2d 149, 352 P.3d 152 (2015), the Washington

Supreme Court resolved two consolidated cases involving suspects who visited

apartments occupied by suspected drug dealers in high crime neighborhoods. In the first

case, State v. Sandoz, No. 69913-0-1 (Wash Ct. App. Apr. 21, 2014) (unpublished),

http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=699

130MAJ, overruled by Fuentes, 183 Wn.2d 149, the following facts preceded the Terry

stop:




                                             5
No. 35932-8-III
State v. Buck


       (1) the officer knew the area had extremely high drug activity based on 911
       calls and drug dealing investigations, (2) the officer knew that the
       apartment Sandoz exited belonged to Ms. Meadows, who had numerous
       drug-related convictions, including possession with intent to deliver, (3) the
       officer had express authority from the complex owner to trespass
       nonoccupants for “loitering” at the complex, (4) the [vehicle in which
       Sandoz was riding] did not belong to any of the tenants at the complex,
       (5) the driver of the [vehicle] slouched down when the officer drove
       past, . . . [and] (7) Sandoz looked surprised when he saw the officer . . . .

Fuentes, 183 Wn.2d at 155. The court held that these facts were insufficient to justify a

Terry stop. Id. at 159.

       In the second case, Fuentes, law enforcement surveilled an apartment of a known

drug dealer. 183 Wn.2d at 156. During the two hours of surveillance, police saw

approximately 10 people enter the apartment and stay between 5 and 20 minutes. Id.

Marisa Fuentes parked her car across the street from the apartment, entered, stayed for

about 5 minutes, and returned to her car. Id. She then removed a plastic bag from the

trunk—about the size of a small football—reentered the apartment, and returned to her

car with a bag that had noticeably less content than before. Id. at 157. Police then

stopped her car on suspicion of narcotics activity. Id. Under the totality of these

circumstances, the Washington Supreme Court held that law enforcement had reasonable

suspicion of criminal activity. Id. at 161. The court reasoned that the suspicion of drug

delivery was sufficiently particularized given that the officers observed approximately 10


                                             6
No. 35932-8-III
State v. Buck


short-stay visits at an apartment with known drug use, followed by Ms. Fuentes’s short

stay and apparent delivery of the contents of the plastic bag. Id. at 162-63.

       The rule from these cases is, to detain a person, an officer needs more than a

generalized suspicion the person has engaged in criminal activity. There must be specific

and articulable facts that are individualized to the person the police seek to stop. Terry,

392 U.S. at 21.

       In the present case, Deputy Miller knew that people were taking items from

Goodwill’s donation trailer after the trailer closed at 6:00 p.m. Deputy Miller noticed a

unique truck parked in the lot near the donation trailer at 10:30 p.m. Two hours later, he

noticed the same truck in the lot but at a donation shed not affiliated with Goodwill. At

that point, Deputy Miller had specific and articulable facts that someone associated with

the truck was taking items as people dropped their donations off at the trailer or the shed.

This would explain why the truck remained in the parking lot for two hours and moved

from the trailer to the shed.

       Mr. Buck argues the evidence was as consistent with innocent behavior as criminal

behavior. He argues he could have merely left items at the Goodwill trailer at 10:30 p.m.

and then returned at 12:30 a.m. and left additional items at the unaffiliated donation shed.

We find this highly improbable. It is very unlikely that a person would make two separate


                                              7
No. 35932-8-III
State v. Buck


trips to donate items so late at night. In addition, “officers do not need to rule out all

possibilities of innocent behavior before they make a stop.” Fuentes, 183 Wn.2d at 163.

The movement of the truck between the stations and the length of time the truck almost

certainly remained at the lot were much more consistent with a person taking items as

they were brought to the locations, as opposed to innocent activity. State v. Thierry, 60

Wn. App. 445, 448, 803 P.2d 844 (1991) (reasonable suspicion to warrant Terry stop

requires an officer to observe behavior more consistent with criminal activity than

innocent activity).

       We conclude that Deputy Miller’s detention of Mr. Buck was based on specific

and articulable facts that were individualized to Mr. Buck. These facts were much more

consistent with criminal activity than innocent activity. We, therefore, uphold the trial

court’s conclusion that the stop was lawful and supported by a reasonable suspicion of

criminal activity.

       B.     THE TRIAL COURT ERRED BY IMPOSING AN UNLAWFUL SENTENCE

       Mr. Buck argues his sentence exceeded the maximum sentence permitted for a

class C felony. He also argues the trial court erred by imposing the DNA collection fee.




                                               8
No. 35932-8-III
State v. Buck


              1.     The sentence term was unlawful

       A trial court may not impose a sentence of confinement and community custody

that, when combined, exceeds the statutory maximum for the offense. State v. Boyd, 174

Wn.2d 470, 472, 275 P.3d 321 (2012). Here, Mr. Buck was sentenced to 50 months’

confinement and 12 months of community custody—a total of 62 months. The State

acknowledges that Mr. Buck’s sentence exceeds the statutory maximum. Accordingly,

we remand to have the trial court reduce the community custody term or for resentencing

within the statutory maximum. Id. at 473.

              2.     The DNA collection fee must be struck

       Mr. Buck asks this court to strike his DNA collection fee. In State v. Ramirez, 191

Wn.2d 732, 747, 426 P.3d 714 (2018), our high court held that recent legislative changes

to a court’s ability to impose mandatory legal financial obligations applied to cases on

direct appeal. The trial court did not have the benefit of Ramirez when it imposed its

sentence.

       Mr. Buck argues these recent legislative changes prohibit the trial court from

imposing the DNA collection fee against him. The State, noting Mr. Buck’s extensive

history of felony convictions, agrees. So do we.




                                             9
No. 35932-8-111
State v. Buck


       In summary, we affirm the trial court's denial of Mr. Buck's suppression motion

and his subsequent conviction. But we remand for imposition of a lawful sentence and to

strike the DNA collection fee.

       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.


                                          Lawrence-B~rrey, CJ.     s-




I CONCUR:




Pennell, J.




                                            10
                                     No. 35932-8-III

       FEARING,   J. (dissenting)-Although the two decisions address diverging facts

from this appeal, I conclude, based on State v. Weyand, 188 Wn.2d 804, 399 P .3d 530

(2017) and State v. Fuentes, 183 Wn.2d 149, 352 P.3d 152 (2015), that Sheriff Deputy

Brent Miller lacked reasonable articulated suspicion of criminal activity to detain Eric

Buck and Buck's vehicle. Therefore, I dissent.




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