                                                                 FILED
                                                             JANUARY 2, 2020
                                                        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. 36262-1-III
                                              )
                     Respondent,              )
                                              )
       v.                                     )         UNPUBLISHED OPINION
                                              )
P.W.W.,                                       )
                                              )
                     Appellant.               )

       FEARING, J. — This appeal asks whether a law enforcement officer held

reasonable articulable suspicion to stop and question a minor as to possession of

marijuana, when the officer smelled marijuana coming from inside a car where the minor

sat. We agree with the trial court that the officer had cause to conduct a Terry stop. We

thereby affirm the conviction of Paul Williams for minor in possession of marijuana.

                                          FACTS

       We rely in part on the unchallenged findings of fact for our recitation of the facts.

We also rely on conversations captured by City of Moxee Police Sergeant Mark Lewis’s
No. 36262-1-III
State v. P.W.W.


patrol vehicle camera, which video the trial court viewed during a motion to suppress

hearing. We alter the names of the juvenile defendant and his teenage companions.

       At approximately 5:15 p.m. on February 1, 2018, Sergeant Mark Lewis observed a

silver Chevrolet Malibu roll through a stop sign at the intersection of St. Hilaire Road and

Postma Road in Moxee, Washington. Sergeant Lewis stopped the vehicle on Faucher

Road near Moxee Avenue and contacted the driver, later identified as Steven Enriquez.

The Malibu bore three passengers. Defendant Paul Williams sat in the front passenger

seat, Karl Martin in the right rear passenger seat, and Thomas Williams in the left rear

passenger seat.

       On approaching the driver’s side window, Sergeant Mark Lewis smelled a strong

odor of marijuana oozing from the vehicle. While observing the young appearance of the

car’s occupants, Sergeant Lewis asked Steven Enriquez for his age. Enriquez responded

that he was seventeen years old. Enriquez added that his passengers were also seventeen

years of age.

       After returning to his patrol vehicle with Steven Enriquez’s paperwork, Sergeant

Mark Lewis reapproached Enriquez and asked him to exit the vehicle. Sergeant Lewis told

Enriquez that he could smell marijuana in the vehicle and he knew all of the car’s occupants

were not at least eighteen years old. Enriquez denied that he possessed marijuana, that


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No. 36262-1-III
State v. P.W.W.


marijuana resided in the car, or that any of his passengers held marijuana. Enriquez

declaimed that his mother used marijuana and opined that his mother’s marijuana could be

the source of the smell. Sergeant Lewis frisked Enriquez and placed him in the back of his

patrol vehicle. The remaining three occupants of the Malibu remained seated in the car.

       Sergeant Mark Lewis returned to the silver Malibu and opened the front

passenger’s door. Lewis uttered to Paul Williams: “Hop out and come talk to me.”

Ex. 3 at 8 min., 8 sec. The two walked to the rear of the Malibu, where Sergeant Lewis

commented:

             So the reason he’s [Steven Enriquez] in the backseat of my car right
       now, [none of] you guys are eighteen years old, okay. I can smell the
       marijuana in that car, okay. So no one in this car can have a medical
       marijuana card to make it legal, okay. So what do you know about any
       marijuana in the car or on you or anything like that?

Ex. 3 at 8 min., 20 sec. to 8 min., 37 sec. Williams responded that he had smoked some

marijuana earlier, but he presently possessed no marijuana on his person or in his

backpack. Sergeant Lewis then told Williams:

              Honesty would go a long way here, I’m not looking to hem people
       up, 16-, 17-year-old kids up, okay. But if you’re not going to be honest
       with me, then I only have one other way to go and that’s the hard way.
       Does that make sense? Okay, so do you have any marijuana in your bag?

Ex. 3 at 8 min., 49 sec. to 9 min., 4 sec.; see also Clerk’s Papers (CP) at 38.

Urban Dictionary defines “hem up” as being “caught.” URBAN DICTIONARY,

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No. 36262-1-III
State v. P.W.W.


https://www.urbandictionary.com/define.php?term=Hem%20Up (last visited Dec. 19,

2019). We do not know to what Lewis referred when he referenced a “hard way” and

whether there exists a “soft way.”

          Paul Williams admitted he retained a “little blunt” of marijuana in his backpack.

Ex. 3 at 9 min., 6 sec. to 9 min., 21 sec. A “blunt” is “a cigar that has been hollowed out

and filled with marijuana.” MERRIAM-WEBSTER ONLINE DICTIONARY,

https://www.merriam-webster.com/dictionary/blunt (last visited Dec. 19, 2019). From the

time Williams exited the Malibu to the time Williams admitted to possessing marijuana,

fifty-eight seconds elapsed. Williams was not in handcuffs during the questioning.

          When admitting to marijuana being inside his backpack, Paul Williams also

acknowledged being under age eighteen. Honesty is an important value to Sergeant Mark

Lewis. Lewis commended Williams for his honesty and asked if Steven Enriquez knew

Williams possessed the marijuana. Williams answered that he never informed Enriquez

that he had marijuana. Sergeant Lewis repeated his dislike for hemming up anyone. He

stated:

                 Like I said, I don’t want to hem people up. If you’re honest with me,
          I’m gonna work with you. You’re a juvenile. You’re not in a big ton of
          trouble, okay.




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No. 36262-1-III
State v. P.W.W.


Ex. 3 at 10 min., 0 sec. to 10 min., 7 sec. We do not know how Lewis later “worked

with” Williams in exchange for Williams’s candor.

      Sergeant Mark Lewis next asked Paul Williams questions to garner identifying

information such as Williams’s date of birth, middle name, and address. Sergeant Lewis

instructed Williams to retrieve his backpack from inside the Malibu and deposit it on the

trunk of the car. When Lewis asked if the backpack contained more than a blunt,

Williams admitted to also possessing a jar of marijuana in his backpack.

                                     PROCEDURE

      The State of Washington charged Paul Williams with a person, under the age of

twenty-one, possessing less than forty grams of marijuana. Williams moved to suppress

the marijuana as evidence. He argued that Sergeant Mark Lewis lacked individualized

suspicion to detain Williams pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,

20 L. Ed. 2d 889 (1968) and that Sergeant Lewis obtained Williams’s incriminating

statements in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d

694 (1966). In response, the State contended that Sergeant Lewis possessed lawful

authority to briefly detain Williams pursuant to Terry. Therefore, Lewis did not need to

issue Miranda warnings.




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No. 36262-1-III
State v. P.W.W.


       The trial court denied Paul Williams’s motion to suppress. The trial court entered

the following conclusion of law, which Williams challenges on appeal:

               Sgt. Lewis had specific and articulable facts to reasonably support
       the intrusion. The automobile was occupied by four juveniles, he could
       smell the marijuana from within the vehicle, and none of the individuals
       were of an age to lawfully possess marijuana.

CP at 39.

       Paul Williams agreed to a stipulated facts bench trial. During the proceedings, the

trial court admitted a crime laboratory report, which read that seized green botanical

material tested positive for marijuana. The trial court found Williams guilty of possessing

less than forty grams of a controlled substance, marijuana, while under twenty-one years

of age. The trial court sentenced Williams to twelve months of supervision and sixteen

community service hours.

                                 LAW AND ANALYSIS

       On appeal, Paul Williams assigns error to the trial court’s refusal to grant his

motion to suppress evidence of the marijuana. He contends that Sergeant Mark Lewis

lacked individualized suspicion for a Terry detention because Lewis could not pinpoint

the source of the smell of the marijuana to Williams. On appeal, Williams does not

contend that Mark Lewis arrested him before he uttered his incriminating statements such

that Lewis should have issued Miranda warnings.

                                              6
No. 36262-1-III
State v. P.W.W.


       We review a motion to suppress “to determine whether substantial evidence

supports the trial court’s challenged findings of fact and, if so, whether the findings

support the trial court’s conclusions of law.” State v. Cole, 122 Wn. App. 319, 322-23,

93 P.3d 209 (2004). Paul Williams assigns no error to the trial court’s findings of fact.

Unchallenged findings of fact are verities on appeal. State v. O’Neill, 148 Wn.2d 564,

571, 62 P.3d 489 (2003). We review de novo a trial court’s conclusions of law following

a motion to suppress evidence. State v. Eserjose, 171 Wn.2d 907, 912, 259 P.3d 172

(2011).

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

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

person suspected of criminal activity without a warrant. State v. Weyand, 188 Wn.2d 804,

811, 399 P.3d 530 (2017). The law affords, however, a few carefully drawn exceptions

to the warrant requirement, and the State bears the burden to show that a warrantless

seizure falls into one of the narrowly drawn exceptions. State v. Weyand, 188 Wn.2d at

811. A well-known exception to the warrant requirement is the Terry investigative stop.

State v. Fuentes, 183 Wn.2d 149, 157-58, 352 P.3d 152 (2015).

       Under Terry, an officer may “briefly detain a person for questioning, without a

warrant, if the officer has reasonable suspicion that the person is or is about to be engaged


                                              7
No. 36262-1-III
State v. P.W.W.


in criminal activity.” State v. Weyand, 188 Wn.2d at 811. “A valid Terry stop requires

that the officer have reasonable suspicion of criminal activity based on specific and

articulable facts known to the officer at the inception of the stop.” State v. Fuentes, 183

Wn.2d at 158. To evaluate the reasonableness of the officer’s suspicion, this court looks

at the totality of the circumstances known to the officer. State v. Fuentes, 183 Wn.2d at

158. “The totality of circumstances includes 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.” State v. Weyand, 188 Wn.2d at

811-12; see also State v. Acrey, 148 Wn.2d 738, 746-47, 64 P.3d 594 (2003). The

officer’s suspicion must be individualized to the person being stopped. State v. Fuentes,

183 Wn.2d at 159.

       The parties agree that Sergeant Mark Lewis stopped Paul Williams when Lewis

ordered Williams out of the passenger side door of the Chevrolet Malibu. The State

concedes a reasonable person would then not have felt free to leave. The question on

appeal becomes whether Sergeant Lewis held specific and articulable facts to reasonably

support the seizure. We answer in the affirmative.

       Paul Williams relies primarily on State v. Grande, 164 Wn.2d 135, 187 P.3d 248

(2008). In Grande, State Trooper Brent Hanger pulled a vehicle over for having dark


                                             8
No. 36262-1-III
State v. P.W.W.


windows. Trooper Hanger smelled marijuana wafting from the car and informed both

occupants that they were under arrest based solely on the odor of marijuana. A search

incident to the arrest of passenger Jeremy Grande revealed a pipe containing marijuana.

The Grande court applied the rule that the evidence to support probable cause for an

arrest must be individual to the arrestee. The court held that the “smell of marijuana in

the general area where an individual is located is insufficient, without more, to support

probable cause for arrest.” State v. Grande, 164 Wn.2d at 146-47 (emphasis added).

       The Washington Supreme Court in State v. Grande qualified its ruling:

              This does not mean, however, that a law enforcement officer must
       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. In this
       case, because the officer had training and experience to identify the odor of
       marijuana and smelled this odor emanating from the vehicle, he had
       probable cause to search the vehicle.

State v. Grande, 164 Wn.2d at 146. Because the police officer arrested both occupants

without first establishing individualized probable cause, the Supreme Court invalidated

Grande’s warrantless arrest and the search incident to arrest.

       State v. Grande bears little importance to Paul Williams’s appeal. The facts in

Grande raised the question of whether the police officer had probable cause to arrest, a

higher constitutional bar than when an officer seizes an individual for brief, investigatory


                                             9
No. 36262-1-III
State v. P.W.W.


questioning pursuant to Terry. A police officer may conduct an investigative stop based

on less evidence than needed for probable cause to make an arrest. State v. Acrey, 148

Wn.2d at 746-47 (2003).

       The State relies on our high court’s decision in State v. Heritage, 152 Wn.2d 210,

95 P.3d 345 (2004). We agree that State v. Heritage is more apt.

       In State v. Heritage, two bicycle security officers approached four juveniles and

observed one member of the group smoking what appeared to be a marijuana pipe. Both

officers detected an odor of marijuana and asked one of the juveniles whether the pipe

belonged to him. When the juvenile denied ownership, the officers asked, “‘Whose

marijuana pipe is it?’” followed by, “‘We’re Park Security, let’s move it along.’”

State v. Heritage, 152 Wn.2d at 213. Tiffany Heritage admitted ownership.

       In State v. Heritage, the Supreme Court considered the security officers to be

police officers for purposes of the Fourth Amendment. The court observed that a routine

traffic stop, like a Terry stop, qualifies as a “seizure” for Fourth Amendment purposes

because the traffic stop “curtails the freedom of a motorist such that a reasonable person

would not feel free to leave the scene.” State v. Heritage, 152 Wn.2d at 218. The court

recognized that, because traffic stops and Terry stops occur briefly in public, the stops are

“substantially less police dominated than the police interrogations contemplated by


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No. 36262-1-III
State v. P.W.W.


Miranda.” State v. Heritage, 152 Wn.2d at 218 (internal quotation marks omitted). The

court noted that “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.” State

v. Heritage, 152 Wn.2d at 218. The court concluded that the security officer’s encounter

with Tiffany Heritage equated to a Terry stop, not custodial interrogation, at the time

Heritage admitted to ownership of the pipe.

       We follow the teaching of State v. Heritage. Sergeant Mark Lewis held grounds

for the initial traffic stop based on Steven Enriquez’s running of a stop sign. Sergeant

Lewis, based on his training and experience, smelled a strong odor of marijuana from

within the Chevy Malibu. Lewis had reason to believe that none of the Malibu’s

occupants were eighteen years of age or older. Sergeant Lewis lacked probable cause to

arrest any of the car’s occupants simply for being inside the vehicle, but Lewis held

reasonable suspicion that a minor possessed marijuana. Lewis thereby possessed

authority to briefly question Paul Williams to investigate whether, as an individual under

twenty-one years of age, Williams illegally possessed marijuana. Sergeant Lewis

lawfully asked questions during the stop to confirm or dispel his suspicions.




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No. 36262-1-III
State v. P. W. W.


                                         CONCLUSION

         We affirm the trial court's declination of Paul Williams's motion to suppress and

the trial court's conviction of Williams for minor in possession of marijuana.

         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.




                                            Fearing,   i
WE CONCUR:




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Lawrence-Berrey, C.J.
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