       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                      Can C.../
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STATE OF WASHINGTON,                        )                                                  rn
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                                            )      No. 76038-6-1
                       Respondent,          )
                                            )      DIVISION ONE                                            rn
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HOLLIS BLOCKMAN,                            )      UNPUBLISHED OPINION
                                                                                                      6+4
                                            )
                       Appellant.           )      FILED: January 23, 2017
                                            )

      BECKER,      J. — Appellant Hollis Blockman appeals from his conviction for

unlawful possession of cocaine with intent to deliver. The principal issue is

whether the trial court erred in denying Blockman's motion to suppress evidence.

The evidence was that an officer, while conducting a protective sweep of an

apartment, saw Blockman in a back room engaged in a drug transaction.

       The relevant facts are set forth in findings of fact and conclusions of law

entered by the trial court on June 16, 2016, after Blockman filed this appeal. A

court rule provides that written findings and conclusions are to be entered after a

suppression hearing. CrR 3.6(b). In some cases we have accepted findings that

are entered after a case is appealed as long as there is no prejudice to the

defendant. State v. Cruz, 88 Wn. App. 905, 907 n.1, 946 P.2d 1229 (1997).

That is true here. There were no disputed facts at the suppression hearing, and
No. 76038-6-1


Blockman has not contested the facts as set forth in the belatedly entered

findings and conclusions.

       According to the findings of fact, Tacoma police officer Peter Hayward

responded to a report of an assault and robbery and made contact with the

victim, a Ms. Green. He went to an apartment in Tacoma and contacted the

resident, Patricia Burton, who immediately said, "'I can't believe she called the

cops." Burton acknowledged that she paid rent at the apartment and that she

was the resident. Burton invited the officers inside, and the officers stood

approximately two or three steps inside the front door and in the living room as

they spoke with her. Burton offered that there were "'two people in the back.'

Officer Hayward had concerns for his safety due to the report of at least two

unknown individuals somewhere in the residence.

       Officer Hayward was invited by Burton to conduct a protective sweep, and

he did. He conducted the sweep "to make sure no one would jump out and

surprise them while he was questioning Ms. Burton." His gun was still in its

holster when he conducted the protective sweep. He did not announce his

presence due to officer safety concerns. He did not open cabinets or drawers to

search for evidence.

       Officer Hayward walked through the living room and turned into a short

hallway. He immediately saw, in a bedroom, in plain view with the door open, a

woman placing a $20 bill on a coffee table, and he observed Blockman holding a

clear plastic bag containing several small, white rock-like objects that later tested

positive for cocaine. Blockman was placed under arrest.



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No. 76038-6-1 ,


      The State charged Blockman with unlawful possession of cocaine with

intent to deliver within 1,000 feet of a school bus route stop. Blockman moved to

suppress the evidence. At the CrR 3.6 hearing, counsel for Blockman argued

that the evidence acquired from the protective sweep should be suppressed

because of Officer Hayward's failure to give appropriate warnings under State v.

Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998). The State argued that the

protective sweep was valid based on officer safety concerns. The superior court

denied the motion to suppress, concluding as follows:

      Officer Hayward had reasonable suspicion to believe there might
      be other persons present in the residence who could pose a danger
      to the officers.
              . . . Officer Hayward did not exceed the scope of his
      protective sweep of the small apartment with a short hallway when
      he looked in the back bedroom, with its door open, that immediately
      adjoined the place where he was questioning a suspect regarding
      an assault and robbery.

      The jury found Blockman guilty as charged. Blockman appeals.

                                PROTECTIVE SWEEP

      Officer Hayward's testimony describing the drug transaction he witnessed

when he looked into the back bedroom was critical evidence supporting the

conviction. Blockman assigns error to the denial of the motion to suppress. He

contends the trial court erred by concluding that the sweep search was valid

under the protective sweep exception to the warrant requirement.

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

section 7 of the Washington Constitution prohibit a warrantless search and

seizure unless the State demonstrates that one of the narrow exceptions to the

warrant requirement applies. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d
No. 76038-6-1


1266 (2009). One recognized exception to the warrant requirement is a

"protective sweep" inside a home to inspect "those spaces where a person may

be found." Maryland v. Buie, 494 U.S. 325, 334-35, 110 S. Ct. 1093, 108 L. Ed.

2d 276 (1990).

       Blockman argues that a protective sweep is valid without a warrant only if

it occurs after a lawful arrest. Blockman did not make this argument below and

instead argued for suppression based on Ferrier. For the first time on appeal,

Blockman contends that the threshold requirement for a protective sweep was

not met because Officer Hayward did not arrest anyone before the protective

sweep. We will consider this argument, though Blockman did not raise it below,

because the record is fully developed and the argument is constitutional in

nature. See RAP 2.5(a).

       Blockman does not cite persuasive authority for the proposition that a

protective sweep can occur only after an arrest. In many cases, including Buie,

the facts were that the protective sweep was conducted after or in the course of

making an arrest, but nothing in the rationale of Buie or its progeny suggests that

an arrest is an indispensable prerequisite. Buie was decided on the principles

the Court had previously set forth in the context of a protective frisk for weapons,

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

Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983).

The rationale is officer safety. "In Terry and Long we were concerned with the

immediate interest of the police officers in taking steps to assure themselves that

the persons with whom they were dealing were not armed with, or able to gain



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No. 76038-6-1


immediate control of, a weapon that could unexpectedly and fatally be used

against them. In the instant case, there is an analogous interest of the officers in

taking steps to assure themselves that the house in which a suspect is being, or

has just been, arrested is not harboring other persons who are dangerous and

who could unexpectedly launch an attack." Buie, 494 U.S. at 333.

       While the sweep in Buie took place in a house during the course of an

arrest, federal appellate cases following Buie apply the same rationale to uphold

sweeps before an arrest. United States v. Taylor, 248 F.3d 506, 510, 514 (6th

Cir.) (officers justified in making a protective sweep to ensure their safety while a

warrant was being obtained), cert. denied, 534 U.S. 981 (2001); United States v.

Patrick, 959 F.2d 991, 994, 996-97 (D.C. Cir. 1992) (Once police were lawfully on

premises with lessee's consent, they were authorized to conduct a protective

sweep based on their reasonable belief that one of its inhabitants was trafficking

in narcotics); United States v. Gould, 364 F.3d 578, 581 (5th Cir.) (There is no

"across-the-board, hard and fast per se rule that a protective sweep can be valid

only if conducted incident to an arrest"), cert. denied, 543 U.S. 955 (2004). The

Gould court recognized that Buie authorized the protective sweep for officer

safety and reasoned that "in the in-home context it appears clear that even

without an arrest other circumstances can give rise to equally reasonable

suspicion of equally serious risk of danger of officers being ambushed by a

hidden person as would be the case were there an arrest." Gould, 364 F.3d at

584.




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No. 76038-6-1


       Blockman emphasizes that the protective sweeps in Buie and State v.

Hopkins, 113 Wn. App. 954, 55 P.3d 691 (2002), were in fact incident to arrest.

There was no dispute in these cases that the sweeps were incident to arrest, so

the courts had no occasion to address whether the sweep would have been

permissible absent arrest. See Gould, 364 F.3d at 581 ("There was no dispute

in Buie that the sweep was incidental to arrest, and nothing in Buie states that if

the officers were otherwise lawfully in the defendant's home and faced with a

similar danger, such a sweep would have been illegal.")

       We conclude the standard to be applied is whether the officer had a

"reasonable belief based on specific and articulable facts" that the area to be

swept harbors an individual posing a danger to investigating officers. See Buie,

494 U.S. at 337.

       Officer Hayward was investigating a report of an assault and robbery in an

apartment. When he arrived at the apartment, he was invited in by Burton, a

resident, who told him there were two people "in the back." Based on these

specific and articulable facts, Officer Hayward had a reasonable belief that the

apartment harbored at least two people who might "jump out" and surprise him

while he was questioning Burton. As the trial court concluded, the officer did not

exceed the scope of a protective sweep when he looked into an immediately

adjoining back bedroom with its door open. The trial court did not err in denying

the motion to suppress.




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                         INEFFECTIVE ASSISTANCE OF COUNSEL

          Blockman makes two ineffective assistance of counsel arguments.

Ineffective assistance of counsel is established if counsel's performance was

deficient and the deficient performance prejudiced th defendant. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State

v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).

          Blockman argues that he was denied his right to effective assistance of

counsel when his attorney made an argument against the protective sweep

based on a misunderstanding of Ferrier. He contends counsel instead should

have argued that a protective sweep is permissible under Buie only after an

arrest.

          As discussed above, the protective sweep exc ption is not limited in the

way that Blockman argues for the first time on appeal. Counsel may have

inaccurately presented Ferrier to the trial court, but BI ckman does not argue that

an accurate rendition of Ferrier would have compelled granting of the motion to

suppress. With respect to the motion to suppress, co nsel's performance was

neither deficient nor prejudicial.

          Blockman contends counsel was ineffective in f a iling to object to a remark

made by the prosecutor in rebuttal closing argument. he challenged remark

was a response to Blockman's argument that the Stat had not proven that he

was selling rather than buying the cocaine. Blockman suggested the State

assumed he was the seller, and the woman involved i the transaction was the

buyer, simply because of gender:



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No. 76038-6-1

             Do we make the assumption that only men sell crack? Is it
      possible for a woman to deal crack and sell dm gs, or are we just
      going to assume it's the man in the room? Are we just going to
      assume that the guy holding the bag is the person doing the
      dealing, or is he somebody that is holding the Lag to select his
      product?

      The prosecutor directly responded to Blockma 's rhetorical questions

about gender assumptions:

             There are some red herrings that came      p here, and the
      State is not saying that just because you're a    ale and only drug
      dealers are males. I'm sure there are very suc    essful female drug
      dealers out there too. That's not the issue. Th    issue is the
      Defendant was interrupted while conducting a      rug transaction.

(Emphasis added.) Blockman contends counsel should have objected that the

prosecutor was misstating the law by implying it was itirelevant whether

Blockman was the purchaser or the seller.

      Defense counsel's failure to object during a pro ecutor's closing argument

will generally not constitute deficient performance bec use lawyers do not

commonly object during closing argument absent egr gious misstatements. In re

Pers. Restraint of Cross, 180 Wn.2d 664, 721, 327 P. d 660 (2014).

      The prosecutor was directly rebutting Blockman's closing argument that

the State was asking the jury to assume that Blockman must have been the

seller simply because he was a man. In closing, the p osecutor went through

each element of the crime, including the intent to deliv r element, and told the

jury that "essentially the crux of this case" was "did th Defendant have the intent

to deliver cocaine?" The jury was instructed on the el ments of the crime,

including intent to deliver. Taken in context, the prose utor's comment did not




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No. 76038-6-1


amount to a misstatement of the law. Thus, counsel was not ineffective for failing

to object to it.

                                  APPELLATE COST!

        Blockman asks us not to impose appellate costs in the event that the State

prevails on appeal and seeks costs. Under RCW 10.3.160(1), this court has

discretion to decline to impose appellate costs on app al. State v. Sinclair, 192

Wn. App. 380, 385, 388, 367 P.3d 612, review denied 185 Wn.2d 1034 (2016).

The State asks us to decline to exercise our discretio , and instead to impose the

costs if requested by the State and leave Blockman to seek a remission hearing

in the future to show his inability to pay at such time a the State may try to

collect the costs. The State has provided no basis for determination that

Blockman's financial circumstances have improved si ce the trial court found that

he is indigent. We exercise our discretion not to impo e appellate costs.

                       STATEMENT OF ADDITIONAL GROUNDS

        Blockman alleges that the prosecutor failed to isclose expert witness

Terry Krause. The State's supplemental witness list filed on June 22, 2015,

listed Terry Krause.

        Blockman alleges that there was a violation of the chain of custody based

on arresting officer Hayward's testimony that the book ng officer found $244 on

Blockman that he did not see. Blockman does not ex lain how this is a chain of

custody violation.

        Blockman alleges that pages were missing fro his discovery and that he

had ineffective assistance of counsel. The record rev als that the trial court



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No. 76038-6-1

already addressed both of these issues at length. B1 ckman gives us no reason

to revisit the trial court's resolution of these issues.

       Blockman alleges that Officer Hayward's testi ony at trial contradicted his

testimony at the suppression hearing. This allegation is inadequate to inform the

court of the nature of the alleged error. See RAP 10. 0(c).

       Affirmed.




WE CONCUR:



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