           IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                  No. 69913-0-1
                                                                                     CZ>
                     Respondent,
                                                  DIVISION ONE
      v.
                                                                                      ro

STEVEN SANDOZ,                                    UNPUBLISHED OPINION                        o>r'-<\

                     Appellant.                   FILED: April 21. 2014                    V> =5S

       Spearman, C.J. — Steven Sandoz was charged with a violation of the Uniform

Controlled Substance Act, possession of cocaine. Prior to trial he moved to suppress

evidence of his incriminating statements and the cocaine found in his possession during

a search incident to his arrest. He argued that his initial detention was unlawful because

the arresting officer lacked the reasonable and articulable grounds to believe he was

engaged in criminal activity and therefore, any evidence obtained subsequentlywas

inadmissible at his trial. The trial court denied the motion and after a bench trial on

stipulated facts, he was found guilty as charged. Sandoz appeals, contending that the
trial court erred in denying his motion to suppress. We conclude his claim lacks merit

and affirm.
No. 69913-0-1/2


                                          FACTS

       Late in the evening on May 23, 2012, King County Sheriff Deputy Christopher

Przygocki observed a white Jeep illegally parked in front of an apartment building

known for an unusually high number of documented criminal incidents. As a result of the

frequent criminal activity at the location, the owner of the building had authorized police

officers to cite anyone for trespass if they did not belong on the property, and the

building had been designated as part of a problem solver project for added emphasis to

stop crime in the area. Przygocki knew the vehicles owned by each of the tenants and

did not recognize the Jeep. When he drove by, the driver of the Jeep "slumped down"

so he parked in a nearby cul-de-sac 20 yards away for further observation. Verbatim

Report of Proceeding (VRP) (1/3/13RP) at 18.

       When nobody entered or exited the vehicle for 15 minutes, Deputy Przygocki

exited his patrol car and contacted the driver. Przygocki asked the driver what he was

doing, and the driver responded that his friend had called him for a ride. The driver did

not answer Przygocki's question about why he slumped down. Then Przygocki walked

around to the passenger side of the vehicle and noticed Steven Sandoz walking out of

an apartment toward the Jeep with his eyes down and his hands in his pocket.

Przygocki knew from previous experience that the tenant of the apartment Sandoz

exited had a history of convictions for possession of controlled substances with intent to

distribute. When Sandoz saw Przygocki, his "eyes got big, and he entered the Jeep."

VRP (1/3/13RP) at 21. Przygocki asked Sandoz what he was doing, and Sandoz stated

the driver gave him a ride to the apartment to collect $20 from the resident of the
No. 69913-0-1/3


apartment. The deputy believed the explanations contradicted each other. Przygocki

also stated that Sandoz was visibly shaking, and his face looked pale and thin.

       Based on the information he had obtained, Przygocki asked Sandoz to step out

of the Jeep to talk in private. Sandoz complied, and the two walked to the back of the

Jeep. Had Sandoz declined, Przygocki stated he would have detained him and

investigated for drug-related loitering. Once outside, Sandoz initially told Przygocki that

he was at the apartment to collect $20 from the tenant, but then admitted he had a drug

problem and a crack pipe in his pocket. Przygocki arrested Sandoz for possession of

drug paraphernalia and felt an object in Sandoz's groin area during a search incident to

arrest. Przygocki advised Sandoz of his rights and waited for another officer to arrive

before removing the object, which turned out to be two small envelopes of cocaine.

Sandoz admitted to purchasing narcotics from the tenant and claimed the tenant had

set him up. In transit, Sandoz admitted he had a drug problem, asked for help, and told

Przygocki he would be coming off narcotics.

       The State charged Sandoz with possessing cocaine, a violation of the Uniform

Controlled Substance Act.1 In a pretrial motion pursuant to CrR 3.5 and 3.6, Sandoz

argued his initial detention was illegal and, as a result, all of his statements and the

evidence seized from him subsequent to his detention should be suppressed. CP 6-15.

In denying the motion, the trial court concluded as follows:

       The deputy had reasonable and articulable suspicion to conduct a
       Terry2 stop of the defendant, when he asked to talk to the defendant
       privately at the back of the vehicle. The area that this occurred was
       an area of extremely high drug activity, known to the officer based
       on objective 911 calls reporting drug activity and investigations into

       1 RCW 69.50.4013

       2Terry v. Ohio. 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 LEd.2d 889 (1968).
No. 69913-0-1/4


          drug dealing. The deputy was aware that occupants of the
          apartment complex, specifically the one apartment the defendant
          exited, was known as a place where drug deals occurred.... The
          deputy had express authority from the complex owner people (sic) to
          trespass people who were non-occupants loitering at the complex.
          The Jeep seen did not belong to any occupants of the complex. The
          driver of the Jeep slouched down when the deputy drove past. The
          driver and the defendant had conflicting stories as to why they were
          in the area. The defendant looked surprised when he saw the
          deputy. The defendant was visibly shaken and pale when the deputy
          initiated contact with him, At this point, the deputy had reasonable
          and articulable suspicion that the defendant was engaging in illegal
          drug activities.

Clerk's Papers at 53.

          Following the court's ruling on the motion, Sandoz waived his right to a jury trial

and submitted the case to the bench on stipulated facts. The trial court found him guilty.

Sandoz appeals, arguing the trial court erred in denying his motion to suppress. We

affirm.

                                         DISCUSSION

          A seizure occurs under the Washington constitution when considering all the

circumstances, an individual's freedom of movement is restrained and the individual

would not believe he or she is free to leave or decline a request due to an officer's use

of force or display of authority. (Citing State v. O'Neill, 148 Wn.2d 564, 574, 62 P.3d 489

(2003)). The determination is based on a purely objective look at the actions of the law

enforcement officer. State v. Young. 135 Wn.2d 498, 512, 957 P.2d 681 (1998). The

relevant question is whether a reasonable person in the defendant's position would feel
that he or she was being detained. O'Neill. 148 Wn.2d at 581. On the other hand, if a

reasonable person would feel free to walk away from the officer, the encounter does not
No. 69913-0-1/5


amount to a seizure. United States v. Mendenhall. 446 U.S. 544, 554, 100 S.Ct. 1870,

64LEd.2d497(1980).

       A law enforcement officer's request that a person exit a vehicle constitutes a

seizure because a reasonable person in that circumstance would not feel free to decline

the request. See O'Neill. 148 Wn.2d at 581 (finding an officer did not show sufficient

authority for a seizure until he asked the driver to exit a parked car); State v. Johnson.

156 Wn. App. 82, 92, 231 P.3d 225 (2010) review granted 172 Wn.2d 1001, 257 P.3d

1112 (2011) (noting that a seizure did not occur when the officer did not ask a

passenger to step out of a car until the officer knew of the passenger's outstanding

warrants); State v. Watkins. 76 Wn. App. 726, 729, 887 P.2d 492 (1995) (asking the

passenger to exit a car during a traffic stop constituted a seizure). Thus, Sandoz was

seized when Przygocki asked him to exit the vehicle.

       Sandoz argues that the seizure was unlawful because Przygocki lacked

reasonable and articulable grounds to believe that Sandoz had engaged or was about

to engage in criminal activity. We disagree. Article 1, section 7 of the Washington

Constitution provides "[n]o person shall be disturbed in his private affairs, or his home

invaded, without authority of law." This language provides more protection than the

Fourth Amendment and creates nearly an absolute bar on warrantless seizures. State v.

Valdez, 167 Wn.2d 761, 772, 224 P.3d 751 (2009). For a warrantless seizure to be

lawful, the State must show by clear and convincing evidence that the seizure was

justified by one of the limited exceptions to the warrant requirement. State v. Doughty,

170 Wn.2d 57, 62, 239 P.3d 573 (2010).
No. 69913-0-1/6


       Under Terry, brief investigatory stops are one such exception to the general rule

against warrantless seizures. See also State v. Acrev. 148 Wn.2d 738, 746-47, 64 P.3d

594 (2003). A Terry stop is proper when an officer's reasonable suspicion that the

stopped person has been or is about to be involved in a crime is grounded in specific

and articulable facts, id. at 747. "The reasonableness of the officer's suspicion is

determined by the totality of the circumstances known to the officer at the inception of

the stop." State v. Rowe. 63 Wn. App. 750, 753, 822 P.2d 290 (1991) overruled in part

on other grounds bv State v. Bailev. 109 Wn. App. 1, 3, 34 P.3d 239 (2000). The

officer's training, the location of the stop, the conduct of the person detained, the

purpose of the stop, the amount of physical intrusion, and the length of time the suspect

is detained are all proper to consider in determining the reasonableness of the stop.

Acrev. 148Wn.2dat747.

       Deputy Przygocki properly seized Sandoz based on the totality of the

circumstances at the time of the seizure. As the trial court found, Przygocki had

extensive knowledge of frequent drug and other criminal conduct occurring at the

apartment complex, and Sandoz exited the apartment of a convicted drug dealer. For

six months, Przygocki had been working on a problem solver project involving the

complex and had authority from the owner to trespass anyone that did not belong on the

property. Przygocki saw the driver in the Jeep slump down in his seat as the deputy

drove by, and the Jeep was illegally parked in front of the building for 15 minutes. Once

Sandoz exited the apartment, Przygocki noticed that Sandoz appeared nervous at the

sight of the officer and was visibly shaking. His face also looked pale and thin. The

driver and Sandoz offered conflicting stories to explain their presence at the complex...
No. 69913-0-1/7


Considering all the information he had ascertained, Przygocki had reasonable and

articulable grounds to suspect that Sandoz was engaging in illegal drug activities.

       Sandoz's reliance on Doughty and Gleason is misplaced. In Doughty, the court

held that a seizure was improper when the defendant left a suspected drug house late

at night after staying for only two minutes. 170 Wn.2d 57, 63, 239 P.3d 573 (2010). But

the arresting officer in Doughty relied on "incomplete observations" and only used

neighbor complaints to identify the residence as a drug house. Jd. at 64. With more

information about why the drug house was designated as such, the officer's conduct

may have been proper, jd. at 65 (Chambers, J., concurring). Here, Przygocki knew the

tenant was a convicted drug dealer and the complex had been a part of the problem

solver project because of the frequent criminal activity. His personal knowledge of the

circumstances provides specific, articulable grounds for his suspicion that Sandoz was

engaged in illegal drug activity.

       Likewise, Gleason is distinguishable as well. In Gleason. the arresting officers

relied "solely" on racial incongruity in seizing the defendant. 70 Wn. App. 13, 18, 851

P.2d 731. In fact, "there was no evidence Mr. Gleason was acting suspiciously, he was

not carrying any unusual objects, and the officers admitted there was no basis to arrest

him for loitering." Jd. Here, Przygocki observed Sandoz leave the apartment of a known

drug dealer. Sandoz looked nervous, thin and pale, and was visibly shaking when

Przygocki made contact with him and Sandoz's explanation for being at the apartment

complex contradicted the driver's explanation. Based on the totality of the
No. 69913-0-1/8


circumstances, Deputy Przygocki had reasonable and articulable grounds to believe

that Sandoz was engaged in illegal drug activity.3

        Affirmed.




WE CONCUR:




          3 Sandoz also contends for the first time on appeal that the Przygocki lacked probable cause to
arrest Sandoz because mere possession of drug paraphernalia is not a crime under the Revised Code of
Washington. As a general rule, appellate courts will not consider a claim of error which was not raised in
the trial court. RAP 2.5(a). An exception to the general rule is where the claimed error is a "manifest error
affecting a constitutional right." RAP 2.5(a)(3). Forthis exception to apply, "[t]he defendant must identify a
constitutional error and show how, in the context of the trial, the alleged error actually affected the
defendant's rights; it is this showing of actual prejudice that makes the error 'manifest', allowing appellate
review." State v. McFarland. 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). Although, Sandoz's claim
arguably affects Sandoz's rights under the Fourth Amendment to the federal constitution and article I,
section 7 of our state constitution, Sandoz makes no argument, and we perceive of none, that the claimed
error is manifest in this case. Accordingly, we decline to consider it.

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