                                                                           FILED
                                                                        JUNE 29, 2017
                                                                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. 34979-9-111 (consolidated
                     Respondent,              )        with No. 34992-6-111
                                              )
      V.                                      )
                                              )        UNPUBLISHED OPINION
COLIN BLAINE BECCARIA,                        )
                                              )
                     Appellant.               )

       FEARING, C.J. - Officer Joseph O'Connell espied heroin in Colin Beccaria's car

after O'Connell approached the car and ordered Beccaria to stop. Beccaria challenges his

conviction for possession of the heroin on the ground that O'Connell lacked cause to

detain him. We disagree and affirm Beccaria' s conviction.

                                         FACTS

       This prosecution arises from Puyallup Tribal Police Officer Joseph O'Connell's

arrest of Colin Beccaria in the early morning of August 7, 2015. By that date, O'Connell

had eight years of experience as a patrol officer. Colin Beccaria only assigns error to the

trial court's denial of his CrR 3.6 suppression motion. Therefore, we outline the facts

presented during the suppression hearing.
No. 34979-9-111 consolidated with No. 34992-6-111
State v. Beccaria


       While working the night shift on August 6-7, Officer Joseph O'Connell drove

alone in his patrol car. At around 1:00 a.m., O'Connell noticed a 1990s Honda Accord

bearing what the officer discerned to be a sham temporary license plate. Thieves target

1990s model Hondas and place forged temporary license plates on the stolen vehicles. A

driver occupied the Honda, though the vehicle was parked in a driveway facing toward

the accompanying house. O'Connell saw a female standing in front of a bedroom

window at the end of the driveway. O'Connell suspected a possible burglary in progress.

       Officer Joseph O'Connell stopped and exited his patrol car without activating his

patrol lights. As O'Connell exited his car, the female walked away from the house and

the parked Honda. O'Connell ordered the lady to stand at the back of the Honda, hands

on the rear of the car, while he spoke with the person sitting inside the vehicle. As

O'Connell approached the driver's side door of the Honda, Colin Beccaria exited the

vehicle. O'Connell ordered Beccaria to stop. As Beccaria exited the Honda, O'Connell

saw a bullet and heroin on the driver's seat. O'Connell handcuffed and arrested Beccaria.

       Officer Joseph O'Connell called for assistance and Sergeant Paul Herrera arrived.

With his flashlight, O'Connell peered through the Honda's windows and glimpsed a gun

protruding from under the driver's seat. The officers obtained a warrant to search the

Honda, and O'Connell seized the firearm.




                                             2
No. 34979-9-III consolidated with No. 34992-6-III
State v. Beccaria


                                      PROCEDURE

       The State of Washington charged Colin Beccaria with unlawful possession of a

firearm in the first degree, unlawful possession of a controlled substance, and unlawful

use of drug paraphernalia. Becarria moved to suppress all evidence obtained after Officer

Joseph O'Connell seized Beccaria. Beccaria sought suppression on the theory that

O'Connell arrested him without authority of law. The trial court conducted a CrR 3.6

hearing, during which only Officer O'Connell testified.

       The trial court denied Colin Beccaria's motion to suppress. The court found,

among other facts:

              1. Based on a totality of the circumstances, the officer had a
      reasonable belief that the defendant was engaged in criminal conduct. The
      officer observed an unregistered and occupied Honda Accord parked in a
      driveway and observed a woman looking through a bedroom window of a
      residence. The woman attempted to flee after observing the officer.
             2. The woman was contacted and her explanation did not dispel the
      suspicion. During that conversation, the defendant attempted to exit the
      vehicle and was immediately approached by the officer. The officer
      observed a baggie of heroin and a bullet on the front driver's seat.

Clerk's Papers at 201.

      A jury found Colin Beccaria guilty of unlawful possession of controlled substance

and not guilty on the other two counts. During sentencing, the trial court consolidated the

conviction with a second conviction for unlawful possession of a controlled substance.

The trial court imposed a twenty-four month sentence to run consecutively with

Beccaria's sentence from his other conviction.

                                            3
I
II   No. 34979-9-111 consolidated with No. 34992-6-111
     State v. Beccaria
I'
                                       LAW AND ANALYSIS

                                         Legality of Seizure

            Colin Beccaria contends the trial court should have granted his motion to suppress

     evidence of the heroin because Officer Joseph O'Connell lacked individualized and

     reasonable suspicion of Beccaria engaging in criminal behavior. According to Beccaria,

     Officer O'Connell lacked grounds to detain him and the espying of the heroin constitutes

     poisonous fruit.

            The State asks us to affirm the denial of Colin Beccaria's motion to suppress

     because Officer Joseph O'Connell saw the heroin in plain view before seizing Beccaria

     and facts established an articulable suspicion of criminal behavior. The State also

     justifies O'Connell's initial contact with Beccaria as an attempt to preserve the status quo

     of the scene for purposes of officer safety rather than a seizure. Finally, the State argues

     that O'Connell viewed the heroin independently of any allegedly unconstitutional

     seizure. We affirm the trial court's denial of Beccaria's suppression motion because

     O'Connell presented sufficient facts to justify the seizure of Beccaria. We need not

     address whether O'Connell lawfully eyed the heroin regardless of detaining Beccaria.

            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). Five jealously

     and carefully drawn exceptions apply to the warrant requirement: exigent circumstances,

                                                  4
No. 34979-9-III consolidated with No. 34992-6-III
State v. Beccaria


searches incident to a valid arrest, inventory searches, plain view seizures, and Terry

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

State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). The State bears the burden

of demonstrating that a narrow exception vindicates the search or seizure. State v.

Doughty, 170 Wn.2d 57, 61, 239 P.3d 573 (2010). This appeal concerns only a Terry

stop.

        Whenever a police officer accosts an individual and restrains his freedom to walk

away, he seizes the person. Terry v. Ohio, 392 U.S. at 16. To justify a Terry stop, the

police officer must identify specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant an intrusion. Terry v. Ohio, 392

U.S. at 21; State v. Armenta, 134 Wn.2d 1, 10,948 P.2d 1280 (1997). Once an officer

seizes an individual, no subsequent events or circumstances retroactively justify the

seizure. State v. Mendez, 13 7 Wn.2d 208, 224, 970 P .2d 722 ( 1999), abrogated on other

grounds by Brend/in v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132

(2007).

        Terry permits an officer to briefly detain, for limited questioning, a person whom

he reasonably suspects of criminal activity. State v. Broadnax, 98 Wn.2d 289, 293-94,

654 P.2d 96 (1982), abrogated on other grounds by Minnesota v. Dickerson, 508 U.S.

366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). The purpose of the minimally intrusive

Terry stop, therefore, is to allow the police to make an intermediate response to a

                                             5
No. 34979-9-111 consolidated with No. 34992-6-111
State v. Beccaria


situation for which there is no probable cause to arrest but which calls for further

investigation. State v. Kennedy, 107 Wn.2d 1, 17, 726 P .2d 445 ( 1986).

       The law recognizes that under certain circumstances, unarrested individuals may

pose a threat to officer safety in an arrest situation. State v. Horrace, 144 Wn.2d 386,

392-93, 28 P.3d 753 (2001); State v. Kennedy, 107 Wn.2d at 11. Courts shy from

substituting their judgment for that of police officers in the field. State v. Belieu, 112

Wn.2d 587, 601, 773 P.2d 46 (1989). A founded suspicion is all that is necessary; some

basis from which the court can determine that the detention was not arbitrary or

harassing. State v. Belieu, 112 Wn.2d at 601-02.

       In State v. Belieu, our high court addressed the same issue under similar facts.

Police officers received a citizen's report describing men he believed surveilled his home

for burglary. In previous burglaries in the area, thieves stole weapons. When the officers

arrived in the neighborhood, they observed two men, one of whom matched a description

of the suspects. The men walked toward a parked, occupied vehicle, then turned in a

different direction. A few minutes later, officers spotted the men running back toward

the parked car. When the car drove down the street, the officers, with weapons drawn,

stopped the vehicle. The officers ordered the suspects from the car, handcuffed, and

placed them in patrol cars. While detaining the suspects, officers saw an illegally

modified firearm in the vehicle. Our Supreme Court concluded that the officers

possessed sufficient information on which to base reasonable fears for their own safety,

                                              6
No. 34979-9-III consolidated with No. 34992-6-III
State v. Beccaria


justifying a Terry seizure with drawn weapons.

       Colin Beccaria argues that Officer Joseph O'Connell unlawfully seized him

because insufficient evidence supported a reasonable belief that Beccaria engaged in

criminal activity. This argument fails because the circumstances Officer O'Connell

described included more evidence of criminal activity than known by the officers in

Belieu. Further, O'Connell intruded less into Beccaria's liberty than the intrusion by the

officers in Belieu.

       In State v. Belieu, the facts justifying seizure of the suspects included a citizen

accusing the defendants of reconnoitering his house, the defendants walking on a public

street, the defendants furtively evading police observation, and the defendants joining

others in a vehicle. Beccaria sat in an oft-stolen vehicle at 1:00 a.m. in the driveway of a

house where an apparent associate skulked around a bedroom window. In Belieu, several

officers trapped the suspects' vehicle and approached with weapons drawn. Officer

Joseph O'Connell simply ordered Beccaria to stop as Beccaria exited the Honda.

                                      CONCLUSION

       We affirm Colin Beccaria's conviction for unlawful possession of a controlled

substance. Because of Beccaria's indigency, we deny the State costs on appeal.

       A majority of the panel has determined this opinion will not be printed in the




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No. 34979-9-111 consolidated with No. 34992-6-111
State v. Beccaria


Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                            Fearing, C.J.   z

WE CONCUR:



                                           Pennell, J.




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