                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                           July 6, 2016
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                             No. 46960-0-II

                          Respondent,

           v.

    THEODORE ROOSEVELT RHONE,                                  UNPUBLISHED OPINION

                          Appellant.


          SUTTON, J. — Theodore R. Rhone appeals the trial court’s denial of his motion to suppress

evidence obtained in a vehicle search related to his 2005 conviction for first degree robbery with

a firearm enhancement, possession of a controlled substance with intent to deliver, and possession

of a firearm.1 Rhone argues that on remand for a new suppression hearing, the trial court ignored

this court’s prior holding in State v. Rhone,2 which was the law of the case, that the officer

conducted a search incident to arrest, and that the evidence seized in the car should have been

suppressed. We hold that the trial court erred in finding that the vehicle search was a search

pursuant to a Terry3 stop. We also hold that the error was harmless as it relates to the conviction

for first degree robbery with a firearm enhancement and that error was not harmless as it relates to



1
 The Washington Supreme Court granted Rhone’s personal restraint petition and remanded to the
superior court for reconsideration of the trial court’s suppression order regarding the automobile
search in light of Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) and
State v. Patton, 167 Wn.2d 379, 219 P.3d 651 (2009).
2
    State v. Rhone, noted at 137 Wn. App. 1046, 2007 WL 831725 (2007).
3
    Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
46960-0-II


the convictions for possession of a controlled substance and possession of a firearm. We vacate

these latter two convictions and remand for further proceedings.

                                             FACTS

       On May 30, 2003, Pierce County Sheriff’s Deputy David Shaffer responded to a call

involving an incident at a Jack in the Box restaurant. Workers from the restaurant reported that

individuals in a red 1990 T-top Camaro, license plate number 677 HCS, had been at the restaurant

on two occasions looking for an employee who owed them money. The report indicated that there

were three occupants in the vehicle and that the front passenger was armed with a gun.

       Deputy Shaffer recognized the vehicle description and license number as a vehicle he

previously had seen at a house located at 10701 S. Tacoma Way. Upon arriving in the area of the

house, Deputy Shaffer saw the suspect vehicle. As Deputy Shaffer pulled in behind the vehicle,

the passenger door opened and the front passenger, later identified as Theodore Rhone, began to

step from the vehicle.

       Due to the report that the front passenger was armed with a gun, Deputy Shaffer, who was

alone at the time, stepped from his patrol car, drew his weapon, and gave loud verbal commands

to Rhone to put his hands where they could be seen. Rhone made eye contact with the deputy, but

failed to comply with the deputy’s oral commands. Instead, Rhone reached back into the rear

interior of the vehicle. Deputy Shaffer feared that Rhone was reaching for a gun and continued to

give verbal commands before Rhone eventually complied. Rhone was frisked, handcuffed, and

detained in a patrol car by another officer who had just arrived on the scene.

       While Deputy Shaffer was dealing with Rhone, the rear passenger of the vehicle, later

identified as Phyllis Burg, stated that the individuals in the vehicle had just come back from the


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Jack in the Box. Burg was asked to step from the vehicle and was frisked, handcuffed, and detained

by another officer who had arrived on the scene. The driver of the vehicle, later identified as

Cortez Brown, was also asked to step from the vehicle and was frisked, handcuffed, and detained

by another officer who had arrived on scene.

       As Deputy Shaffer approached the vehicle to determine if there was a gun in the vehicle

that could pose a threat to law enforcement officers, Burg stated that there was a gun in the car.

Deputy Shaffer then entered the vehicle and found a .22 caliber Smith and Wesson revolver in a

white plastic bag on the floorboard behind the driver’s seat. He also located a white plastic tube

containing two pieces of suspected crack cocaine under the driver’s seat and a purple Crown Royal

bag that contained five bundles of suspected rock cocaine individually wrapped in plastic under

the back passenger seat. At the time of this search, all three occupants of the vehicle were being

detained in patrol cars.

       As the occupants of the vehicle were being detained, Deputy Darin Miller, who had initially

also responded to the location of the stop, contacted the Jack in the Box restaurant and spoke with

Isaac Miller at approximately 6:00 p.m. Isaac4 reported that the occupants of the Camaro came

through the drive through claiming that he owed them money. Isaac said that the front seat

passenger pointed a gun at him, and he threw what little money he had into the vehicle. Deputy

Miller relayed this information to Deputy Shaffer immediately, and Deputy Shaffer arrested all

three occupants of the Camaro.




4
  We refer to Isaac Miller by his first name to avoid any confusion with Deputy Darin Miller, and
intend no disrespect.

                                                3
46960-0-II


       Rhone was charged with first degree robbery with a firearm enhancement, unlawful

possession of a controlled substance with intent to deliver with a firearm enhancement, first degree

unlawful possession of a firearm, and bail jumping

       Prior to trial, Rhone moved to suppress the evidence seized during the search of the

Camaro. The 2005 trial court denied the motion. The trial court concluded that Deputy Shaffer’s

contact with the vehicle and detention of Rhone was a lawful Terry investigatory stop and

detention, and that Deputy Shaffer possessed a reasonable concern for his safety and a reasonable

suspicion that Rhone was dangerous and may gain access to a weapon. The jury found Rhone

guilty of the charges and found that he “possess[ed] . . . a controlled substance with intent to

deliver,” that he displayed what “appeared to be a firearm” in the commission of a robbery, and

that he “[owned or] possess[ed] . . . a firearm” as a previously convicted felon. Clerk’s Papers

(CP) at 206, 208, 210, 591. The trial court also found him to be a persistent offender and imposed

a sentence of life without the possibility of parole.

       Rhone appealed the trial court’s denial of the motion to suppress. In 2007, this court

affirmed the trial court’s findings of fact and order denying Rhone’s motion to suppress, holding

that the search of the vehicle was a valid search incident to arrest because Deputy Shaffer arrested

Rhone and the other occupants before the search. State v. Rhone, noted at 137 Wn. App. 1046,

2007 WL 831725 at *4 (2007).5




5
 Our Supreme Court accepted review of this court’s decision of a jury voir dire issue on Rhone’s
direct appeal and affirmed this court’s decision on that issue and affirmed his conviction. State v.
Rhone, 168 Wn.2d 645, 658, 229 P.3d 752 (2010).

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46960-0-II


       On January 14, 2013, Rhone filed a personal restraint petition, asserting that the vehicle

search was unlawful under Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485

(2009). Our Supreme Court granted the petition and on April 2, 2014, the court remanded the

suppression order for reconsideration in light of Gant and State v. Patton, 167 Wn.2d 379, 219

P.3d 651 (2009).

       On remand, the trial court adopted the 2005 findings and denied Rhone’s motion to

suppress because it concluded that the search was an investigative stop and detention under Terry.

Rhone appeals.

                                            ANALYSIS

                                       I. LAW OF THE CASE

       Rhone argues that the trial court on remand violated the law of the case doctrine when it

ignored the legal rulings made by this court in his direct appeal. We agree.

       The law of the case doctrine provides that once there is an appellate court ruling, its holding

must be followed in all of the subsequent stages of the same litigation. State v. Schwab, 163 Wn.2d

664, 672, 185 P.3d 1151 (2008). The doctrine “‘seeks to promote finality and efficiency in the

judicial process.’” Schwab, 163 Wn.2d at 672 (quoting Roberson v. Perez, 156 Wn.2d 33, 41, 123

P.3d 844 (2005)). However, an appellate court may, at the instance of a party, review the propriety

of an earlier decision of the appellate court in the same case. RAP 2.5(c)(2).

       Neither Rhone nor the State advised the trial court on remand of this court’s 2007 decision

in Rhone, 2007 WL 831725. While a party generally waives the right to appeal an error unless




                                                 5
46960-0-II


preserved at trial, because the State requests that we reconsider the 2007 decision under RAP

2.5(c)(2),6 we exercise our discretion to reach this error. RAP 2.5(a).

         On direct appeal of Rhone’s convictions, we held that the search of the vehicle was a search

incident to a valid arrest because Deputy Schaffer had probable cause to believe that the Camaro’s

occupants had been involved in at least a second degree assault or an attempted robbery. Rhone,

2007 WL 831725 at *5. We further held that an objective person would believe that he or she was

being detained indefinitely when they were removed from the vehicle at gunpoint, frisked,

handcuffed, and placed in a police car. Rhone, 2007 WL 831725 at *5.

         The unchallenged findings of fact do not support the conclusion of law that Rhone was

merely detained by Deputy Shaffer during a Terry investigatory stop. Because the 2005 facts were

adopted by the trial court on remand and are verities on appeal,7 our analysis is unaffected. Thus,

we hold that the law of the case must be followed and we reiterate that the search of the vehicle

was a search incident to arrest.

                                        II. VEHICLE SEARCH

A. STANDARD OF REVIEW

         We review a trial court’s ruling on a motion to suppress evidence to determine whether

substantial evidence supports the trial court’s findings of fact and whether those findings, in turn,

support the trial court’s conclusions of law. State v. Russell, 180 Wn.2d 860, 866, 330 P.3d 151




6
  The appellate court may at the insistence of a party review the propriety of an earlier decision of
the appellate court in the same case and, where justice would be best served, decide the case on
the basis of the appellate court’s opinion of the law at the time of the later review. RAP 2.5(c)(2).
7
    State v. Bonds, 174 Wn. App. 553, 563, 299 P.3d 663 (2013).

                                                  6
46960-0-II


(2014). Unchallenged findings of fact are verities on appeal. State v. Bonds, 174 Wn. App. 553,

563, 299 P.3d 663 (2013). Substantial evidence is evidence that is sufficient “‘to persuade a fair-

minded person of the truth of the stated premise.’” Russell, 180 Wn.2d at 866-67 (quoting State

v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009)). We review questions of law relating to

the suppression of evidence de novo. State v. Parris, 163 Wn. App. 110, 116, 259 P.3d 331 (2011).

B. MOTION TO SUPPRESS

         Rhone argues that the trial court erred in denying his motion to suppress the evidence

obtained from the search of the vehicle because the search was conducted incident to arrest. We

agree.

         Generally, a search warrant is required unless one of the narrowly construed exceptions to

the warrant requirement is met. State v. Ladson, 138 Wn.2d 343, 356, 979 P.2d 833 (1999). The

scope of a vehicle search incident to arrest must be narrowly tailored to increase officer safety and

decrease the risk of destruction of evidence of the crime. State v. Valdez, 167 Wn.2d 761, 769,

224 P.3d 751, 755 (2009).

         In Gant, the United States Supreme Court held that a warrantless automobile search

incident to arrest of a recent occupant of the vehicle is proper under the Fourth Amendment to the

United States Constitution only when (1) the arrestee is unsecured and within reaching distance of

the passenger compartment at the time of the search or (2) it is reasonable to believe evidence

relevant to the crime of arrest might be found in the vehicle. 556 U.S. at 332. In Patton, our

Supreme Court held that under the first of these exceptions, an automobile search incident to arrest

is justified only if the arrestee is within reaching distance of the passenger compartment at the time

of the search, and the search is necessary for officer safety or to secure evidence of the crime of


                                                  7
46960-0-II


arrest that could be concealed or destroyed. 167 Wn.2d at 383. However, in State v. Snapp our

Supreme Court held that the second of these exceptions is not permissible under article I, section

7 of the Washington Constitution. 174 Wn.2d 177, 181, 275 P.3d 289 (2012).

       Thus, a vehicle search incident to a recent occupant’s arrest is not authorized in Washington

after the arrestee has been secured and cannot access the interior of the vehicle. Snapp, 174 Wn.2d

at 188. To hold otherwise would “‘untether the [vehicle search incident to arrest] rule from the

justifications underlying . . . the exception.’” Snapp, 174 Wn.2d at 188 (alteration in original)

(quoting Gant, 556 U.S. at 343). “‘[T]he search of a vehicle incident to the arrest of a recent

occupant is unlawful absent a reasonable basis to believe that the arrestee poses a safety risk or

that the vehicle contains evidence of the crime of arrest that could be concealed or destroyed, and

that these concerns exist at the time of the search.’” Snapp, 174 Wn.2d at 189 (quoting Patton,

167 Wn.2d at 394-95).8

       As discussed above, the search of the vehicle was a search incident to arrest because Rhone

was handcuffed and detained in a patrol car at the time of the search. However under Gant and

Patton, the search of the vehicle was not lawful because Rhone had been secured, he could not

access the interior of the vehicle, he posed no safety risk, and the vehicle contained no evidence

that could be concealed or destroyed. 556 U.S. at 332; 167 Wn.2d at 383.




8
 The State cites State v. Chang, 147 Wn. App. 490, 496, 195 P.3d 1008 (2008), to support its
position that an officer is permitted to conduct a vehicle sweep for weapons. But Chang was
decided before Gant, 556 U.S. 332, Patton, 167 Wn.2d at 386, and Snapp, 174 Wn.2d 177.
Therefore, the Chang holding no longer applies.

                                                8
46960-0-II


C. HARMLESS ERROR

       The State argues that any failure to suppress the evidence here is harmless because Rhone’s

2005 conviction does not depend on proof that he used an actual firearm. We disagree that the

failure to suppress evidence is harmless with respect to his convictions for possession of a

controlled substance and possession of a firearm but agree that any failure to suppress the evidence

is harmless with respect to Rhone’s conviction for first degree robbery with a firearm

enhancement.

       Constitutional errors may be so insignificant as to be harmless. State v. Coristine, 177

Wn.2d 370, 380, 300 P.3d 400 (2013). A constitutional error is harmless if the appellate court is

assured beyond a reasonable doubt that the jury verdict cannot be attributed to the error. State v.

Lui, 179 Wn.2d 457, 495, 315 P.3d 493, cert. denied, 134 S. Ct. 2842 (2014). Constitutional error

is presumed to be prejudicial and the State bears the burden of proving that the error was harmless.

Coristine, 177 Wn.2d at 380. This court uses the “‘overwhelming untainted evidence’” test in its

harmless error analysis. Coristine, 177 Wn.2d at 391 (quoting State v. Guloy, 104 Wn.2d 412,

425-26, 705 P.2d 1182 (1985)). The State must show that the error was not plausibly relevant to

the verdict and that the error could not plausibly have been the cause of a guilty verdict from an

honest, fair-minded, and reasonable jury. Coristine, 177 Wn.2d at 393.

1. Possession of a Controlled Substance with Intent to Deliver

       The jury instructions required the jury to find that Rhone possessed a controlled substance

with the intent to deliver.     Because the unchallenged findings of fact do not contain any

independent indication that Rhone was in possession of suspected cocaine beyond the evidence

recovered in the search, the State fails to establish that the untainted evidence can support a finding


                                                  9
46960-0-II


that Rhone possessed cocaine with the intent to deliver. Therefore, we hold that the trial court’s

error was not harmless for this conviction.

2. Unlawful Possession of a Firearm9

       The jury instructions required that the jury find that Rhone had previously been convicted

of a felony and knowingly owned or had actual or constructive possession of a firearm. Again,

because the unchallenged findings of fact include only Miller’s statement that the front seat

passenger pointed a gun at him when the Camaro proceeded through the drive through and Burg’s

statement that there was a gun in the car, the State fails to establish that the untainted evidence can

support the finding that Rhone possessed an actual firearm. Therefore, we hold that the trial court’s

error was not harmless for this conviction.

3. First Degree Robbery with a Firearm Enhancement10

       The jury instructions required the jury to find only that Rhone displayed what appeared to

be a firearm in order to convict for first degree robbery, not that he possessed an actual firearm.

The unchallenged findings of fact include Miller’s statement that the front seat passenger pointed

a gun at him when the Camaro proceeded through the drive through, Burg’s statements that there

was a gun in the car and that they had just returned from the Jack in the Box, and that Rhone exited




9
  The State argues that Rhone has failed to perfect the record because he did not challenge the
conviction for unlawful possession of a firearm in his direct appeal. However, this appeal is a
direct appeal of the suppression hearing on remand and the procedural posture of the case has
changed.
10
  The State argues that Rhone lacked standing to challenge the search as to the conviction for first
degree robbery with a firearm enhancement. However, this argument need not be addressed, as
we agree with the State that evidence that Rhone possessed an actual firearm is not necessary for
the jury to have found that Rhone displayed what appeared to be a firearm.

                                                  10
46960-0-II


from the passenger door of the vehicle. The State meets its burden and establishes that the

untainted evidence necessarily supports a finding that Rhone displayed what appeared to be a

firearm. Thus, the admission of the weapon is harmless error as it relates to Rhone’s conviction

for first degree robbery with a firearm enhancement.

                        III. STATEMENT OF ADDITIONAL GROUNDS (SAG)

       In his SAG, Rhone claims that (1) the trial court on remand did not rule consistently with

Gant and Patton and thus, the trial court abused its discretion, demonstrated bias, violated the

appearance of fairness doctrine, and violated his due process11 and equal protection12 rights and

(2) the State should be judicially estopped from taking an inconsistent position when they

conceded to the Washington Supreme Court in his direct appeal that the stop was a Terry stop.13

A. APPEARANCE OF FAIRNESS

       “‘Under the appearance of fairness doctrine, a judicial proceeding is valid only if a

reasonably prudent and disinterested observer would conclude that all parties obtained a fair,

impartial, and neutral hearing.’” State v. Bilal, 77 Wn. App. 720, 722, 893 P.2d 674 (1995)

(quoting former CJC 3(C)(1) (1988)). But our Supreme Court has held that this doctrine does not

implicate constitutional rights. State v. Tolias, 135 Wn.2d 133, 140, 954 P.2d 907 (1998); see also



11
   No state shall make or enforce any law which shall deprive any person of life, liberty, or
property, without due process of law. U.S. Const. amend. XIV.
12
  No state shall make or enforce any law which shall deny to any person within its jurisdiction the
equal protection of the laws. U.S. Const. amend. XIV.
13
  Rhone also claims that the trial court abused its discretion by not suppressing all evidence seized
in a warrantless automobile search by Deputy Shaffer and in failing to follow the directions from
our Supreme Court on remand. These claims are analyzed above.


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46960-0-II


State v. Morgensen, 148 Wn. App. 81, 91, 197 P.3d 715 (2008) (applying waiver to defendant’s

appearance of fairness claim); City of Bellevue v. King County Boundary Review Bd., 90 Wn.2d

856, 863, 586 P.2d 470 (1978) (“Our appearance of fairness doctrine, though related to concerns

dealing with due process considerations, is not constitutionally based.”). Consequentially, Rhone

waived this claim under RAP 2.5(a)14 by failing to raise it with the trial court.

B. JUDICIAL ESTOPPEL

       Judicial estoppel prevents a party from taking inconsistent factual positions from one

proceeding to the next but does not preclude inconsistent legal positions. State v. Sweany, 162

Wn. App. 223, 228-29, 256 P.3d 1230 (2011). The State has maintained its factual position

throughout the proceedings and Rhone assigns no error to the findings of fact. Judicial estoppel

does not preclude the State on remand from arguing a different conclusion since the law has been

clarified since Rhone’s direct appeal, the trial court entered new findings of fact and conclusions

of law, and the procedural posture of the case has changed.

                                          CONCLUSION

       We hold that the trial court erred in denying the motion to suppress the evidence obtained

in a search incident to arrest and that the motion to suppress should have been granted under Gant

and Patton. We hold that the error is harmless as to Rhone’s conviction for first degree robbery

with a firearm enhancement, but we hold that the error is not harmless as to Rhone’s convictions

for possession of a controlled substance and possession of a firearm. We affirm Rhone’s

conviction for first degree robbery with a firearm enhancement, vacate his convictions for



14
  The appellate court may refuse to review any claim of error which was not raised in the trial
court, with few exceptions, including manifest errors affecting a constitutional right. RAP 2.5(a).

                                                 12
46960-0-II


possession of a controlled substance and possession of a firearm, and remand for further

proceedings.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    SUTTON, J.
 We concur:



 BJORGEN, C.J.




 MAXA, J.




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