                                                              FILED
                                                          OCTOBER 24, 2019
                                                      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. 35645-1-III
                                              )
                     Respondent,              )
                                              )
               v.                             )         UNPUBLISHED OPINION
                                              )
JEROME LIONEL PLEASANT,                       )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, C.J. — Jerome Pleasant appeals his convictions for

possession of a controlled substance, cocaine, with intent to deliver, and possession of a

controlled substance, hydrocodone. He argues the trial court erred when it denied his

motions to suppress. We disagree and affirm, but remand to strike certain legal financial

obligations.

                                          FACTS

       Detective Jeremy Jones was parked in downtown Pasco in an unmarked patrol car

one evening. Across the street from him was a Conoco gas station. Jones saw a car

parked by the gas pump at the station, and a man in the driver’s seat. He also saw a man

enter the passenger side of the car. The man stayed in the car for 30 seconds and then left
No. 35645-1-III
State v. Pleasant


the gas station on foot. The car then left the pump area and, before entering the road,

failed to stop before crossing the sidewalk. It is an infraction for a driver in a business or

residential district to emerge from an alley, driveway, or building without stopping before

crossing a sidewalk. See RCW 46.61.365.

       Jones stopped the car, and asked the driver for identification, proof of insurance,

and registration. The driver produced a card that identified him as Jerome Pleasant. He

did not have proof of insurance or registration. Jones suggested looking in the glove box,

but Pleasant said he was sure the documents were not in the car. Jones ran a license

check and learned that Pleasant’s driver’s license was suspended in the third degree. He

then arrested Pleasant and placed him in the patrol car.

       While in the patrol car, Pleasant asked about his possible bail amount. Jones

estimated it would be about $500. Pleasant asked to retrieve the money from the car, but

Jones declined and offered to retrieve it for him. Pleasant said “‘nevermind then.’”

Clerk’s Papers (CP) at 196. Because Pleasant was uncomfortable opening his glove box

and also uncomfortable allowing Jones to retrieve bail money from the car, Jones asked

for police canine assistance. The canine alerted to the presence of narcotics. The car was

towed to the impound lot and sealed, and Jones prepared an application for a search

warrant.


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State v. Pleasant


       The following day, Jones obtained and executed the search warrant. He completed

and signed the inventory form. The form showed that he, Detective Nathan Carlisle, and

Sergeant Jason Miller were all present during the search and filling out of the form.1 The

search yielded a large amount of cocaine, prescription pills including hydrocodone,

$5,200, and various drug paraphernalia.

       The State charged Pleasant with one count of possession of a controlled substance,

cocaine, with intent to deliver, and one count of possession of a controlled substance,

hydrocodone. Before trial, Pleasant made two motions to suppress the evidence obtained

from his car.

       First motion: Pretextual stop

       Pleasant first argued that the traffic stop was pretextual. At the first suppression

hearing, Jones described what he saw:

       I saw a white vehicle leaving Kim’s Conoco gas station around 18th and
       Court. I saw the vehicle leave the—the building driveway area and enter
       out on westbound onto Court Street, but the vehicle did not stop for the
       sidewalk before entering out into the traffic on Court Street.




       1
         This form was filed with the clerk’s office a few days after the search and entered
into the Judicial Information System. It is not searchable by people outside the clerk’s
office because it is filed before a case begins and is not associated with the criminal case
number.

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No. 35645-1-III
State v. Pleasant


Report of Proceedings (Mar. 21, 2017) (RP) at 6. Jones described the area around the

Conoco station as having many businesses. He also testified he had stopped 39 or more

drivers for this infraction in the past year and, of those stopped, he had cited 13 for the

infraction violation.

       On cross-examination, Jones admitted he found the interaction between Pleasant

and the pedestrian who had entered Pleasant’s car suspicious. He also admitted that when

he was about to stop Pleasant’s car, he radioed a second officer to contact the pedestrian.

       Jones later testified,

       The cause of the stop was the infraction on the sidewalk. The other stuff
       I—I saw was just stuff that I saw. It’s—it’s not the—the sole reason or the
       major reason for the stop. The major reason for the stop was the—was the
       sidewalk.

RP at 23 (emphasis added).

       In denying the suppression motion, the trial court found Jones’s testimony credible

and that “the sole reason for the stop was, in fact, the traffic violation.” RP at 44

(emphasis added).

       Second motion: CrR 2.3(d)

       Pleasant later argued that the incriminating evidence was collected in violation of

CrR 2.3(d), in that only a single officer completed and signed the inventory form.

Detective Carlisle testified at the second suppression hearing. He testified that he, Miller,

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No. 35645-1-III
State v. Pleasant


and Jones all participated in the search, and all found items of evidentiary value. He also

testified that he and Miller were present when Jones completed and signed the inventory

form. The trial court determined that CrR 2.3(d) was not violated because multiple

officers were present when executing the search warrant and when Jones completed the

inventory form.

       The case proceeded to trial, and a jury found Pleasant guilty on both counts. He

timely appealed to this court.

                                       ANALYSIS2

       Pleasant argues the trial court erred in denying his motions to suppress. We

address each motion in the order presented to the trial court and argued on appeal.

       A.     PRETEXTUAL STOP

       Stopping a car is a seizure. State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833

(1999). A warrantless seizure is per se unreasonable under Washington Constitution

article I, section 7 unless the State can prove that one of the narrow exceptions to the

warrant requirement applies. Id. at 349.


       2
          In his opening brief, Pleasant argued that trial counsel was ineffective for not
moving to suppress on the basis that the traffic stop was pretextual. The State responded
that trial counsel did move to suppress on that basis. The State thereafter agreed that
Pleasant could file a supplemental brief and argue that the trial court erred in denying the
motion. We infer that Pleasant has withdrawn his ineffective assistance of counsel claim.

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No. 35645-1-III
State v. Pleasant


       “Just as an arrest may not be used as a pretext to search for evidence, a traffic

infraction may not be used as a pretext to stop to investigate for a sufficient reason to

search even further.” Id. at 353. In determining whether the stop was pretextual, we

consider the officer’s subjective motivation in making the stop and the objective

reasonableness of the officer’s conduct. Id. at 358-59. Such an inquiry requires the court

to satisfy itself that the officer, both subjectively and objectively, is motivated by the

proper purpose. Id. at 359 (citing State v. Angelos, 86 Wn. App. 253, 256, 936 P.2d 52

(1997)). Relevant to intent is the officer’s routine practice. State v. Arreola, 176 Wn.2d

284, 289, 290 P.3d 983 (2012).

       Here, substantial evidence does not support the trial court’s finding that the traffic

infraction was the sole reason why Jones stopped Pleasant. On cross-examination, Jones

tacitly admitted that the suspicious activity he witnessed before the infraction played a

role in his decision to stop Pleasant. He tacitly admitted as much when he denied that the

suspicious activity was the sole or major reason for the stop, and testified that “[t]he

major reason for the stop . . . was the sidewalk [infraction].” RP at 23 (emphasis added).

       In Arreloa, the court determined the constitutionality of a mixed-motive stop. The

court held, “[a] mixed motive stop does not violate article I, section 7 so long as the

police officer making the stop exercises discretion appropriately.” Arreola, 176 Wn.2d at


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State v. Pleasant


298. In other words, to pass constitutional muster, the police officer must make “an

independent and conscious determination that a traffic stop to address a suspected traffic

infraction is reasonably necessary in furtherance of traffic safety and the general welfare.”

Id. at 298-99. Nor does it matter that the traffic infraction is the secondary reason for the

stop. Id. at 299. Even officers whose suspicions have been aroused may enforce the

traffic code. State v. Nichols, 161 Wn.2d 1, 11, 162 P.3d 1122 (2007).

       The record supports the stop here. Jones had stopped over 39 cars for the sidewalk

infraction during the past 12 months and had issued 13 citations. There is no evidence

that some or most of these stops were made only after witnessing suspicious activity

unrelated to driving. Jones’s practice of enforcing the sidewalk infraction evidences an

independent and conscious determination that he believed the stop was reasonably

necessary to ensure traffic safety and the general welfare. For these reasons, we conclude

the trial court did not err by denying Pleasant’s first motion to suppress.

       B.     CrR 2.3(d)

       Pleasant contends the trial court erred when it denied his second motion to

suppress evidence. He argues the evidence was collected in violation of CrR 2.3(d). We

disagree.




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No. 35645-1-III
State v. Pleasant


       Pleasant relies on State v. Linder, 190 Wn. App. 638, 360 P.3d 906 (2015) and the

fact that more than one officer did not sign the inventory form, to warrant reversal and

suppression of the evidence.

       CrR 2.3(d) provides in relevant part:

       The inventory shall be made in the presence of the person from whose
       possession or premises the property is taken, or in the presence of at least
       one person other than the officer.

       In Linder, the defendant was arrested for driving with a suspended license. Linder,

190 Wn. App. at 641. During the search incident to arrest, the officer found a small tin

box inside the defendant’s pocket. Id. The defendant admitted the box contained drug

paraphernalia. Id. The officer applied for and obtained a search warrant and inventoried

the box, which contained drug paraphernalia. Id. at 641-42. Before trial, the defendant

moved to suppress the evidence, arguing the officer violated CrR 2.3(d) by searching and

inventorying the box without another witness. Id. at 642. The trial court granted the

motion. Id. at 643. On appeal, the court recognized that the officer violated CrR 2.3(d)

and, after a lengthy analysis about whether the violation prejudiced the defendant, the

court affirmed. Id. at 644-52.

       Pleasant’s argument is unpersuasive. CrR 2.3(d) does not contain any requirement

that multiple officers sign the inventory form. It merely requires that a person other than


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State v. Pleasant


the officer conducting the inventory witness the execution and inventory of the search

warrant. Here, the trial court found that Jones executed the search warrant and

inventoried the car with Sergeant Miller and Detective Carlisle. Jones’s, Carlisle’s, and

Miller’s badge numbers appeared on the search inventory form as having found items of

evidentiary value. Jones testified that both Miller and Carlisle were present when he

completed the inventory form. The execution of the warrant and subsequent inventory

complied with the requirements of CrR 2.3(d).

       Pleasant does not provide any authority for his argument that multiple officers

must sign the inventory form under CrR 2.3(d) besides Linder. But Linder is

distinguishable. In Linder, two officers did not witness the execution and inventory of the

warrant; whereas here, the testimony was clear that three officers were present during the

search and completion of the inventory form. The trial court did not err by denying

Pleasant’s second motion to suppress.

       C.       DENIAL OF MOTION TO SUPPLEMENT

       Pleasant filed a second motion to supplement his brief, contending that the $200

criminal filing fee and the $100 DNA3 fee must be struck from his judgment and sentence




       3
           Deoxyribonucleic acid.

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No. 35645-1-III
State v. Pleasant


based on State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018). We grant his motion

and address his contentions.

       House Bill 1783, which became effective June 7, 2018, prohibits trial courts from

imposing discretionary LFOs on defendants who are indigent at the time of sentencing.

LAWS OF 2018, ch. 269, § 6(3); Ramirez, 191 Wn.2d at 745-47. Among the changes was

an amendment to former RCW 36.18.020(2)(h) (2015) to prohibit the imposition of the

$200 criminal filing fee on indigent defendants. LAWS OF 2018, ch. 269, § 17(2)(h). As

held in Ramirez, the changes to the criminal filing fee statute apply prospectively to cases

pending on direct appeal prior to June 7, 2018. Ramirez, 191 Wn.2d at 738, 747.

Accordingly, the change in law applies to Pleasant’s case. Because Pleasant was indigent

in the trial court and is still indigent on appeal, the $200 criminal filing fee must be struck

pursuant to Ramirez.

       The change in law also prohibits imposition of the DNA collection fee when the

State has previously collected the offender’s DNA as a result of a prior conviction. LAWS

OF 2018,   ch. 269, § 18. The record establishes that Pleasant has seven prior Washington

State felonies since 2002. Since that time, Washington law has required defendants with

a felony conviction to provide a DNA sample. State v. Catling, 193 Wn.2d 252, 259, 438

P.3d 1174 (2019); see also RCW 43.43.754; LAWS OF 2002, ch. 289, § 2. Pleasant’s


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State v. Pleasant


seven prior felonies make it virtually certain that the State has previously collected a

DNA sample from him. We, therefore, direct the trial court to strike the DNA collection

fee.

       Affirmed but remanded.

       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.


                                           Lawrence-Berrey, C.J.

WE CONCUR:




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