     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                  No. 68004-8-1
                     Appellant,
                                                  DIVISION ONE
      v.



JUDITH MORRIS,                                    UNPUBLISHED OPINION


                     Respondent.                  FILED: April 1.2013
                                                                                  o    coo


       Spearman, A.C.J. —We granted the State's motion for discretionary g ^-
review of the superior court's decision, on a RALJ appeal, reversing the district" g^r
court's denial ofJudith Morris's motion to suppress evidence. The evidence ~T ^.fKO    CS:



Morris sought to suppress was found in her possession after a police officer <=> :v-
approached her outside a gas station, asked for identifying information, learned
she had a warrant, and arrested her. The district court denied the motion, finding

that the officer's action in contacting Morris did not constitute a show of force or

authority and also finding that the officer had an independent basis for requesting

the identification. Because the district court's findings are unchallenged, and thus

verities on appeal, and because those findings support the conclusion that Morris

was not seized, we reverse the RALJ court.
No. 68004-8-1/2


                                          FACTS


        The factual findings of the district court are not in dispute. On October 9,

2008, Deputy J. Ravenscraft1 was in the parking lot of a gas station when he saw
a vehicle pull up to a gas pump and stop. He ran the license plate number and

learned that the registered owner had outstanding warrants and a suspended

license. The passenger, Judith Morris, got out of the car and entered the

convenience store. Ravenscraft contacted the driver and arrested her on the

warrants. He then made contact with Morris after she left the store, as she

walked toward the car. Ravenscraft asked for her name, date of birth, and the

last four digits of her social security number. His tone was conversational and he

did not display a weapon. Morris gave him the requested information.

Ravenscraft ran the information, discovered Morris had a warrant, and arrested

her. A search of Morris incident to her arrest revealed drug paraphernalia.

        Morris was charged with possession of drug paraphernalia. She filed a

CrRLJ 3.6 motion to suppress evidence obtained from her at the time of her

arrest, arguing she had been unlawfully seized when Ravenscraft asked her for

identifying information. A suppression hearing, at which only Ravenscraft

testified, was held in district court on December 20, 2010.

        Ravenscraft testified he had no evidence Morris had committed a crime

and Morris had done nothing suspicious. When he approached Morris, he did not


        1 The parties refer to Ravenscraft as male. Ravenscraft's full name does not appear in
the record.
No. 68004-8-1/3


give her any verbal commands such as telling her to stop. He asked her for
identifying information because he was attempting to determine if Morris was

licensed so that she could move the vehicle and because she was a witness to

the crime of driving while license suspended. When asked whether he
commanded Morris to remain at the location while he ran her information he

replied, "1 don't know—I don't know that Iever command anybody but they stand
right by and they're not necessarily free to leave because Ineed to—again for my
report to be accurate Ineed to make sure that I've got the right name in there."
Verbatim Report of Proceedings (VRP) at 9. Ravenscraft said it would not have
been okay with him if Morris had walked away after he asked her name.
       The district courtconcluded that Morris was not seized and denied her
motion to suppress. It found, "In the terms of the manner in which the officer
approached ... Ido not find to rise to the level of or even the tone of the officer
placed [sic] to show an indication of force under these circumstances." VRP at
25. The district court also noted, in response to Morris's argument that she was
an automobile passenger at the time of the contact, that in general there was no
obligation for a passenger to provide identification unless the officer had an
 independent basis for requesting identification. The court concluded that
 Ravenscraft's reasons for requesting identification were logical and justified
 under the circumstances.
No. 68004-8-1/4


      Morris appealed to the RALJ court, which reversed. The court's written

order concluded:

      But for being stopped by the Deputy after exiting the store,
      Appellant would have entered the vehicle, where she would
      have enjoyed greater protection than as a pedestrian. Under
      the circumstances, including the fact that the driver had been
      placed under arrest, Appellant reasonably believed that she
      was not free to leave when she was stopped by the Deputy....

      [T]he stop was unlawful and the evidence obtained thereafter
      should have been suppressed.

Clerk's Papers (CP) at 38-39. The State sought discretionary review, which we
granted.

                                    DISCUSSION

       Our review of the district court's decision is, like the superior court's
review, governed by the standards contained in RALJ 9.1. State v. Ford, 110
Wn.2d 827, 829, 755 P.2d 806 (1988). We review the record before the district
court, reviewing factual issues for substantial evidence and legal issues de novo.
Citv of Bellevue v. Jacke. 96 Wn. App. 209, 211, 978 P.2d 1116 (1999). We
review de novo conclusions of law following a suppression hearing. State v.
Armenta, 134Wn.2d 1,9, 948 P.2d 1280 (1997). Where no error is assigned to
the district court's factual findings, we determine de novo whether those facts
 constitute a seizure. Id The defendant bears the burden of proving that a seizure
 occurred. State v. O'Neill. 148 Wn.2d 564, 574, 62 P.3d 489 (2003).
No. 68004-8-1/5


       The sole issue is whether the district court's conclusion that Morris was

not seized is supported by substantial evidence.2 Both the federal and state
constitutions prohibit unreasonable searches and seizures. United States
Constitution, Amend. IV; Washington Constitution, Article I, Section 7. A seizure

occurs when "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 ^ff,,WQ •icp nffnrrp nr display ofauthority" State v. Rankin, 151 Wn.2d 689,

695, 92 P.3d 202 (2004) (citing O'Neill. 148 Wn.2d at 574). The inquiry is
whether a reasonable person would have felt free to leave or otherwise decline
the officer's requests and terminate the encounter. State v. Thorn. 129 Wn.2d
347, 352, 917 P.2d 108 (1996), overruled on other grounds bv O'Neill. 148
Wn.2d at 571. This determination is made objectively by looking at the officer's
actions. State v.Young. 135 Wn.2d 498, 501, 957 P.2d 681 (1998). An officer's
manner and tone are considerations in determining whether a person would feel
free to leave in a particular situation. Thorn, 129 Wn.2d at 353-54; O^ejli, 148
Wn.2dat579.

        Generally, there is no seizure "when a police officer merely asks an
individual whether he or she will answer questions or when the officer makes
some further request that falls short of immobilizing the individual." State v.
 Nettles. 70 Wn. App. 706, 710, 855 P.2d 699 (1993). "On the other hand, the


        2The State does not dispute that if Morris was unlawfully seized, the evidence resulting
 from the search of her person should be suppressed.
No. 68004-8-1/6


threatening presence of several officers, the display of a weapon, touching the

defendant, and commanding language or tone of voice" suggest seizure

occurred. State v. Knox, 86 Wn. App. 831, 839, 939 P.2d 710 (1997). overruled

on other grounds by O'Neill. 148 Wn.2d at 571.

       The State contends that, based on the facts as found by the district court,

Morris was not seized. We agree. Ravenscraft testified that when he approached

Morris, he did not give her any verbal commands. He did not display his weapon,

restrain Morris, or, prior to learning of the outstanding warrant, touch her. The

district court found that Ravenscraft's manner and tone of voice did not rise to the

level of a show of authority or force. Because Morris does not challenge this

finding, it is a verity on appeal. State v. Hill. 123 Wn.2d 641, 644, 870 P.2d 313

(1994). This, along with the evidence that Morris's freedom of movement was not

restrained by Ravenscraft, supports the district court's conclusion that on these

facts, Morris was not seized.3
        Because the RALJ court erroneously disregarded these unchallenged

findings, we reverse 4


        3The RALJ court found that Morris reasonably believed she was not free to leave
because the driver had been arrested. Similarly, Morris claims that she faced the "Hobson's
choice" of responding to the officer or abandoning her chosen mode of transportation and walking
into a foreign and potentially dangerous area. Neither point is supported by the record. There is
no evidence that Morris was aware that the driver had been arrested or that the area surrounding
the gas station was foreign to her or dangerous.
        4The RALJ court correctly noted that under Art. I, Section 7 of the Washington State
Constitution, a law enforcement officer may not request identification from an automobile
passenger for investigative purposes without an independent justification for the request. Rankin,
151 Wn.2d at 699-700. But Morris cites no authority to support the RALJ court's application of
Rankin to the circumstances presented here. Although apparently returning to the car when
Ravenscraft contacted her, it is undisputed that Morris was walking at the time.
No. 68004-8-1/7


      Reversed and remanded.




                               ^   / (*r\c~-   ,   . - ,


WE CONCUR:




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