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                                                                               2013 APR -9 AN 9: 01

                                                                               STAB'            S' N JON




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II



STATE OF WASHINGTON,
                              Respondent,                          No. 42072 4 II
                                                                             - -


       V.

                                                             UNPUBLISHED OPINION
HARVEY LEROY COUSINS, II,
                              Appellant.



       VAN   DEREK, J. —Harvey    Leroy Cousins, II,appeals his conviction for unlawful

possession of a controlled substance (methamphetamine). He argues that a police officer
ordering him out of a vehicle and inquiring of his identity while he was a passenger in a traffic
stop was an unlawful seizure and, thus, evidence found in a subsequent consensual search of his

backpack should have been suppressed. as "fruit"of the unlawful seizure. We hold that the
officer's order for Harvey to exit the vehicle and to produce his identification was a lawful

seizure justified by officer safety considerations. Thus, the consensual search of his backpack

was not tainted by prior illegality.' We Bold that the trial court did not err in denying Harvey's


We do not address an issue Harvey raises for the first time on appeal, i. whether Harvey's
                                                                        e.,
consent to search his backpack was invalidated because the officer did not tell Harvey that he
could deny consent to search the backpack. Harvey failed to develop or support his argument on
this issue by citation to authority in his brief. Passing treatment of an issue or lack of reasoned
argument is insufficient to merit judicial consideration. RAP 10. ( v. Johnson, 119
                                                                  a)(State
                                                                        6);
                                                                        3
Wn. d 167, 171, 829 P. d 1082 (1992).
  2                  2
No. 42072 4 II
          - -



motion to suppress evidence found during the search of his backpack. Accordingly, we affirm.
                                                FACTS


         Shortly after midnight on November 4,2010, Kitsap County Deputy Sheriff John Stacy

stopped a pickup truck for a defective headlight. Joshua Cousins was the driver of the pickup
                                2
truck and his brother, Harvey,      was.a passenger. When Stacy approached the pickup truck, he

noticed two rifles sitting between the driver and passenger. Stacy also noticed a box of

ammunition near the rifles. Stacy ordered both the driver and passenger to exit the pickup truck

and walk to the back of the pickup truck. Stacy recognized the passenger, Harvey, from previous

contacts.


         Port Orchard Police Officer Beth Deatherage arrived to back up Stacy. Stacy asked
                                                                     -

Deatherage to identify the passenger, even though Stacy had already determined that the

passenger was likely Harvey. Stacy relayed Harvey's name to dispatch, which informed him that

Harvey was wanted on an outstanding arrest warrant for driving with a suspended license. Stacy

arrested Harvey on the warrant. During a search of Harvey incident to his arrest, Stacy found a

glass pipe in Harvey's jacket Stacy informed Harveyof his Miranda rights.
         Stacy asked Joshua for permission to search the pickup truck,which he granted. During

the search, Stacy located a backpack on the passenger side floorboard where Harvey had been
                                                      -

sitting. Joshua said the backpack was Harvey's.Harvey gave Stacy permission to search the

backpack. Inside the backpack, Stacy found a black plastic bag containing two marijuana plants



2 For clarity,we refer to the Cousins brothers by their first names. In doing so, we mean no
disrespect.
3
    The rifles were unloaded and properly transported.
4
    Miranda v. Arizona, 384 U. .436, 444, 86 S. Ct. 1602, 16 L.Ed. 2d 694 (1966).
                             S
                                                   2
No. 42072 4 II
          - -



and a black metal lockbox. Harvey admitted that the lockbox was his and gave Stacy permission

to search it. Stacy opened the lockbox using a key that he found on Harvey's keychain. Inside

the lockbox, Stacy found a second pipe, a sandwich baggie containing marijuana, and a small

baggie containing methamphetamine.

       The State charged Harvey with unlawful possession of a controlled substance

methamphetamine).Before trial,Harvey unsuccessfully moved to suppress the drug evidence

as "fruit" an unlawful seizure. The State argued that Stacy's order for Harvey to step out of
          of

the pickup truck and identify himself was justified by officer safety considerations. During

argument, Harvey's counsel conceded that Stacy's order to Joshua and Harvey to exit the vehicle

was justified by officer safety concerns. But Harvey's counsel argued that,unlike the order to

exit the vehicle, Stacy's request for Harvey to identify himself was not related to officer safety.

The trial court conducted a CrR 3. suppression hearing, in which Stacy and Joshua testified.
                                 6

The trial court denied Harvey's motion to suppress the evidence, concluding that Stacy's request

for identification from Harvey was appropriate and lawful given the legitimate officer safety

concerns. At the conclusion of a stipulated facts trial,the trial court found Harvey guilty as

charged . nd sentenced him to a standard range sentence.
        a

       Harvey timely appeals.

                                            ANALYSIS


       Harvey argues that the trial court erred when it denied his motion to suppress evidence

found during a consensual search of his backpack because that evidence was obtained as a result
of an unlawful seizure. He also argues for the first time on appeal that his consent to search the

backpack was invalid because he was not advised that he could refuse to give his consent. We



                                                  3
No. 42072 4 II
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disagree. We hold that Harvey was not unlawfully seized and,thus, the evidence found during

the subsequent search of his backpack was not " ruit" an unlawful seizure.
                                              f      of

I.      STANDARD OF REVIEW


        We review the trial court's denial of a CrR 3. suppression motion to determine " hether
                                                     6                                 w

substantial evidence supports the challenged findings of fact and whether the findings support

the conclusions of law."
                       State v. Garvin, 166 Wn. d 242, 249, 207 P. d 1266 (2009). Here,
                                              2                  3

Harvey does not challenge the trial court's findings of fact; thus, we consider them verities on

appeal. See State v. Lohr, 164 Wn. App. 414, 418, 263 P. d 1287 (2011).Whether undisputed
                                                       3

facts constitute a violation of article I,section 7 of the Washington State Constitution is a

question of law. State v. Rankin, 151 Wn. d 689, 694, 92 P. d 202 (2004).We review the trial
                                        2                 3
court's conclusions of law de novo. Garvin, 166 Wn. d at 249.
                                                  2

II.     LAWFUL SEIZURE


        Harvey alleges that he was seized in violation of article I,section 7 of the Washington

State Constitution when he was ordered out of a pickup truck and asked to identify himself

during a traffic in which he was a passenger. We disagree

        The Washington State Constitution provides that n] person shall be disturbed in his
                                                        "[ o

private affairs, or   his home   invaded, without authority             WASH. CONST. art. I, § Our
                                                                 of law."                    7. "


analysis under article I,section 7 requires us to determine `whether the State unreasonably

intruded into the defendant's     private   affairs. "'   State v. Mendez, 137 Wn. d 208, 219, 970 P. d
                                                                                 2                  2

722 (1999)internal quotation marks omitted) quoting State v. Myrick, 102 Wn. d 506, 510,
           (                                (                              2

688 P. d 151 (1984)),
     2             abrogated on other grounds by Brendlin v. California, 551 U. .249, 255,
                                                                              S

259 n. , 127 S. Ct. 2400, 168 L.Ed. 2d 132 (2007).
     5



                                                          0
No. 42072 4 II
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        A]
         warrantless search or seizure is considered per se unconstitutional unless it falls

within one of the few exceptions to the warrant requirement."Rankin, 151 Wn. d at 695. The
                                                                           2

recognized exceptions include " onsent, exigent circumstances, searches incident to a valid
                              c

arrest, inventory searches, plain view searches, and investigative stops."State v. Chacon

Arreola, 176 Wn. d 284, 292, 290 P. d 983 (2012).If police unconstitutionally seize an
               2                  3               "

individual prior to arrest, the exclusionary rule calls for suppression of evidence obtained via the

government's illegality."State v. Harrington, 167 Wn. d 656, 664, 222 P. d 92 (2009).
                                                    2                  3

         A. Harvey Was Seized

         First,we determine whether a warrantless search or seizure has taken place and, if it has,

whether it was justified by an exception to the warrant requirement. Rankin, 151 Wn. d at 695.
                                                                                   2

A person is seized when a reasonable person would have believed that he was not free to leave or

to decline the officer's requests or otherwise terminate the encounter. State v. Armenta, 134

Wn. d 1, 10, 948 P. d 1280 (1997).I] is now well established that `[ or the duration of a
  2               2                "[
                                    t                             f]

traffic stop ...   a   police   officer   effectively   seizes everyone in the vehicle.   State v. Marcum, 149

Wn. App. 894, 910, 205 P. d 969 ( 009)second and third alterations in original) internal
                        3       2      (                                         (

quotation marks omitted)quoting Arizona v. Johnson, 555 U. .323, 327, 129 S. Ct. 781, 172 L.
                         (                               S

Ed. 2d 694 (2009)); also State v. Brown, 154 Wn. d 787, 796 98,117 P. d 336 (2005)
                 see                           2            -       3

holding that a passenger was clearly seized when he was asked to identify himself for

investigative purposes so the officer could conduct a warrants and records check).

         Here, Harvey was ordered out of the pickup truck in which he was a passenger and asked

to provide identification. At the suppression hearing, the trial court concluded that Harvey was

briefly seized while the officer identified him. Because no reasonable person in Harvey's

position would have believed that he was free to decline Stacy's request or terminate the
                                                              5
No. 42072 4 II
          - -



encounter, we affirm the trial court's conclusion and hold that Harvey was seized when he was

ordered out of the truck and asked to identify himself. See Brown, 154 Wn. d at*98; Marcum,
                                                                         2     7

149 Wn. App. at 910.

        B. Seizure Justified by Objective Reasonable Concern for Officer Safety

       Next we determine whether the seizure was lawful. Harvey and the State dispute whether

Harvey's seizure was justified by officer safety concerns. We agree with the State and hold that

Stacy was justified in ordering Harvey out of the pickup truck and away from the rifles and

ammunition and asking for his identification.

        A police officer should be able to control the scene and ensure his or her own safety, but

this must be done with due regard to the privacy interests of the passenger, who was not stopped

on the basis of probable cause by the police."Mendez, 137 Wn. d at 220. An officer must " e
                                                            2                           b

able to articulate   an   objective   rationale   predicated specifically   on   safety   concerns ...   for


ordering a passenger to stay in the vehicle or to exit the vehicle."Mendez, 137 Wn. d at 220.
                                                                                  2

An officer's objective rationale should be evaluated based on the circumstances present at the

scene ofthe traffic stop, including:the number of officers;the number of vehicle occupants, the
                                     "

behavior of the occupants, the time of day,the location of the stop, traffic at the scene, affected

citizens, or officer knowledge of the occupants."Mendez, 137 Wn. d at 220 21.
                                                               2          -

        P]
         assengers are unconstitutionally detained when an officer requests identification

unless other circumstances give the police independent cause to question [the]passengers. "'

Rankin, 151 Wn. d at 695 (second alteration in original) quoting State v. Larson, 93 Wn. d 638,
              2                                          (                             2

642, 611 P. d 771 (1980)); Brown, 154 Wn. d at 796. Although not present in Rankin, our
          2             see             2

Supreme Court suggested that an officer's request for identification from a vehicle passenger

may be permitted if reasonably related to officer safety issues. 151 Wn. d at 699 n. . If an
                                                                       2           5 "
                                                           N
No. 42072 4 II
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officer felt his safety was at risk,he might need to know with whom he is interacting,"
                                                                                      Rankin,

151 Wn. d at 705 (Fairhurst, J.,
      2                        concurring) describing circumstances that might justify an
                                           (

officer's request for a passenger's identification).

       In Mendez, our Supreme Court held that pursuing and ordering a vehicle passenger to

remain in the vehicle during a traffic stop was an unlawful seizure because it was not based on an

objectively reasonable safety concern or a substantial probability that criminal conduct has

occurred or is about to occur. 137 Wn. d at 212 13,220, 224. The officers' testimony was that
                                     2          -

the passenger did not do anything to make them fearful for their safety except run away from a

traffic stop in broad daylight. Mendez, 137 Wn. d at 226.
                                              2

       Here, Stacy testified that he ordered both occupants to exit the vehicle for his safety:

       THE STATE]: So why did you ask them to get out of the vehicle?
       STACY]:Well, it was it was after midnight, and it was dark. I was by myself.
                                —
       And there were two people in the truck with rifles, and I didn't feel safe standing
       there talking to them with both of those guns right there with the ammunition that
        close. So I asked them to step out for my safety.

Report of Proceedings (RP)Apr.5,2011) at 9. Stacy testified that he was concerned for his
                          (

safety although neither Joshua nor Harvey made any furtive movements. When Deatherage -

arrived to back up Stacy, Stacy directed Deatherage to identify Harvey.
                -

        Here, we are presented with facts demonstrating that the request for Harvey's

identification was reasonably related to officer safety. At the suppression hearing, Stacy testified

that he sought to identify Harvey because he was concerned for his safety in releasing Harvey
back into the vehicle with the firearms and ammunition:


        THE STATE]: Did you run [Harvey]'
                                       s name over your mic[
                                                           rophone]?
        STACY]:Yes.
        THE STATE]:And why did you do that?
        STACY]: Well, again, it' the time of the night and they had the guns in there.
                                  s
        If I was going to release them back into the truck with me still in the area, I
                                                  7
No. 42072 4 II
          - -



       wanted to make sure they weren't convicted felons or if there was any reason they
       shouldn't have those rifles that time of night. I didn't want to go back to my car
       and leave and, you know, end up getting shot. I' not saying they were going to
                                                            m
       shoot me; it' just officer safety. I mean, at that time of night, I want to make sure
                   s
       if I' releasing someone with guns that they're not convicted felons.
             m

       DEFENSE COUNSEL]: Okay. So you did recognize Harvey, but you still
       wanted to have his [identification] and run him;that's correct?
       STACY]:Yes.
       DEFENSE COUNSEL]: And why is that?
       STACY]: Because I couldn't remember what Iwhat I' dealt with Harvey
                                                 —     d
       before, and I wasn't sure if he was a convicted felon or not. I wanted to make
       sure that theyI had dealt with Harvey before and I could not rememberI
                      —                                                             —
       mean, I deal with literally hundreds of thousands of people.
              You know, again, it was late at night and I knewI knew I knew.him
                                                                    —
       from some other contact, and I wanted to make sure he wasn't a convicted felon.

RP (Apr. 5,2011)at 10 11,21 22. Stacy also testified that his safety concern was not
                      -     -

alleviated by ordering Harvey and Joshua out of the pickup truck:

       DEFENSE COUNSEL]: Okay. So would it be fair to say that once they exited
       the vehicle and were away from the unloaded hunting rifles, that they no longer
       posed a safety threat because they weren't near the weapons, you had them away
       from the car. Were they still a safety threat to you?
       STACY]:Absolutely.
       DEFENSE COUNSEL]: And it' your testimony one more time that you wanted
                                         s
       my client, Harvey Cousins [identified] because you wanted to know if he was a
             eon[ ]; that correct.
       convicted     is
       STACY]: Not just that, but I wanted to see if there w[re] any warrants that
                                                            e
       would warrant me to release him back to the truck with ammunition and rifles.
              Again, I can't stress the importance of, you know, being—       letting two
       people go back into a truck after midnight with a vehicle with two rifles and
       ammunition sitting on the passenger seat. I did not feel safe allowing them to go
       back there until I knew who they were and if they were convicted felons.
               Also, when we run their names, it will come back if there[ are] any officer
       safety warnings. We have a lot of people in Kitsap County that ha[ e] officer
                                                                               v
       safety warnings about them, which means they are violent offenders that can hurt
       police officers.

RP (Apr. 5,2011)at 24 25.
                      -

       On this testimony and these facts, we hold that Stacy's safety concern was objectively

reasonable and he   was   justified   in   ordering Harvey   out of the vehicle and   requiring Harvey to
No. 42072 4 II
          - -



identify himself before releasing Harvey back into the vehicle with access to the rifles and

ammunition. Thus, we hold that the trial court did not err in concluding that Stacy's order for

Harvey to exit the vehicle and produce identification was a lawful seizure based on officer safety

concerns.




       Harvey argues that all the evidence found during the subsequent consensual search of his

backpack should be suppressed as "fruit"of an unlawful seizure. Because Harvey's seizure was

lawful, it did not taint the consensual search of Harvey's backpack. See Harrington, 167 Wn. d
                                                                                           2

at 664. Thus, the trial court correctly denied Harvey's motion to suppress the evidence.

1I1.   CONCLUSION


       Stacy's order for Harvey to exit the pickup truck and request for Harvey to identify

himself was objectively reasonable based on concern for officer safety and, thus, constituted a

lawful seizure. Because the seizure was lawful, it did not taint the subsequent consensual search

of Harvey's backpack. Thus, the evidence recovered during the search of Harvey's backpack

was lawfully obtained. Accordingly, the trial court correctly denied Harvey's motion to suppress




5
 Moreover, Harvey's counsel conceded at the suppression hearing that Stacy's order for Harvey
and Joshua to exit the vehicle was justified by officer safety concerns.

                                                 9
No. 42072 4 II
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the evidence. We affirm.


       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

040,
2.6.it is so ordered.
 0


                                                   VAN DEREN, J.




                                                 10
