                                                                         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. 34077-5-111
                    Respondent,              )
                                             )
      v.                                     )
                                             )
WENDELL LEE MUSE,                            )        UNPUBLISHED OPINION
                                             )
                     Appellant.              )

      FEARING, C.J. -Wendell Muse challenges his conviction for possession of

methamphetamine on the grounds of an unlawful search, seizure, and arrest. We reject

his contentions and affirm his conviction.

                                         FACTS

       On August 24, 2015, during the dusk of 8:08 p.m., Pasco Police Detective Chad

Pettijohn and Officer John D' Aquila spoke with one another along Clark Street in a busy

downtown area with significant foot traffic. Detective Pettijohn had recently investigated

several homicides with hand guns in Pasco's downtown. Pettijohn had responded to calls
No. 34077-5-III
State v. Muse


in the downtown area after someone walking, riding a bike, or driving a car had shot

someone on the street.

       Police officers Chad Pettijohn and John D' Aqulia saw Wendell Muse bicycling in

the middle of Clark Street. When Muse turned south onto 5th Street, Detective Pettijohn

entered his patrol car and activated his lights to stop Muse for a bicycle infraction.

       Wendell Muse was slow to stop. Based on Detective Chad Pettijohn's experience,

Muse's apprehension to stop concerned Pettijohn that Muse might flee. Detective

Pettijohn instructed Muse to keep his hands on the bike's handlebars. Muse disobeyed

Pettijohn's direction. Muse removed his right hand from the handle bar and reached into

his pocket. Muse's short pockets bulged, and Pettijohn saw Muse clasp small items in his

hands. Pettijohn again charged Muse to place his hands on the handlebars. As Pettijohn

approached Muse from behind, Muse moved his right hand. Muse's body screened

Pettijohn's view of the location where Muse moved his hand, but Pettijohn surmised

Muse reached toward his waistband and worried that Muse accessed a weapon. Pettijohn

repeated his request a third time to no avail.

       Officer John D' Aquila heard Pettijohn repeatedly ordering Muse to keep his hands

on the bicycle. D' Aqulia saw Muse remove his hands from the bike's handlebars and

reach his hand toward his waistband.




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No. 34077-5-III
State v. Muse


       Pasco Detective Chad Pettijohn grabbed Wendell Muse. Muse tensed and tugged

from Detective Pettijohn. Muse's reaction increased Pettijohn's concern that Muse might

harm Pettijohn or someone else. Officer John D' Aquila shared the concern.

       Detective Chad Pettijohn secured Wendell Muse's hands behind his back and

frisked his outer clothing for a weapon. Pettijohn did not feel any weapon, but touched a

methamphetamine pipe in the pocket of Muse's shorts. Detective Pettijohn later testified

that "[t]he instant I felt it, I knew exactly what it was because I've been a police officer

over ten years. There was no question what it was." Report of Proceedings (RP) (Oct.

20, 2015) at 9.

       Pasco Detective Chad Pettijohn arrested Wendell Muse for unlawful possession of

drug paraphernalia. Incident to the arrest, Detective Pettijohn searched Muse's shorts and

backpack. In addition to seizing the pipe, Pettijohn found three baggies of

methamphetamine and a small digital scale to weigh items in grams or ounces. Burn

marks on the bowl of the pipe captured white residue, which Pettijohn recognized as

methamphetamine.

                                       PROCEDURE

       The State of Washington charged Wendell Muse with unlawful possession of a

controlled substance, methamphetamine. Pursuant to CrR 3 .6, Muse moved to suppress

evidence of the drug that Detective Chad Pettijohn confiscated from a frisk of Muse's




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No. 34077-5-111
State v. Muse


person. Muse argued that Pettijohn lacked cause to detain him and to frisk him. The trial

court denied Muse's motion.

       A jury trial proceeded. During Detective Chad Pettijohn's direct examination, the

State asked Detective Pettijohn whether Wendell Muse uttered statements to him

regarding the items found on Muse's person. The trial court noticed that the case jacket

lacked any notation of the holding of a CrR 3.5 hearing. The court conducted a side bar

to inquire whether defense counsel filed a CrR 3.5 motion to suppress any statements

made by Muse to Pettijohn. The State responded that Muse and defense counsel

stipulated to the admission of Muse's statements to Pettijohn. Defense counsel informed

the court that Muse now wished to withdraw his stipulation. The trial court verified with

defense counsel that he received the necessary authority from Muse to stipulate that any

statements Muse made to Pettijohn were made freely and voluntarily after being advised

of his Miranda rights. Defense counsel answered in the affirmative. The court ruled that

Pettijohn could testify regarding what Muse told him. Over the objection of Muse,

Pettijohn testified that Muse told him:

                 [T]hat the meth pipe-in reference to the meth pipe, he knew it
          was there and he on occasion smoked methamphetamine and had done
          so a week prior. He also told me he had no knowledge that the package
          was in his wallet or that the two packages were inside his backpack.

RP (Dec. 16, 2015) at 17.




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No. 34077-5-III
State v. Muse


       The jury found Wen dell Muse guilty of unlawful possession of methamphetamine.

The trial court sentenced Muse to time served and twelve months of community custody.

                                 LAW AND ANALYSIS

                                      Frisk of Muse

       On appeal, Wendell Muse contends that Detective Chad Pettijohn unlawfully

frisked him because Pettijohn lacked a reasonable basis to conclude that he might be

armed and dangerous. Accordingly, Muse argues that the methamphetamine removed

from his clothing must be suppressed as fruit of the poisonous tree. Muse does not argue

that, once Detective Pettijohn felt an object other than a weapon, Pettijohn could not

confiscate the pipe, drugs, and scale. The State validates the frisk because specific and

articulable facts justified Pettijohn's fear that Muse possessed weapons. We agree with

the State.

       We review a trial court's denial of a CrR 3.6 suppression motion to determine

whether substantial evidence supports the trial court's challenged findings of fact and, if

so, whether the findings support the trial court's conclusions oflaw. State v. Cole, 122

Wn. App. 319, 322-23, 93 P.3d 209 (2004). This court reviews de novo whether a

protective frisk was justified under the circumstances. State v. Ibrahim, 164 Wn. App.

503, 508, 269 P.3d 292 (2011).

       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

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No. 34077-5-III
State v. Muse


Constitution. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). Washington

affords five jealously and carefully drawn exceptions to the warrant requirement, which

include exigent circumstances, searches incident to a valid arrest, inventory searches,

plain view searches, and Terry investigative stops. State v. Garvin, 166 Wn.2d 242, 249,

207 P.3d 1266 (2009); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889

(1968). This case involves a Terry investigative stop.

       A Terry stop is authorized if police have a reasonable suspicion of criminal

activity. State v. Ibrahim, 164 Wn. App. at 508 (2011). But a frisk for weapons requires

something more. State v. Ibrahim, 164 Wn. App. at 508. The officer must reasonably

believe his safety or that of others is endangered. State v. Garvin, 166 Wn.2d at 250

(2009). For a permissible Terry frisk, the State must show that ( 1) the initial stop is

legitimate, (2) a reasonable safety concern exists to justify the protective frisk for

weapons, and (3) the scope of the frisk is limited to the protective purposes. State v.

Duncan, 146 Wn.2d at 172 (2002). In this context, courts shy from substituting their

judgment for that of police officers in the field. State v. Collins, 121 Wn.2d 168, 173,

847 P.2d 919 (1993); State v. Belieu, 112 Wn.2d 587, 601-02, 773 P.2d 46 (1989). A

founded suspicion and a basis from which the court can determine that the frisk was not

arbitrary or harassing suffices. State v. Collins, 121 Wn.2d at 173. An officer's right to

search is not retrospectively invalidated when the suspect's pocket contains contraband

instead of a weapon. State v. Harper, 33 Wn. App. 507,511,655 P.2d 1199 (1982).

                                              6
No. 34077-5-III
State v. Muse


       Wendell Muse's challenge to the seizure rests on the second prong of the Terry

frisk test. Muse argues that Detective Chad Pettijohn lacked reasonable concern that he

bore arms. Muse relies on State v. Xiong, 164 Wn.2d 506, 191 P.3d 1278 (2008). Muse

correctly recites the rule followed in Xiong, but his application of his prosecution's facts

to the rule miscarries. In Xiong, the court wrote:

                 The scope of the frisk, however, must be limited to protective
          purposes. If an officer cannot point to specific articulable facts that
          create an 'objectively' reasonable belief that a suspect is armed and
          'presently' dangerous, then no further intrusion is justified.

State v. Xiong, 164 Wn.2d at 514. The Supreme Court concluded that specific facts

failed to support a reasonable belief that the defendant was armed and presently

dangerous. Nothing in the record supported the police officers' fear for their safety. The

defendant cooperated with police, made no effort to flee, and made no moves to suggest

he might reach for his pants pocket.

       In our appeal, Detective Chad Pettijohn stopped Wendell Muse for riding his

bicycle down the middle of a busy, downtown street. Pettijohn then lacked cause to frisk

Muse. Nevertheless, against Detective Pettijohn's repeated requests, Muse continued to

remove his hand from the bike's handlebars and reach toward his waistband or pocket.

Muse hid his movements by turning his body from Pettijohn. Pettijohn legitimately

experienced fear that Muse might harm him or someone else. Officer D' Aquila suffered




                                             7
No. 34077-5-III
State v. Muse


a similar concern. Pettijohn limited the frisk to the outside of Muse's clothing, where he

might find weapons.

                     Wendell Muse's Statement to Detective Pettijohn

       Wendell Muse next asserts that his statements to Detective Chad Pettijohn must be

suppressed because they followed an unconstitutional search and seizure. Muse

summarily attaches this assignment of error to his suppression argument on the basis that

the Terry frisk was unlawful. Nowhere in his brief, does Muse identify which statements

he believes should have been suppressed. Muse also does not address the stipulation

made at trial or the failure to file a CrR 3.5 motion to suppress the statements. Anyway,

we previously upheld the constitutional validity of the search.

                                       Muse's Arrest

       For the first time on appeal, Wendell Muse challenges the constitutional propriety

of his arrest. He maintains that Detective Chad Pettijohn arrested him without the

requisite probable cause because possession of drug paraphernalia is not a crime. He

contends he preserved this assignment of error by his trial court motion to suppress the

fruits of the search of his person. In the alternative, he argues this issue may be raised for

the first time on review as a manifest error affecting a constitutional right under RAP

2.5(a). The State disagrees with both alternate contentions.

       We need not resolve whether Wendell Muse may challenge his arrest on appeal,

because we may dispose of the contention easily on the merits. Contrary to Muse's

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No. 34077-5-III
State v. Muse


claims, unlawful possession of drug paraphernalia is a crime under the City of Pasco's

municipal code. Pasco Municipal Code (PMC) 9.38.030(1) declares it to be unlawful:

                  To use, or to possess with the intent to use, drug paraphernalia or
          to plant, propagate, cultivate, grow, harvest, manufacture, compound,
          convert, produce, process, prepare, test, analyze, pack, repack, store,
          contain, conceal, inject, ingest, inhale or otherwise induce into the
          human body a controlled substance, the possession of which controlled
          substance is in violation ofRCW 69.50.

Muse does not resist the application of PMC 9.38.030.

                            Ineffective Assistance of Counsel

       Wendell Muse contends that, if this court concludes that his challenge to his arrest

was not preserved and cannot be raised as manifest constitutional error, he was denied

effective assistance of counsel. We reject this argument since PMC 9.38.030 permitted

an arrest for possession of drug paraphernalia. Therefore, counsel's performance either

was not deficient or Muse suffered no prejudice.

      A claim of ineffective assistance of counsel requires a showing that ( 1) counsel's

performance was deficient, and (2) the deficient performance prejudiced the defendant.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);

State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011); State v. Hamilton, 179 Wn.

App. 870, 879, 320 P.3d 142 (2014). If one prong of the test fails, we need not address

the remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78,917 P.2d 563 (1996).

This is a mixed question of law and fact, reviewed de novo. Strickland v. Washington,


                                             9
No. 34077-5-III
State v. Muse


466 U.S. at 698.

       For the deficiency prong, this court gives great deference to trial counsel's

performance and begins the analysis with a strong presumption that counsel was

effective. State v. West, 185 Wn. App. 625, 638, 344 P.3d 1233 (2015). Trial strategy

and tactics cannot form the basis of a finding of deficient performance. State v. Johnston,

143 Wn. App. 1, 16, 177 P.3d 1127 (2007). Deficient performance is performance that

fell below an objective standard of reasonableness based on consideration of all the

circumstances. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The

appellant bears the burden to prove ineffective assistance of counsel. State v. McFarland,

127 Wn.2d at 335. We cannot fault trial counsel for failing to seek to quash an arrest

when the law validated the arrest.

       Under Strickland, for the prejudice prong, the defendant must show a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Strickland v. Washington, 466 U.S. at 669.

Because the trial court would likely have sustained the arrest, Wendell Muse establishes

no prejudice.

                                      CONCLUSION

       We affirm Wendell Muse's conviction for possession of a controlled substance,

methamphetamine.

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No. 34077-5-III
State v. Muse


      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.




WE CONCUR:




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