                                                                            OOURT' OF APPEALS
                                                                                 DIVISION II

                                                                           2015 FEB - 3     AFB 3153
       IN THE COURT OF APPEALS OF THE STATEREVAIIMMON

                                             DIVISION II                    BY
                                                                                           OTY

 STATE OF WASHINGTON,                                                       No. 44789 -4 -II


                                  Appellant,


           v.



 BRYAN ANAYA- DEGANTE,


                                  Respondent.
 STATE OF WASHINGTON,                                                      Consolidated with
                                                                            No. 44792 -4 -II


                                  Appellant,


           v.



 WILIBALDO HERRERA -IBARRA,                                             UNPUBLISHED OPINION


                                  Respondent.


          SUTTON, J. — In this consolidated appeal, the State of Washington appeals the superior


court' s order granting Bryan Anaya -Degante and Wilibaldo Herrera -Ibarra' s motions to suppress

the evidence against them      and   the   superior court' s   orders   dismissing   the   charges.   The State


challenges one of the superior court' s findings of facts and its conclusions of law that the officers


did not have reasonable articulable suspicion of criminal activity that justified the initial

detentions. We' hold that substantial evidence supports the challenged finding of fact and that the




1 Although the State assigns error to several findings of fact, its argument addresses only one
finding. Because the State has not presented any argument related to the other findings to which
it   assigns error, we will not consider   the   additional assignments of error.    RAP 10. 3 ( a)( 6).
No. 44789 -4 -II (consolidated with No. 44792 -4 -II)


findings support the superior court' s conclusion that the initial detentions were not justified.

Accordingly, we affirm.

                                                              FACTS


                                                        I. BACKGROUND


         On the evening of January 2, 2013, officers from the Clark- Vancouver Regional Drug Task

Force    served a search warrant on           Dhena Albert' s         apartment.    The search warrant authorized the


officers to search the apartment for methamphetamine, items related to the distribution and


packaging of methamphetamine; and various records, including records that would reveal " the

identity   of co- conspirators and suppliers."                Clerk' s Papers ( Herrera -Ibarra) ( CP( H))       at   19.     The

                                                                                                             2
search warrant       did    not   identify   any   of   the   possible " co- conspirators      or suppliers "    by name or

provide any descriptions.

           The   officers   serving the    search warrant       had information that there       was a " possibil[    ity]"   that



a Hispanic male could arrive at Ms. Albert' s apartment to deliver or purchase methamphetamine


that evening and that Albert' s Hispanic boyfriend might be present in violation of a no contact

order.   Verbatim Report           of   Proceeding ( VRP) ( Feb.        28, 2013)   at   22.   They were also aware that

other Hispanic males had frequented the apartment to purchase and sell drugs during the

investigation, but they had no information identifying who these people were.

           The officers executing the search warrant stationed an officer outside to warn them if

anyone approached           the   apartment.       This officer advised the officers in the apartment that two


Hispanic men were approaching the apartment. Although the officer did not identify them at the

time, these men were Anaya- Degante and Herrera -Ibarra.




2 CP( H) at 19.


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          Anaya- Degante knocked on the apartment door. When City of Vancouver Police Sergeant

Pat Moore opened the door, Anaya- Degante threw up his hands and appeared surprised to see the

officers. Clark County Sheriff's Detective Robert Latter immediately detained Anaya- Degante to

determine why he was at the apartment. When the officers searched Anaya -Degante, they found

two glass pipes that they identified as methamphetamine pipes; there was methamphetamine in the

pipes. When Anaya -Degante knocked on the door, Herrera -Ibarra was behind Anaya- Degante on

the   stairs.   When Herrera -Ibarra saw Sergeant Moore, he immediately turned and started to walk

away;    one of    the   officers   followed Herrera -Ibarra          and   told him to stop.        Herrera -Ibarra did not


comply with the officer' s order to stop, but the officer caught up with him and ordered him to show

his hands.      Herrera -Ibarra eventually complied and when the officer searched him he found bags

of methamphetamine on Herrera- Ibarra' s person.


                                                   II. SUPPRESSION MOTION

          The     State       charged       Anaya- Degante       with    possession       of   a     controlled   substance -




                                          3),   and charged Wilibaldo Herrera -Ibarra with possession of a
methamphetamine3          (




                               count




controlled substance with intent to deliver- methamphetamine4 ( count 4). 5 Anaya- Degante and

Herrera -Ibarra challenged their warrantless initial detentions.




3 RCW 69. 50. 4013( 1).

4
    RCW 69. 50. 401( 1), (      2)( b).

5
    The State    also charged      Albert       with various   drug   offenses ( counts   I   and   II); Albert is not part of
this appeal.




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       At the suppression hearing, Vancouver Police Department Detective Shane Hall, Detective

Latter, and Sergeant Moore testified about executing the search warrant and detaining Anaya-

Degante and Herrera- Ibarra.6 Neither of the defendants presented any witnesses.

       Following the hearing, and without making an oral ruling from the bench, the superior

court issued a written " Decision of the Court" and ordered the parties to present written findings


of fact and conclusions of law.7 CP( H) at 61. This written decision described the execution of the

search warrant and Anaya- Degante and Herrera -Ibarra' s initial detentions. 8 The decision also

stated that at the time of the initial detentions, the officers had no information specifically

identifying Anaya -Degante or Herrera -Ibarra as suspects and that the officers knew only that ( 1)

Albert' s Hispanic ex- boyfriend might be in or arriving at the apartment in violation of a no contact

order, and (   2),   based on information obtained during the investigation that led to the warrant,

Hispanic   males     bought   and sold controlled substances      in Albert'   s apartment.   Specifically, the

superior court stated:




               Detective [ Sergeant] Moore testified that any Hispanic males who showed
        up at the apartment while they were executing the warrant were going to be
        considered  suspicious.    Detective [ Sergeant] Moore immediately detained
        defendant Anaya -Degante        after   he knocked   on   the door.      Detective [ Sergeant]

        Moore also indicated he was going to detain the person walking down the steps.
       Even though he did not know the person was associated with the apartment being
       searched, the bases for the detention was the information provided to them during
       the course of their investigation and the fact that they arrived at the apartment
       during the execution of the warrant.



6 We describe the relevant portions of this testimony in more detail below.

7 This written decision related to all three superior court cause numbers and all three defendants.

8 The written findings of fact entered under Herrera- Ibarra' s cause number and described below
were essentially the same. To avoid repetition, we have summarized the written decision.



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No. 44789 -4 -II (consolidated with No. 44792 -4 -II)



CP   at   63 -64 ( emphasis   added).     The remaining factual findings were substantially similar to those
in the written findings of fact entered under Herrera- Ibarra' s superior court cause number.


           The trial court concluded that under State v Broadnax, 98 Wn.2d 289, 654 P. 2d 96 ( 1982),


overruled on other grounds by Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed.

2d 334 ( 1993),    and   State   v   Gatewood, 163 Wn.2d 534, 182 P. 2d 426 ( 2008), the initial detentions


were improper because the officers lacked individualized suspicion. The trial court then ordered


the prevailing parties to prepare and present written findings of fact and conclusions of law

consistent with the written decision. After the superior court issued its written decision, the State


moved      to dismiss the   charges against       Anaya -Degante   and   Herrera -Ibarra   without prejudice.   The


superior court granted the motion.9

           Herrera -Ibarra later presented written findings of fact and conclusions of law to the superior


court. 10 In addition to setting out the facts described above, the superior court found:

           7.      Detective [ Sergeant] Moore testified that any Hispanic males who showed
           up at the apartment while they were executing the warrant were going to be
           considered    suspicious.           Detective [ Sergeant]     Moore immediately detained
           defendant Anaya -Degante after he knocked on the door.


           8.      Detective [Sergeant] Moore also indicated he was going to detain the person
           walking down the          steps.   Even though he did not know the person was associated
           with the apartment being searched, the basis for the detention was the information
           provided to them during the course of their investigation and the fact that they
           arrived at the apartment during the execution of the warrant.

CP( H) ( Findings of Fact ( FF) 7, 8) at 73 ( emphasis added).




9 A second judge signed the orders dismissing the charges.

10 Anaya -Degante did not present the superior court any written findings of fact or conclusions of
law. And the findings of fact and conclusions of law entered in Herrera- Ibarra' s case do not refer
to Anaya -Degante or Anaya -Degante' s superior court cause number.




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No. 44789 -4 -II (consolidated with No. 44792 -4 -II)



       In regard to the suppression motion, the superior court made the following conclusions of

law:


        1.         The facts clearly demonstrate that the officers were going to detain any
       Hispanic male who arrived at the residence while they were executing the search
       warrant.



       2.          The officers pre- determined that no individualized suspicion or probable
       cause was going to be needed for them to detain anybody who arrived at the
       residence.




       3.      Herrera -Ibarra' s action by turning and walking down the steps does not
       justify his arrest or detention.

       4.          Therefore, the motion to suppress based on the warrantless search is
        granted. All evidence obtained as a result of the warrantless search of Mr. Herrera -
       Ibarra should be suppressed.


CP( H) ( Conclusions      of   Law ( CL) ( b) 1 - 4)) at 74 ( emphasis added).


        The State appeals.


                                                        ANALYSIS


        The State challenges the superior court' s decision and order granting Anaya- Degante and

Herrera- Ibarra'   s   motions    to   suppress.   It argues that the superior court erred in finding that

  Sergeant] Moore testified that he would seize any Hispanic person without individualized

suspicion    due to that   person' s    ethnicity "11   and in concluding that the officers lacked reasonable,

articulable suspicion to initially detain Anaya -Degante and Herrera -Ibarra. We disagree.

                                             I. STANDARD OF REVIEW


        We review the superior court' s decision on a motion to suppress by considering whether

substantial evidence supports the challenged findings and whether those findings support the




11 Br. of Appellant at 20 n. 5.


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No. 44789 -4 -II (consolidated with No. 44792 -4 -II)



superior court' s conclusions of law. State v. Ross, 106 Wn. App. 876, 880, 26 P. 3d 298 ( 2001),

review    denied, 145 Wn.2d 1016 ( 2002).             Substantial evidence is evidence sufficient to persuade a


fair -minded person of the truth of the finding. State v. Levy, 156 Wn.2d 709, 733, 132 P. 3d 1076

 2006).     We consider unchallenged findings as verities on appeal. Ross, 106 Wn. App. at 880.

                                                   II. FINDINGS OF FACT


          The State argues that the superior court' s finding that " Sgt. Moore testified that he would

seize   any Hispanic      person without         individualized   suspicion   due to that   person' s   ethnicity," is not


supported by substantial evidence. 12 Br. of Appellant at 20 n.5. We disagree.
          Moore testified that he decided to detain Anaya -Degante and Herrera -Ibarra based on the


 totality   of   the   circumstances,"     which included his knowledge that ( 1) a Hispanic male may have

been living in Albert' s apartment in violation of a restraining order, (2) Hispanic males frequented

Albert' s apartment, (3) Albert' s suppliers were Hispanic males, and ( 4) there was a possibility that

the suppliers would          arrive   at   the   apartment   during   the   search.   VRP ( Feb. 28, 2014) at 78.


Specifically, when the State asked Moore at what point he had decided to " have contact with"

Herrera -Ibarra, Moore testified the officers had decided to " stop and detain and at least identify

those individuals to see if they were potentially involved in a crime" because ( 1) the officers had



12 Although the superior court did not enter written findings of fact and conclusions of law in
Anaya- Degante' s case, the superior court' s written decision is sufficient to allow review. State v.
Smith, 76 Wn. App. 9, 16, 882 P. 2d 190 ( 1994) ( " A court' s failure to enter written findings of fact
and conclusions of law following a suppression hearing as required by CrR 3. 6 is harmless error
if the court' s oral opinion and the record of the hearing are ` so clear and comprehensive that written
findings would be a mere formality. "' ( quoting State v. Smith, 68 Wn. App. 201, 208, 842 P.2d
494 ( 1992));      see also   State   v.   Head, 136 Wn. 2d 619, 622, 964 P. 2d 1187 ( 1998) ( trial court' s
written memorandum opinion is equivalent of a trial court' s oral expression of its informal
opinion).




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No. 44789 -4 -II (consolidated with No. 44792 -4 -II)



probable cause          to   search   the   apartment   for   narcotics, (   2) they had conducted one or two controlled

buys    at   the   apartment, (
                                    3) they had seen " other Hispanic males come and go from" the apartment,

4) they had information from informants that " other Hispanic                         males   frequent[ ed]" the apartment,


and (   5) they had found           narcotics and " other evidence"            when   they   searched   the   apartment.   VRP


 Feb. 28, 2013) at 62, 63.


             In addition, when the State asked Moore what safety concerns he had upon Herrera- Ibarra' s

arrival, Moore testified that, based on his experience with the drug unit, in the majority of drug

operations         there   are   firearms involved, "[ s]     o anybody who shows up at a search warrant is gonna

be highly suspicious" and the officers would want to know why that person was there. VRP (Feb.

28, 2013) at 67. He further stated:


                        And, again, the information we had ahead of time was we knew thisthe
             particular defendant who was renting the apartment where we had a search warrant
             for, I   mean, we     knew     who she was assoc —         we didn' t have particular names, but we
             knew she was associated with other Hispanic males who frequent her residence, so
             with all   that,    we stopped and    detained the —the two individuals that arrived.


VRP ( Feb. 28, 2013) at 67 -68.


             Moore admitted, however, that although the officers knew that Albert' s boyfriend might


be living in the apartment and that Albert' s suppliers might be Hispanic males, the officers did not

have descriptions of Albert' s boyfriend or the Hispanic males who were potentially Albert' s drug

suppliers nor         did the     officers   have the   suppliers'      names.    He also admitted that the officers had


merely observed unidentified Hispanic males coming and going from the apartment during the

controlled buys.




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No. 44789 -4 -II (consolidated with No. 44792 -4 -II)



           Additionally,         Moore testified, "[ Anaya -Degante] was detained from the moment he


knocked        on    the door    and    I   answered      the door. ...       My   sole purpose was       to   detain him."   VRP


Feb. 28, 2013) at 78. Moore then stated,


                       Based on the totality of the circumstances, the time and the knowledge and
           the training and experience I had at the time, based on [ Terry v. Ohio, 392 U. S. 1,
           21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968)], I believed a crime has been committed,
           was about to be committed, and that' s why I detained him.
                 And the mind -set was, I was already going to detain the individual knocking
           at the door and the individual walking down the stairs. Okay?
                       I know the facts        of   the   case of [ Terry v.   Ohio], and at that time I felt we had

           articulable, reasonable suspicion and evidence and facts leading up to that to allow
           me, a police officer, to stop, detain and [ identify] the two individuals that arrived
           at that apartment.


VRP ( Feb. 28, 2013)             at   79 ( emphasis       added).     When Anaya- Degante' s counsel asked Moore if he


believed he          could   detain the defendants because they               were    Hispanic, Moore     responded, "   That' s —


that' s   part of     the    facts.    Hispanic     males     that we      know frequent the        apartment."    VRP ( Feb. 28,


2013)     at   80.    Moore admitted, however, that there was no " documentation" that Anaya- Degante


was   among the         men who        frequented the        apartment,      but he   asserted, "   But I think I have a right to


detain and to find out and [ identify] who that individual is and why he is coming to that apartment

based     on what       I' ve already testified to."           VRP ( Feb. 28, 2014)         at   80.   Moore also admitted that


Anaya -Degante was not near any money or drugs when he arrived at the apartment.

           Furthermore,          when Anaya- Degante' s counsel asked Moore if he had any personal

knowledge that Anaya- Degante was involved in any criminal activity at the time of the detention,

Moore      responded, "        I didn' t know that. He arrived at the apartment. That' s why I detained him."

VRP (Feb. 29, 2013) at 82. He also admitted that when he stopped Herrera -Ibarra, he did not know

who Herrera -Ibarra was.




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No. 44789 -4 -II (consolidated with No. 44792 -4 -II)


       Although Moore asserted that the detentions were based on the circumstances as a whole,


his testimony described above clearly demonstrates that the key circumstance was that the

defendants were Hispanic men who approached Albert' s apartment. These facts, taken as a whole,

support the superior court' s finding that Moore would have detained any Hispanic male would

who arrived at the apartment during the search without any individualized suspicion. Accordingly,

this argument fails.


                                     III. CONCLUSIONS OF LAW


       The State next asserts that the totality of the evidence established that the officers' initial

detentions13 of Anaya- Degante and Herrera -Ibarra were " reasonable and based on articulable facts

                                                                    14
individually   applied   to Anaya -Degante   and   Herrera -Ibarra, "    and   did   not   amount   to "   racial




profiling." Br. of Appellant at 20 n.5. Essentially, the State argues that the officers had reasonable

suspicion because Anaya- Degante and Herrera -Ibarra " fit the description of the drug suppliers who

were expected to arrive at the apartment during the time period when they did" and the apartment

was a known drug area. Br. of Appellant at 20. This argument fails.

                                 A. Reasonable Suspicion Standards


        To avoid violating the Fourth Amendment15 guarantee against unreasonable searches and

seizures, the State bears the burden of showing that a warrantless seizure fits one of a few limited

and jealously guarded exceptions to the warrant requirement. State v. Williams, 102 Wn.2d 733,


13 Although neither party discusses at what point the actual detentions occurred, the parties appear
to assume that Anaya -Degante was detained immediately after Moore opened the door and that
Herrera -Ibarra was detained when he started to walk down the stairs and was ordered to stop.

14 Br. of Appellant at 21.

15 U. S. CONST. amend. IV.


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736, 689 P. 2d 1065 ( 1984).               The detention or search of someone other than an occupant during a

valid    search of a residence             may be justified    by     what    the courts     have   referred   to     as "`   presence




plus "' —the       presence      of    independent        factors "    tying the person to illegal activities being

investigated     or   raising    a reasonable suspicion         that the      person   is   armed and   dangerous."            State v.


Smith, 145 Wn. App. 268, 276, 187 P. 3d 768 ( 2008) ( emphasis                         added) (   citing Broadnax, 98 Wn.2d

at   300 -301).. "   The `plus' consists of independent factors, other than arrival at the scene, tying the

person    to the     illegal   activities    being   investigated      or   raising   a reasonable   suspicion."          Smith, 145


Wn. App. at 276 ( emphasis added).

                                      B. No Individualized Reasonable Suspicion


           We agree with the superior court that the facts here do not establish the necessary

reasonable,     individualized         suspicion.      Although the officers had knowledge that Hispanic men


were connected to the illegal activities taking place in Albert' s apartment and might arrive during

the search and that Albert' s Hispanic boyfriend might be present in violation of a restraining order,

the only factors tying Anaya-Degante or Herrera -Ibarra to any illegal activity were their presence

at the apartment, their race and gender, their apparent surprise at encountering the officers, and

Herrera- Ibarra'      s   attempt     to   walk   away.    That is clearly insufficient to establish individualized

suspicion.




           The State contends that this case is similar to State v. Pressley, 64 Wn. App. 591, 825 P. 2d

749 ( 1992).         We disagree.           Unlike here, the officers in Pressley had observed the defendant

personally engaging in            what appeared        to be   criminal      activity before    detaining      her.     Pressley, 64

Wn. App. at 593 -94. The Pressley court did not hold that the defendant' s mere presence in a high

crime area, her apparent surprise when she noticed the officers, or her attempt to walk away from



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No. 44789 -4 -II (consolidated with No. 44792 -4 -II)



the officers was sufficient to justify the detention. Pressley, 64 Wn. App. at 594. Thus, Pressley

is not helpful to the State.


         The State further contends that the trial court erred when it relied on Gatewood. Again, we

disagree.


         In Gatewood, officers observed Gatewood appear to be surprised and turn his body as if he

was trying to hide something after he noticed the officers driving by the bus shelter he was in.

Gatewood, 163 Wn.2d at 537. Suspicious that Gatewood was trying to hide something, the officers

circled back and saw Gatewood walking away. Gatewood, 163 Wn.2d at 537 -38. They then saw

Gatewood jaywalk to the other side of the street, start walking the opposite direction, and turn onto

a cross street.      Gatewood, 163 Wn.2d              at   538.   The officers drove slowly behind Gatewood and

then   pulled   in front    of   him,    blocking his   path.     Gatewood, 163 Wn.2d   at   538. One of the officers


got out of the patrol car and told Gatewood to stop because they wanted to talk to him. Gatewood,

163 Wn.2d       at   538.   Gatewood continued to walk away despite the officers ordering him to stop.

Gatewood, 163 Wn.2d at 538. On appeal, the State conceded that the officers had seized Gatewood

when    they first blocked his           path and   told him to stop.    Gatewood, 163 Wn.2d at 540.


         Our Supreme Court held that this initial seizure was unlawful because the officers lacked

 specific,   articulable         facts   indicating   criminal     activity."   Gatewood, 163 Wn.2d     at   541.   Our


Supreme Court further held that "[                  s] tartled reactions to seeing the police do not amount to

reasonable      suspicion"        and that, although flight from police may contribute to a finding of

reasonable suspicion of criminal activity, the State had not shown that Gatewood had fled from

the police because the officers had testified that they were unsure whether Gatewood had seen the

patrol car returning when he left the bus shelter and Gatewood was not walking very fast.



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Gatewood, 163 Wn. 2d             at   540.    The    court concluded                that the    officers   had " seized Gatewood to


conduct a speculative criminal               investigation."         Gatewood, 163 Wn.2d at 542.


          In this   case,    the State        argues      that the    officers        here " had far more facts to base their


suspicions    upon"       than   was    the   case   in Gatewood           and        that "[   the officers] did not engage in a


speculative criminal        investigation." Br.           of   Appellant       at   22 ( quotation    omitted).   Although the State


is correct that the officers had information establishing that there were drug related activities taking

place in Albert' s apartment and that some unidentified Hispanic men were involved, those

additional    facts   are    not      sufficient    to    justify    the   detentions here.                The officers still had no


individualized suspicion that Anaya- Degante or Herrera -Ibarra were involved in any drug activity.

And, under Gatewood, mere surprise at encountering the officers does not amount to reasonable

suspicion. Gatewood, 163 Wn.2d at 540.


          As to Herrera- Ibarra' s walking away, although Gatewood states that flight may contribute

to a finding of reasonable suspicion of criminal activity, here, as in Gatewood, Herrera- Ibarra' s

turning   around and        walking away from the               officers was not           dispositive. Furthermore, there was


evidence     that the detentions             were    to    allow     for   a    speculative        investigation —Moore testified


specifically that "       the decision was made to stop and detain [ Hispanic males arriving at the

apartment]    to    see   if they     were    potentially involved in                 a   crime."     VRP ( Feb. 28, 2013) at 63


 emphasis added).




          Finally, the State contends that the superior court' s reliance on Broadnax was misplaced,

arguing that the evidence showed that Anaya- Degante and Herrera -Ibarra met the individualized

suspicion requirement established in Broadnax. Braodnax, 98 Wn.2d at 295 -96 ( citing Ybarra v.

Illinois, 444 U. S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 ( 1979)).                                Again, as we discuss above, the




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superior court' s findings do not suggest that the officers had reasonable suspicion that Anaya-


Degante or Herrera -Ibarra were personally involved in criminal activity. The State did not present

any evidence connecting Anaya- Degante or Herrera -Ibarra to any illegal activity beyond their

presence at the apartment, their gender and race, their apparent surprise at encountering the

officers, and Herrera -Ibarra' s attempt to walk away from the officers, and we hold that this is

insufficient to establish individualized suspicion.


        Accordingly, the superior court did not err when it granted the suppression motions and

dismissed the charges. 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 2. 06. 040,

it is so ordered.




 We concur:




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