                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                          July 25, 2017

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                            No. 49032-3-II

                               Respondent,

         v.

    NICHOLAS EDWARD NOVION,                                  UNPUBLISHED OPINION

                               Appellant.

        MELNICK, J. — Nicholas Edward Novion appeals his conviction for two counts of

possession of a controlled substance, one for heroin and one for methamphetamine. Novion

contends the trial court erred by denying his CrR 3.6 motion to suppress evidence seized near the

location where police stopped him. We affirm Novion’s convictions.

                                             FACTS1

        Centralia Police Officer Mary Angelique Humphrey responded to a reporting party’s report

of a suspicious person, wearing a green sweatshirt and carrying a black backpack, walking door to

door in a neighborhood and then back to a green Volvo. The reporting party believed that the

person was engaging in illegal drug activity. Humphrey knew that a known drug house existed in

the area. Humphrey also had previous contact with the reporting party and knew the reporting

party was credible.




1
 The following facts are taken from the trial court’s mostly unchallenged CrR 3.6 findings of fact,
which are verities on appeal. State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).
49032-3-II


       Humphrey spoke with the reporting party prior to her arrival to verify that the green Volvo

was still there. Upon arrival, Humphrey contacted two individuals sitting inside the green Volvo.

Humphrey noticed that the driver appeared nervous.

       While speaking with the driver, Humphrey heard a house door close behind her. The

officer turned around and noticed Novion, wearing a green sweatshirt and a black backpack, exit

the house. The officer turned back to the driver and determined the driver was Novion’s mother.

The reporting party, who was standing on his porch, then yelled to Humphrey, “There he is” and

pointed down the street. Clerk’s Papers (CP) at 20.

       Humphrey turned around and observed Novion down the street.2 Humphrey got in her

marked patrol vehicle and began to search the area for Novion. During this time Humphrey did

not have her overhead lights or her siren on. Humphrey located Novion down the street, coming

from the side of a house and walking towards the street, in a direction away from the officer.

       Humphrey parked her patrol vehicle on the street at an angle and activated only the

vehicle’s rear light bar, which directed traffic around her vehicle. Her overhead lights and siren

remained off.

       Humphrey exited her patrol vehicle and asked Novion to come to her location. At this

same time, the homeowner exited his home and asked Novion what he was doing next to the house.

Humphrey again asked Novion to come to her location. He complied. Humphrey then handcuffed

Novion and waited for back up to arrive.




2
  The trial court found that the officer “observed [Novion] running away from the residence” and
that Humphrey got in her patrol car after “seeing [Novion] running away.” CP at 20-21 (Findings
of Fact 1.4 and 1.5). Novion contends substantial evidence does not support these findings. The
State agrees. We accept the State’s concession and do not include these findings regarding
Humphrey seeing Novion running away in our analysis.


                                                2
49032-3-II


          Once backup arrived, Humphrey went to the side of the house where Novion had been.

She located a pile of items next to a garden reel. In the pile were two prescription bottles with

Novion’s name on them, two bindles of methamphetamine, and a bindle that contained a black tar

substance that turned out to be heroin.3

          After the State charged Novion with two counts of possession, he filed a motion to suppress

all evidence seized.

          During the suppression hearing, Novion admitted he left the items next to the garden reel

to return and retrieve them later. He also admitted the items were his and that among the items

were heroin and methamphetamine. He also acknowledged that Humphrey did not have her

overhead lights or siren on. Novion testified that “he felt seized because he knew Officer

Humphrey was looking for him and she was driving around in the area.” CP at 22.

          The trial court denied Novion’s motion to suppress, concluding the stop by Humphrey

constituted a valid Terry4 stop, and that even if it was not a valid Terry stop, Novion abandoned

the items. The court also concluded no seizure occurred until Humphrey handcuffed Novion.

Following a bench trial, the court convicted Novion as charged. He appeals.

                                             ANALYSIS

          Novion contends the trial court erred by denying his motion to suppress the

methamphetamine and heroin located on the side of the home where Novion was arrested. Novion


3
  The trial court found that Humphrey found “a bindle that contained what appeared to be black
tar heroin based on Officer Humphrey’s training and experience.” CP at 21 (Finding of Fact 17).
Novion contends substantial evidence does not support this finding. He, however, does not provide
argument in the argument section of his brief to explain his contention. The State agrees that
substantial evidence does not exist. We accept the State’s concession and do not include in our
analysis this finding regarding whether the officer knew the substance was heroin when it was first
discovered.
4
    Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).


                                                   3
49032-3-II


argues Humphrey illegally seized him when she directed him to come to her location because no

reasonable or articulated suspicion existed that Novion was involved in criminal activity.

I.     STANDARD OF REVIEW

       We review a trial court’s ruling on a motion to suppress evidence to determine whether

substantial evidence supports the trial court’s findings of fact and whether those findings, in turn,

support the trial court's conclusions of law. State v. Russell, 180 Wn.2d 860, 866, 330 P.3d 151

(2014). Unchallenged findings of fact are verities on appeal. O’Neill, 148 Wn.2d at 571. We

review a trial court’s legal conclusions de novo. State v. Roden, 179 Wn.2d 893, 898, 321 P.3d

1183 (2014). Because we accept the State’s concession that three of the findings of fact are not

supported by substantial evidence, we review whether the remaining unchallenged findings of fact

support the trial court’s legal conclusions.

II.    LEGAL PRINCIPLES

       The Fourth Amendment to the United States Constitution and article I, section 7 of the

Washington Constitution prohibit a warrantless search and seizure unless the State demonstrates

that one of the narrow exceptions to the warrant requirement applies. State v. Garvin, 166 Wn.2d

242, 249, 207 P.3d 1266 (2009). “These exceptions include exigent circumstances, consent,

searches incident to a valid arrest, inventory searches, the plain view doctrine, and Terry

investigative stops.” York v. Wahkiakum Sch. Dist. No. 200, 163 Wn.2d 297, 310, 178 P.3d 995

(2008) (footnote omitted). A Terry stop requires a well-founded suspicion that the defendant is

engaged in criminal conduct. State v. Doughty, 170 Wn.2d 57, 62, 239 P.3d 573 (2010). The

“police officer must be able to point to ‘specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant [the] intrusion.’” State v. Williams, 102

Wn.2d 733, 739, 689 P.2d 1065 (1984) (quoting Terry, 392 U.S. at 21). If the stop goes beyond



                                                 4
49032-3-II


investigatory purposes, it becomes an arrest and requires a valid arrest warrant or probable cause.

State v. Flores, 186 Wn.2d 506, 520-21, 379 P.3d 104 (2016).

          The State bears the burden of showing that the search and seizure was supported by a

warrant or an exception to the warrant requirement. State v. Hendrickson, 129 Wn.2d 61, 71, 917

P.2d 563 (1996). The exclusionary rule requires suppression of all evidence obtained pursuant to

a person’s unlawful seizure. State v. Winterstein, 167 Wn.2d 620, 632, 220 P.3d 1226 (2009).

          “‘Not every encounter between an officer and an individual amounts to a seizure.’” State

v. Armenta, 134 Wn.2d 1, 10, 948 P.2d 1280 (1997) (quoting State v. Aranguren, 42 Wn. App.

452, 455, 711 P.2d 1096 (1985)). A seizure occurs if, “‘in view of all the circumstances

surrounding the incident, a reasonable person would have believed that he was not free to leave.’”

State v. Mecham, 186 Wn.2d 128, 137, 380 P.3d 414 (2016) (quoting State v. Young, 135 Wn.2d

498, 510, 957 P.2d 681 (1998)). An officer who merely asks questions does not necessarily elevate

a consensual encounter into a seizure. State v. Barnes, 96 Wn. App. 217, 222, 978 P.2d 1131

(1999).

III.      CONCLUSIONS OF LAW SUPPORTED BY FINDINGS

          Here, the trial court concluded the encounter between Humphrey and Novion was a valid

Terry stop. Humphrey responded to a call from a reporting party reporting suspicious behavior in

an area known for drug activity. Humphrey knew the reporting party and knew he had provided

credible information in the past. Humphrey also knew there was a known drug house in the area.

When the officer arrived, she saw a vehicle matching the description of the reported suspicious

vehicle. Novion’s mother sat in the driver’s seat. Soon after, Novion exited a home near where

the car was parked. Humphrey noticed he was wearing the green jacket and black backpack

described by the reporting party. Instead of approaching the vehicle with his mother inside,



                                                 5
49032-3-II


Novion went down the street. Humphrey drove down the street in her patrol car and then observed

Novion coming around the side of a residence. The owner inquired why Novion was on his

property, but Novion just continued walking away.

       Taking the above specific and articulable facts together with rational inferences from those

facts, including the fact Humphrey observed Novion committing a criminal trespass, Humphrey

had a well-founded suspicion to stop Novion. Past reports of criminal activity in an area, coupled

with current suspicious behavior, support an investigatory stop. State v. Bray, 143 Wn. App. 148,

153-54, 177 P.3d 154 (2008). At the time Humphrey stopped Novion she observed him coming

around the side of a home, which led the officer to the side of the home where she located

contraband.    Because the subsequent seizure of the contraband did not result from an

unconstitutional seizure, the exclusionary rule does not apply. Winterstein, 167 Wn.2d at 632.

       We hold that the trial court’s conclusions that the initial stop was lawful and that the

exclusionary rule does not apply were supported by the findings of fact.

       We also hold the findings support the trial court’s conclusion that Novion abandoned the

contraband. “Under the common law, a person loses normal privacy interests in property upon

abandonment.” State v. Samalia, 186 Wn.2d 262, 273, 375 P.3d 1082 (2016). “[L]aw enforcement

officers may retrieve and search voluntarily abandoned property without implicating an

individual’s rights under the Fourth Amendment or under article I, section 7 of our state

constitution.” State v. Reynolds, 144 Wn.2d 282, 287, 27 P.3d 200 (2001). Since Novion walked

to the side of a stranger’s home, left several items next to a garden reel, and then walked away

from the items, he abandoned the items. Humphrey could lawfully retrieve and search the items.

The trial court properly concluded likewise. Consequently, the trial court did not err in denying

Novion’s motion to suppress.



                                                6
49032-3-II


        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.




                                                            Melnick, J.

We concur:




        Bjorgen, C.J.




        Sutton, J.




                                                7
