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                                                                      2013 JUN -4        AM 8' 59
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                                                                                 D_     11'Y ___.



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

STATE OF WASHINGTON,                                                     No. 43616 7 II
                                                                                   - -


                                  Respondent,

         V.




JAMES DANIEL EMMETT,                                               UNPUBLISHED OPINION




         HUNT,   J. —    James Daniel Emmett appeals his jury trial conviction for unlawful

possession of less than 40 grams of marijuana. He argues that the trial court erred in denying his.

motion to suppress the marijuana. We affirm.

                                                  FACTS


         At about 1:5 a. . on July 12, 2011, Tacoma Police Officer Chris Bain contacted James
                   1   m

Emmett, who      was   in his vehicle   stopped   in the middle of the road.      Emmett complied with

Bain's request to get out of the vehicle.          Bain patted Emmett down for weapons and felt

something in Emmett's jacket pocket:

         A] I was looking for an identification or weapon, I felt a round cylinder, could
           s
         have beena knife, could have been a ...   homemade gun. Some people make
         homemade guns out of small cylinders, single shots. We get notices about those
         all the time in our law enforcement.


Report of Proceedings (Vol. 1)at 25 26.
                                    -

         Bain had never before seen such a homemade gun. He removed the item from Emmett's

pocket   and found it to be   a   plastic cylinder.   Inside the   cylinder   Bain found     marijuana   and   a
No. 43616 7 II
          - -



metal   pipe. The State charged Emmett with unlawful possession of less than 40 grams of

marijuana.
        Emmett moved to suppress the marijuana, arguing that Bain's patdown search had been
                                                                       -

unlawful. At the suppression hearing, Bain testified as described above. The trial court denied

Emmett's motion to suppress and entered the following pertinent finding and conclusions:

                                           THE FACTS


                 6. When Officer Bain patted down the defendant, the Officer felt a hard
        cylindrical object in the defendant's left jacket pocket. Based on the Officer's
        training and experience he was concerned that the object may be a weapon. The
        Officer removed the object to find a clear plastic cylinder containing marijuana
        and [a]cigarette looking pipe.

                            CONCLUSIONS AS TO ADMISSIBILITY


                 1. The defendant was legally contacted as his vehicle was stopped in the
        middle of the road.      The Officer was acting in his function as a community
        caretaker when he contacted the defendant. Based on the totality of circumstance,
        the stop and frisk of the defendant was a valid exception to the warrant
        requirement.
               2. That based on the totality of the circumstance and the Officer's training
        and experience, he had an objective and rational belief that the hard cylindrical
        item in the defendant's pocket may be a weapon.

Clerk's Papers at 74, 75.

        A jury   subsequently   found Emmett   guilty   as   charged. Emmett appeals.




1
 The State also charged Emmett with two counts of third degree assault, as to which the jury
acquitted him.
a
 A commissioner of. court initially considered Emmett's appeal as a motion on the merits
                     this
under RAP 18. 4 and then transferred it to a panel ofjudges.
            1

                                                    0)
No. 43616 7 II
          - -



                                            ANALYSIS


         Emmett argues that the trial court erred in denying his motion to suppress because Officer

Bain's removal of the cylinder from Emmett's pocket exceeded the scope of a permissible Terry

stop. We disagree.

         For a permissible Terry stop,the State must show (1) initial stop is legitimate,
                                                               the
         2) reasonable safety concern exists to justify the protective frisk for weapons,
            a
         and ( ) scope of the frisk is limited to the protective purposes.
             3 the

State v. Garvin, 166 Wn. d 242, 250, 207 P. d 1266 (2009)citing State v. Duncan, 146 Wn. d
                       2                  3               (                            2

166, 172, 43 P. d 513 (2002)).
              3              Emmett contends that the State failed to meet the third prong of

this Terry test because substantial evidence does not support the trial court's finding and

conclusion that Bain reasonably believed the hard cylindrical item he felt in Emmett's jacket

pocket could be    a   weapon.   Garvin, 166 Wn. d
                                               2     at 250.   In particular, Emmett notes Bain's

testimony that he had never encountered a homemade cylindrical gun like this one.

         But based on Bain's training and experience, including having been advised of other

officers' encounters with homemade cylindrical guns, we hold that (1)substantial evidence

supports the trial court's finding of fact that Bain was concerned that the hard cylindrical object

might be a weapon; and (2)this finding supports the trial court's conclusion of law that Bain's

concern was objective and rational. Accordingly, we affirm the trial court's denial of Emmett's




3
    Terry v. Ohio, 392 U. . 1, 88 S. Ct. 1868, 20 L.Ed. 2d 889 (1968).
                        S

                                                 3
No. 43616 7 II
          - -



motion to suppress and his subsequent jury trial conviction.

       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



                                                                       r


                                                    Hunt,J.
We concur: .




J    anson, A. .
            J.
             C
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Bj    en, .




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