                                                                  FILED
                                                               MARCH 28, 2017
                                                          In the Office of the Clerk of Court
                                                        WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                           )         No. 33777-4-111
                                               )
                     Respondent,               )
                                               )
       v.                                      )
                                               )         UNPUBLISHED OPINION
BRIAN PALACIOS-FARIAS                          )
aka BRIAN FARIAS                               )
aka BRIAN PALACIOS                             )
                                               )
                     Appellant.                )

       PENNELL, J. -Brian Palacios-Farias was convicted of one count of residential

burglary and one count of second degree theft. Mr. Palacios-Farias appeals arguing the

trial court erred when it denied his suppression motion. Finding no error, we affirm.

                                          FACTS 1

       Police were dispatched to a local trailer park after a report of three suspicious

males wearing black clothing and facemasks. Upon arrival, one of the officers noticed a

silver Ford Mustang. From a distance, the officer observed someone enter the passenger


       1 Neither party has assigned error to any of the trial court's findings of fact making
the findings verities on appeal. State v. Flores, 186 Wn.2d 506, 509 n.2, 379 P.3d 104
(2016). The facts here are drawn from the trial court's unchallenged findings of fact.
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     State v. Palacios-Farias


     side of the vehicle. The vehicle immediatly left the scene. After an attempted pursuit,
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'    and search, the Mustang was located a short distance away and noted to have California

     license plates and distinctive chrome wheels. The vehicle appeared to be unoccupied.


Il   After a brief investigation, the Mustang again went missing. It was then located about a

     half mile from the trailer park, at an apartment complex, parked in front of apartment A-
i    l 04. The officers could see the curtains to apartment A-104 open and close repeatedly as
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     if someone were looking out. Dispatch confirmed that the Mustang was associated with

     apartment A-104.
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            At this point, the officers approached apartment A-104 from the front and the

     back. As one of the officers approached the backyard of the apartment he heard the back

1    door open followed by a "thump" or "thud" sound. Report of Proceedings (RP) (May 8,

I    2015) at 227-29; Clerk's Papers (CP) at 55. The officer then observed Mr. Palacios-


I    Farias run from the fence in the rear of the yard toward the open back door of the

     apartment. The officer approached Mr. Palacios-Farias, ordered him to the ground, and

     handcuffed him. The officer explicitly told Mr. Palacios-Farias he was not under arrest as

     the officers needed to investigate further. When asked, Mr. Palacios-Farias stated he did

     not live in the apartment.




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     State v. Palacios-Farias

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            The officers believed they may have interrupted a residential burglary and did not

     know if Mr. Palacios-Farias or other unidentified suspects might be armed. One of the

     officers identified himself as police and called for anyone else in the apartment to come

     out and identify themselves. There was no response. Eventually several individuals

     slowly trickled out of the apartment. One was a juvenile male dressed in dark clothing

     who came to the front door. Another juvenile male emerged from a rear bedroom. This


I    second male, as well as Mr. Palacios-Farias, had duct tape on the soles of his shoes, a

     common technique used by burglars to avoid leaving shoe prints at the scene. As the
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l    police continued their investigation, two more individuals, the tenant of the apartment and



l    her daughter slowly emerged from other sections of the apartment.

           As the individuals in the apartment revealed themselves, one of the officers
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I    jumped over the fence in the rear of the backyard. The officer located a black backpack
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I    on the ground near the fence. The backpack was dry but the ground was wet. The



l    officers asked the two juvenile males and Mr. Palacios-Farias who owned the backpack.

     Nobody claimed it. The officers opened the backpack and discovered several school-

I    related items with one suspect's (not Mr. Palacios-Farias's) name on them, possible stolen


lI   electronic items, and duct tape. All three boys continued to deny ownership of the

     backpack. One of the officers then informed the boys they were not yet under arrest, but

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     State v. Palacios-Farias
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!    he was going to read them their Miranda 2 rights. All three acknowledged they
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f    understood their rights and then made statements. After the statements, the boys were
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I    placed under formal arrest for possession of stolen property. In total, the boys were

     handcuffed for about five to ten minutes.

            Mr. Palacios-Farias was charged with one count of residential burglary and one

     count of second degree theft. Prior to trial he filed a joint CrR 3.5 and CrR 3.6 motion to

     suppress his pre-Miranda statements to the officers and the search of the backpack. The

     motion was denied. Mr. Palacios-Farias was tried to the bench and found guilty. He

     appeals.

                                             ANALYSIS

           Mr. Palacios-Farias argues the trial court should have granted his CrR 3.5 and

     CrR 3.6 motions. As the trial court's findings of fact are not challenged, our review is

     limited to the conclusions of law. State v. Cain, 108 Wn. App. 542, 547-48, 31 P.3d 733

     (2001). Conclusions oflaw pertaining to the denial of a CrR 3.5 or CrR 3.6 motion are

     reviewed de novo to determine whether they are supported by the trial court's findings of

     fact. State v. Rosas-Miranda, 176 Wn. App. 773, 779, 309 P.3d 728 (2013) (CrR 3.5);
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lI   State v. Garvin, 166 Wn.2d 242,249,207 P.3d 1266 (2009) (CrR 3.6).


           2    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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No. 33777-4-III
State v. Palacios-Farias


Statements to officers-CrR 3.5 motion

       Mr. Palacios-Farias argues he was under arrest the moment he was placed in

handcuffs and should have been given Miranda warnings at that time. Prior to being

given Miranda warnings, Mr. Palacios-Farias denied residence at apartment A-104 and

denied ownership of the backpack. Since no warnings were given he argues these pre-

Miranda statements should be suppressed. The State asserts this was a lawful Terry3 stop

and Mr. Palacios-Farias was not placed under formal arrest until the officers explicitly

told him so. Thus, any pre-Miranda statements need not be suppressed because no

Miranda warnings were actually required. We agree with the State.

       Warrantless seizures are generally presumed to be unconstitutional. State v.

Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008); Coolidge v. New Hampshire, 403

U.S. 443, 454-55, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). The burden is on the State to

prove that an exception to the warrant requirement applies. State v. Hendrickson, 129

Wn.2d 61, 71, 917 P .2d 563 ( 1996). One such exception is a Terry stop. State v. Ladson,

138 Wn.2d 343, 349-50, 979 P.2d 833 (1999). A Terry stop permits an officer to briefly

detain and question a person reasonably suspected of criminal activity. State v. Smith,

102 Wn.2d 449, 452, 688 P.2d 146 (1984). An officer must have "a reasonable,


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

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     No. 33777-4-III
     State v. Palacios-Farias


     articulable suspicion, based on specific, objective facts, that the person seized has

     committed or is about to commit a crime." Gatewood, 163 Wn.2d at 539 (internal

     quotation marks omitted) (quoting State v. Duncan, 146 Wn.2d 166, 172, 43 P .3d 513

     (2002)); see also Terry, 392 U.S. at 21. The police first encountered Mr. Palacios-Farias

     trying to dispose of possible evidence behind an apartment associated with a distinctive

     vehicle that eluded the police at the scene of a suspected burglary a very short time

     earlier. The officers also noted someone within the apartment observing their actions in a

     suspicious manner. The facts here are more than sufficient to create a reasonable and

     articulable suspicion that Mr. Palacios-Farias had committed a crime.




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            Mr. Palacios-Farias further argues this was never a Terry stop because he was

     placed in handcuffs and was thus under arrest. He is incorrect. Although a Terry stop is


ll   ordinarily limited to a frisk for weapons and brief questioning, handcuffing a suspect is

     permissible if the officers can point to a reasonable fear of danger. State v. Mitchell, 80

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     Wn. App. 143, 145-46, 906 P.2d 1013 (1995). The scope of intrusion permitted varies

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1    based on the totality of the circumstances in each individual case. State v. Wheeler, 108

1    Wn.2d 230, 245-46, 737 P.2d 1005 (1987) (Pearson, CJ., dissenting). The officers had

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     evidence of a possible burglary at the trailer park and suspected they interrupted a

'I   residential burglary at the apartment. The officers knew from their training that burglary
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f     tools could be used as weapons, and that there were at least two other suspects possibly in


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      the apartment. The officers received no response when they called for everyone in the

      apartment to come out and identify themselves, and the persons in the apartment then

l     slowly revealed themselves. Based on these facts, the officers had a reasonable fear of

1     danger that justified handcuffing Mr. Palacios-Farias as they investigated. The fact that
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      he was placed in handcuffs did not tum this Terry stop into a formal arrest.
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j            Mr. Palacios-Farias last argues this could not have been a Terry stop because the

      officers exceeded the permissible length of such a stop. Mr. Palacios-Farias was only in

      handcuffs for about five to ten minutes total. He was in handcuffs for even less time than

      that before he received the Miranda warning. There is no rigid time limitation on Terry

      stops. United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 84 L. Ed. 2d 605

      ( 1985). A lawful Terry stop is limited in scope and duration to fulfilling the investigative

      purpose of the stop. State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003). As

      discussed above, the officers had legitimate safety concerns because they did not know

      the total number of suspects in the apartment and reasonably believed any suspects could

      be armed. Those suspicions were further aroused and ultimately confirmed when the

      officers discovered and searched the backpack. See id.




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No. 33777-4-III
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      Given the officers' reasonable safety concerns, the strong indications Mr. Palacios-

Farias had committed a crime, and the very brief amount of time he was in handcuffs, any

intrusion on Mr. Palacios-Farias's freedom was justifiable. Accordingly, Mr. Palacios-

Farias's statements denying residence at apartment A-104 and ownership of the backpack

were made during a lawful Terry stop. The CrR 3.5 motion was properly denied.

Contents of backpack-CrR 3. 6 motion

      Mr. Palacios-Farias next argues the trial court erred when it ruled no warrant was

required to search the backpack because it had been abandoned. He argues he had a

reasonable expectation of privacy in the backpack even though it was thrown over the

fence. 4 We disagree.

      Officers may retrieve and search voluntarily abandoned property without probable

cause or a warrant. State v. Evans, 159 Wn.2d 402, 407-09, 150 P.3d 105 (2007).

Whether property has been voluntarily abandoned is determined by evaluating the intent

and actions of the defendant to ascertain whether the defendant has a reasonable

expectation of privacy despite leaving the property. Id. The burden shifts to the

defendant to show a reasonable expectation of privacy still existed and there was no


      4 Mr. Palacios-Farias may not have had automatic standing to contest the search of
the backpack. See State v. Wisdom, 187 Wn. App. 652, 664-65, 349 P.3d 953 (2015).
Nevertheless, because the State does not address standing, neither do we.

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State v. Palacios-Farias


abandonment. Id. One of the officers observed Mr. Palacios-Farias running from the

fence in the back of the apartment immediately after hearing a "thump" or "thud" sound.

RP (May 8, 2015) at 227-29; CP at 55. Upon inspection, the officers discovered a dry

backpack on the wet ground just beyond the fence, suggesting the backpack was recently

dropped or thrown. Mr. Palacios-Farias never claimed ownership of the backpack at any

time despite being asked twice. Further, "a critical factor in determining whether

abandonment has occurred is the status of the area where the searched item was located."

State v. Samalia, 186 Wn. App. 224, 229, 344 P.3d 722 (2015), ajf'd, 186 Wn.2d 262,

375 P.3d 1082 (2016). Nothing in the record indicates Mr. Palacios-Farias had a privacy

interest in the area where the backpack was found. Last, the simple fact that the backpack

is a backpack does not automatically give him a reasonable privacy interest in its contents

without some showing he used it for personal reasons. See State v. Kealey, 80 Wn. App.

162, 170, 907 P .2d 319 ( 1995) (stating there is a reasonable privacy interest in traditional

repositories of personal belongings). Mr. Palacios-Farias has offered no evidence the

backpack was his personal property. See Evans, 159 Wn.2d at 407-09. The trial court

properly concluded Mr. Palacios-Farias had voluntarily abandoned the backpack and no

warrant was required to search it. The CrR 3 .6 motion was properly denied.




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      No. 33777-4-III
      State v. Palacios-Farias


                                                       CONCLUSION

                  Based on the foregoing, we affirm the trial court's suppression and disposition

     orders.

                 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.

                                                             Q
                                                             Pennell, J.
                                                                             Q_D,Q:
     WE CONCUR:




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     Lawrence-Berrey, A.CJ.                                         way,J.    ~ -




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