                                                                                                                   FILED
                                                                                                        COURT OF APPEALS
                                                                                                                 DIVISION 11

                                                                                                       2015 JUN - 4     AM 8: 35
                                                                                                       STA       OFASH! .OTOU

                                                                                                       BY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                      DIVISION II

    STATE OF WASHINGTON,                                                                No. 45400 -9 -II


                                          Respondent,


            v.




    MAKSIM V. BURICH,                                                           UNPUBLISHED OPINION


                                          Appellant.


            SUTTON, J. —          Maksim V. Burich appeals his bench trial convictions for first degree


burglary, second degree unlawful possession of a firearm, theft of a firearm, residential burglary,

and second         degree   criminal    trespass.     He argues that the trial court erred in failing to suppress

evidence obtained           by   a police officer   during   a   Terry'   investigative stop.   He argues that the trial


court erred in including Burich' s race in Findings of Fact 2 and 3 as part of the facts upon which

the court made its Conclusion of Law 1 ( ruling that the officer' s stop was justified based on a

reasonable,        articulable     suspicion   that    Burich     was     involved in    criminal   activity).     Because


substantial evidence supports the trial court' s findings of fact, and because those findings support




1
    Terry   v.   Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968).
No. 45400 -9 -II



the court' s legal conclusion, we hold that the trial court did not err in failing to suppress evidence

obtained as a result of the officer' s Terry stop. We affirm.

                                                        FACTS


         At approximately 2: 24 AM on October 8, 2012, Martin Blackmer awoke to a stranger

leaning through the sliding door of his residence. Blackmer yelled at the individual, who then ran

out the door. Blackmer immediately called the police, and described the intruder to police dispatch

as a " slender, white male, younger, with a            light- colored hooded         sweatshirt."     1 Verbatim Report


of Proceedings ( VRP) at 68.


         Shortly afterwards, at approximately 3: 00 AM, Katherine Evans awoke to her dog growling

and a ticking sound coming from her backyard. Evans looked out her bedroom window and saw

a stranger     in her backyard     next    to the   living    room window.           She made eye contact with the


individual,    whom she     described to     police    dispatch      as a "   slender, white male with a light gray

hoodie   and   light -colored   pants."   1 VRP at 71. The individual ran from the house and Evans called

the police.


         Jason Dashnow returned from his shift on the night between October 7 and October 8 to

find that his   apartment    had been burglarized. Dashnow               called     the   police.   Dashnow' s apartment


is located across the street from Blackmer' s residence and 1. 5 miles from Evans' s residence.

         Officer Jacob Stringfellow responded to the Blackmer residence call at. 2: 26 AM on

October 8, 2012.        Blackmer told Officer Stringfellow that he had fallen asleep on his couch

watching television,      and woke        up to   see a "    slender, white male, younger, with a light -colored

hooded   sweatshirt or ...      hoodie" in his      living   room.    1 VRP    at   68.
No. 45400 -9 -II




          At approximately 3: 05 AM, police dispatch notified Officer Patrick Gilbert of an attempted

intrusion into Evans'        s residence.      Dispatch described the intruder             as " an unknown race male,




possibly   a   teenager, wearing       a   light -colored hoodie      and some    jeans," and stated that the intruder


fled in   a westbound       direction. 1 VRP      at   11.    Officer Gilbert drove one -half mile southwest of the


reported burglary location and began looking for the intruder in an area known as " Saddle Creek."

1 VRP at 11, 16.


          When Officer Gilbert arrived in Saddle Creek, at approximately. 3: 11 AM, there was no

traffic in the area; he added white take -down lights and alley lights to his headlights to illuminate

the   scene.    He drove between three and five miles per hour and, upon rounding a corner in his

police vehicle at approximately 3: 17 AM, he " saw a red car, lights completely off, headed directly

towards [ him], [ with]       a male inside of the car that matched the individual [ he] was looking for."

1 VRP at 17. The red car was driving at less than five miles per hour. Officer Gilbert directed his

spotlight into the car and observed a " white male, short, brown hair and he was wearing a light-

colored    hoodie."    1 VRP     at   18. The driver " appeared to be          youthful    in   appearance."   1 VRP at 18.


          The car stopped approximately 30 feet from Officer Gilbert' s patrol car; Officer Gilbert

stepped outside       his   patrol car and ordered           the driver to   display his   hands.    Officer Gilbert asked


for identification, which the driver was unable to provide. Officer Gilbert asked the driver to step

from the vehicle, placed him in handcuffs, and told the driver that he was a burglary suspect. The

driver identified himself as Maksim V. Burich. Burich told Officer Gilbert that his headlights were

off because he was lost.




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No. 45400 -9 -II




         From outside the vehicle, Officer Gilbert observed a stereo unit on the front seat passenger

floorboard    and a . 22 caliber rifle   behind the driver' s    seat "   sticking up ...   in plain view" on the


rear passenger    floorboard.    1 VRP    at   27. Officer Gilbert performed a records check on Burich' s


name and learned that he was a convicted felon restricted from possessing firearms. •Officer Gilbert
                                                               Miranda2
then   placed   Burich   under arrest and read     him his                  rights.   Neither Officer Gilbert nor


Officer Stringfellow questioned Burich after advising him of his Miranda rights. At approximately

3: 42 AM, after Burich was placed in the patrol car, another police officer arrived on the scene with


Katherine Evans. Evans positively identified Burich as the individual who was trying to enter her

house.


         On October 9, 2012, the State charged Burich with burglary in the first degree ( Count I),

unlawful possession of a      firearm in the      second   degree ( Count II), theft of a firearm ( Count III),


residential   burglary ( Count   IV),    and attempted residential        burglary ( Count   V).   On August 15,


2013, the case proceeded to a bench trial, which began with a CrR 3. 5/ 3. 6 hearing after which the

trial court concluded that Burich' s statements to police were admissible at trial. On September 6,

2013, the trial court found Burich guilty as to Counts I -IV; and guilty of the lesser included offense

of "criminal    trespass in the second degree" as to Count V.              7 VRP at 2 -4; Clerk' s Papers ( CP) at


176.




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




                                                           4
No. 45400 -9 -II




        The court entered the following findings of fact3 related to the events leading up to the

stop:


        1.     That on October 8, 2012, at 2: 24 a.m. the Fife Police Department received a
        phone call from Martin Blackmer of an attempted residential burglary at his
        residence,     which is a townhouse located at 6826 20th Street East in Fife,
        Washington.


        2. That Mr. Blackmer had seen a young white male wearing a light grey hoodie
        and a light grey pants enter his residence through a sliding glass door.

        3. That at 2: 26 a.m. on October 8, 2012, Officer Jake Stringfellow of the Fife Police
        Department was dispatched to Mr. Blackmer' s townhouse where the officer spoke
        to Mr. Blackmer and then conducted an area check, without success, for the suspect.

        3. [   sic]   That   on   October 8, 2012,   at   approximately 3: 00   a. m.,   Katherine Evans

        looked out her upstairs bedroom window and saw a young white male with short
        light brown hair wearing a light grey hoodie and jeans in her backyard next to the
        living room window. The living room window was below Mrs. Evans' bedroom
        window.



        4.     That Mrs. Evans' house is located at 6932 42nd Street Court East in Fife,
        Washington and is 1. 5 miles from Mr. Blackmer' s townhouse.


        5. That at 3: 05 a.m. on October 8, 2012, Officers Pat Gilbert and Stringfellow went
        to investigate the possible burglary at the Evans' residence.

        6. That officers Gilbert and Stringfellow drove in the area near the Evans residence
        and conducted an area check for the suspect.


        7.     That at 3: 17 a.m. on October 8, 2012, Officer Gilbert saw a red Mazda driving
        very slowly with the headlights off at 46th Street East and 67th Avenue East in Fife,
        Washington.




 The trial court mistakenly numbered Finding of Fact 3 twice; Burich does not challenge both
Findings of Fact 3, only the second one summarizing Evans' s description of Burich.


                                                           5
No. 45400 -9 -II




            8.   That Officer Gilbert was in a fully marked patrol car and had on his headlights,
            his alley lights     and an overhead spotlight.                    Upon seeing the red Mazda, Officer
            Gilbert turned his side spotlight on and used it to highlight the inside of the car.


            9.   That the driver of the red Mazda was a young white male and he was the only
            occupant of the car.


            10. That the defendant was the driver of the red Mazda and he was wearing a light
            grey hoodie.

CP    at   189 -90.    On the basis          of   these findings, the          court concluded, "      That there were sufficient


suspicious circumstances which supported reasonable suspicion to stop the defendant pursuant to

a   Terry   or   investigatory      stop."    CP at 194. Burich appealed.


                                                                ANALYSIS


            Burich assigns error to Findings of Fact ( FF) 2 and 3 and Conclusion of Law (CL) 1 that

Officer Gilbert'        s   Terry   stop   was     justified.         But his brief addresses only the portion of the trial

                                                                  4
court' s    findings referring to Burich'               s race.       Burich   argues   that, "   at the time of the stop, the only

information the officer had from dispatch was that an `unknown race' male, wearing a grey hoodie

and   jeans, had      attempted       to enter     a   nearby     apartment."     Br.   of   Appellant   at   11.   Based on this fact,


he argues that ( 1) the trial court erred in its finding that the suspect was described as " a young

white male,"          rather   than   as   an " unknown race male," (              2) the findings did not support the trial


court' s conclusion that Officer Gilbert had reasonable, articulable suspicion to justify a stop for a

criminal investigation, and ( 3) the court should have suppressed evidence gathered from the Terry




4 RAP 10. 3( a)( 6) requires appellant to support issues presented for review with argument, citations
to legal authority, and references to relevant parts of the record.



                                                                         6
No. 45400 -9 -II




stop. 5 .   We hold that substantial evidence supports the trial court' s findings of fact, those findings

support its conclusion that the Terry stop was justified, and the trial court did not error in failing

to suppress evidence gathered from the stop.

             We review the findings of fact to determine whether they are supported by substantial

evidence.           State     v.   Dobbs, 180 Wn.2d 1, 10, 320 P. 3d 705 ( 2014). "` Substantial evidence exists


where there is a sufficient quantity of evidence in the record to persuade a fair -minded, rational

person of          the truth of the           finding. "' State v. Bonds, 174 Wn. App. 553, 562, 299 P. 3d 663, review

denied, 178 Wn.2d 1011 ( 2013) (                           quoting State v. Hill, 123 Wn.2d 641, 644, 870 P. 2d 313 ( 1994)).

We review de novo conclusions of law following a suppression hearing. State v. Bailey, 154 Wn.

App.       295, 299, 224 P. 3d 852 ( 2010).                    A finding of reasonable suspicion presents a question of law

that   we review           de      novo.      State   v.   Lee, 147 Wn.   App.   912, 916, 199 P. 3d 445 ( 2008). Unchallenged


findings          of   fact    are verities on appeal.              State v. Westvang, 184 Wn. App. 1, 5, 335 P. 3d 1024

 2014).


                 Article      1,    section      7     of    the   Washington     Constitution   protects   individuals "   against




unwarranted government                         intrusions into      private affairs,"   such as unlawful searches and seizures.



State       v.    Doughty,          170 Wn.2d 57, 61, 239 P. 3d 573 ( 2010). "[                W] arrantless seizures are per se


unreasonable, and the State bears the burden of demonstrating that a warrantless seizure falls into




 5
     Br.   of    Appellant         at   11.   Burich also argues that the State presented no evidence that he was cited
for    a                  He presumably refers to the fact that he was driving at night with his
            traffic infraction.

headlights off. But he fails to cite authority or argue that the State was required to cite Burich for
a traffic infraction even if the conduct ( driving with his lights off) was a factor in the officer' s
 decision to stop him.



                                                                            7
No. 45400 -9 -II



a narrow exception             to the   rule."     Doughty,       170 Wn.2d      at   61.    Such " exceptions are ` jealously and

carefully drawn. '         Id. (quoting State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 ( 1984)).

          One exception to the warrant requirement is an investigative stop of a vehicle, also known

as a   Terry   stop. A    valid       Terry   stop     requires    the   police officer      to "' point to specific and articulable


facts which, taken together with rationale inferences from those facts, reasonably warrant that

intrusion. '     State    v.   Snapp,      174 Wn.2d 177, 197, 275 P. 3d 289 ( 2012) ( quoting                        Terry v. Ohio, 392

U. S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968));                          see   Doughty,        170 Wn.2d       at   62 ( "[   a] Terry

        requires   a well- founded            suspicion         that the defendant           engaged       in   criminal   conduct "). "    A
stop


reasonable, articulable suspicion means that there `is a substantial possibility that criminal conduct

has    occurred or   is   about       to   occur.'       Snapp, 174 Wn.2d at 197 -98 ( quoting State v. Kennedy, 107

Wn.2d 1, 6, 726 P. 2d 445 ( 1986));                    State v. Jardinez, 184 Wn. App. 518, 524, 338 P. 3d 292 ( 2014).

The State bears the burden to show by clear and convincing evidence that the Terry stop was

justified.     Doughty,        170 Wn.2d         at   62. "   In reviewing the propriety of a Terry stop, a court evaluates

the totality of the circumstances" presented to the officer at the time of the stop. Snapp, 174 Wn.2d

at 198; see Doughty, 170 Wn.2d at 62.

          Burich     argues         that, at the time of the stop, Officer Gilbert                    knew only that        an "' unknown




race'   male,                   a   grey hoodie        and    jeans, had   attempted        to   enter a   nearby   apartment,"       and that,
                wearing


consequently, Officer Gilbert'                 s   basis for the     Terry     stop   was    insufficient. Br. of Appellant at 11.


At trial, Officer Gilbert             stated     that his      reason    for stopping Burich          was: "      I thought it was pretty

weird,    but I thought, [ t] his          is someone who doesn' t want to be seen and is sneaking around the




                                                                           8
No. 45400 -9 -II




neighborhood, and so            I   stopped   him." 1 VRP at 60 -61. Burich argues that, based on this statement,


the stop was unlawful because the officer' s suspicion did not relate to a particular crime; it was

merely " a       generalized suspicion             that the   person   detained is ` up to   no good.'"     Br. of Appellant at


10 ( quoting State       v.   Bliss, 153 Wn. App. 197, 204, 222 P. 3d 107 ( 2009). But evidence in the record


from Blackmer' s, Evans' s, and Officer Gilbert' s testimonies6 provides substantial evidence to


support the trial court' s findings of fact, and all three testified that Burich was a white male.

           Burich does not challenge Findings of Fact 1 and 4 -10 which we adopt as verities on appeal.


See Wilson &            Son Ranch, LLC             v.   Hintz, 162 Wn.      App.   297, 305, 253 P. 3d 470 ( 2011).        The


unchallenged findings describe Officer Gilbert' s ( 1) knowledge of the location of the burglaries,

 2) knowledge of the suspect' s clothing, (3) observations of the suspect and the suspect' s clothing,

 4) observations of the vehicle and the time, place, and manner in which Burich drove the vehicle,




6 Officer Gilbert testified that, at the time of the stop, approximately 3: 17 AM, Burich was driving
the vehicle slowly, with its lights off, in the vicinity of the recent burglaries. He testified that the
driver, Burich,          was "      a white male, short, brown hair and he was wearing a light -colored
hoodie....        He    appeared      to be   youthful     in   appearance."    1 VRP at 18.
           Blackmer testified to the burglary and his description of the suspect, whom he " observed
to   be   a white      Caucasian     male     between the early 20s to         mid   20s, gray hooded      sweatshirt."   4 VRP

at 4. He stated that he was sleeping in his living room when he awoke to a " loud sound" and saw
the individual " three- quarters              of   the way in through [ the] sliding         glass   door." 5 VRP at 58.
      Evans also testified to the incident and the suspect' s description, stating that she " saw a
young guy,short hair ..  light- colored baggy pants and a gray hoodie....  Caucasian" at her back
window. 5 VRP at 34. She testified that her window "screen had been removed from the window."
5 VRP       at   37.    She also testified that she subsequently identified the person stopped by police as
the individual at her window.




                                                                       9
No. 45400 -9 -II



and (   5) the location'   s   proximity to the         recent     burglaries.        On the basis of these unchallenged


findings alone, we would find that sufficient evidence supports the trial court' s conclusion of law


that the officer was justified in stopping Burich. State v. Garvin, 166 Wn.2d 242, 249, 207 P. 3d

1266 ( 2009).


          Burich   also assigns error           to the trial   court' s   Conclusion      of   Law 1,   which provides, "   That


there were sufficient suspicious circumstances which supported reasonable suspicion to stop the

defendant    pursuant   to     a   Terry   or   investigatory     stop."    CP   at   194 ( CL 1).      The State responds that


the trial court' s Findings of Fact 1 - 3, 7, 9, and 10 support its conclusion of law that Officer Gilbert


had sufficient justification to stop Burich.

          In examining the totality of circumstances facing Officer Gilbert, we hold that the facts
here provided sufficient individualized suspicion that Burich had just been involved in the

burglaries that the     officer      knew to have taken           place    nearby.      See Lee, 147 Wn. App. at 916 -17.

These are " specific and articulable facts which, taken together with rational inferences from those

facts, reasonably    warrant[ ed]          the intrusion."      Bliss, 153 Wn. App. at 204.

          We hold that substantial evidence supports Findings of Fact 2 and 3 and that the trial court' s

findings of fact support its legal conclusion that Officer Gilbert was justified in stopping Burich.




7 In its written order following the CrR 3. 5/ 3. 6 hearing, the trial court entered numerous findings
of fact, all of which are either verities or supported by substantial evidence. We look at the entirety
of the trial court' s factual findings to determine whether they support the trial court' s legal
conclusion that the Terry stop was justified.


                                                                   10
No. 45400 -9 -II




Accordingly, we hold that the trial court did not err in failing to suppress evidence obtained as a

result of the officer' s Terry stop. We affirm Burich' s convictions.

        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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