                                                                 FILED
                                                              July 19, 2016
                                                      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. 33312-4-111
                                              )
                     Appellant,               )
                                              )         PUBLISHED OPINION
       v.                                     )
                                              )
ERIC DANIEL CRUZ,                             )
                                              )
                     Respondent.              )

       PENNELL,   J. - Law enforcement need not obtain a warrant prior to conducting a

protective vehicle search, so long as there is reasonable suspicion a suspect is dangerous

and may gain immediate control of weapons. We are confronted with whether a suspect's

potential access to firearms alone satisfies these prerequisites. Under the circumstances

presented here, involving a recreational sportsman cited for a fishing violation, we hold it

does not. We thus affirm the superior court's order of suppression.
No. 33312-4-111
State v. Cruz


                                          FACTS

       Late one August morning in 2012, Washington Department of Fish and Wildlife

officer Troy McCormick was alone on patrol near the Similkameen River. From his

vantage point on a cliff above the river, Officer McCormick was able to watch the

activities of fishermen below. According to Officer McCormick, there was no cellular

service and only a "sketchy" radio signal at a parking lot where most of the fishermen

would leave their vehicles or down on the river itself. Report of Proceedings (RP) at 8.

       Eric Cruz and a male companion were fishing on the river that morning and caught

Officer McCormick's eye. After about a half hour, Officer McCormick saw Mr. Cruz

illegally snag 1 a Chinook salmon and pull it from the river. The offense was a gross

misdemeanor. Officer McCormick got into his car and drove down to the parking area to

make contact with Mr. Cruz.

       Officer McCormick found Mr. Cruz by himself, standing near the open door of his

truck. He was filling out his catch record card. After a brief interaction, Officer

McCormick arrested Mr. Cruz for illegal snagging and placed him in handcuffs. Mr.

Cruz was cooperative. Officer McCormick performed a search incident to arrest of Mr.



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        Snagging is a method of fishing that involves catching a fish by use of a hook,
but without the hook being baited and the fish taking the bait with their mouth.

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         State v. Cruz
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         Cruz's person. While doing so, he asked Mr. Cruz ifhe had any firearms on him. Mr.
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         Cruz volunteered that he had firearms in his truck. There was no discussion of what type
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         of firearms were in the truck or whether they were loaded.
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i               Officer McCormick placed Mr. Cruz in his patrol vehicle. As he did so, Mr.

I        Cruz's companion appeared, curious about what was happening. Mr. Cruz's companion


II       was told to stay away from the truck, to which he complied. At no point did Officer

         McCormick observe Mr. Cruz's companion do anything illegal or engage in any
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1        suspicious or obstructive conduct.
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I!              With Mr. Cruz secure in the police vehicle and his companion 15-20 feet away,

         Officer McCormick entered Mr. Cruz's truck and removed three firearms. According to
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         Officer McCormick, he wanted to secure the firearms for the duration of his contact with
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;        Mr. Cruz, as he intended to release Mr. Cruz with only a citation. After placing the

1        firearms in his patrol vehicle, Officer McCormick ran Mr. Cruz's name through dispatch.

         Officer McCormick learned Mr. Cruz had a prior felony conviction and was ineligible to
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         possess firearms. Officer McCormick then retained the firearms as evidence.
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               The State charged Mr. Cruz with three counts of unlawful possession of a firearm

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         in the second degree. The superior court granted Mr. Cruz's motion to suppress evidence

         of the firearms and dismissed the charges against Mr. Cruz without prejudice. The State
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     No. 33312-4-III
     State v. Cruz


     appeals.

                                              ANALYSIS

            Warrantless searches are presumptively unreasonable outside of a few "' jealously

     and carefully drawn' exceptions." State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218

     (1980) (quoting Arkansas v. Sanders, 442 U.S. 753, 759, 99 S. Ct. 2586, 2 L. Ed. 2d 1514

     ( 1979) ). The State bears the burden of establishing the applicability of an exception by

     clear and convincing evidence. State v. Garvin, 166 Wn.2d 242,250, 207 P.3d 1266

     (2009). If no exception applies, the fruits of a warrantless search must be suppressed.

            As the parties agree, Officer McCormick's seizure of the firearms cannot be

     justified under the search incident to arrest exception. But this does not end the matter.

     The search may still be justified if another exception applies. The State suggests the

     search can be justified as either an officer safety/Terry search or an exigent

     circumstances search. We address each in tum.

     Terry Search

            A Terry frisk extends to a car"' ifthere is a reasonable suspicion that the suspect is
l    dangerous and may gain access to a weapon in the vehicle."' State v. Glossbrener, 146
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     Wn.2d 670, 680-81, 49 P.3d 128 (2002) (emphasis added) (quoting State v. Terrazas, 71

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i               Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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     No. 33312-4-111
     State v. Cruz


     Wn. App. 873, 879, 863 P.2d 75 (1993)). Both components must be present. If either the

     suspect cannot access a weapon or there is no suspicion of dangerousness, a warrantless

     vehicle search violates Terry.

            Officer McCormick's search fails under Terry because, despite possible access to

     firearms, there was no reasonable suspicion Mr. Cruz or his companion were dangerous.

     The right to bear arms is constitutionally protected. Standing alone, the mere fact an


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     individual possesses firearms does not make him dangerous or justify intrusion into his

     private space. Context matters. Unless the circumstances suggest a suspect may use

     firearms to harm himself or others, a vehicle Terry frisk is not warranted based simply on

     the presence of firearms.

            There was no indication here of dangerousness. At the time of the search, Mr.

     Cruz and his companion had just spent the morning fishing. The fact that there were

     firearms present in this recreational setting was neither surprising nor alarming. Mr.

     Cruz's law violation did not create any specific safety concerns. He was not under

     investigation for a crime of violence or other felonious conduct. He was in the process of

     being cited for a misdemeanor fishing violation. Nothing about these general

!    circumstances suggested a risk to officer or public safety.
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I           The individual circumstances of Mr. Cruz and his companion were likewise



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    No. 33312-4-III
    State v. Cruz


    benign. Neither man had engaged in any suspicious conduct or made any concerning or

    furtive movements. Both fully complied with Officer McCormick's instructions. When

    asked by the State how he felt at the time of the search, Officer McCormick agreed he

    "didn't feel that [Mr. Cruz] was a danger." RP at 27. These circumstances support the

    superior court's finding the search was improper.

           The authorities cited by the State are inapposite. Both State v. Kennedy, 107

    Wn.2d 1, 726 P.2d 445 (1986), and State v. Larson, 88 Wn. App. 849, 946 P.2d 1212

    ( 1997), involved vehicle occupants who had made suspicious, furtive movements. Such

    movements typically provide strong justification for a protective search. Glossbrener,

    146 Wn.2d at 681-83. State v. Chang, 147 Wn. App. 490, 195 P.3d 1008 (2008),

    involved an individual known to possess a concealed handgun while parked in the lot of a

    bank as his companion committed a crime inside. This was not an innocuous

    circumstance. In the context of an ongoing felony investigation, the presence of firearms

    justifies protective action under Terry.

           As recognized in the authorities cited by the State, once a firearm is present, not

    much more is needed to justify a frisk. Had Mr. Cruz or his companion been

    noncompliant, had they appeared evasive or antagonistic, or had the presence of firearms

    seemed unusual given the circumstances or time of day, the balance likely would have

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     No. 33312-4-III
     State v. Cruz


     tipped to favor a protective search. See State v. Carter, 151 Wn.2d 118, 123-24, 129, 85

     P.3d 887 (2004). But under the facts found by the superior court, Mr. Cruz and his

     companion were completely cooperative. They posed no more threat than the average

     sportsmen. To allow a search in this case would mean anyone transporting firearms in a

     vehicle for sporting purposes would be vulnerable to a law enforcement search. That

     level of intrusion is incompatible with our constitutional principles.

     Exigent Circumstances

            The State also attempts to justify Officer McCormick's search under the exigent

     circumstances exception to the warrant requirement. This exception applies where

     "' obtaining a warrant is not practical because the delay inherent in securing a warrant

     would compromise officer safety, facilitate escape or permit the destruction of

     evidence."' State v. Smith, 165 Wn.2d 511, 517, 199 P.3d 386 (2009) (quoting State v.

     Audley, 77 Wn. App. 897, 907, 894 P.2d 1359 (1995)). Exigent circumstances involve a


l    true emergency. State v. Hinshaw, 149 Wn. App. 747,753,205 P.3d 178 (2009) (such as



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     "' an immediate major crisis'" requiring swift action to prevent harm) (quoting Dorman

     v. United States, 140 U.S. App. D.C. 313,319,435 F.2d 385 (1970)). Danger to an
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,l   arresting officer is a potentially exigent circumstance. State v. Tibbles, 169 Wn.2d 364,
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     370,236 P.3d 885 (2010).


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No. 33312-4-III
State v. Cruz


       The State fails to establish exigent circumstances for the same reasons it cannot

establish dangerousness under Terry. Exigent circumstances are ones presenting a true

potential for an emergency or destruction of evidence. Tibbles, 169 Wn.2d at 369-70. No

such circumstances were present here. The hypothetical concern that Mr. Cruz or his

companion could have posed a threat if they were dangerous applies to every individual

contacted by law enforcement. We agree with the superior court that such generalized

concerns are insufficient to permit intruding on an individual's constitutionally protected

private space. Tibbles, 169 Wn.2d at 372; State v. Swetz, 160 Wn. App. 122, 136, 247

P.3d 802 (2011). 3

                                     CONCLUSION

       Once Officer McCormick learned about the presence of firearms, it was

appropriate for him to proceed with caution. But this did not justify a warrantless search.

Other less intrusive options were available. Officer McCormick could have asked Mr.

Cruz for consent to retrieve and secure the firearms. Alternatively, he may have been

able to access Mr. Cruz's keys and lock the vehicle during the citation process. Had

Officer McCormick believed Mr. Cruz's companion was too close to the truck, he could



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        Had Officer McCormick sought to impound Mr. Cruz's car, our analysis might
well be different. State v. Duncan, 185 Wn.2d 430,441, - P.3d - (2016).

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No. 33312-4-III
State v. Cruz


have instructed him to stand further away and keep his hands visible. If, during any of

these interactions, Officer McCormick developed a suspicion that Mr. Cruz and his

companion were being evasive or non-compliant, then he would have had grounds to go

further and conduct a protective search.

       Our country's freedoms undoubtedly make police work more difficult. Over the

years, courts have accommodated law enforcement's safety and investigative needs by

crafting several exceptions to the constitution's warrant requirement. However, none of

these exceptions extends to generalized safety concerns applicable to interactions with

large sectors of the public. Because Officer McCormick's safety concerns were too

general, the order of suppression must be affirmed.




                                           Pennell, J.
WE CONCUR:




                                           Lawrence-Berrey, J.
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