* State of Washington v. Eric Daniel Cruz

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FILED
SEPTEMBER 22, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Appellant,
V.
ERIC DANIEL CRUZ,
Respondent.
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No. 33312-4-III
ORDER GRANTING
MOTION FOR LEAVE TO FILE
AMICUS CURIAE BRIEF,
DENYING MOTION FOR
RECONSIDERATION AND
AMENDING OPINION
THE COURT has considered appellant's motion for reconsideration of our July 19, 2016
opinion, the respondent's answer thereto, the Washington State Patrol and Washington
Department of Fish and Wildlife's motion for leave to file an amicus curiae brief in support of
the appellant's motion for reconsideration, and the amicus curiae brief filed by the Washington
State Patrol and Washington Department of Fish and Wildlife on August 9, 2016.
IT IS ORDERED that the motion for leave to file amicus curiae brief in support of the
appellant's motion for reconsideration is granted.
IT IS FURTHER ORDERED that the appellant's motion for reconsideration of this
court's July 19, 2016 opinion is denied.
IT IS FURTHER ORDERED that the court's July 19, 2016 opinion is amended as
follows:
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 33312-4-111
State v. Cruz
In the first paragraph on page five, the following is added after the sentence "Both
components must be present.":
27.":
Neither the plain wording of Terry nor our case law permit reducing the
standard to a disjunctive test. 3
3 See State v. Russell, 180 Wn.2d 860, 868, 330 P.3d 151 (2014)
("stop was justified because [the officer] could point to specific and
articulable facts that supported a belief that [defendant] could be armed and
dangerous") (emphasis added); State v. Collins, 121 Wn.2d 168, 847 P.2d
919 (1993) (protective frisk of driver was lawful as the officer had a
reasonable suspicion the driver was armed and dangerous where there was a
reliable informant tip the driver had a gun, the stop occurred early in the
morning, and the officer previously arrested the driver for a felony); State v.
Horrace, 144 Wn.2d 386, 28 P.3d 753 (2001) (frisk of vehicle passenger
supported by specific and articulable facts giving rise to an objectively
reasonable belief that passenger could be armed and dangerous where
trooper saw driver lean in passenger's direction, passenger was in close
proximity to driver's movements, passenger was wearing a bulky jacket in
which driver could have concealed a weapon, and the stop occurred in a
relatively isolated spot in the middle of night); Kennedy, 107 Wn.2d 1, 726
P.2d 445 (1986) (where driver made suspicious furtive movements and
passenger remained in the car, officer's Terry search of car justified);
Larson, 88 Wn. App. 849 (driver's furtive movements combined with the
officer's knowledge he would have to let driver back into his car justified
Terry frisk of car).
In the first paragraph on page six, the following footnote is added after the citation "RP at
4 Although Officer McCormick's subjective impressions are not
dispositive, they are relevant to the court's objective assessment of how a
reasonable officer would assess the situation. See Ornelas v. United States,
517 U.S. 690,699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996)(in making
determinations of reasonable suspicion and probable cause, "due weight"
should be given to inferences drawn by "local law enforcement officers").
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No. 33312-4-III
State v. Cruz
With the addition of the two above-referenced footnotes, the footnote on page eight will
be renumbered from "3" to "5."
PANEL: Judges Fearing, Lawrence-Berrey and Pennell
FOR THE COURT:
GEORGE FEARING
Chief Judge
 	 	 	 	 	 	 	 	 	 	 	 	 	

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,
Appellant,
V.
ERIC DANIEL CRUZ,
Respondent.
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No. 33312-4-111
PUBLISHED OPINION
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.
II
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 33312-4-III
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 snag1 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.
1 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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No. 33312-4-111
State v. Cruz
Cruz's person. While doing so, he asked Mr. Cruz ifhe had any firearms on him. Mr.
Cruz volunteered that he had firearms in his truck. There was no discussion ofwhat type
of firearms were in the truck or whether they were loaded.
Officer McCormick placed Mr. Cruz in his patrol vehicle. As he did so, Mr.
Cruz's companion appeared, curious about what was happening. Mr. Cruz's companion
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
suspicious or obstructive conduct.
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
Officer McCormick, he wanted to secure the firearms for the duration ofhis contact with
Mr. Cruz, as he intended to release Mr. Cruz with only a citation. After placing the
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
possess firearms. Officer McCormick then retained the firearms as evidence.
The State charged Mr. Cruz with three counts ofunlawful possession ofa firearm
in the second degree. The superior court granted Mr. Cruz's motion to suppress evidence
ofthe 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 "' if there is a reasonable suspicion that the suspect is
dangerous and may gain access to a weapon in the vehicle."' State v. Glossbrener, 146
Wn.2d 670, 680-81, 49 P.3d 128 (2002) (emphasis added) (quoting State v. Terrazas, 71
2 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
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.
The individual circumstances of Mr. Cruz and his companion were likewise
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No. 33312-4-111
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. 33312-4-111
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
true emergency. State v. Hinshaw, 149 Wn. App. 747,753,205 P.3d 178 (2009) (such as
"' 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
arresting officer is a potentially exigent circumstance. State v. Tibbles, 169 Wn.2d 364,
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
3 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.
WE CONCUR:
Pennell, J.
( ,., ..... r'\.,,.(,t. (s t.>,,.."T \\Lawrence-Berrey, J. h \
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