State Of Washington, Respondent V. Nicholas Brandon Van Duren, Appellant

IN THE COURT OF APPEALS OF
STATE OF WASHINGTON
Respondent,
THE STATE OF WASHINGTON
No. 76901-4-1 (-)
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DIVISION ONE C-
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V. N3
UNPUBLISHED OPINION t\) -
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NICHOLAS BRANDON VAN DUREN
DOB: 09/08/1990,
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FILED: January 22, 2019 CA) c —
Appellant. CFI
APPELWICK, C.J. —Van Duren appeals his conviction for residential burglary
while on community custody. He claims that the trial court should have suppressed
evidence discovered as a result of an investigatory detention. He also challenges
the trial court's imposition of certain LF0s. We affirm the conviction but remand to
the trial court to strike the challenged LF0s, consistent with recent changes in the
law.
FACTS
On November 24, 2015, a burglary took place in a residential home in the
area of the Glen Eagle development in Arlington. At 10:07 a.m., Arlington Police
Officer Pendleton Cook responded to a report of burglary. Once at the scene,
Officer Cook received information from a female witness—who he thought was a
neighbor.1 He did not obtain identifying information from her.
1 Findings offact 2 and 3 mistakenly identify Officer Brian DeWitt rather than
Officer Cook as the person who contacted this witness.

No. 76901-4-1/2
The informant told Officer Cook that she "had seen a subject leaving the
vicinity of the residence going" to a car and that "she could identify that subject
upon seeing that person again." The informant showed Officer Cook a mobile
phone picture of the subject and vehicle. The picture showed a male subject
wearing a gray jacket and a black backpack. It also showed, according to Officer
Cook, a red "2005-ish Toyota CoroIla."2 Based on this information, Officer Cook
believed that a man involved in the burglary was somehow associated with the red
car.
Prior to Officer Cook's arriva1,3 Arlington Police Officer Brian DeWitt
investigated a suspicious red vehicle in Glen Eagle parking lot with a female driver
(who was later identified as Lauren Kenney). Officer DeWitt obtained the red
vehicle's license plate information but did not make an arrest. Officer Dewitt
relayed the information that he had learned from his encounter with the red vehicle
to Officer Cook.
Officer Cook described the parking lot area in which Officer Dewitt made
contact with the red vehicle as being "basically across the street" from the
residence under investigation. He also explained that the two locations are within
sight distance of each other. According to Officer Cook, the informant's description
2 Officer Cook believed the vehicle was a 2005-ish Toyota Corolla because
he owns and drives an identical vehicle. The picture, however, did not show the
vehicle's license plate.
3 It is unclear when Officer DeWitt had seen Kenney in relation to Officer
Cook's arrival. However, it is clear that it had occurred before Officer Cook arrived
at 10:07 a.m.
2

No. 76901-4-1/3
and picture of the red car "essentially matched" the make and model of the red
vehicle that Officer DeWitt obtained prior to 10:07 a.m.
After talking with the informant, Office Cook went into the residence and
"conducted a procedural search of the home because burglaries are dangerous
and officer safety necessitates such a search." Officer Cook and his partners
discovered a forced entry through a bay window in the rear of the home and
"Mound evidence of the fact that the house had been likely burglarized." The
officers then reviewed tactical operations and decided how to proceed.
Based upon his investigation to that point, Officer Cook believed the person
"who left the house and got in the vehicle that drove away, was related to" the
burglary. Officer Cook then departed the residence to "perform an area check for
the vehicle, thinking that it might still be in the area." Less than a mile away from
the residence, Officer Cook spotted a red vehicle matching the description of the
informant and Officer Dewitt. At 10:56 a.m., Officer Cook conducted a traffic stop
of the red vehicle in which Kenney was the driver and Nicolas Van Duren was the
passenger.
Officer Cook explained that there "was nothing that I could see that would
make me perform a traffic stop on that car, except for the fact that it matched the
exact description and the plate was the same that we had for the suspicious call
earlier in that day, and that it matched time, location, those things."
3

No. 76901-4-1/4
Officer Cook later described the basis of his associating the red car with the
burglary:
I had seen the picture that the witness had given me and that it
matched the make and model, the color that Officer Dewitt had gone
out with earlier in that day. In my understanding, too, how that car
would be sitting there possibly watching that residence, and then to
see a subject or hear that the witness had seen a subject leaving the
vicinity of the residence to that car, sort of the connection of the two,
I believed that I had enough reasonable suspicion to stop the car and
[identify the occupants].
Pursuant to a subsequent search, police officers recovered some items
from the red vehicle that the homeowner later identified as being stolen from his
home.
The State charged Van Duren with residential burglary. Van Duren moved
under CrR 3.6 to suppress all evidence stemming from the investigatory detention
and to dismiss the charge against him. He argued that the State seized and later
searched him without reasonable suspicion that he had committed a crime. The
trial court denied the motion to suppress, ruling:
Clearly the officer here, based on the corroboration, based
upon the informant tip, had a reasonable suspicion. The informant,
although the informant is anonymous for this case, clearly provided
enough information to link the defendants with the red car, and so
this was a valid stop.
Later, the trial court reduced its oral ruling on the suppression motion to
writing and entered findings of fact and conclusions of law.4 The trial court
concluded, in relevant part, that
4 In his opening brief, Van Duren asserted that the trial court erred when it
failed to (1) enter written findings of fact and conclusions of law pursuant to CrR
3.6(b) and (2) enter written findings of fact and conclusions of law setting forth its
reasons for consecutive sentences pursuant to RCW 9.94A.535. However, with
4

No. 76901-4-1/5
2. Based on the corroboration and the information from the
informant, the officer had reasonable suspicion.
3. Although the informant is anonymous in this case, there was
clearly enough information provided to link the defendants with
the red car with the burglary. Therefore, the stop was valid.
. • • •
5. Here, there is sufficient indicia that there was a reasonable
suspicion.
The jury found Van Duren guilty of residential burglary. Van Duren later
stipulated that he was on community custody at the time of the burglary. He now
appeals.
DISCUSSION
Van Duren makes two arguments. First, he argues that the trial court erred
in denying his CrR 3.6 motion to suppress evidence. He contends that the seizure
was unlawful because the totality of the circumstances do not establish an
individualized, reasonable suspicion that he or the car in which he was a
passenger, was involved in any criminal wrongdoing. Second, Van Duren argues
that, because he was indigent, the trial court's imposition of certain LFOs should
be stricken, consistent State v. Ramirez, 191 Wn 2d 732, 426 P.3d 714 (2018).
our permission, the trial court entered these written findings after Van Duren filed
the instant appeal. Late entry of CrR 3.6 findings and conclusions does not require
reversal unless it prejudices the defendant. State v. Byrd 83 Wn. App. 509, 512,
922 P.2d 168 (1996). The written findings and conclusions of law are consistent
with the trial court's oral ruling. Because Van Duren does not suggest that the
findings and conclusions were tailored to meet the issues presented in his
appellate brief, he cannot show prejudice. State v. Taqas 121 Wn. App. 872, 875,
90 P.3d 1088 (2004)(noting that "a conviction will not be reversed for tardy entry
of findings unless the defendant can establish either that [he] was prejudiced by
the delay or that the findings and conclusions were tailored to meet the issues
presented in [his] appellant's brief."). We, therefore, do not address Van Duren's
original assignments of error as to failure to enter written findings.
5

No. 76901-4-1/6
I. Suppression of Evidence
A. Standard of Review
We review findings of fact entered following a motion to suppress for
substantial evidence. State v. Hill 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
Evidence is substantial when it is enough to persuade a fair-minded person of the
truth of the stated premise. State v. Garvin 166 Wn.2d 242, 249, 207 P.3d 1266
(2009). Unchallenged findings are considered verities on appeal. State v. O'Neill
148 Wn.2d 564, 571, 62 P.3d 489 (2003). We review conclusions of law from an
order governing the suppression of evidence de novo. State v. Duncan 146 Wn2d
166, 171,43 P.3d 513(2002).
B. Tertv5 Stop
Generally, the Fourth Amendment to the United States Constitution protects
against unlawful searches and seizures. Article I, section 7 of the Washington
Constitution protects against unwarranted government intrusions into private
affairs. A brief investigative detention, otherwise known as a Terry stop, is an
exception to the warrant requirement. State v. Gatewood 163 Wn 2d 534, 539,
182 P.3d 426 (2008). Although article 1, section 7 provides greater protection than
guaranteed by the Fourth Amendment, regarding the validity of a Terry stop,
however, article I, section 7 generally tracks the Fourth Amendment. State v.
Z.U.E. 183 Wn.2d 610, 617, 352 P.3d 796(2015). Warrantless searches are per
se unreasonable. State v. Doughty 170 Wn.2d 57, 61, 239 P.3d 573(2010). The
5 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
6

No. 76901-4-1/7
State has the burden to demonstrate that a warrantless search falls within an
exception to the rule. Id.
A Terry stop is permissible where the State shows "that the officer had a
'reasonable suspicion' that the detained person was, or was about to be, involved
in a crime." Z.U.E., 183 Wn.2d at 617 (quoting State v Acrev 148 Wn.2d 738,
747, 64 P.3d 594 (2003)). The officer's reasonable suspicion must be grounded
in specific and articulable facts. flat 617-18. The facts must demonstrate more
than a generalized suspicion or hunch that the person detained has committed a
crime. Id. at 618.
In analyzing the grounds for a Terry stop, trial courts are required to
evaluate the totality of the circumstances available to the investigating officer.
State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). Furthermore, when
an officer bases his or her suspicion on an informant's tip, the State must
demonstrate that the tip bears some indicia of reliability. Z U.E 183 Wn.2d at
618. lndicia of reliability is shown by either "(1) circumstances establishing the
informant's reliability or(2)some corroborative observation, usually by the officers,
that shows either (a) the presence of criminal activity or (b) that the informer's
information was obtained in a reliable fashion." Id.
If the Terry stop is determined to be unlawful, "the subsequent search and
fruits of that search are inadmissible." State v. Kennedy, 107 Wn.2d 1, 4, 726
P.2d 445 (1986).
Van Duren argues that tips from the anonymous informant did not show the
requisite indicia of reliability to justify Officer Cook's alleged reasonable suspicion.
7

No. 76901-4-1/8
He also argues that the red vehicle's mere proximity to the burglarized home does
not justify Officer Cook's Tern'stop of the vehicle. We disagree on both grounds.
Here, Officer Cook responded to a burglary. Once on scene, an anonymous
informant told him that she had seen a subject "walk from the vicinity of the
residence" to a red car. She then showed him a picture of the subject and a portion
of the red vehicle, which Officer Cook recognized as a 2005 Toyota Corolla. Officer
Cook also received information from Officer Dewitt, who had previously made
contact with a red vehicle in the vicinity of the burglarized home. At a minimum,
the evidence in the record establishes that the Glen Eagle parking lot and the
burglarized home are in sight distance of each other. The informant had seen, and
had a picture of, a male subject walking toward a red vehicle.
Officer Cook and his team conducted a search of the home and found
evidence that a burglary had been committed. Based on all that he knew at that
point, Officer Cook believed that there was likely some connection between the
individual who committed the burglary and the red vehicle that drove away. He
also determined that there was likely a connection between the red vehicle
depicted in the informant's mobile phone picture and the red vehicle Officer Dewitt
contacted. He then conducted an area search for a red vehicle matching those
descriptions.
Within a relatively close proximity, and within 50 minutes of responding to
the burglary call, Officer Cook spotted a red vehicle that looked similar to the
informant's picture and matched the license plate that Officer Dewitt obtained
earlier. Given the totality of circumstances, Officer Cook had a reasonable
8

No. 76901-4-1/9
suspicion that the red vehicle in which Van Duren was a passenger was connected
to the residential burglary under investigation. Officer Cook's Terry stop was valid.
Van Duren also claims that the circumstances of his case are similar to
those in Z.0 E. and argues that law enforcement did not have a reasonable
suspicion to justify a Terry stop. We disagree.
In Z.0 E an unknown 911 caller reported that she saw a 17 year old girl
hand a gun to a shirtless man, who then carried the gun through a park. 183 Wn.2d
at 614. The caller gave a detailed description of the girl's appearance but not why
she thought the girl was age 17. Id. Other callers also reported seeing a man with
a gun in the park and that the man got into a white or gray two door car with about
eight other people at an intersection by the park. Id at 613-14. Officers responded
to investigate for a minor in possession of a firearm but could not find the man. Id.
at 615. However, officers did see a girl—matching the description provided—get
into the backseat of a gray four door car. Id. at 614-15. As part of their
investigation, the officers approached the car and ordered the occupants out. Id.
at 616. Z.U.E. was one of the occupants and was later arrested for obstruction of
law enforcement and possession of marijuana. Id. Later, Z.U.E. challenged the
officers' reasonable suspicion for the stop and the reliability of the caller's tip. Id
The Washington Supreme Court held that the 911 caller's tip was unreliable
and did not create a sufficient basis to justify the Terry stop. Id. at 622-23. It
reasoned that while the call was made by a citizen eyewitness, made
contemporaneous to the events, came through an emergency 911 call, and the
caller provided her name and contact information, the caller did not offer any
9

No. 76901-4-1/10
factual basis to support the allegation that the crime of a minor in possession of a
firearm had been committed. Id. The officer could not ascertain how the caller
knew the girl was a minor to evaluate the accuracy of the statement. Id. at 623.
Nor did the officers make any corroborative observations showing the presence of
criminal activity or that the caller's information was obtained in a reliable fashion.
Id.
In contrast, here, the anonymous informant's tips here provided a factual
basis to connect a male subject—walking from the vicinity of the burglarized
residence—to a red 2005 Toyota Corolla. It was documented in a photograph.
The suspicious nature of the red vehicle's presence was corroborated with what
Officer Dewitt previously observed—a red 2005 Toyota Corolla parked in the
vicinity of the burglarized residence. Unlike Z U.E., where the 911 caller did not
provide a factual basis for the alleged crime of a minor in possession of a firearm,
Officer Dewitt's observations showed that the anonymous informant's tips
possessed an indicia of reliability and a reasonable suspicion for the stop.
Therefore, the trial court did not err in concluding that there was sufficient indicia
that there was a reasonable suspicion to stop the red vehicle in which Van Duren
was a passenger
II. Legal Financial Obligation Challenge
Van Duren filed a supplemental brief, based on recent changes in the law
concerning legal financial obligations (LF0s), seeking to have the $200 criminal
filing fee and the $100 DNA (deoxyribonucleic acid) sample collection fee stricken
10

No. 76901-4-1/11
from his judgment and sentence. At the time Van Duren was sentenced, these
fees were mandatory.
In June 2018, amendments to former RCW 36.18.020(2)(h) took effect and
prohibited trial courts from imposing the $200 criminal filing fee on defendants who
are indigent at the time of sentencing. LAWS OF 2018, ch. 269,§ 17. Also effective
in June 2018, the DNA collection fee statute—RCW 43.43.7541—now mandates,
in important part, that "[e]very sentence imposed for a crime specified in RCW
43.43.754 must include a fee of one hundred dollars unless the state has
previously collected the offender's DNA as a result of a prior conviction." LAWS OF
2018, ch. 269,§ 18.
In September 2018, the Washington Supreme Court held that LFO statutory
amendments apply prospectively and are applicable to cases pending on direct
review and not final under RAP 12.7 when the amendments were enacted.
Ramirez 191 Wn.2d at 748-49. That includes Van Duren's case.
The record establishes that Van Duren was indigent at the time of
sentencing. The State concedes that the $200 criminal filing fee should be stricken
from his judgment and sentence. Accordingly, per Ramirez we direct the trial court
to strike the $200 criminal filing fee.
Van Duren argues that the $100 DNA collection fee was improper because
he has previous felony convictions and he would necessarily have had his DNA
sample collected pursuant to RCW 43.43.754(1)(a).6 While the State concedes
6 Under RCW 43.43.754: "(1) A biological sample must be collected for
purposes of DNA identification analysis from:(a) Every adult or juvenile individual
11

No. 76901-4-1/12
that Van Duren has multiple prior convictions, it asks that this issue be remanded
to the trial court to determine if his DNA has previously been collected. Based on
Van Duren's lengthy criminal history, including five prior adult convictions and one
juvenile adjudication,7 we infer that Van Duren has previously provided a DNA
sample following his prior felony convictions. We, therefore, direct the trial court
to strike the $100 DNA collection fee.
CONCLUSION
We remand the judgment and sentence to strike the criminal filing fee and
the DNA collection fee, but affirm the sentence in all other respects. The State did
not request appellate costs, and we do not award costs pursuant to RAP 14.2.
WE CONCUR:
3)6, reiciarzi
convicted of a felony, or" other crimes (or equivalent juvenile offenses) identified
in subsection (1)(a)(i)-(x) and (1)(b).
7 Between 2009 and 2017, Van Duren was convicted of second degree
burglary, bail jumping, possession of a controlled substance, residential burglary.
In 2007, as a juvenile, Van Duren was convicted of residential burglary.
12