FILED
DEC 12,2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No.307S7-3-III
Respondent, )
)
v. )
) UNPUBLISHED OPINION
CARL D. JOHNSON, )
)
Appellant. )
KORSMO, C.J. - Carl D. Johnson showed up to a Special Weapons and Tactics
(SWAT) raid and would not leave despite being free to go. He remained at the site,
voluntarily spoke with officers, and admitted to having a controlled substance in his
possession. A subsequent search of his vehicle yielded a small amount of
methamphetamine. This appeal challenges the denial of his motion to suppress the
methamphetamine. We affirm.
FACTS
In the morning hours of July 21,2011, Mr. Johnson drove up the driveway ofa
property where law enforcement was in the middle of executing a search warrant. Mr.
No. 30757-3-111
State v. Johnson
Johnson did not immediately see the officers. The officers, however, did see him. One
of the officers then approached Mr. Johnson's vehicle in order to learn his purpose. Mr.
Johnson responded that he was there for business purposes, at which point the officer
cleared him to leave.
When Mr. Johnson did not leave, two other officers approached his vehicle. One
of them, Detective Joshua Mathena, recognized Mr. Johnson from previous encounters
and spoke with him. During the course of this conversation, the detective asked if Mr.
Johnson had any drugs in his vehicle. Mr. Johnson responded that he might have some
marijuana and a pipe.
The detective then asked Mr. Johnson to step out of the vehicle and requested
permission to search the vehicle. Also at this time the detective read Mr. Johnson his
Ferrier l warnings. Mr. Johnson asked ifhe could refuse consent. Detective Mathena
said that Mr. Johnson could refuse consent, but told him that he believed he had enough
information to establish probable cause for a search warrant. Mr. Johnson then consented
to a search of his vehicle. The search yielded a small amount of methamphetamine.
The State thereafter charged Mr. Johnson with one count of possession of a
controlled substance: methamphetamine. Mr. Johnson sought suppression of the
methamphetamine as the fruit of an unlawful search. The trial court denied the motion
I State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
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No.30757-3-III
State v. Johnson
and Mr. Johnson proceeded to a bench trial. After the court found him guilty, Mr.
Johnson timely appealed to this court.
ANALYSIS
Mr. Johnson presents two issues for review. He argues that his consent was not
voluntary because he had been unlawfully seized prior to telling the detective that he
might have drugs in the vehicle. Second, he argues that his consent was not voluntary
because of the detective's statement about getting a warrant was coercive. We address
both of these issues in tum. 2
Under article 1, section 7, of the Washington State Constitution, a person is seized
when by means of physical force or show of authority his or her freedom of movement is
restrained and a reasonable person would not have believed he or she is (1) free to leave,
given all the circumstances, or (2) free to otherwise decline an officer's request and
terminate the encounter. State v. O'Neill, 148 Wn.2d 564,574,62 P.3d 489 (2003). The
question of whether a seizure occurred is a mixed question oflaw and fact. We review
the underlying factual circumstances for substantial evidence, but review de novo the
ultimate determination of whether the circumstances amount to a seizure under the law.
State v. Harrington, 167 Wn.2d 656, 662, 222 P.3d 92 (2009).
2 Mr.Johnson presents additional arguments in his statement of additional
grounds, which we decline to review as meritless.
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No. 30757-3-111
State v. Johnson
In this case it is undisputed that Mr. Johnson was seized when Detective Mathena
asked him to step out of the vehicle. It is further undisputed that this seizure was lawful
following Mr. Johnson's admission that he might have marijuana in the vehicle. The
question that Mr. Johnson presents is whether he was actually seized earlier at the point
when Detective Mathena asked him the question about the drugs. Mr. Johnson argues
that this question combined with the surrounding circumstances constituted a seizure that
triggered the detective's duty to read Mr. Johnson his Miranda 3 rights. If the seizure
occurred at that point then Mr. Johnson's answer to the detective's question would have
to be suppressed, which in tum would eliminate the detective's probable cause to seek
permission to search the vehicle.
The State counters that the question was merely part of a social contact that had
not yet ripened to a seizure. We agree.
In a 'Neill, the court held that an officer who asks for identification from a person
sitting in a parked car does not seize the person even if the officer suspects illegal
activity. O'Neill, 148 Wn.2d at 579. On the opposite end of the spectrum is Harrington,
where the court held that a request to frisk a person constitutes a seizure. Harrington,
167 Wn.2d at 669-70.
Toward the middle of those two cases lie Thorn, Soto-Garcia, and this case. In
Thorn, the court concluded that asking a question about illicit activity does not constitute
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).
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No.30757-3-III
State v. Johnson
a seizure unless there was something coercive in the way the question was asked. State v.
Thorn, 129 Wn.2d 347,354,917 P.2d 108 (1996) (holding that the question, "Where is
the pipe," was not a seizure), overruled on other grounds by O'Neill, 148 Wn.2d at 571.
However, in Soto-Garcia it was implied that asking a person on the street ifhe had
cocaine on his person was a seizure. State v. Soto-Garcia, 68 Wn. App. 20, 25, 841, P.2d
1271 (1992).
Mr. Johnson argues that his case is closer to Soto-Garcia than Thorn. However,
he ignores an important limitation in Soto-Garcia. When the Washington Supreme Court
later interpreted Soto-Garcia in Harrington, it noted that the seizure occurred at the point
when the officer asked to search the defendant and that the question about the drugs was
just part of the combined acts that aggregated to ripen the contact into a seizure.
Harrington, 167 Wn.2d at 668.
Reviewing all the circumstances in this case we agree that there was no seizure at
the point that Detective Mathena asked Mr. Johnson ifhe had any drugs. Mr. Johnson
was questioned by two officers who were part ofa larger SWAT raid. Mr. Johnson
voluntarily drove to the location while the raid was in progress; he was at all times safely
inside his vehicle and only on the edge of the property that was the subject of the police
search. Furthermore, there is no evidence that Mr. Johnson's vehicle was blocked in, that
he was surrounded, or that he was being held at gunpoint. Mr. Johnson had also been
explicitly cleared to leave. Finally, there is no evidence that Detective Mathena asked the
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No.30757-3-III
State v. Johnson
question in a coercive manner. Given all the circumstances, a reasonable person in Mr.
Johnson's circumstances would feel free to terminate the second encounter.
Next, Mr. Johnson argues that the detective's statement about having probable
cause to get a warrant rendered his consent involuntary. An officer cannot obtain consent
through use of an unlawful threat. O'Neill, 148 Wn.2d at 589-90. However, an officer's
statement that he would seek a warrant if the defendant did not consent is not an unlawful
threat. State v. Smith, 115 Wn.2d 775, 790, 801 P.2d 975 (1990). Accordingly, the
detective's response to Mr. Johnson's question did not invalidate his consent.
Affirmed.
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.
I Korsmo, C.1.
WE CONCUR:
~&
Brown, r
6