State of Washington v. Torry Anton Marquart

FILED

March 27,2014

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. 30824-3-III
Respondent, )
)
v. )
)
TORRY ANTON MARQUART, ) UNPUBLISHED OPINION
)
Appellant. )

FEARING, J. - Once again we address the constitutionality of a law

enforcement officer's encounter with one later convicted of a crime based upon

evidence seized during the encounter.

Torry Anton Marquart appeals his conviction for unlawful possession of

methamphetamine seized following his arrest on outstanding warrants. Marquart

contends the trial court erred in ruling that his initial encounter with police was a social

contact instead of seizure. He also appeals the trial court's implied finding that he had a

present or future ability to pay legal financial obligations as unsupported by the record.

We affirm Torry Marquart's conviction and decline to reach his other assignment of

error.
No.30824-3-III
State v. Marquart

FACTS

During the early morning hours of February 16,2012, Kennewick Police

Department Officers Jason Kiel and Jason Harrington patrolled the city streets. Each

drove a marked patrol car and wore an officer's uniform.

Officer Kiel went to Kennewick's Blue Bridge Motel to check license plates in an

effort to identify stolen cars and locate individuals with arrest warrants. Kiel noticed, in

the motel parking lot, a car registered to Cherie White, against whom there was an

outstanding warrant. The motel's office, however, did not confirm the presence of

White. After returning to his patrol car, Kiel saw two men, one later identified as Torry

Marquart, walking in his direction. Officer Kiel noticed that the two men moved from

his sight upon seeing him, which he considered "odd." Report of Proceedings (RP) at

32. The tWo ducked into a motel breezeway. Kiel notified Officer Harrington of the two

males.

Officer Jason Harrington drove to the Blue Bridge Motel, but did not activate his

patrol car's emergency lights or siren. Harrington parked in the motel's lot, exited his

patrol car, and approached within 20 to 30 feet of the two men, who walked on a

sidewalk. According to Officer Harrington, he asked the two men if they would speak

with him. Harrington had no reason to suspect or detain either man for a crime. The two

said "sure" and hopped down from a sidewalk to sit on a flower bed ledge. RP at 11.

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State v. Marquart

Torry Marquart's testimony differs from the testimony of Jason Harrington.

According to Marquart, Officer Harrington ordered both men to stop and directed them to

speak with him. Harrington then ordered both to sit on the ledge and commanded

Marquart to extinguish his cigarette. Marquart did not consider himself free to leave.

Both officers concede they never informed Marquart or his companion that they were

free to leave.

Officer Harrington told Torry Marquart and his companion that he sought Cherie

White and asked them if they knew her. Both responded negatively. Harrington asked

the men for their respective names and birth dates and both accurately responded.

Marquart told Harrington that he stayed at the motel's room 158 with Russell Foster.

Harrington knew of an arrest warrant for Foster. Harrington testified that, at the time

Marquart identified Foster as his roommate, the officer still engaged in "social contact"

with the two. RP at13. Harrington had not shown any weapon and the two were free to

leave. While Harrington spoke with the men, Officer Jason Kiel watched. Kiel described

his role as a "cover officer," although he also characterized the contact as "social

contact." RP at 39,40. Kiel did not place a hand on or hold a weapon.

Officer Jason Harrington went to his patrol car to confirm the outstanding warrant

for Foster. While Harrington was absent, Officer Kie1 asked both men if they would

show identification, which they did. Kiel did not leave the presence of Marquart while he

reviewed the identification. Marquart also told Kie1 that he stayed in room 158 with

Russell Foster.

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No.30824-3-II1
State v. Marquart

Officer Harrington confirmed the warrant for Foster and also learned of a warrant

for the arrest of Torry Marquart. Harrington immediately returned to the location of

Marquart. With the assistance of Officer Jason Kiel, Harrington h,andcuffed Marquart

and placed him in the back of a patrol car.

Officers Jason Harrington and Jason Kiel proceeded to Blue Bridge Motel room

158. Russell Foster answered the door, and the officers arrested him. From outside the

room, Jason Harrington spotted a female, later identified as Jayne Fuentes, standing near

a bed. Officer Harrington also saw a glass pipe on the bed and baggies with white

residue on an end table. Fuentes invited Harrington into the room. The two officers

applied for and obtained a telephonic search warrant for room 158, while remaining

outside the room. Upon obtaining the warrant, the officers entered the motel room and

seized plastic baggies, digital scales, and packaging materials, which later tested positive

for methamphetamine. Marquart admitted to Officer Kiel that the methamphetamine

belonged to him.

Torry Marquart moved to suppress the seized methamphetamine as the fruit of an

unlawful seizure, arguing that the disputed encounter was an investigatory detention

unsupported by articulable suspicion. According to Marquart, the officers would never

have gone to room 158 and he would not have confessed to owning the meth but for the

unlawful seizure by Harrrington that caused Marquart to identifY himself and his current

residence. The trial court denied the motion to suppress, finding that "Officer

Harrington's contact with the defendant was not under circumstances which would lead a

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 No.30824-3-III
State v. Marquart

reasonable person to feel that [he was] not free to leave." Clerk's Papers (CP) at 16.

Instead, the "contact with the defendant was a social contact, and was not a seizure." CP

at 16. When Officer Harrington asked Torry Marquart to speak with him, Harrington

showed no force. The trial court found the testimony of Officer Harrington to be more

persuasive than the testimony of Torry Marquart.

Having denied Marquart's motion to suppress, the trial court found Marquart

guilty of unlawful possession of a controlled substance in violation of RCW

69.50.4013(1). The trial court ordered a standard range sentence of 18 months

confinement with an additional 12 months of community custody. The trial court also

ordered that Marquart pay legal financial obligations of $500 victim assessment (RCW

7.68.035); $100 DNA collection fee (RCW 43.43.7541); $2,000 drug fee (RCW

69.50.430(2)); $200 filing fee (RCW 36.18.020(2)(h)); $60 sheriff's service fee (RCW

10.01.160); and $700 attorney's fees (RCW 10.01.160). Pursuant to RCW 10.01.170, the

trial court ordered Marquart to "pay up to $50.00 per month ... from any income the

defendant earns while in the custody of the Department of Corrections [(DOC)]."

CP at 25

l LA W AND ANALYSIS

I
Findings of Fact

I Before addressing whether the Kennewick police officers unlawfully seized Torry

Marquart, we must first determine what happened during the encounter between

Marquart and the officers. Marquart's testimony significantly diverges from the

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 No.30824-3-III
State v. Marquart

testimony of Officers Jason Harrington and Jason Kie1. If we were to accept the story

related by Marquart as the truth, we would likely agree with him that he was unlawfully

seized. But thetrial court found Marquart to be less than credible.

Whether police "seized" a person is a mixed question of law and fact. State v.

Armenta, 134 Wn.2d 1,9, 948 P.2d 1280 (1997). The resolution by a trial court, of

differing accounts of the circumstances surrounding the encounter, are factual findings

entitled to great deference. State v. Harrington, 167 Wn.2d 656,662,222 P.3d 92

(2009). It is the trial court's role to resolve issues of credibility and to weigh evidence.

State v. Crane, 105 Wn. App. 301, 306, 19 P.3d 1100 (2001), overruled on other grounds

State v. O'Neill, 148 Wn.2d 564, 62 P.3d 489 (2003). But the ultimate determination of

whether those facts constitute a seizure is one of law and is reviewed de novo.

Harrington, 167 Wn.2d at 662; State v. Beito, 147 Wn. App. 504, 508-09, 195 P.3d 1023

(2008). Our review of whether a seizure occurred is de novo. State v. Thorn, 129 Wn.2d

347,351,917 P.2d 108 (1996), overruled on other grounds O'Neill, 148 Wn.2d 564.

We take these principles of review to mean we accept the trial court's findings of

I
the bare facts uninfected by any inferences and unencumbered by legal significance. We

I

~
accept the trial court's findings as to the actions taken by the officers or not taken by the

I
i
officers. The trial court found that, contrary to Marquart's testimony, Officer Harrington

I
did not order Marquart and his companion to stop. Harrington gave no orders. The trial

court found Harrington exhibited no force when requesting Marquart to identifY himself.

I
We accept these findings.

I
6

I

 No.30824-3-II1
State v. Marquart

Torry Marquart does not challenge any of the trial court's findings of fact. The

rule in Washington is that unchallenged findings entered after a suppression motion

hearing are verities on appeal. O'Neill, 148 Wn.2d at 571; State v. Hill, 123 Wn.2d 641,

647,870 P.2d 313 (1994).

I As noted below, a critical question is whether a reasonable person would have

considered himself or herself free to move and ignore the officer's requests. Since this

I question involves inferences from the evidence and is infected with constitutional
:1

I
1
significance, we do not defer to the trial court's conclusion of what a reasonable person

would do. We decide anew whether the officers limited themselves, before they knew of
.~

I
the outstanding warrant for Torry Marquart, to social contact rather than executed a

"seizure. "
I Washington Constitution
1
I Torry Marquart argues that the officers unlawfully seized him under the Fourth

Amendment to the United States Constitution. He also contends that he was seized in

I
i
violation of article I, section 7 of the state constitution. The protections guaranteed by

I article I, section 7 of the state constitution are qualitatively different from those under the

Fourth Amendment to the United States Constitution. State v. Snapp, 174 Wn.2d 177,
I 187-88,275 P.3d 289 (2012); State v. Garcia-Salgado, 170 Wn.2d 176, 183,240 P.3d

153 (2010). It is well settled that article I, section 7 of the state constitution provides

greater protection to individual privacy rights than the Fourth Amendment to the United

7

No. 30824~3~III
State v. Marquart

States Constitution. State v. Rankin, 151 Wn.2d 689,694,92 P.3d 202 (2004); State v.

Jones, 146 Wn.2d 328, 332,45 P.3d lO62 (2002).

The Washington Constitution provides that "[n]o person shall be disturbed in his

private affairs, or his home invaded, without authority oflaw." CONST. art. I, § 7. The

text focuses on disturbance of private affairs, which casts a wider net than the Fourth

Amendment's protection against "unreasonable searches and seizures." Article I, section

7 is not grounded in notions of reasonableness. See State v. Valdez, 167 Wn.2d 761, 772,

224 P.3d 751 (2009). Rather, it prohibits any disturbance of an individual's private

affairs without authority of law. Jd. at 773. Because searches and seizures

incontrovertibly disturb private affairs, article I, section 7 envelops searches and

seizures. Harrington, 167 Wn.2d at 663. But because the Washington constitutional

provision does not refer to seizures, the Washington Constitution should cover more. A

court's analysis should focus on whether the defendant's private affairs were disturbed,

not whether he was seized.

Alas, however, Washington cases involving gathering of evidence after an

encounter between a suspect and an officer and that address article I, section 7 inevitably

ask whether the defendant was "seized," not whether his "private affairs were disturbed."

Torry Marquart provides no authority that the Washington Constitution provides him

protection beyond an unreasonable seizure. Instead, he claims he was "unlawfully

seized" and he relies on the test for seizures applied under the United States Fourth

Amendment, the same test applied by Washington courts under our state constitution.

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 No. 30824-3-111

State v. Marquart

Marquart cites two federal decisions, United States v. Mendenhall, 446 U.S. 544, 552,

100 S. Ct. 1870,64 L. Ed. 2d 497 (1980) and Fla. v. Bostick, 501 U.S. 429, 439, 111 S.

Ct. 2382, 115 L. Ed. 2d 389 (1991). So we provide no independent analysis under the

Washington Constitution. See Armenta, 134 Wn.2d at 10 n.7.

I Seizure

I
J
When reviewing claims of unlawful seizures, we often must isolate discrete

actions of a police officer during an extended encounter, as if the actions are separate
j frames in a movie, since the defendant challenges more than one step employed by an

I officer during the encounter. Torry Marquart argues that Officer Jason Harrington

"seized" him at some point before Harrington returned to his patrol car to confirm an

outstanding warrant for Russell Foster, at which time Harrington also learned of an arrest

warrant for Marquart. Marquart does not pinpoint the precise action of Harrington that

created the seizure, but implies that the seizure occurred as early as when Harrington

asked Marquart and his companion to speak. Marquart also implies that, as the

conversation with Harrington progressed, the seizure increased in quantum, especially

when he was repeatedly asked for identification after he told the officers he did not know

Cherie White. Along these lines, Marquart argues that we should consider the totality of

the circumstances, not an isolated point in time, when determining whether a seizure

occurred.

If Officers Harrington and Kiel did not seize Torry Marquart, the officers needed

no justification to interact with Marquart. Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct.

9

No. 30824-3-III
State v. Marquart

1868,20 L. Ed. 2d 889 (1968). If the officers seized Marquart, we would need to

determine if they had sufficient grounds for the seizure. Terry, 392 U.S. at 19. If

Harrington and Kiel unconstitutionally seized Marquart before his arrest, the

exclusionary rule calls for suppression of evidence obtained via the government's

illegality. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684,6 L. Ed. 2d 1081 (1961);

Harrington, 167 Wn.2d at 664; State v. Garvin, 166 Wn.2d 242,254,207 P.3d 1266

(2009).

The Fourth Amendment provides that "the right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not

be violated." But "'not all personal intercourse between policemen and citizens involves

"seizures" ofpersons.'" Mendenhall, 446 U.S. at 552 (quoting Terry v. Ohio, 392 U.S. at

19 n.16). The defendant carries the burden to establish that he was seized. State v.

Young, 135 Wn.2d 498,510,957 P.2d 681 (1998); Thorn, 129 Wn.2d at 354.

The United States Supreme Court established the test for what constitutes a seizure

in United States v.Mendenhall, 446 U.S. 544 at 552, which test courts, including

Washington courts, employ today. A seizure occurs when, "in view of all of the

circumstances surrounding the incident, a reasonable person would have believed that he

was not free to leave." Mendenhall, 446 U.S. at 545; Harrington, 167 Wn.2d at 663;

Rankin, 151 Wn.2d at 695. Stated differently, a police contact constitutes a seizure only

if, under the totality of the circumstances, a reasonable person would not have felt free to

leave, "terminate the encounter, refuse to answer the officer's question, or otherwise go

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No.30824-3-III
State v. Marquart

about his business." Thorn, 129 Wn.2d at 353. The subjective intent of the police is

irrelevant, except insofar as it is conveyed to the defendant. Mendenhall, 446 U.S. at

554. Instead, we consider the officer's actual conduct and whether it reasonably

appeared to be coercive. Thorn, 129 Wn.2d at 353. Whether a reasonable person would

believe he was detained depends on the particular, objective facts surrounding the

encounter. State v. Ellwood, 52 Wn. App. 70, 73, 757 P.2d 547 (1988). Whether there

was any show of authority on the officer's part, and the extent of any such showing, are

crucial factual questions in assessing whether a seizure occurred. 0 'Neill, 148 Wn.2d at

577.

Since the courts use a reasonable person standard, the test of whether a person

considers himself or herself detained is the same no matter the citizen's race, sex, mental

acuity, and social background. The United States Supreme Court considers the use of

one standard to allow consistent application from one police encounter to the next,

regardless of the particular individual's response to the actions of the police. Mich. v.

Chestnut, 486 U.S. 567, 574, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988). This

consistency allows the police to determine, in advance, whether the contemplated

conduct would violate the Fourth Amendment. Chestnut, 486 U.S. at 574.

In negligence cases, the behavior of a "reasonable person" is peculiarly an issue of

fact usually reserved for a jury to decide. Hertog v. City ofSeattle, 138 Wn.2d 265,275,

979 P.2d 400 (1999). American law considers the jurors, who bring good sense and

practical knowledge to the court and who act as representatives of the community, as

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No. 30824-3-III
State v. Marquart

being in the best position to decide what constitutes the behavior of the mythical being,

the "reasonable person." In re Acushnet River & New Bedford Harbor Proceedings re

Alleged PCB Pollution, 712 F. Supp. 994, 1005 (D. Mass. 1989) (citing Patrick E.

Higginbotham, Continuing the Dialogue: Civil Juries and the Allocation ofJudicial

Power, 56 TEX. L. REv. 47, 59 (1979». The jury "'tends to make the law intelligible by

keeping it in touch with the common facts of life.'" Id. (quoting Edson L. Haines, The

Disappearance ofCivil Juries in England, Canada and Australia, 4 DEF. LJ. 118, 126

(1958». Most judges are not the subject of street stops and searches and rarely engage in

adversarial contact with law enforcement. Judges may lack knowledge of street realities,

yet courts consider themselves capable of determining what constitutes a "reasonable

person" for purposes of who would consider himself or herself detained by a law

enforcement officer. No court, to our knowledge, has accepted expert testimony as to

whether a reasonable person would consider himself or herself detained in particular

circumstances.

One might expect courts, in each discrete case, to limit their analysis to afactual

determination of whether a reasonable person would consider his movement restrained as

a result of the particular encounter with an officer. Nevertheless, courts often apply case

law rules to adjudge that, as a matter of law, no reasonable person, under the case's

peculiar circumstances, would consider his movement restrained. In other words, courts

do not decide anew in each case whether a reasonable person would have considered

herself detained.

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 No. 30824-3-II1
State v. Marquart

I Washington courts, with help from other courts, distinguish between social

I contact involving the officer and citizen and a seizure. The State characterizes the

j Kennewick police officers' encounter with Torry Marquart, until Officer Harrington

learned of an arrest warrant for Marquart, as merely social contact. Washington courts

have not defined "social contact." Harrington, 167 Wn.2d at 664. Such social contact

"occupies an amorphous area in our jurisprudence, resting someplace between an

officer's saying 'hello' to a stranger on the street and, at the other end of the spectrum, an

investigative detention" Id. Washington's Constitution, article I, section 7 does not

forbid social contact between police and citizens. Harrington, 167 Wn.2d at 665.

Rules about social contact abound. "[N]ot every public street encounter between a

citizen and the police rises to the stature of a seizure. Law enforcement officers do not

'seize' a person by merely approaching that individual on the street or in another public

place, or by engaging him in conversation." State v. Belanger, 36 Wn. App. 818, 820,

677 P.2d 781 (1984). On the one hand, police activities such as engaging a citizen in

conversation, identifYing themselves as officers, or simply requesting identification do

not convert a casual encounter into a seizure. Fla. v. Royer, 460 U.S. 491, 498, 103 S. Ct.

I
J
1319,75 L. Ed. 2d 229 (1983); State v. Knox, 86 Wn. App. 831, 838,939 P.2d 710

(1997), overruled on other grounds O'Neill, 148 Wn.2d 564. Under Washington law,

I officers may request identification, including date of birth, and check for outstanding

warrants during a social contact. Armenta, 134 Wn.2d at 11; State v. Hansen, 99 Wn.

App. 575, 577,994 P.2d 855 (2000); Ellwood, 52 Wn. App. at 73; Belanger, 36 Wn.

13
No.30824-3-III
State v. Marquart

App. at 820. During such contact, the officer need not warn a citizen that he has the right

to remain silent or walk away. State v. Mote, 129 Wn. App. 276, 281, 120 PJd 596

(2005). Nor does a seizure automatically occur because an officer is in uniform or

carrying a firearm. Belanger, 36 Wn. App. at 820.

On the other hand, a seizure occurs if the officer orders the person to sit or wait

while the he checks the person's warrant status. Ellwood, 52 Wn. App. at 73. When an

officer commands a person to halt or demands information from the person, a seizure

occurs. O'Neill, 148 Wn.2d at 581; Be ito , 147 Wn. App. at 509.

To discern whether an encounter is mere social contact or an investigative

detention, the Supreme Court of Washington has repeatedly embraced examples given in

Mendenhall, 446 U.S. at 554-55:

[T]he threatening presence of several officers, the display of a weapon by
an officer, some physical touching of the person of the citizen, or the use of
language or tone of voice indicating that compliance with the officer's
request might be compelled.

See Harrington, 167 Wn.2d at 664; see also Young, 135 Wn.2d at 512. "In the absence

of some such evidence, otherwise inoffensive contact between a member of the public

and the police cannot, as a matter oflaw, amount to a seizure of that person."

Mendenhall, 446 U.S. at 555.

The examples in Mendenhall are instructive. Here, prior to learning of Marquart's

outstanding warrant, there were only two officers present. One officer stood in the

background before Harrington left to confirm warrants. Neither officer displayed a

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No.30824-3-III
State v. Marquart

weapon. Neither officer touched Marquart. Neither officer commanded Marquart to sit.

Neither officer compelled Marquart through tone of voice or word choice to comply with

their requests. No officer directed Marquart to hold his hands where they could be seen.

The gist ofa seizure is a show of force thatwould lead a reasonable person to determine

he may not leave the presence of the officer. The two Kennewick officers carefully

refrained from showing any force by movement or oral direction.

As Officer Harrington spoke with Torry Marquart and Marquart's companion,

Officer Kiel stood nearby as "cover." Thus, two officers were present-a factor to be

considered in the Mendehall analysis. Two Washington decisions have discussed the

presence of two officers. In State v. Harrington, 144 Wn. App. 558, 183 P.3d 352

(2008), the Court of Appeals held that the presence of two officers did not tum the social

contact into a seizure. The Supreme Court reversed noting the arrival of a second officer

contributed to but did not start the seizure. Harrington, 167 Wn.2d at 666. The Supreme

Court emphasized the ordering of Harrington to remove his hands from his pockets as

starting the seizure. Id. at 666-67. In State v. Hansen, 99 Wn. App. 575, the court

impliedly ruled that the presence of two officers does not create a seizure.

We agree with Torry Marquart that, even where an initial contact does not amount

to a seizure, it may "mature" or "transform" into a seizure if the officer's actions

ultimately create a situation where the individual no longer feels free to leave. Royer,

460 U.S. at 503; State v. Richardson, 64 Wn. App. 693, 697, 825 P.2d 754 (1992). A

series of police actions may meet constitutional muster when each action is viewed

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State v. Marquart

individually, but may nevertheless constitute an unlawful search or seizure when the

actions are viewed cumulatively. Harrington, 167 Wn.2d at 668. We find there was no

transformation here. Before Harrington left for his patrol car, the officers had shown no

force or barked any command. Therefore, Marquart has not met his burden of proving a

seizure before the discovery of the arrest warrant.

Marquart cites State v. Crane, 105 Wn. App. 301, as being analogous. In Crane,

the officer parked his patrol car into a driveway behind the car in which Crane was a

passenger. As Crane exited the vehicle, the officer asked for identification and checked

for warrants. Crane had entered a secured area. Because the car in which he was riding

was blocked, Crane was more a passenger than a pedestrian for purposes of determining

whether he was seized. As our Supreme Court stated in Rankin:

We think there are good reasons for making a distinction between
pedestrians and passengers. As we have said, "many [individuals] find a
greater sense of security and privacy in traveling in an automobile than they
do in exposing themselves by pedestrian or other modes of travel." City of
Seattle v. Mesiani, 110 Wn.2d 454,457, 755 P.2d 775 (1988). Indeed, a
passenger faced with undesirable questioning by the police does not have
the realistic alternative of leaving the scene as does a pedestrian.

151 Wn.2d at 697 (alteration in original) (internal quotation marks omitted) (quoting

Delaware v. Prouse, 440 U.S. 648, 662, 99 S. Ct. 1391,59 L. Ed.2d 660 (1979)). Here,

Marquart was a pedestrian. The officers retained his identification for only a brief time.

No additional circumstances merit deeming the encounter a seizure.

State v. Bailey contains facts more similar to this case than Crane. State v. Bailey,

154 Wn. App. 295, 224 P.3d 852 (2010). In Bailey, the officer approached the defendant,

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No.30824-3-III
State v. Marquart

and asked ifhe had a moment. When the officer repeated the question, the defendant said

that he did, and walked towards the officer. The defendant handed the officer his

identification, and stated that he might have a warrant. No seizure occurred.

Torry Marquart emphasizes that Officer Kiel took his identification card. But the

trial court found that Kiel did not leave the presence of Marquart with the card. A seizure

occurs when the officer retains the suspect's identification while conducting a warrants

check away from the suspect. Crane, 105Wn. App. at 310; State v. Thomas, 91 Wn.

App. 195,200-01,955 P.2d 420 (1998). Anyway, Kiel's action occurred after

Harrington left for his patrol car, during which time Harrington discovered the warrant

for Marquart.

We acknowledge that empirical evidence supports a conclusion that citizens do

not "feel free to leave when [they are] questioned by a police officer on the street."

David K. Kessler, Free to Leave? An Empirical Look at the Fourth Amendment's Seizure

Standard, 99 J. CRIM. L. & CRIMINOLOGY 51, 73 (2009); Illya Lichtenberg, Miranda in

Ohio: The Effects ofRobinettte on the "Voluntary" Waiver ofFourth Amendment Rights,

44 How. L.1. 349 (2001). Psychological literature teaches that people feel compelled to

comply with authority figures, particularly law enforcement. Torry Marquart's behavior

and the behavior of a host of other defendants in an unending procession of court

decisions corroborates that citizens readily relinquish information and consent to searches

by law enforcement officers despite the cooperation directly leading to the discovery of

inCUlpating evidence. The behavior of these defendants is counterintuitive to a finding

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State v. Marquart

that they did not deem themselves restrained, intimidated, or coerced by the presence of

lawenforcement. The behavior of these defendants was irrational. Unless jail was

desired, Marquart acted as an unreasonable person when telling Officer Harrington his

name and hotel room number.

Two prominent State court of appeals judges, including a veteran of our division,

penned dissents. questioning Washington courts' labeling of street encounters as social

contact and challenging our reluctance to declare street encounters "seizures." See State

v. Nettles, 70 Wn. App. 706, 714, 855 P.2d 699 (1993) (Baker, J., dissenting); see also

Harrington, 144 Wn. App. at 564 (Sweeney, J., dissenting). Judge Sweeney wrote:

We do a disservice to the public and to police by moving the
so-called 'social contact' into just another form of seizure, albeit without
any cause or suspicion of crime or danger to the public or the police.
A social contact should be just that-a social contact-not an
opportunity for police to investigate, provoke, or 'find' criminal
activity. This may have started as a casual encounter, but it escalated
into something more, without probable cause or even a reasonable
suspicion that Mr. Harrington had done anything wrong.

Harrington, 144 Wn. App. at 564.

But Washington law demands that an officer, without an overt show of force, be

free to ask questions and provoke incriminating evidence without the encounter being

labeled a seizure. This rule is universal in state and federal courts. Our state Supreme

Court has found that effective law enforcement techniques not only require passive police

observation, but also necessitate interaction with citizens on the streets. Harrington, 167

Wn.2d at 665. The court wrote in 0 'Neill:

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State v. Marquart

Citizens of this state expect police officers to do more than react
to crimes that have already occurred. They also expect the police to
investigate when circumstances are suspicious, to interact with citizens
to keep informed about what is happening in a neighborhood, and to be
available for citizens' questions, comments, and infonnation citizens may
offer.

148 Wn.2d at 576. Division two of this court wrote in State v. Stroud:

[C]haracterizing every street encounter between a citizen and
police as a 'seizure,' while not enhancing any interest secured by the
Fourth Amendment, would impose wholly unrealistic restrictions upon a
wide variety of legitimate law enforcement practices. The Court has on
other occasions referred to the acknowledged need for police questioning
as a tool in the effective enforcement of the criminal laws. Without such
investigation, those who were innocent might be falsely accused, those
who were guilty might wholly escape prosecution, and many crimes would
go unsolved. In short, the security of all would be diminished.

30 Wn. App. 392, 395, 634 P.2d 316 (1981) (quoting Mendenhall, 446 U.S. at 554)

Until a change in seizure law by our state high court or state legislature, good and

effective neighborhood policing will continue to produce evidence of criminality despite

the charade that the gathering of the evidence is through voluntary social contact. Thus,

we affinn a ruling that Torry Marquart was not seized until Officer Harrington, with

knowledge of the outstanding warrant, arrested Marquart.

Legal Financial Obligations

Whenever a person is convicted in superior court, the court may order the payment

of a legal financial obligation (LFO) as part of the sentence. RCW 9.94A.760(1). "Legal

financial obligation[s]," defined by RCW 9.94A.030(30), include "restitution to the

victim, statutorily imposed crime victims' compensation fees ... court costs, county or

19

No. 30824-3-III
State v. Marquart

interlocal drug funds, court-appointed attorneys' fees, and costs of defense, fines, and any

other financial obligation that is assessed to the offender as a result of a felony

conviction. "

The trial court ordered Marquart to pay $500 victim assessment (RCW 7.68.035),

$100 DNA collection fee (RCW 43.43.7541), $200 filing fee (RCW 36.l8.020(2)(h)),

and $2,000 drug fee (RCW 69.50.430(2)). These fines do not require the trial court to

consider Marquart's ability to pay and are imposed by statute.

At its discretion, the trial court may order a convicted defendant to pay court

costs. RCW 10.01.160. RCW 10.01.160(3) requires that, "[i]n determining the amount

and method of payment of costs, the court shall take account of the financial resources of

the defendant and the nature of the burden that payment of costs will impose." The trial

court ordered Marquart to pay costs ofa $60 sheriffs service fee and $700 attorney's

fees, but made no specific finding of his ability to pay the costs. Nonetheless, we

conclude it is premature for this court to address the error for two reasons.

First, challenges to LFOs are not properly before this court until the State seeks to

enforce them. State v. Hathaway, 161 Wn. App. 634, 651, 251 P.3d 253 (2011)~ State v.

Smits, 152 Wn. App. 514, 524, 216 P.3d 1097 (2009). Because a person is not an

"aggrieved party" under RAP 3.1 "until the State seeks to enforce the award of costs and

it is determined that [the defendant] has the ability to pay," appellate review is

inappropriate. State v. Mahone, 98 Wn. App. 342, 349, 989 P.2d 583 (1999); see also

State v. Blank, 131 Wn.2d 230,242,930 P.2d 1213 (1997). In State v. Crook, 146 Wn.

20

No. 30824-3-111
State v. Marquart

App. 24,27-28, 189 P.3d 811 (2008), this division held that "[m]andatory Department of

Corrections deductions from inmate wages for repayment of legal financial obligations

are not collection actions by the State requiring inquiry into a defendant's financial

status." Thus, "[i]nquiry into the defendant's ability to pay is appropriate only when the

State enforces collection under the judgment or imposes sanctions for nonpayment."

Crook, 146 Wn. App. at 27.

The trial court ordered Marquart to "pay up to $50.00 per month to be taken from

any income the defendant earns while in the custody of the Department of Corrections."

CP at 25. Since RCW 72.09.111 (1) directs the DOC to "deduct taxes and legal financial

obligations from the gross wages, gratuities, or workers' compensation benefits," such

deductions do not constitute a collection action by the State. (Emphasis added.) The trial

court's order, in this case, of "up to" $50 per month is flexible enough to comport with

these guidelines and formulas. Thus, further inquiry into Marquart's ability to pay would

be inappropriate until the State seeks to collect his LFOs.

Second, when and if the State seeks to collect, Marquart may petition the court for

remission under RCW 10.01.160(4), which states:

A defendant who has been ordered to pay costs and who is not in
contumacious default in the payment thereof may at any time petition the
sentencing court for remission of the payment of costs or of any unpaid
portion thereof. Ifit appears to the satisfaction of the court that payment
of the amount due will impose 'manifest hardship on the defendant or the
defendant's immediate family, the court may remit all or part of the amount
due in costs, or modify the method of payment under RCW 10.01.170.

The denial or granting of that motion would warrant appellate review.

21
No.30824-3-III
State v. Marquart

CONCLUSION

We affirm the trial court's denial of the motion to suppress and the conviction.

We decline to address validity ofthe LFOs imposed. Torry Marquart may raise their

validity at the time the State seeks to enforce the obligations.

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 CONCUR IN RESULT:

Siddoway,1.

22

 No.30824-3-II1

KORSMO, C.J. (concurrence) - The lead opinion unnecessarily opines about

perceived shortcomings in article I, section 7 analysis and the application of the

reasonable person standard to street encounters. We are an appellate court whose job is

to review trial court proceedings for error and, where prejudicial error exists, do what we

can to correct that error. We are not a policy body or a debating society, particularly

where (as in this case) the parties have neither asked us to explicate nor change existing

policy or forms of analysis. Such exchanges have marginal utility in courts of last resort,

but have next to zero utility in intermediate appellate courts. Accordingly, I concur only

in the outcome of the lead opinion.

While that is probably all that needs to be said, I briefly will risk further comment

although I do so with the full knowledge that this exercise is ultimately meaningless.

There is no need to lament the fact that police seizures are analyzed as seizures rather

than under a more generic concept of privacy because there is no evidence that article I,

section 7 was intended to do more than reflect the prevailing Fourth Amendment norms

of the day. See Boydv. United States, 116 U.S. 616,6 S. Ct. 524,29 L. Ed. 746 (1886)

(finding Fourth and Fifth Amendment protections for one's "private papers" reflecting
No. 30824-3-III

State v. Marquart (Concurrence)

business operations). Indeed, the seminal work suggesting a common law right of

privacy was not published until the year after our constitution took effect. See S. Warren

& L. Brandeis, The Right to Privacy, 4 HARV. L. REv. 193 (1890). Even at that,

Washington declined to accept the existence of a right ofprivacy for a significant period

of time. See, e.g., Lewis v. Physicians and Dentists Credit Bureau, Inc., 27 Wn.2d 267,

177 P.2d 896 (1947) (discussing history of privacy in Washington and declining at that

time to decide whether right to privacy existed).

Given the rather tepid history of privacy in this state, it is understandable that our

constitutional protections are litigated at the level of an actual government intrusion

rather than at some more abstract level. After all, our constitutions protect us from our

governments, not from all other inhabitants. If there is a free-standing right of privacy

under the constitution, it is only the invasion of that right by the government that gives

I
rise to a violation. Hence, the first thing that typically is analyzed is whether an intrusion

occurred. There is no need to attempt to discern what the term "private affairs"

encompasses if the government has not intruded.

Since both article I, section 7 and the Fourth Amendment clearly do apply to

seizures by the police, the facts of this case are properly analyzed under those provisions

in accordance with the well-developed case law. When it does that, the lead opinion

properly reaches the same conclusion as the trial court. That is where the analysis should

2
I
I
No. 30824-3-111

State v. Marquart (Concurrence)

have begun and ended. Given that there was no intrusion here before the arrest warrant

was discovered, there was no error.

1 respectfully concur in the result.

Korsmo, C.l

3