FILED
APRIL 24, 2014
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, ) No. 32152-5-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
WILLIAM ALLEN CRAM, )
)
Appellant. )
LA WRENCB-BERREY, J. - Following a stipulated facts trial, William Allen Cram
was convicted of unlawful possession of heroin and methamphetamine and one count of
possession of a legend drug without a prescription. On appeal, he contends the trial court
erred in denying his motion to suppress evidence obtained from an unlawful search. Mr.
Cram rais~s the same issue in his pro se statement of additional grounds for review
(SAG). Finding no error, we affIrm.
FACTS
The material facts are not disputed. At the suppression hearing, OffIcer Tim
Eikum testified that during the early morning of June 17, 2012, he responded to a report
of a suspicious vehicle parked at Little Street Southwest and South Second Avenue
No. 32152-5-III
State v. Cram
Southwest in Tumwater, Washington. Dispatch told the officer that the car in question
was a Saturn and the sole occupant was a female who was sleeping in the front passenger
seat. Dispatch also advised that the registered owner of the Saturn had an arrest warrant
for theft. Officer Eikum was aware that the area was known for thefts, narcotics
activities, and burglaries.
Officer Eikum testified that when he arrived at the location, he parked behind the
Saturn and. turned on his spotlight to illuminate the interior of the car. He did not have his
emergency lights or siren activated. Officer Eikum saw two males and one female in the
car. A second officer arrived about the same time and parked behind Officer Eikum's
patrol car. Officer Eikum then approached the driver's side window and asked the driver
for his name. The driver identified himself as Gregory Beckford and stated that he lived
at a nearby apartment complex. He explained that he was sitting inside the car with his
friends because he was not allowed to have overnight guests at the apartment. During this
questioning, the second officer was standing on the passenger side of the car.
Officer Eikum then asked the second male, who was sitting behind the driver, for
his name and birthday. The man identified himself as "William Crum" and gave a birth
date of January 7,1977. Report of Proceedings (Aug. 13,2012) (RP) at 5. Dispatch
could not find a record with that information and Officer Eikum thought the person
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No. 32152-5-III
State v. Cram
looked older than the birth date provided. When asked again, the passenger stated his
birthday was January 7, 1968. Dispatch informed Officer Eikum that it found a record for
a William Cram with a birthday of January 7,1963. According to dispatch, Mr. Cram had
an outstanding felony warrant. When informed of this report, Mr. Cram admitted his true
name and birthday.
While waiting for dispatch to confirm the warrant, Officer Eikum told Mr. Cram to
get out of the car and handcuffed him. The warrant was quickly confirmed and Officer
Eikum arrested Mr. Cram. During a search incident to arrest, Officer Eikum found two
pills ofsulfamethoxazole, a prescription drug, in Mr. Cram's coat pocket. After
transporting Mr. Cram to the jail, Officer Eikum also found heroin and methamphetamine
in the backseat of his patrol car where Mr. Cram had been sitting.
The State charged Mr. Cram with two counts of possession of a controlled
substance, heroin and methamphetamine, and one count of possession of a legend drug
without a prescription.
Mr. Cram filed a CrR 3.6 motion to suppress, arguing that Officer Eikum's actions
in parking behind the Saturn, shining a spotlight on the car, and approaching the car and
asking for Mr. Cram's name and birthday, viewed cumulatively, constituted an
impermissible seizure. He argued, "once an officer pulls his marked patrol vehicle
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No. 32 I 52-5-III
State v. Cram
behind the parked vehicle and illuminates the entire vehicle, approaches that vehicle
while the entire vehicle continues to be illuminated, is joined by another police officer
who is on the other side of the vehicle following up on information that's taken from that
police officer, no reasonable person would feel free to get up and walk out of that
vehicle." RP at 25.
The court denied the motion to suppress, concluding as follows:
3.2 The presence of a second officer (Officer Driver) is not sufficient to
support a finding that Mr. Cram was seized.
3.3 The use of a spotlight to illuminate the vehicle is not sufficient to
support a finding that Mr. Cram was seized.
3.4 Based on the totality of the circumstances, Mr. Cram was not seized
at the time that Officer Eikum asked Mr. Cram for his name and date
of birth.
3.5 Mr. Cram was not seized until the point that he was detained in
handcuffs, after Mr. Cram had stated that he was William A. Cram
and had provided the last four digits of his social security number.
At that point, Officer Eikum had grounds to detain Mr. Cram while
awaiting confirmation ofthe warrant.
Clerk's Papers at 58. The court then concluded that Mr. Cram was validly searched
incident to arrest. Mr. Cram was convicted as charged after a trial upon stipulated facts.
ANALYSIS
Mr. Cram contends that he was unlawfully seized under the Fourth Amendment to
the United States Constitution and article I, section 7 of the Washington Constitution.
Mr. Cram contends that after the officer parked behind the car Mr. Cram occupied,
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No. 32152-5-III
State v. Cram
showed his spotlight through the rear window, and, especially once the second officer
arrived, a reasonable person would not feel free to leave or terminate the encounter.
The Fourth Amendment provides that "[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated." Article I, section 7 of the Washington Constitution states that
"[n]o person shall be disturbed in his private affairs, or his home invaded, without
authority of law." Article I, section 7 places greater emphasis on the right to privacy than
the Fourth Amendment. State v. Young, 123 Wn.2d 173, 179, 867 P.2d 593 (1994).
A warrantless seizure is per se unreasonable under the Fourth Amendment to the
United States Constitution and article I, section 7 of the Washington Constitution unless
one of the exceptions to the warrant requirement applies. State v. Williams, 102 Wn.2d
733, 736, 689 P.2d 1065 (1984). Therefore, we first determine whether a seizure
occurred and then determine if a warrant exception justified that seizure. Terry v. Ohio,
392 U.S. 1, 19,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968); State v. Mote, 129 Wn. App. 276,
283, 120 P.3d 596 (2005). If Officer Eikum unconstitutionally seized Mr. Cram before
his arrest, the exclusionary rule calls for suppression of the evidence. State v. Harrington,
167 Wn.2d 656,664,222 P.3d 92 (2009).
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No. 32152-5-III
State v. Cram
When reviewing the denial of a suppression motion, we determine whether
substantial evidence supports the findings of fact and then determine whether the findings
support the conclusions oflaw. State v. Dempsey, 88 Wn. App. 918, 921, 947 P.2d 265
(1997). "Whether police have seized a person is a mixed question of law and fact."
Harrington, 167 Wn.2d at 662. The trial court's factual findings are entitled to great
deference, but whether those facts ultimately constitute a seizure is a question of law that
this court reviews de novo. State v. Thorn, 129 Wn.2d 347, 351, 917 P .2d 108 (1996),
overruled on other grounds by State v. O'Neill, 148 Wn.2d 564,62 P.3d 489 (2003).
Mr. Cram does not assign error to the facts related to the events prior to Officer
Eikum's approaching the car and questioning the driver. We, therefore, accept those
findings of fact as verities on appeal. State v. Hill, 123 Wn.2d 641,647,870 P.2d 313
(1994). However, Mr. Cram assigns error to findings of fact 2.9,2.11,2.12,2.13,2,14,
2.15,2.16, and 2.18, which involve Officer Eikum's questioning of Mr. Cram. In his
challenge to these findings, Mr. Cram contends that the trial court erred to the extent it
suggested "that the seizure of the defendant occurred only after he gave the officer
identif)dng information, where the seizure of the defendant occurred prior to that." Br. of
Appellant at 1-2.
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No. 32152-5-111
State v. Cram
The challenged findings make no such suggestion. They simply recite Officer
Eikum's unchallenged testimony at the suppression hearing in which he stated that (1) he
asked Mr. Cram for his name and birthday, (2) Mr. Cram initially provided an inaccurate
name and birthday, (3) dispatch had no record of the name provided by Mr. Cram,
(4) Mr. Cram then provided different identifying information, (5) dispatch subsequently
reported that Mr. Cram had a warrant, and (6) while waiting for confirmation of the
warrant, Officer Eikum asked Mr. Cram to step out of the car and handcuffed him.
Mr. Cram's assignments of error essentially amount to a challenge to the legal
significance of these facts, i.e., whether they constitute a seizure, not a challenge to the
facts themselves. As such, we note the court's findings accurately reflect Officer
Eikum's account of the circumstances surrounding the encounter and, therefore, accept
the court's findings as supported by substantial evidence. Thus, we tum to whether the
totality of these facts constitutes a seizure.
Under the federal and state constitutions, a seizure occurs when, in view of all of
the circumstances surrounding the incident, a reasonable person would have believed that
he or she was not free to leave due to the law enforcement officer's use of force or
display of authority. State v. Young, 135 Wn.2d 498,510,957 P.2d 681 (1998) (quoting
State v. Stroud, 30 Wn. App. 392, 394-95, 634 P.2d 316 (1981 )). The officer's subjective
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No. 32152-5-III
State v. Cram
motivation is not gennane. Rather, the standard is "a purely objective one, looking to the
actions of the law enforcement officer." Young, 135 Wn.2d at 501. The defendant bears
the burden of proving a seizure occurred. Harrington, 167 Wn.2d at 664.
Not every encounter between a police officer and a citizen constitutes a seizure.
State v. Armenta, 134 Wn.2d 1, 10,948 P.2d 1280 (1997) (quoting State v. Aranguren, 42
Wn. App. 452, 455, 711 P.2d 1096 (1985)). Under Washington law, officers may request
identification, including date of birth, and check for outstanding warrants during a social
contact. Armenta, 134 Wn.2d at 11. "[P]olice questioning relating to one's identity, or a
request for identification by the police, without more, is unlikely to result in a seizure."
State v. Hansen, 99 Wn. App. 575, 578,994 P.2d 855 (2000). In O'Neill, 148 Wn.2d at
576-77, our Supreme Court noted its view of policing:
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 infonned about what is happening in a neighborhood, and to be
available for citizens' questions, comments, and infonnation citizens may
offer.
Accordingly, we reject the premise that under article I, section 7 a
police officer cannot question an individual or ask for identification because
the officer SUbjectively suspects the possibility of criminal activity, but does
not have a suspicion rising to the level to justifY a Terry stop.
Thus, a police officer has not seized a person by merely approaching him in a
public place and asking him questions as long as the individual need not answer and feels
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State v. Cram
free to walk away. State v. Mennegar, 114 Wn.2d 304,310,787 P.2d 1347 (1990).
Circumstances that can indicate a seizure include
the 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.
United States v. Mendenhall, 466 U.S. 544, 554-55, 100 S. Ct. 1870, 64 L. Ed. 2d 497
(1980). "In the absence of some such evidence, otherwise inoffensive contact between a
member of the public and the police cannot, as a matter of law, amount to a seizure of that
person." Id. at 555.
None of the Mendenhall factors are present here. Two officers were present and
neither displayed a weapon or touched Mr. Cram. Neither of them used a commanding
tone of voice to compel compliance. Mr. Cram contends that the presence of the second
officer constituted a show of authority such that a reasonable person would not feel free
to leave. Here, nothing in the record suggests that the second officer engaged the
passengers at any time or that there was any team interrogation. Two Washington cases
have discussed the presence of two officers. In Harrington, the presence of a second
officer who stood seven or eight feet from Mr. Harrington did not constitute a seizure.
Harrington, 167 Wn.2d at 669-70. The Supreme Court emphasized that ordering Mr.
Harrington to remove his hands from his pockets turned the social contact into a seizure,
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No. 321 52-5-III
State v. Cram
not the presence of a second officer. And in Hansen, the court impliedly ruled that the
presence of two officers does not create a seizure. Hansen, 99 Wn. App. 575.
o 'Neill supports our analysis. In that case, a police officer saw a car parked in
front of a store that had been closed for about one hour. 0 'Neill, 148 Wn.2d at 571. The
officer knew the store had been burglarized twice in the previous month. He pulled up
behind the suspect car and activated his spotlight to check the license plate. He learned
the car had been impounded within the last two months due to a drug situation. The
officer approached the driver's side of the car and shined his flashlight in the driver's
face, and asked the driver to roll down the window. ld. at 572. The officer then asked the
driver, later identified as Mr. O'Neill, what he was doing and for identification. Mr.
O'Neill responded that he did not have any identification and that the car would not start.
In holding that the officer's initial contact was not a seizure, the court pointed out
that illumination by a spotlight or flashlight, without additional indicia of authority, was
not an unreasonable intrusion. ld. at 578. As support, the 0 'Neill court cited its decision
in Young where it held that no seizure took place when an officer shined a spotlight on a
person in a public street at night since "[t]he use of a t1ashlight to illuminate at night what
is plainly visible during the day is not an unconstitutional intrusion into a citizen's privacy
interests." ld.
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No. 32152-5-111
State v. Cram
The court also noted it was not improper for the officer to engage Mr. O'Neill in
conversation in the store's parking lot. On this point, the court stated, "[t]he occupant of
a car does not have the same expectation of privacy in a vehicle parked in a public place
as he or she might have in a vehicle in a private location-he or she is visible and
accessible to anyone approaching." Id. at 579. Finally, the court rejected Mr. O'Neill's
contention that the request for identification constituted a seizure, adhering to its previous
analysis in Young that such a request does not elevate an encounter into a detention.
O'Neill, 148 Wn.2d at 580 (quoting Young, l35 Wn.2d at 511).
Similarly here, Officer Eikum pulled in behind a car parked in a public space. He
illuminated the interior of the car with his spotlight, approached the car, and asked Mr.
Cram for identifying information. Mr. Cram contends that Officer Eikum's use of a
spotlight materially distinguishes this case from 0 'Neill where the officer used a
flashlight to illuminate the interior of the car. We see no reason to distinguish the use of a
spotlight to illuminate from the use of a flashlight to illuminate. The spotlight, like a
flashlight, simply revealed "what was already in plain view." Young, l35 Wn.2d at 5l3.
Viewed in their totality, the circumstances in this case would not lead a reasonable
person to believe that he or she was not free to leave. Accordingly, the encounter with
Officer Eikum did not rise to the level of a seizure. The trial court did not err in denying
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No. 321 52-5-III
State v. Cram
Mr. Cram's motion to suppress.
In his SAG, Mr. Cram addresses the same issue raised and argued by defense
counsel on appeal, contending that the circumstances of the encounter would not lead a
reasonable person to believe he or she was free to leave. He emphasizes that Officer
Eikum parked behind the Saturn and shined a spotlight on it, illuminating the entire car
and its occupants. He writes, "A citazen is not a judge or lawyer and in my opinion 99%
of citazens would feel seized in the same curcomstances." SAG at 1. We have addressed
this argument and do not need to reconsider arguments raised and argued by defense
counsel on appeal. RAP 10.lO(a).
We affirm.
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.
Lawrence-Berrey, 1.
WE CONCUR:
12
ReneeS. Townsley
The Court ofAppeals 500 N Cedar ST
Clerk/Administrator ofthe Spokane, WA 99201·1905
(509) 456-3082 State of Washington Fax (509) 456-4288
TDD #1-80()"833-6388 Division III http://www.courts.wa.gov!courts
April 24, 2014
Carol L. La Verne Peter B. Tiller
Thurston County Prosecutors Office The Tiller Law Firm
2000 Lakeridge Dr SW Bldg 2 PO Box 58
Olympia, WA 98502-6045 Centralia, WA 98531-0058
Lavernc@co.thurston.wa.us ptiller@tillerlaw.com
CASE # 321525
State of Washington v. William Allen Cram
THURSTON COUNTY SUPERIOR COURT No. 121007997
Counsel:
Enclosed please find a copy of the opinion filed by the Court today.
A party need not file a motion for reconsideration as a prerequisite to discretionary review by the
Supreme Court. RAP 13.3(b); 13.4(a). If a motion for reconSideration is filed, it should state with
particularity the points of law or fact which the moving party contends the court has overlooked or
misapprehended, together with a brief argument on the points raised. RAP 12.4(c). Motions for
reconsideration which merely reargue the case should not be filed.
Motions for reconsideration, if any, must be filed within twenty (20) days after the filing of the
opinion. Please file an original and two copies of the motion. If no motion for reconsideration is filed,
any petition for review to the Supreme Court must be filed in this court within thirty (30) days after the
filing of this opinion (may be filed by electronic facsimile transmission). The motion for reconsideration
and petition for review must be received (not mailed) on or before the dates they are due. RAP 18.5(c).
Sincerely,
~YU~
Renee S. Townsley
Clerk/Administrator
RST:pb
Enc.
c: E-mail-Hon. Gary Tabor
Log Number: U-069
Oral Argument Date:
DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 32152-5
Title of Case: State Of Washington V. William Allen Cram
File Date: 04/24/2014
SOURCE OF APPEAL
Appeal from Thurston Superior Court
Docket No: 12-1-00799-7
Judgment or order under review
Date filed: 09/14/2012
Judge signing: Honorable Gary R Tabor
JUDGES
Authored by Robert E. Lawrence-Berrey
Concurring: George B. Fearing
Kevin M. Korsmo
COUNSEL OF RECORD
Counsel for Appellant(s)
Peter B. Tiller
The Tiller Law Firm
Po Box 58
Centralia, WA, 98531-0058
Counsel for Respondent(s)
Caro I L. La Verne
Thurston County Prosecutor's Office
2000 Lakeridge Dr Sw Bldg 2
Olympia, WA, 98502-6045
OPINION FACT SHEET
Case Name: State v. Cram
Case Number: 321525
1. TRIAL COURT INFORMATION:
A. SUPERIOR COURT: Thurston
Judgment; Gary Tabor; 9/14112
2. COURT OF APPEALS INFORMATION:
Disposition:
(X) Affirmed
() Affirmed as Modified
() Affirmed in PartlRemanded**
() AffirmedlReversed-in part and Remanded**
() AffirmedIVacated in part
() AffirmedlReversed in part
() Denied (PRP, Motions, Petitions)
() Dismissed
() GrantedlDenied in part
() Granted (PRP, Motions, Petitions)
() Other
() Reversed and Dismissed
() Remanded* *
() Remanded with Instructions**
() Reversed in part
() Reversed and Remanded* *
() Reversed
() Reversed, Vacated and Remanded* *
() Vacated and Remanded**
* These categories are established by the Supreme Court
* * If remanded, is jurisdiction being retained by the Court
of Appeals? 0 YES
o NO
3. SUPERIOR COURT INFORMATION:
(IF THIS IS A CRIMINAL CASE, CHECK ONE)
Is further action required by the superior court?
() YES
Y1 NO (l,,<3
Authoring Judge's Initials