FILED
MARCH 28, 2017
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, ) No. 33777-4-111
)
Respondent, )
)
v. )
) UNPUBLISHED OPINION
BRIAN PALACIOS-FARIAS )
aka BRIAN FARIAS )
aka BRIAN PALACIOS )
)
Appellant. )
PENNELL, J. -Brian Palacios-Farias was convicted of one count of residential
burglary and one count of second degree theft. Mr. Palacios-Farias appeals arguing the
trial court erred when it denied his suppression motion. Finding no error, we affirm.
FACTS 1
Police were dispatched to a local trailer park after a report of three suspicious
males wearing black clothing and facemasks. Upon arrival, one of the officers noticed a
silver Ford Mustang. From a distance, the officer observed someone enter the passenger
1 Neither party has assigned error to any of the trial court's findings of fact making
the findings verities on appeal. State v. Flores, 186 Wn.2d 506, 509 n.2, 379 P.3d 104
(2016). The facts here are drawn from the trial court's unchallenged findings of fact.
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State v. Palacios-Farias
side of the vehicle. The vehicle immediatly left the scene. After an attempted pursuit,
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' and search, the Mustang was located a short distance away and noted to have California
license plates and distinctive chrome wheels. The vehicle appeared to be unoccupied.
Il After a brief investigation, the Mustang again went missing. It was then located about a
half mile from the trailer park, at an apartment complex, parked in front of apartment A-
i l 04. The officers could see the curtains to apartment A-104 open and close repeatedly as
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if someone were looking out. Dispatch confirmed that the Mustang was associated with
apartment A-104.
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At this point, the officers approached apartment A-104 from the front and the
back. As one of the officers approached the backyard of the apartment he heard the back
1 door open followed by a "thump" or "thud" sound. Report of Proceedings (RP) (May 8,
I 2015) at 227-29; Clerk's Papers (CP) at 55. The officer then observed Mr. Palacios-
I Farias run from the fence in the rear of the yard toward the open back door of the
apartment. The officer approached Mr. Palacios-Farias, ordered him to the ground, and
handcuffed him. The officer explicitly told Mr. Palacios-Farias he was not under arrest as
the officers needed to investigate further. When asked, Mr. Palacios-Farias stated he did
not live in the apartment.
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The officers believed they may have interrupted a residential burglary and did not
know if Mr. Palacios-Farias or other unidentified suspects might be armed. One of the
officers identified himself as police and called for anyone else in the apartment to come
out and identify themselves. There was no response. Eventually several individuals
slowly trickled out of the apartment. One was a juvenile male dressed in dark clothing
who came to the front door. Another juvenile male emerged from a rear bedroom. This
I second male, as well as Mr. Palacios-Farias, had duct tape on the soles of his shoes, a
common technique used by burglars to avoid leaving shoe prints at the scene. As the
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l police continued their investigation, two more individuals, the tenant of the apartment and
l her daughter slowly emerged from other sections of the apartment.
As the individuals in the apartment revealed themselves, one of the officers
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I jumped over the fence in the rear of the backyard. The officer located a black backpack
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I on the ground near the fence. The backpack was dry but the ground was wet. The
l officers asked the two juvenile males and Mr. Palacios-Farias who owned the backpack.
Nobody claimed it. The officers opened the backpack and discovered several school-
I related items with one suspect's (not Mr. Palacios-Farias's) name on them, possible stolen
lI electronic items, and duct tape. All three boys continued to deny ownership of the
backpack. One of the officers then informed the boys they were not yet under arrest, but
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! he was going to read them their Miranda 2 rights. All three acknowledged they
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f understood their rights and then made statements. After the statements, the boys were
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I placed under formal arrest for possession of stolen property. In total, the boys were
handcuffed for about five to ten minutes.
Mr. Palacios-Farias was charged with one count of residential burglary and one
count of second degree theft. Prior to trial he filed a joint CrR 3.5 and CrR 3.6 motion to
suppress his pre-Miranda statements to the officers and the search of the backpack. The
motion was denied. Mr. Palacios-Farias was tried to the bench and found guilty. He
appeals.
ANALYSIS
Mr. Palacios-Farias argues the trial court should have granted his CrR 3.5 and
CrR 3.6 motions. As the trial court's findings of fact are not challenged, our review is
limited to the conclusions of law. State v. Cain, 108 Wn. App. 542, 547-48, 31 P.3d 733
(2001). Conclusions oflaw pertaining to the denial of a CrR 3.5 or CrR 3.6 motion are
reviewed de novo to determine whether they are supported by the trial court's findings of
fact. State v. Rosas-Miranda, 176 Wn. App. 773, 779, 309 P.3d 728 (2013) (CrR 3.5);
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lI State v. Garvin, 166 Wn.2d 242,249,207 P.3d 1266 (2009) (CrR 3.6).
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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Statements to officers-CrR 3.5 motion
Mr. Palacios-Farias argues he was under arrest the moment he was placed in
handcuffs and should have been given Miranda warnings at that time. Prior to being
given Miranda warnings, Mr. Palacios-Farias denied residence at apartment A-104 and
denied ownership of the backpack. Since no warnings were given he argues these pre-
Miranda statements should be suppressed. The State asserts this was a lawful Terry3 stop
and Mr. Palacios-Farias was not placed under formal arrest until the officers explicitly
told him so. Thus, any pre-Miranda statements need not be suppressed because no
Miranda warnings were actually required. We agree with the State.
Warrantless seizures are generally presumed to be unconstitutional. State v.
Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008); Coolidge v. New Hampshire, 403
U.S. 443, 454-55, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). The burden is on the State to
prove that an exception to the warrant requirement applies. State v. Hendrickson, 129
Wn.2d 61, 71, 917 P .2d 563 ( 1996). One such exception is a Terry stop. State v. Ladson,
138 Wn.2d 343, 349-50, 979 P.2d 833 (1999). A Terry stop permits an officer to briefly
detain and question a person reasonably suspected of criminal activity. State v. Smith,
102 Wn.2d 449, 452, 688 P.2d 146 (1984). An officer must have "a reasonable,
3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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articulable suspicion, based on specific, objective facts, that the person seized has
committed or is about to commit a crime." Gatewood, 163 Wn.2d at 539 (internal
quotation marks omitted) (quoting State v. Duncan, 146 Wn.2d 166, 172, 43 P .3d 513
(2002)); see also Terry, 392 U.S. at 21. The police first encountered Mr. Palacios-Farias
trying to dispose of possible evidence behind an apartment associated with a distinctive
vehicle that eluded the police at the scene of a suspected burglary a very short time
earlier. The officers also noted someone within the apartment observing their actions in a
suspicious manner. The facts here are more than sufficient to create a reasonable and
articulable suspicion that Mr. Palacios-Farias had committed a crime.
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Mr. Palacios-Farias further argues this was never a Terry stop because he was
placed in handcuffs and was thus under arrest. He is incorrect. Although a Terry stop is
ll ordinarily limited to a frisk for weapons and brief questioning, handcuffing a suspect is
permissible if the officers can point to a reasonable fear of danger. State v. Mitchell, 80
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Wn. App. 143, 145-46, 906 P.2d 1013 (1995). The scope of intrusion permitted varies
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1 based on the totality of the circumstances in each individual case. State v. Wheeler, 108
1 Wn.2d 230, 245-46, 737 P.2d 1005 (1987) (Pearson, CJ., dissenting). The officers had
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evidence of a possible burglary at the trailer park and suspected they interrupted a
'I residential burglary at the apartment. The officers knew from their training that burglary
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f tools could be used as weapons, and that there were at least two other suspects possibly in
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the apartment. The officers received no response when they called for everyone in the
apartment to come out and identify themselves, and the persons in the apartment then
l slowly revealed themselves. Based on these facts, the officers had a reasonable fear of
1 danger that justified handcuffing Mr. Palacios-Farias as they investigated. The fact that
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he was placed in handcuffs did not tum this Terry stop into a formal arrest.
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j Mr. Palacios-Farias last argues this could not have been a Terry stop because the
officers exceeded the permissible length of such a stop. Mr. Palacios-Farias was only in
handcuffs for about five to ten minutes total. He was in handcuffs for even less time than
that before he received the Miranda warning. There is no rigid time limitation on Terry
stops. United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 84 L. Ed. 2d 605
( 1985). A lawful Terry stop is limited in scope and duration to fulfilling the investigative
purpose of the stop. State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003). As
discussed above, the officers had legitimate safety concerns because they did not know
the total number of suspects in the apartment and reasonably believed any suspects could
be armed. Those suspicions were further aroused and ultimately confirmed when the
officers discovered and searched the backpack. See id.
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Given the officers' reasonable safety concerns, the strong indications Mr. Palacios-
Farias had committed a crime, and the very brief amount of time he was in handcuffs, any
intrusion on Mr. Palacios-Farias's freedom was justifiable. Accordingly, Mr. Palacios-
Farias's statements denying residence at apartment A-104 and ownership of the backpack
were made during a lawful Terry stop. The CrR 3.5 motion was properly denied.
Contents of backpack-CrR 3. 6 motion
Mr. Palacios-Farias next argues the trial court erred when it ruled no warrant was
required to search the backpack because it had been abandoned. He argues he had a
reasonable expectation of privacy in the backpack even though it was thrown over the
fence. 4 We disagree.
Officers may retrieve and search voluntarily abandoned property without probable
cause or a warrant. State v. Evans, 159 Wn.2d 402, 407-09, 150 P.3d 105 (2007).
Whether property has been voluntarily abandoned is determined by evaluating the intent
and actions of the defendant to ascertain whether the defendant has a reasonable
expectation of privacy despite leaving the property. Id. The burden shifts to the
defendant to show a reasonable expectation of privacy still existed and there was no
4 Mr. Palacios-Farias may not have had automatic standing to contest the search of
the backpack. See State v. Wisdom, 187 Wn. App. 652, 664-65, 349 P.3d 953 (2015).
Nevertheless, because the State does not address standing, neither do we.
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abandonment. Id. One of the officers observed Mr. Palacios-Farias running from the
fence in the back of the apartment immediately after hearing a "thump" or "thud" sound.
RP (May 8, 2015) at 227-29; CP at 55. Upon inspection, the officers discovered a dry
backpack on the wet ground just beyond the fence, suggesting the backpack was recently
dropped or thrown. Mr. Palacios-Farias never claimed ownership of the backpack at any
time despite being asked twice. Further, "a critical factor in determining whether
abandonment has occurred is the status of the area where the searched item was located."
State v. Samalia, 186 Wn. App. 224, 229, 344 P.3d 722 (2015), ajf'd, 186 Wn.2d 262,
375 P.3d 1082 (2016). Nothing in the record indicates Mr. Palacios-Farias had a privacy
interest in the area where the backpack was found. Last, the simple fact that the backpack
is a backpack does not automatically give him a reasonable privacy interest in its contents
without some showing he used it for personal reasons. See State v. Kealey, 80 Wn. App.
162, 170, 907 P .2d 319 ( 1995) (stating there is a reasonable privacy interest in traditional
repositories of personal belongings). Mr. Palacios-Farias has offered no evidence the
backpack was his personal property. See Evans, 159 Wn.2d at 407-09. The trial court
properly concluded Mr. Palacios-Farias had voluntarily abandoned the backpack and no
warrant was required to search it. The CrR 3 .6 motion was properly denied.
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CONCLUSION
Based on the foregoing, we affirm the trial court's suppression and disposition
orders.
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.
Q
Pennell, J.
Q_D,Q:
WE CONCUR:
(..., ...., ... , ~ <.,'\.. State of Washington v. Brian Palacios-Farias
Combined Opinion