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FILED
MARCH 28, 2013

In the Office of the Clerk of Court
W A State Court of Appeals, Division [II


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, Respondent,

) )
) ) ) ) ) )

No. 30549-0-III

v.
DA WES MICHAEL MARLATT, Appellant.
KlTLIK,

UNPUBLISHED OPINION

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J. - Dawes Michael Marlatt appeals his conviction for the crime of

unlawful possession of a controlled substance, methamphetamine. Mr. Marlatt contends the trial court erred by denying his motion to suppress the evidence obtained from a
Terryl frisk. He specifically argues that trial counsel was ineffective for failing to argue

that a law enforcement officer exceeded the permissible scope of a weapons search when he continued to search Mr. Marlatt's pocket after determining that Mr. Marlatt was not armed. We reverse the conviction, as the evidence was the product of an unlawful search and should have been suppressed.

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Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968).

No.30549-0-II1 State v. Marlatt

FACTS During the early morning of June 1,2010, Sheriffs Deputy Robert Brooke stopped Mr. Marlatt for driving a car with a defective headlight. Mr. Marlatt showed the deputy his license, but was unable to produce the car's registration. A computer check revealed that the registration had expired in 2007, although the license plate had 2010 tabs. Deputy Brooke asked Mr. Marlatt to get out of the car so that he could question Mr. Marlatt outside the presence of a passenger in the car. As Mr. Marlatt exited the car, he reached behind his back with his right hand, prompting the deputy to grab Mr. Marlatt's hand. Deputy Brooke then noticed the handle of a wrench sticking out of Mr. Marlatt's right rear pocket and decided to search Mr. Marlatt for weapons. During a pat down of Mr. Marlatt's left front pants pocket, the deputy felt a large folding knife. He removed the knife and proceeded to search Mr. Marlatt's right front pants pocket where he felt a small soft bulge inside the coin pocket that he suspected was a baggie of drugs. Mr. Marlatt became fidgety, tried to pull his hands from the deputy's grasp, and protested the search. However, the deputy continued the search, later stating in his incident report, "It is common for drug users to package their drugs in plastic baggies and carry the baggie in their coin pockets." Clerk's Papers (CP) at 17. To confirm his suspicion, the deputy manipulated the item between his thumb and forefinger and asked

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No. 30549-0-111
State v. Marlatt

Mr. Marlatt what was in his coin pocket. Mr. Marlatt, responded, '" 1 don't know.'" CP at 17. Deputy Brooke asked Mr. Marlatt ifhe could remove the item. Mr. Marlatt sighed and said, " , Yeah, go ahead.'" CP at 17. The deputy then removed the item, which was later established to be methamphetamine. The State charged Mr. Marlatt with possession of a controlled substance. Mr. Marlatt moved to suppress the evidence, arguing the deputy exceeded the scope of a routine traffic stop by asking Mr. Marlatt to exit the car and then searching him. He argued that the issue of the expired car tabs could have been handled with Mr. Marlatt sitting in the car and that Mr. Marlatt's possession of a wrench in his back pocket was insufficient to trigger a suspicion that he was involved in criminal activity or armed. The court denied the motion, finding that the discrepancy between the 2007 expired registration date and 2010 tabs on the vehicle justified the deputy's decision to question Mr. Marlatt and that the deputy's request for Mr. Marlatt to exit the car was a de minimis intrusion and lawful within the scope of the traffic stop. It also found that the
Terry frisk, after discovery of the wrench, was not unreasonable.

Mr. Marlatt was found guilty of possession of methamphetamine after a bench trial on stipulated facts.

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No. 30549-0-111 State v. Marlatt

ANALYSIS When reviewing the denial of a suppression motion, we determine whether substantial evidence supports the challenged findings of fact and whether the findings support the conclusions of law. State v. Hill, 123 Wn.2d 641,644, 870 P.2d 313 (1994). Conclusions oflaw are reviewed de novo. State v. Duncan, 146 Wn.2d 166, 171,43 PJd 513 (2002). Here, Mr. Marlatt does not contest the legality of the initial stop or the frisk for weapons; instead, Mr. Marlatt argues that the deputy exceeded the narrow scope of a

Terry weapons frisk by continuing to manipulate the contents of his pocket after
determining that he was not armed. He raises the issue for the first time on appeal by claiming the manifest constitutional error of ineffective assistance of counsel. His trial counsel moved to suppress on the unsuccessful ground that the Terry search for weapons was not justified at its inception because there was no basis to ask Mr. Marlatt to exit the car or to search him for weapons. Mr. Marlatt contends that effective counsel would have instead challenged the scope of the Terry weapons frisk. Generally, we do not review evidentiary objections that were not presented to the trial court unless the alleged error involves a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. Horton, 136 Wn. App. 29, 36, 146 PJd 1227 (2006).

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No.30S49-0-III State v. Marlatt

Ineffective assistance of counsel is a manifest error affecting a constitutional right and so we must review Mr. Marlatt's claim even ifit is raised for the first time on appeaL State v. Brown, 159 Wn. App. 1, 17,248 P.3d 518 (2010) (citing RAP 2.5). We review a claim of ineffective assistance de novo. State v. Rainey, 107 Wn. App. 129, 135,28 P.3d 10 (2001). Mr. Marlatt is required to show that his lawyer's representation was deficient and that the deficiency prejudiced him; that is, the error likely changed the outcome of the trial. Stricklandv. Washington, 466 U.S. 668,687,104

S. Ct. 2052,80 L. Ed. 2d 674 (1984).
Because Mr. Marlatt tries to raise a suppression issue not considered by the trial court, he must establish that the trial court would likely have granted the motion if it had been made, and that defense counsel had no legitimate tactical basis for not raising the argument in the trial court. State v. McFarland, 127 Wn.2d 322, 333-35, 899 P.2d 1251 (1995). This court has noted that suppression of drug evidence often results in the dismissal of drug possession charges, thus satisfYing both Strickland prongs if defense counsel failed to raise an argument during a suppression motion that likely would have succeeded. Horton, 136 Wn. App. at 36. Generally, warrantless searches and seizures are per se unreasonable, subject only to a few well established exceptions, including a Terry stop. Terry v. Ohio, 392 U.S. 1,

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No. 30549-0-II1 State v. Marlatt

88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). A Terry stop, although less intrusive than an arrest,is nevertheless a seizure and, therefore, must be reasonable under the Fourth Amendment and article I, section 7 of the Washington Constitution. State v. Kennedy, 107 Wn.2d 1,4, 726 P.2d 445 (1986). A Terry stop must be justified not only in its inception, but also in its scope. State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994). Under Terry, an officer is allowed to conduct a brief and nonintrusive search to discover potential weapons if the officer has reasonable safety concerns. Terry, 392 U.S. at 29; State v. Serrano, 14 Wn. App. 462, 468, 544 P.2d 101 (1975). The search must be "confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Terry, 392 U.S. at 29. A protective search for weapons may not be used as a pretext for a more general search to discover evidence of a crime. Minnesota v. Dickerson, 508 U.S. 366,373, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993); State v. Setterstrorn, 163 Wn.2d 621,626, 183 P.3d 1075 (2008). Thus, as soon as an officer determines that the suspect has no weapon(s), the search must stop. Hudson, 124 Wn.2d at 113 (quoting State v. Allen, 93 Wn.2d 170, 173, 606 P.2d 1235 (1980)).

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No.30549-0-III State v. Marlatt

State v. Garvin, 166 Wn.2d 242,207 P.3d 1266 (2009) is directly on point. In that

case, a police officer conducted a lawful Terry stop and weapons search. During the weapons frisk, the police officer felt a plastic baggie inside the defendant's front pants coin pocket and immediately determined there was no weapon. Id. at 245,254-55. Nevertheless, the officer continued to squeeze the contents of the defendant's pocket because he suspected the baggie contained narcotics. Id. at 247. The court held that as soon as the officer ascertained the defendant did not have a weapon, any continuing search was unreasonable: "[i]t is unlawful for officers to continue squeezing ... after they have determined a suspect does not have a weapon, to find whether the suspect is carrying drugs or other contraband." Id. at 255. The court cautioned that if such a general search for contraband were permitted, "one of the narrowly drawn exceptions to the warrant requirement would swallow the rule." Id. Like Garvin, the deputy here exceeded the permissible scope of a weapons search when he continued to manipulate the contents of Mr. Marlatt's coin pocket after determining there was no weapon in the pocket. The deputy admitted that he "suspected the soft bulge was a plastic baggie containing drugs" and continued to manipulate the item in the baggie to confirm his suspicions. CP at 17. Under Garvin, as soon as the deputy knew Mr. Marlatt was not armed, the search should have stopped. Garvin, 166

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No.30549-0-III State v. Marlatt

Wn.2d at 255. The State argues that because Mr. Marlatt consented to the search, no constitutional protections are implicated. However, as discussed in the remaining analysis, Mr. Marlatt's consent was obtained through exploitation of the prior illegal search and therefore did not purge the taint of the prior illegal search. A search that exceeds the proper scope of a Terry stop is improper unless the defendant's "subsequent consent to the search ... sufficiently purged the taint of the illegal detention." State v. Tijerina, 61 Wn. App. 626, 629, 811 P.2d 241 (1991). The State must demonstrate that a defendant's consent was not obtained by the exploitation of a prior illegal search. State v. Jensen, 44 Wn. App. 485,490, 723 P.2d 443 (1986) (quoting Wong Sun v. United States, 371 U.S. 471, 487-88,83 S. Ct. 407, 9 L. Ed. 2d 441 (1963

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