IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 81034-1-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION DEJONE DEWAYNE MICHAEL SIMPSON,
Appellant.
CHUN, J. — Upon walking onto Dejone Simpson’s driveway, Officer Mike
Russell, a police officer for the City of Lakewood, could see the license plate of a
Nissan Sentra parked in Simpson’s driveway. After reading the license plate
number to dispatch, Officer Russell learned the vehicle had been reported stolen
and arrested Simpson. A jury found Simpson guilty on one count of possession
of a stolen vehicle.
Simpson appeals his conviction, claiming that the trial court erred by
(1) failing to dismiss his case without prejudice under CrR 8.3(b), and (2) denying
his motion to suppress the evidence gathered after Officer Russell walked onto
his driveway. We do not consider Simpson’s CrR 8.3(b) claim because he failed
to adequately raise it below. And we determine the court did not err by denying
the motion to suppress because, as Officer Russell could see the license plate
from the driveway, the plate was in open view. Accordingly, we affirm Simpson’s
Citations and pin cites are based on the Westlaw online version of the cited material. No. 81034-1-I/2
conviction. We remand, however, to strike the criminal filing and DNA fees from
Simpson’s Judgment and Sentence.
I. BACKGROUND
On March 18, 2017, Francisco Santiago saw a person stealing his car, a
beige 1994 Nissan Sentra, from outside his apartment in Lakewood, Washington.
Santiago called the police and filed a report.
On March 22, 2017, Officer Russell was patrolling the Rancho Villa area of
Lakewood. While driving through Rancho Villa Mobile Home at 9:00 a.m., Officer
Russell noticed a person inside, and under the “dash area” of, a beige Nissan in
the driveway of Trailer 22. Because the Nissan was parked behind another car,
Officer Russell could see about “three-quarters or better of the vehicle.” Officer
Russell thought the scene “looked abnormal, like possibly [the person was]
maybe stealing the stereo or doing something to the ignition.”
As Officer Russell approached the car, he called out to the person that
was inside, whom he later identified as Simpson. Once on the driveway, Officer
Russell could see the car’s license plate number and read it to dispatch. Officer
Russell asked Simpson “what he was up to,” to which Simpson responded “that
he was working on the vehicle” and “putting a stereo in the car.” Dispatch then
advised Officer Russell that the vehicle “was a [sic] confirmed stolen out of
Pierce County.” Officer Russell arrested Simpson. After Officer Russell placed
Simpson in custody, Simpson “protested, saying that he had purchased the car
for a hundred bucks.”
2 No. 81034-1-I/3
On March 23, 2017, the State charged Simpson with one count of unlawful
possession of a stolen vehicle.
The court ordered a competency evaluation for Simpson on April 11,
2017. The evaluation found Simpson was competent.
On July 14, 2017, Simpson filed a motion to suppress arguing that Officer
Russell obtained the Nissan’s license plate because of an unconstitutional
search. Simpson asked the court to suppress “all information regarding the
vehicle and Mr. Simpson,” including the statements he made after his arrest.
The court heard testimony related to the motion to suppress on July 17,
2017. The court then denied the motion, determining the open view doctrine
permitted Officer Russell to go onto the driveway, where he could then see the
license plate.
On July 18, 2017, a jury convicted Simpson on one count of possession of
a stolen vehicle.
On September 15, 2017, prior to sentencing, Simpson’s attorney
requested a second competency evaluation, which the court granted. The
evaluator requested an inpatient competency evaluation for up to 15 days, or as
allowed by statute.
The court entered a competency order for an inpatient evaluation on
September 28, 2017. The order provided that Simpson “shall be admitted to the
hospital within 7 days of signing of this order for a period of commitment of up to
15 days from the time of admission.” The order made the evaluation report due
by October 19, 2017.
3 No. 81034-1-I/4
On October 4, 2017, because Simpson had not yet been admitted to
Western State Hospital (WSH), Simpson moved for an order to show cause “why
an order dismissing [Simpson’s case] and an order of contempt should not be
granted.” The court scheduled the show cause hearing for October 11, 2017.
At the show cause hearing, the court found WSH and the Department of
Social and Health Services (DSHS) in contempt and ordered sanctions under
Trueblood v. Wash. State Dep’t of Soc. & Health Servs., 101 F. Supp. 3d 1010
(W.D. Wash. 2015).
WSH admitted Simpson on December 6, 2017. An evaluation determined
that Simpson was competent and recommended that he return to court to
resume the sentencing process. The court scheduled Simpson’s sentencing.
On January 19, 2018, the court sentenced Simpson to 35 months. The
court additionally imposed a $100 DNA collection fee and a $200 criminal filing
fee. Simpson appeals.
II. ANALYSIS
A. CrR 8.3(b)1
Simpson argues that we should dismiss his case without prejudice under
CrR 8.3. Because Simpson did not raise this argument below, we do not
consider it on appeal.
1 CrR 8.3(b) provides: (b) On Motion of Court. The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial. The court shall set forth its reasons in a written order.
4 No. 81034-1-I/5
Under RAP 2.5(a), we may refuse to consider an issue that a party did not
raise before the trial court or that the court did not consider. See also State ex
rel. Cosmopolis Consol. Sch. Dist. No. 99, Grays Harbor County v. Bruno, 61
Wn.2d 461, 472, 378 P.2d 691 (1963) (“This issue was not presented to, or
considered by, the trial court, which precludes us from considering it upon this
appeal.”). To raise an argument before the trial court, “[a] party must inform the
court of the rules of law it wishes the court to apply and afford the trial court an
opportunity to correct any error.” State v. Lazcano, 188 Wn. App. 338, 355, 354
P.3d 233 (2015). Under RAP 2.5(a), we will generally not consider an issue a
party did not adequately argue below; to be adequate, “the argument should be
more than fleeting.” Lazcano, 188 Wn. App. at 355.
Here, the conclusion of Simpson’s motion titled “Memorandum in Support
of Motion for Contempt” contains one sentence regarding CrR 8.3, and states,
“Defendant further requests the Court dismiss the above-captioned matter for
violation of 8.3(b).” In the court’s order finding WSH and DSHS in contempt, the
court neither mentions CrR 8.3(b) nor any request for dismissal.2 Additionally,
none of the transcripts below reflect any discussion of CrR 8.3(b).
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 81034-1-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION DEJONE DEWAYNE MICHAEL SIMPSON,
Appellant.
CHUN, J. — Upon walking onto Dejone Simpson’s driveway, Officer Mike
Russell, a police officer for the City of Lakewood, could see the license plate of a
Nissan Sentra parked in Simpson’s driveway. After reading the license plate
number to dispatch, Officer Russell learned the vehicle had been reported stolen
and arrested Simpson. A jury found Simpson guilty on one count of possession
of a stolen vehicle.
Simpson appeals his conviction, claiming that the trial court erred by
(1) failing to dismiss his case without prejudice under CrR 8.3(b), and (2) denying
his motion to suppress the evidence gathered after Officer Russell walked onto
his driveway. We do not consider Simpson’s CrR 8.3(b) claim because he failed
to adequately raise it below. And we determine the court did not err by denying
the motion to suppress because, as Officer Russell could see the license plate
from the driveway, the plate was in open view. Accordingly, we affirm Simpson’s
Citations and pin cites are based on the Westlaw online version of the cited material. No. 81034-1-I/2
conviction. We remand, however, to strike the criminal filing and DNA fees from
Simpson’s Judgment and Sentence.
I. BACKGROUND
On March 18, 2017, Francisco Santiago saw a person stealing his car, a
beige 1994 Nissan Sentra, from outside his apartment in Lakewood, Washington.
Santiago called the police and filed a report.
On March 22, 2017, Officer Russell was patrolling the Rancho Villa area of
Lakewood. While driving through Rancho Villa Mobile Home at 9:00 a.m., Officer
Russell noticed a person inside, and under the “dash area” of, a beige Nissan in
the driveway of Trailer 22. Because the Nissan was parked behind another car,
Officer Russell could see about “three-quarters or better of the vehicle.” Officer
Russell thought the scene “looked abnormal, like possibly [the person was]
maybe stealing the stereo or doing something to the ignition.”
As Officer Russell approached the car, he called out to the person that
was inside, whom he later identified as Simpson. Once on the driveway, Officer
Russell could see the car’s license plate number and read it to dispatch. Officer
Russell asked Simpson “what he was up to,” to which Simpson responded “that
he was working on the vehicle” and “putting a stereo in the car.” Dispatch then
advised Officer Russell that the vehicle “was a [sic] confirmed stolen out of
Pierce County.” Officer Russell arrested Simpson. After Officer Russell placed
Simpson in custody, Simpson “protested, saying that he had purchased the car
for a hundred bucks.”
2 No. 81034-1-I/3
On March 23, 2017, the State charged Simpson with one count of unlawful
possession of a stolen vehicle.
The court ordered a competency evaluation for Simpson on April 11,
2017. The evaluation found Simpson was competent.
On July 14, 2017, Simpson filed a motion to suppress arguing that Officer
Russell obtained the Nissan’s license plate because of an unconstitutional
search. Simpson asked the court to suppress “all information regarding the
vehicle and Mr. Simpson,” including the statements he made after his arrest.
The court heard testimony related to the motion to suppress on July 17,
2017. The court then denied the motion, determining the open view doctrine
permitted Officer Russell to go onto the driveway, where he could then see the
license plate.
On July 18, 2017, a jury convicted Simpson on one count of possession of
a stolen vehicle.
On September 15, 2017, prior to sentencing, Simpson’s attorney
requested a second competency evaluation, which the court granted. The
evaluator requested an inpatient competency evaluation for up to 15 days, or as
allowed by statute.
The court entered a competency order for an inpatient evaluation on
September 28, 2017. The order provided that Simpson “shall be admitted to the
hospital within 7 days of signing of this order for a period of commitment of up to
15 days from the time of admission.” The order made the evaluation report due
by October 19, 2017.
3 No. 81034-1-I/4
On October 4, 2017, because Simpson had not yet been admitted to
Western State Hospital (WSH), Simpson moved for an order to show cause “why
an order dismissing [Simpson’s case] and an order of contempt should not be
granted.” The court scheduled the show cause hearing for October 11, 2017.
At the show cause hearing, the court found WSH and the Department of
Social and Health Services (DSHS) in contempt and ordered sanctions under
Trueblood v. Wash. State Dep’t of Soc. & Health Servs., 101 F. Supp. 3d 1010
(W.D. Wash. 2015).
WSH admitted Simpson on December 6, 2017. An evaluation determined
that Simpson was competent and recommended that he return to court to
resume the sentencing process. The court scheduled Simpson’s sentencing.
On January 19, 2018, the court sentenced Simpson to 35 months. The
court additionally imposed a $100 DNA collection fee and a $200 criminal filing
fee. Simpson appeals.
II. ANALYSIS
A. CrR 8.3(b)1
Simpson argues that we should dismiss his case without prejudice under
CrR 8.3. Because Simpson did not raise this argument below, we do not
consider it on appeal.
1 CrR 8.3(b) provides: (b) On Motion of Court. The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial. The court shall set forth its reasons in a written order.
4 No. 81034-1-I/5
Under RAP 2.5(a), we may refuse to consider an issue that a party did not
raise before the trial court or that the court did not consider. See also State ex
rel. Cosmopolis Consol. Sch. Dist. No. 99, Grays Harbor County v. Bruno, 61
Wn.2d 461, 472, 378 P.2d 691 (1963) (“This issue was not presented to, or
considered by, the trial court, which precludes us from considering it upon this
appeal.”). To raise an argument before the trial court, “[a] party must inform the
court of the rules of law it wishes the court to apply and afford the trial court an
opportunity to correct any error.” State v. Lazcano, 188 Wn. App. 338, 355, 354
P.3d 233 (2015). Under RAP 2.5(a), we will generally not consider an issue a
party did not adequately argue below; to be adequate, “the argument should be
more than fleeting.” Lazcano, 188 Wn. App. at 355.
Here, the conclusion of Simpson’s motion titled “Memorandum in Support
of Motion for Contempt” contains one sentence regarding CrR 8.3, and states,
“Defendant further requests the Court dismiss the above-captioned matter for
violation of 8.3(b).” In the court’s order finding WSH and DSHS in contempt, the
court neither mentions CrR 8.3(b) nor any request for dismissal.2 Additionally,
none of the transcripts below reflect any discussion of CrR 8.3(b).
Accordingly, Simpson’s argument under CrR 8.3(b) was fleeting and thus
failed to adequately present the issue to the trial court. The single sentence on
the issue does not discuss or apply any relevant standards or case law.
Additionally, that the court’s order does not mention CrR 8.3(b) indicates that it
2 The record does not reflect that Simpson filed any motion for reconsideration after the court’s order failed to discuss dismissal under CR 8.3(b).
5 No. 81034-1-I/6
did not consider the issue below. For these reasons, we will not consider the
issue on appeal. See State v. Nowinski, 124 Wn. App. 617, 630, 102 P.3d 840
(2004) (refusing to consider on appeal an argument for dismissal under CrR 8.3
because the party did not raise the argument below).
B. Motion to Suppress
Simpson argues that the trial court erred by denying his motion to
suppress because Officer Russell obtained the Nissan’s license plate number
through a warrantless search. The State asserts the court properly determined
that the open view doctrine applied to the license plate. We agree with the State.
“We review the denial of a motion to suppress to determine whether
substantial evidence supports the trial court’s findings of fact and whether the
findings of fact support the trial court’s conclusions of law.” State v. Boisselle,
194 Wn.2d 1, 14, 448 P.3d 19 (2019). “We review the trial court’s conclusions of
law de novo.” Boisselle, 194 Wn.2d at 14.
Generally, a person does not have a privacy interest in that which they
voluntary expose to the public. State v. Carter, 151 Wn.2d 118, 126, 85 P.3d
887 (2004). Under the open view doctrine, a search does not occur if an officer
detects something in open view because one does not have a reasonable
expectation of privacy. State v. Seagull, 95 Wn.2d 898, 901-02, 632 P.2d 44
(1981). “Something detected by an officer’s senses, from a nonintrusive vantage
point, is in ‘open view.’” State v. Myers, 117 Wn.2d 332, 345, 815 P.2d 761
(1991) (quoting Seagull, 95 Wn.2d at 902). “An officer is permitted the same
license to intrude as a reasonably respectful citizen.” Seagull, 95 Wn.2d at 902.
6 No. 81034-1-I/7
Though the curtilage of a home, such as a driveway, has heightened
protections under the Fourth Amendment, “a person does not have a reasonable
expectation of privacy in areas of the curtilage impliedly open to the public.”
State v. Hornback, 73 Wn. App. 738, 743, 871 P.2d 1075 (1994). “Thus, an entry
by law enforcement officials onto those areas of the curtilage, such as driveways,
walkways or access routes leading to a residence, does not constitute a search
and does not implicate the Fourth Amendment.” Hornback, 73 Wn. App. at 743.
The trial court determined that the Nissan license plate was in open view
because Officer Russell could see it from Simpson’s driveway. Simpson does
not challenge the court’s finding that Officer Russell could view the license plate
once he “proceeded down the parking strip or driveway.” As such, the finding is
a verity on appeal. State v. Brown, 194 Wn.2d 972, 981 n.1, 454 P.3d 870
(2019). Because Officer Russell observed the Nissan’s license plate from
Simpson’s driveway—a lawful vantage point—the trial court did not err by
determining that the open view doctrine applied.3
C. Discretionary Costs
Simpson asks that we strike the $200 filing fee and $100 DNA fee from his
judgment pursuant to State v. Ramirez, 191 Wn.2d 732, 739, 426 P.3d 714
(2018). Ramirez, decided after the trial court imposed the fees in this case, held
3 Simpson argues that because Officer Russell had to go onto his driveway to see the license plate, and this “initial entry on the property was not based on a reasonable suspicion of criminal activity,” the officer was not privileged to enter onto the property. But because Officer Russell could lawfully go onto Simpson’s driveway, just as a respectful citizen could, the officer did not need reasonable suspicion to walk onto it. See Hornback, 73 Wn. App. at 743. Furthermore, because we determine that the court properly admitted the evidence under the open view doctrine, we do not address whether Officer Russell seized Simpson.
7 No. 81034-1-I/8
that trial courts may not impose discretionary costs on an indigent criminal
defendant. 191 Wn.2d at 746. Here, the trial court recognized Simpson’s
indigence when it allowed him to pursue his appeal at public expense. The
criminal filing fee was discretionary. Ramirez, 191 Wn.2d at 739 (providing that
criminal filing fees are discretionary). The DNA fee was also discretionary since
the State had previously collected Simpson’s DNA. Ramirez, 191 Wn.2d at 747
(stating that the DNA fee is discretionary if the State has collected the offender’s
DNA pursuant to a prior conviction).4 The State agrees that we should strike the
fees.
Affirmed but remanded to strike the criminal filing and DNA fees from
WE CONCUR:
4 Former RCW 43.43.754 (1999) required DNA collection for adult and juvenile felonies.