State Of Washington v. Maksim v. Burich

• Court: Court of Appeals of Washington
• Decided: June 4, 2015
• Docket: 45400-9
• Status: Unpublished

Opinion

FILED COURT OF APPEALS DIVISION 11

2015 JUN - 4 AM 8: 35 STA OFASH! .OTOU

BY

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 45400 -9 -II

Respondent,

v.

MAKSIM V. BURICH, UNPUBLISHED OPINION

Appellant.

SUTTON, J. — Maksim V. Burich appeals his bench trial convictions for first degree

burglary, second degree unlawful possession of a firearm, theft of a firearm, residential burglary,

and second degree criminal trespass. He argues that the trial court erred in failing to suppress

evidence obtained by a police officer during a Terry' investigative stop. He argues that the trial

court erred in including Burich' s race in Findings of Fact 2 and 3 as part of the facts upon which

the court made its Conclusion of Law 1 ( ruling that the officer' s stop was justified based on a

reasonable, articulable suspicion that Burich was involved in criminal activity). Because

substantial evidence supports the trial court' s findings of fact, and because those findings support

1 Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968). No. 45400 -9 -II

the court' s legal conclusion, we hold that the trial court did not err in failing to suppress evidence

obtained as a result of the officer' s Terry stop. We affirm.

FACTS

At approximately 2: 24 AM on October 8, 2012, Martin Blackmer awoke to a stranger

leaning through the sliding door of his residence. Blackmer yelled at the individual, who then ran

out the door. Blackmer immediately called the police, and described the intruder to police dispatch

as a " slender, white male, younger, with a light- colored hooded sweatshirt." 1 Verbatim Report

of Proceedings ( VRP) at 68.

Shortly afterwards, at approximately 3: 00 AM, Katherine Evans awoke to her dog growling

and a ticking sound coming from her backyard. Evans looked out her bedroom window and saw

a stranger in her backyard next to the living room window. She made eye contact with the

individual, whom she described to police dispatch as a " slender, white male with a light gray

hoodie and light -colored pants." 1 VRP at 71. The individual ran from the house and Evans called

the police.

Jason Dashnow returned from his shift on the night between October 7 and October 8 to

find that his apartment had been burglarized. Dashnow called the police. Dashnow' s apartment

is located across the street from Blackmer' s residence and 1. 5 miles from Evans' s residence.

Officer Jacob Stringfellow responded to the Blackmer residence call at. 2: 26 AM on

October 8, 2012. Blackmer told Officer Stringfellow that he had fallen asleep on his couch

watching television, and woke up to see a " slender, white male, younger, with a light -colored

hooded sweatshirt or ... hoodie" in his living room. 1 VRP at 68. No. 45400 -9 -II

At approximately 3: 05 AM, police dispatch notified Officer Patrick Gilbert of an attempted

intrusion into Evans' s residence. Dispatch described the intruder as " an unknown race male,

possibly a teenager, wearing a light -colored hoodie and some jeans," and stated that the intruder

fled in a westbound direction. 1 VRP at 11. Officer Gilbert drove one -half mile southwest of the

reported burglary location and began looking for the intruder in an area known as " Saddle Creek."

1 VRP at 11, 16.

When Officer Gilbert arrived in Saddle Creek, at approximately. 3: 11 AM, there was no

traffic in the area; he added white take -down lights and alley lights to his headlights to illuminate

the scene. He drove between three and five miles per hour and, upon rounding a corner in his

police vehicle at approximately 3: 17 AM, he " saw a red car, lights completely off, headed directly

towards [ him], [ with] a male inside of the car that matched the individual [ he] was looking for."

1 VRP at 17. The red car was driving at less than five miles per hour. Officer Gilbert directed his

spotlight into the car and observed a " white male, short, brown hair and he was wearing a light-

colored hoodie." 1 VRP at 18. The driver " appeared to be youthful in appearance." 1 VRP at 18.

The car stopped approximately 30 feet from Officer Gilbert' s patrol car; Officer Gilbert

stepped outside his patrol car and ordered the driver to display his hands. Officer Gilbert asked

for identification, which the driver was unable to provide. Officer Gilbert asked the driver to step

from the vehicle, placed him in handcuffs, and told the driver that he was a burglary suspect. The

driver identified himself as Maksim V. Burich. Burich told Officer Gilbert that his headlights were

off because he was lost.

3 No. 45400 -9 -II

From outside the vehicle, Officer Gilbert observed a stereo unit on the front seat passenger

floorboard and a . 22 caliber rifle behind the driver' s seat " sticking up ... in plain view" on the

rear passenger floorboard. 1 VRP at 27. Officer Gilbert performed a records check on Burich' s

name and learned that he was a convicted felon restricted from possessing firearms. •Officer Gilbert Miranda2 then placed Burich under arrest and read him his rights. Neither Officer Gilbert nor

Officer Stringfellow questioned Burich after advising him of his Miranda rights. At approximately

3: 42 AM, after Burich was placed in the patrol car, another police officer arrived on the scene with

Katherine Evans. Evans positively identified Burich as the individual who was trying to enter her

house.

On October 9, 2012, the State charged Burich with burglary in the first degree ( Count I),

unlawful possession of a firearm in the second degree ( Count II), theft of a firearm ( Count III),

residential burglary ( Count IV), and attempted residential burglary ( Count V). On August 15,

2013, the case proceeded to a bench trial, which began with a CrR 3. 5/ 3. 6 hearing after which the

trial court concluded that Burich' s statements to police were admissible at trial. On September 6,

2013, the trial court found Burich guilty as to Counts I -IV; and guilty of the lesser included offense

of "criminal trespass in the second degree" as to Count V. 7 VRP at 2 -4; Clerk' s Papers ( CP) at

176.

2 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

4 No. 45400 -9 -II

The court entered the following findings of fact3 related to the events leading up to the

stop:

1. That on October 8, 2012, at 2: 24 a.m. the Fife Police Department received a phone call from Martin Blackmer of an attempted residential burglary at his residence, which is a townhouse located at 6826 20th Street East in Fife, Washington.

2. That Mr. Blackmer had seen a young white male wearing a light grey hoodie and a light grey pants enter his residence through a sliding glass door.

3. That at 2: 26 a.m. on October 8, 2012, Officer Jake Stringfellow of the Fife Police Department was dispatched to Mr. Blackmer' s townhouse where the officer spoke to Mr. Blackmer and then conducted an area check, without success, for the suspect.

3. [ sic] That on October 8, 2012, at approximately 3: 00 a. m., Katherine Evans

looked out her upstairs bedroom window and saw a young white male with short light brown hair wearing a light grey hoodie and jeans in her backyard next to the living room window. The living room window was below Mrs. Evans' bedroom window.

4. That Mrs. Evans' house is located at 6932 42nd Street Court East in Fife, Washington and is 1. 5 miles from Mr. Blackmer' s townhouse.

5. That at 3: 05 a.m. on October 8, 2012, Officers Pat Gilbert and Stringfellow went to investigate the possible burglary at the Evans' residence.

6. That officers Gilbert and Stringfellow drove in the area near the Evans residence and conducted an area check for the suspect.

7. That at 3: 17 a.m. on October 8, 2012, Officer Gilbert saw a red Mazda driving very slowly with the headlights off at 46th Street East and 67th Avenue East in Fife, Washington.

The trial court mistakenly numbered Finding of Fact 3 twice; Burich does not challenge both Findings of Fact 3, only the second one summarizing Evans' s description of Burich.

5 No. 45400 -9 -II

8. That Officer Gilbert was in a fully marked patrol car and had on his headlights, his alley lights and an overhead spotlight. Upon seeing the red Mazda, Officer Gilbert turned his side spotlight on and used it to highlight the inside of the car.

9. That the driver of the red Mazda was a young white male and he was the only occupant of the car.

10. That the defendant was the driver of the red Mazda and he was wearing a light grey hoodie.

CP at 189 -90. On the basis of these findings, the court concluded, " That there were sufficient

suspicious circumstances which supported reasonable suspicion to stop the defendant pursuant to

a Terry or investigatory stop." CP at 194. Burich appealed.

ANALYSIS

Burich assigns error to Findings of Fact ( FF) 2 and 3 and Conclusion of Law (CL) 1 that

Officer Gilbert' s Terry stop was justified. But his brief addresses only the portion of the trial

4 court' s findings referring to Burich' s race. Burich argues that, " at the time of the stop, the only

information the officer had from dispatch was that an `unknown race' male, wearing a grey hoodie

and jeans, had attempted to enter a nearby apartment." Br. of Appellant at 11. Based on this fact,

he argues that ( 1) the trial court erred in its finding that the suspect was described as " a young

white male," rather than as an " unknown race male," ( 2) the findings did not support the trial

court' s conclusion that Officer Gilbert had reasonable, articulable suspicion to justify a stop for a

criminal investigation, and ( 3) the court should have suppressed evidence gathered from the Terry

4 RAP 10. 3( a)( 6) requires appellant to support issues presented for review with argument, citations to legal authority, and references to relevant parts of the record.

6 No. 45400 -9 -II

stop. 5 . We hold that substantial evidence supports the trial court' s findings of fact, those findings

support its conclusion that the Terry stop was justified, and the trial court did not error in failing

to suppress evidence gathered from the stop.

We review the findings of fact to determine whether they are supported by substantial

evidence. State v. Dobbs, 180 Wn.2d 1, 10, 320 P. 3d 705 ( 2014). "` Substantial evidence exists

where there is a sufficient quantity of evidence in the record to persuade a fair -minded, rational

person of the truth of the finding. "' State v. Bonds, 174 Wn. App. 553, 562, 299 P. 3d 663, review

denied, 178 Wn.2d 1011 ( 2013) ( quoting State v. Hill, 123 Wn.2d 641, 644, 870 P. 2d 313 ( 1994)).

We review de novo conclusions of law following a suppression hearing. State v. Bailey, 154 Wn.

App. 295, 299, 224 P. 3d 852 ( 2010). A finding of reasonable suspicion presents a question of law

that we review de novo. State v. Lee, 147 Wn. App. 912, 916, 199 P. 3d 445 ( 2008). Unchallenged

findings of fact are verities on appeal. State v. Westvang, 184 Wn. App. 1, 5, 335 P. 3d 1024

2014).

Article 1, section 7 of the Washington Constitution protects individuals " against

unwarranted government intrusions into private affairs," such as unlawful searches and seizures.

State v. Doughty, 170 Wn.2d 57, 61, 239 P. 3d 573 ( 2010). "[ W] arrantless seizures are per se

unreasonable, and the State bears the burden of demonstrating that a warrantless seizure falls into

5 Br. of Appellant at 11. Burich also argues that the State presented no evidence that he was cited for a He presumably refers to the fact that he was driving at night with his traffic infraction.

headlights off. But he fails to cite authority or argue that the State was required to cite Burich for a traffic infraction even if the conduct ( driving with his lights off) was a factor in the officer' s decision to stop him.

7 No. 45400 -9 -II

a narrow exception to the rule." Doughty, 170 Wn.2d at 61. Such " exceptions are ` jealously and

carefully drawn. ' Id. (quoting State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 ( 1984)).

One exception to the warrant requirement is an investigative stop of a vehicle, also known

as a Terry stop. A valid Terry stop requires the police officer to "' point to specific and articulable

facts which, taken together with rationale inferences from those facts, reasonably warrant that

intrusion. ' State v. Snapp, 174 Wn.2d 177, 197, 275 P. 3d 289 ( 2012) ( quoting Terry v. Ohio, 392

U. S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968)); see Doughty, 170 Wn.2d at 62 ( "[ a] Terry

requires a well- founded suspicion that the defendant engaged in criminal conduct "). " A stop

reasonable, articulable suspicion means that there `is a substantial possibility that criminal conduct

has occurred or is about to occur.' Snapp, 174 Wn.2d at 197 -98 ( quoting State v. Kennedy, 107

Wn.2d 1, 6, 726 P. 2d 445 ( 1986)); State v. Jardinez, 184 Wn. App. 518, 524, 338 P. 3d 292 ( 2014).

The State bears the burden to show by clear and convincing evidence that the Terry stop was

justified. Doughty, 170 Wn.2d at 62. " In reviewing the propriety of a Terry stop, a court evaluates

the totality of the circumstances" presented to the officer at the time of the stop. Snapp, 174 Wn.2d

at 198; see Doughty, 170 Wn.2d at 62.

Burich argues that, at the time of the stop, Officer Gilbert knew only that an "' unknown

race' male, a grey hoodie and jeans, had attempted to enter a nearby apartment," and that, wearing

consequently, Officer Gilbert' s basis for the Terry stop was insufficient. Br. of Appellant at 11.

At trial, Officer Gilbert stated that his reason for stopping Burich was: " I thought it was pretty

weird, but I thought, [ t] his is someone who doesn' t want to be seen and is sneaking around the

8 No. 45400 -9 -II

neighborhood, and so I stopped him." 1 VRP at 60 -61. Burich argues that, based on this statement,

the stop was unlawful because the officer' s suspicion did not relate to a particular crime; it was

merely " a generalized suspicion that the person detained is ` up to no good.'" Br. of Appellant at

10 ( quoting State v. Bliss, 153 Wn. App. 197, 204, 222 P. 3d 107 ( 2009). But evidence in the record

from Blackmer' s, Evans' s, and Officer Gilbert' s testimonies6 provides substantial evidence to

support the trial court' s findings of fact, and all three testified that Burich was a white male.

Burich does not challenge Findings of Fact 1 and 4 -10 which we adopt as verities on appeal.

See Wilson & Son Ranch, LLC v. Hintz, 162 Wn. App. 297, 305, 253 P. 3d 470 ( 2011). The

unchallenged findings describe Officer Gilbert' s ( 1) knowledge of the location of the burglaries,

2) knowledge of the suspect' s clothing, (3) observations of the suspect and the suspect' s clothing,

4) observations of the vehicle and the time, place, and manner in which Burich drove the vehicle,

6 Officer Gilbert testified that, at the time of the stop, approximately 3: 17 AM, Burich was driving the vehicle slowly, with its lights off, in the vicinity of the recent burglaries. He testified that the driver, Burich, was " a white male, short, brown hair and he was wearing a light -colored hoodie.... He appeared to be youthful in appearance." 1 VRP at 18. Blackmer testified to the burglary and his description of the suspect, whom he " observed to be a white Caucasian male between the early 20s to mid 20s, gray hooded sweatshirt." 4 VRP

at 4. He stated that he was sleeping in his living room when he awoke to a " loud sound" and saw the individual " three- quarters of the way in through [ the] sliding glass door." 5 VRP at 58. Evans also testified to the incident and the suspect' s description, stating that she " saw a young guy,short hair .. light- colored baggy pants and a gray hoodie.... Caucasian" at her back window. 5 VRP at 34. She testified that her window "screen had been removed from the window." 5 VRP at 37. She also testified that she subsequently identified the person stopped by police as the individual at her window.

9 No. 45400 -9 -II

and ( 5) the location' s proximity to the recent burglaries. On the basis of these unchallenged

findings alone, we would find that sufficient evidence supports the trial court' s conclusion of law

that the officer was justified in stopping Burich. State v. Garvin, 166 Wn.2d 242, 249, 207 P. 3d

1266 ( 2009).

Burich also assigns error to the trial court' s Conclusion of Law 1, which provides, " That

there were sufficient suspicious circumstances which supported reasonable suspicion to stop the

defendant pursuant to a Terry or investigatory stop." CP at 194 ( CL 1). The State responds that

the trial court' s Findings of Fact 1 - 3, 7, 9, and 10 support its conclusion of law that Officer Gilbert

had sufficient justification to stop Burich.

In examining the totality of circumstances facing Officer Gilbert, we hold that the facts here provided sufficient individualized suspicion that Burich had just been involved in the

burglaries that the officer knew to have taken place nearby. See Lee, 147 Wn. App. at 916 -17.

These are " specific and articulable facts which, taken together with rational inferences from those

facts, reasonably warrant[ ed] the intrusion." Bliss, 153 Wn. App. at 204.

We hold that substantial evidence supports Findings of Fact 2 and 3 and that the trial court' s

findings of fact support its legal conclusion that Officer Gilbert was justified in stopping Burich.

7 In its written order following the CrR 3. 5/ 3. 6 hearing, the trial court entered numerous findings of fact, all of which are either verities or supported by substantial evidence. We look at the entirety of the trial court' s factual findings to determine whether they support the trial court' s legal conclusion that the Terry stop was justified.

10 No. 45400 -9 -II

Accordingly, we hold that the trial court did not err in failing to suppress evidence obtained as a

result of the officer' s Terry stop. We affirm Burich' s convictions.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.

We concur: