FILED
March 27,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 30824-3-III Respondent, ) ) v. ) ) TORRY ANTON MARQUART, ) UNPUBLISHED OPINION ) Appellant. )
FEARING, J. - Once again we address the constitutionality of a law
enforcement officer's encounter with one later convicted of a crime based upon
evidence seized during the encounter.
Torry Anton Marquart appeals his conviction for unlawful possession of
methamphetamine seized following his arrest on outstanding warrants. Marquart
contends the trial court erred in ruling that his initial encounter with police was a social
contact instead of seizure. He also appeals the trial court's implied finding that he had a
present or future ability to pay legal financial obligations as unsupported by the record.
We affirm Torry Marquart's conviction and decline to reach his other assignment of
error. No.30824-3-III State v. Marquart
FACTS
During the early morning hours of February 16,2012, Kennewick Police
Department Officers Jason Kiel and Jason Harrington patrolled the city streets. Each
drove a marked patrol car and wore an officer's uniform.
Officer Kiel went to Kennewick's Blue Bridge Motel to check license plates in an
effort to identify stolen cars and locate individuals with arrest warrants. Kiel noticed, in
the motel parking lot, a car registered to Cherie White, against whom there was an
outstanding warrant. The motel's office, however, did not confirm the presence of
White. After returning to his patrol car, Kiel saw two men, one later identified as Torry
Marquart, walking in his direction. Officer Kiel noticed that the two men moved from
his sight upon seeing him, which he considered "odd." Report of Proceedings (RP) at
32. The tWo ducked into a motel breezeway. Kiel notified Officer Harrington of the two
males.
Officer Jason Harrington drove to the Blue Bridge Motel, but did not activate his
patrol car's emergency lights or siren. Harrington parked in the motel's lot, exited his
patrol car, and approached within 20 to 30 feet of the two men, who walked on a
sidewalk. According to Officer Harrington, he asked the two men if they would speak
with him. Harrington had no reason to suspect or detain either man for a crime. The two
said "sure" and hopped down from a sidewalk to sit on a flower bed ledge. RP at 11.
No. 30824-3-III State v. Marquart
Torry Marquart's testimony differs from the testimony of Jason Harrington.
According to Marquart, Officer Harrington ordered both men to stop and directed them to
speak with him. Harrington then ordered both to sit on the ledge and commanded
Marquart to extinguish his cigarette. Marquart did not consider himself free to leave.
Both officers concede they never informed Marquart or his companion that they were
free to leave.
Officer Harrington told Torry Marquart and his companion that he sought Cherie
White and asked them if they knew her. Both responded negatively. Harrington asked
the men for their respective names and birth dates and both accurately responded.
Marquart told Harrington that he stayed at the motel's room 158 with Russell Foster.
Harrington knew of an arrest warrant for Foster. Harrington testified that, at the time
Marquart identified Foster as his roommate, the officer still engaged in "social contact"
with the two. RP at13. Harrington had not shown any weapon and the two were free to
leave. While Harrington spoke with the men, Officer Jason Kiel watched. Kiel described
his role as a "cover officer," although he also characterized the contact as "social
contact." RP at 39,40. Kiel did not place a hand on or hold a weapon.
Officer Jason Harrington went to his patrol car to confirm the outstanding warrant
for Foster. While Harrington was absent, Officer Kie1 asked both men if they would
show identification, which they did. Kiel did not leave the presence of Marquart while he
reviewed the identification. Marquart also told Kie1 that he stayed in room 158 with
Russell Foster.
3 No.30824-3-II1 State v. Marquart
Officer Harrington confirmed the warrant for Foster and also learned of a warrant
for the arrest of Torry Marquart. Harrington immediately returned to the location of
Marquart. With the assistance of Officer Jason Kiel, Harrington h,andcuffed Marquart
and placed him in the back of a patrol car.
Officers Jason Harrington and Jason Kiel proceeded to Blue Bridge Motel room
158. Russell Foster answered the door, and the officers arrested him. From outside the
room, Jason Harrington spotted a female, later identified as Jayne Fuentes, standing near
a bed. Officer Harrington also saw a glass pipe on the bed and baggies with white
residue on an end table. Fuentes invited Harrington into the room. The two officers
applied for and obtained a telephonic search warrant for room 158, while remaining
outside the room. Upon obtaining the warrant, the officers entered the motel room and
seized plastic baggies, digital scales, and packaging materials, which later tested positive
for methamphetamine. Marquart admitted to Officer Kiel that the methamphetamine
belonged to him.
Torry Marquart moved to suppress the seized methamphetamine as the fruit of an
unlawful seizure, arguing that the disputed encounter was an investigatory detention
unsupported by articulable suspicion. According to Marquart, the officers would never
have gone to room 158 and he would not have confessed to owning the meth but for the
unlawful seizure by Harrrington that caused Marquart to identifY himself and his current
residence. The trial court denied the motion to suppress, finding that "Officer
Harrington's contact with the defendant was not under circumstances which would lead a
No.30824-3-III State v. Marquart
reasonable person to feel that [he was] not free to leave." Clerk's Papers (CP) at 16.
Instead, the "contact with the defendant was a social contact, and was not a seizure." CP
at 16. When Officer Harrington asked Torry Marquart to speak with him, Harrington
showed no force. The trial court found the testimony of Officer Harrington to be more
persuasive than the testimony of Torry Marquart.
Having denied Marquart's motion to suppress, the trial court found Marquart
guilty of unlawful possession of a controlled substance in violation of RCW
69.50.4013(1). The trial court ordered a standard range sentence of 18 months
confinement with an additional 12 months of community custody. The trial court also
ordered that Marquart pay legal financial obligations of $500 victim assessment (RCW
7.68.035); $100 DNA collection fee (RCW 43.43.7541); $2,000 drug fee (RCW
69.50.430(2)); $200 filing fee (RCW 36.18.020(2)(h)); $60 sheriff's service fee (RCW
10.01.160); and $700 attorney's fees (RCW 10.01.160). Pursuant to RCW 10.01.170, the
trial court ordered Marquart to "pay up to $50.00 per month ... from any income the
defendant earns while in the custody of the Department of Corrections [(DOC)]."
CP at 25
l LA W AND ANALYSIS
I Findings of Fact
I Before addressing whether the Kennewick police officers unlawfully seized Torry
Marquart, we must first determine what happened during the encounter between
Marquart and the officers. Marquart's testimony significantly diverges from the
testimony of Officers Jason Harrington and Jason Kie1. If we were to accept the story
related by Marquart as the truth, we would likely agree with him that he was unlawfully
seized. But thetrial court found Marquart to be less than credible.
Whether police "seized" a person is a mixed question of law and fact. State v.
Armenta, 134 Wn.2d 1,9, 948 P.2d 1280 (1997). The resolution by a trial court, of
differing accounts of the circumstances surrounding the encounter, are factual findings
entitled to great deference. State v. Harrington, 167 Wn.2d 656,662,222 P.3d 92
(2009). It is the trial court's role to resolve issues of credibility and to weigh evidence.
State v. Crane, 105 Wn. App. 301, 306, 19 P.3d 1100 (2001), overruled on other grounds
State v. O'Neill, 148 Wn.2d 564, 62 P.3d 489 (2003). But the ultimate determination of
whether those facts constitute a seizure is one of law and is reviewed de novo.
Harrington, 167 Wn.2d at 662; State v. Beito, 147 Wn. App. 504, 508-09, 195 P.3d 1023
(2008). Our review of whether a seizure occurred is de novo. State v. Thorn, 129 Wn.2d
347,351,917 P.2d 108 (1996), overruled on other grounds O'Neill, 148 Wn.2d 564.
We take these principles of review to mean we accept the trial court's findings of
I the bare facts uninfected by any inferences and unencumbered by legal significance. We
I
~ accept the trial court's findings as to the actions taken by the officers or not taken by the
I i officers. The trial court found that, contrary to Marquart's testimony, Officer Harrington
I did not order Marquart and his companion to stop. Harrington gave no orders. The trial
court found Harrington exhibited no force when requesting Marquart to identifY himself.
I We accept these findings.
I 6
No.30824-3-II1 State v. Marquart
Torry Marquart does not challenge any of the trial court's findings of fact. The
rule in Washington is that unchallenged findings entered after a suppression motion
hearing are verities on appeal. O'Neill, 148 Wn.2d at 571; State v. Hill, 123 Wn.2d 641,
647,870 P.2d 313 (1994).
I As noted below, a critical question is whether a reasonable person would have
considered himself or herself free to move and ignore the officer's requests. Since this
I question involves inferences from the evidence and is infected with constitutional :1
I 1 significance, we do not defer to the trial court's conclusion of what a reasonable person
would do. We decide anew whether the officers limited themselves, before they knew of .~
I the outstanding warrant for Torry Marquart, to social contact rather than executed a
"seizure. " I Washington Constitution 1 I Torry Marquart argues that the officers unlawfully seized him under the Fourth
Amendment to the United States Constitution. He also contends that he was seized in
I i violation of article I, section 7 of the state constitution. The protections guaranteed by
I article I, section 7 of the state constitution are qualitatively different from those under the
Fourth Amendment to the United States Constitution. State v. Snapp, 174 Wn.2d 177, I 187-88,275 P.3d 289 (2012); State v. Garcia-Salgado, 170 Wn.2d 176, 183,240 P.3d
153 (2010). It is well settled that article I, section 7 of the state constitution provides
greater protection to individual privacy rights than the Fourth Amendment to the United
No. 30824~3~III State v. Marquart
States Constitution. State v. Rankin, 151 Wn.2d 689,694,92 P.3d 202 (2004); State v.
Jones, 146 Wn.2d 328, 332,45 P.3d lO62 (2002).
The Washington Constitution provides that "[n]o person shall be disturbed in his
private affairs, or his home invaded, without authority oflaw." CONST. art. I, § 7. The
text focuses on disturbance of private affairs, which casts a wider net than the Fourth
Amendment's protection against "unreasonable searches and seizures." Article I, section
7 is not grounded in notions of reasonableness. See State v. Valdez, 167 Wn.2d 761, 772,
224 P.3d 751 (2009). Rather, it prohibits any disturbance of an individual's private
affairs without authority of law. Jd. at 773. Because searches and seizures
incontrovertibly disturb private affairs, article I, section 7 envelops searches and
seizures. Harrington, 167 Wn.2d at 663. But because the Washington constitutional
provision does not refer to seizures, the Washington Constitution should cover more. A
court's analysis should focus on whether the defendant's private affairs were disturbed,
not whether he was seized.
Alas, however, Washington cases involving gathering of evidence after an
encounter between a suspect and an officer and that address article I, section 7 inevitably
ask whether the defendant was "seized," not whether his "private affairs were disturbed."
Torry Marquart provides no authority that the Washington Constitution provides him
protection beyond an unreasonable seizure. Instead, he claims he was "unlawfully
seized" and he relies on the test for seizures applied under the United States Fourth
Amendment, the same test applied by Washington courts under our state constitution.
No. 30824-3-111
State v. Marquart
Marquart cites two federal decisions, United States v. Mendenhall, 446 U.S. 544, 552,
100 S. Ct. 1870,64 L. Ed. 2d 497 (1980) and Fla. v. Bostick, 501 U.S. 429, 439, 111 S.
Ct. 2382, 115 L. Ed. 2d 389 (1991). So we provide no independent analysis under the
Washington Constitution. See Armenta, 134 Wn.2d at 10 n.7.
I Seizure
I J When reviewing claims of unlawful seizures, we often must isolate discrete
actions of a police officer during an extended encounter, as if the actions are separate j frames in a movie, since the defendant challenges more than one step employed by an
I officer during the encounter. Torry Marquart argues that Officer Jason Harrington
"seized" him at some point before Harrington returned to his patrol car to confirm an
outstanding warrant for Russell Foster, at which time Harrington also learned of an arrest
warrant for Marquart. Marquart does not pinpoint the precise action of Harrington that
created the seizure, but implies that the seizure occurred as early as when Harrington
asked Marquart and his companion to speak. Marquart also implies that, as the
conversation with Harrington progressed, the seizure increased in quantum, especially
when he was repeatedly asked for identification after he told the officers he did not know
Cherie White. Along these lines, Marquart argues that we should consider the totality of
the circumstances, not an isolated point in time, when determining whether a seizure
occurred.
If Officers Harrington and Kiel did not seize Torry Marquart, the officers needed
no justification to interact with Marquart. Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct.
1868,20 L. Ed. 2d 889 (1968). If the officers seized Marquart, we would need to
determine if they had sufficient grounds for the seizure. Terry, 392 U.S. at 19. If
Harrington and Kiel unconstitutionally seized Marquart before his arrest, the
exclusionary rule calls for suppression of evidence obtained via the government's
illegality. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684,6 L. Ed. 2d 1081 (1961);
Harrington, 167 Wn.2d at 664; State v. Garvin, 166 Wn.2d 242,254,207 P.3d 1266
(2009).
The Fourth Amendment provides that "the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated." But "'not all personal intercourse between policemen and citizens involves
"seizures" ofpersons.'" Mendenhall, 446 U.S. at 552 (quoting Terry v. Ohio, 392 U.S. at
19 n.16). The defendant carries the burden to establish that he was seized. State v.
Young, 135 Wn.2d 498,510,957 P.2d 681 (1998); Thorn, 129 Wn.2d at 354.
The United States Supreme Court established the test for what constitutes a seizure
in United States v.Mendenhall, 446 U.S. 544 at 552, which test courts, including
Washington courts, employ today. A seizure occurs when, "in view of all of the
circumstances surrounding the incident, a reasonable person would have believed that he
was not free to leave." Mendenhall, 446 U.S. at 545; Harrington, 167 Wn.2d at 663;
Rankin, 151 Wn.2d at 695. Stated differently, a police contact constitutes a seizure only
if, under the totality of the circumstances, a reasonable person would not have felt free to
leave, "terminate the encounter, refuse to answer the officer's question, or otherwise go
about his business." Thorn, 129 Wn.2d at 353. The subjective intent of the police is
irrelevant, except insofar as it is conveyed to the defendant. Mendenhall, 446 U.S. at
554. Instead, we consider the officer's actual conduct and whether it reasonably
appeared to be coercive. Thorn, 129 Wn.2d at 353. Whether a reasonable person would
believe he was detained depends on the particular, objective facts surrounding the
encounter. State v. Ellwood, 52 Wn. App. 70, 73, 757 P.2d 547 (1988). Whether there
was any show of authority on the officer's part, and the extent of any such showing, are
crucial factual questions in assessing whether a seizure occurred. 0 'Neill, 148 Wn.2d at
577.
Since the courts use a reasonable person standard, the test of whether a person
considers himself or herself detained is the same no matter the citizen's race, sex, mental
acuity, and social background. The United States Supreme Court considers the use of
one standard to allow consistent application from one police encounter to the next,
regardless of the particular individual's response to the actions of the police. Mich. v.
Chestnut, 486 U.S. 567, 574, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988). This
consistency allows the police to determine, in advance, whether the contemplated
conduct would violate the Fourth Amendment. Chestnut, 486 U.S. at 574.
In negligence cases, the behavior of a "reasonable person" is peculiarly an issue of
fact usually reserved for a jury to decide. Hertog v. City ofSeattle, 138 Wn.2d 265,275,
979 P.2d 400 (1999). American law considers the jurors, who bring good sense and
practical knowledge to the court and who act as representatives of the community, as
being in the best position to decide what constitutes the behavior of the mythical being,
the "reasonable person." In re Acushnet River & New Bedford Harbor Proceedings re
Alleged PCB Pollution, 712 F. Supp. 994, 1005 (D. Mass. 1989) (citing Patrick E.
Higginbotham, Continuing the Dialogue: Civil Juries and the Allocation ofJudicial
Power, 56 TEX. L. REv. 47, 59 (1979». The jury "'tends to make the law intelligible by
keeping it in touch with the common facts of life.'" Id. (quoting Edson L. Haines, The
Disappearance ofCivil Juries in England, Canada and Australia, 4 DEF. LJ. 118, 126
(1958». Most judges are not the subject of street stops and searches and rarely engage in
adversarial contact with law enforcement. Judges may lack knowledge of street realities,
yet courts consider themselves capable of determining what constitutes a "reasonable
person" for purposes of who would consider himself or herself detained by a law
enforcement officer. No court, to our knowledge, has accepted expert testimony as to
whether a reasonable person would consider himself or herself detained in particular
circumstances.
One might expect courts, in each discrete case, to limit their analysis to afactual
determination of whether a reasonable person would consider his movement restrained as
a result of the particular encounter with an officer. Nevertheless, courts often apply case
law rules to adjudge that, as a matter of law, no reasonable person, under the case's
peculiar circumstances, would consider his movement restrained. In other words, courts
do not decide anew in each case whether a reasonable person would have considered
herself detained.
12 No. 30824-3-II1 State v. Marquart
I Washington courts, with help from other courts, distinguish between social
I contact involving the officer and citizen and a seizure. The State characterizes the
j Kennewick police officers' encounter with Torry Marquart, until Officer Harrington
learned of an arrest warrant for Marquart, as merely social contact. Washington courts
have not defined "social contact." Harrington, 167 Wn.2d at 664. Such social contact
"occupies an amorphous area in our jurisprudence, resting someplace between an
officer's saying 'hello' to a stranger on the street and, at the other end of the spectrum, an
investigative detention" Id. Washington's Constitution, article I, section 7 does not
forbid social contact between police and citizens. Harrington, 167 Wn.2d at 665.
Rules about social contact abound. "[N]ot every public street encounter between a
citizen and the police rises to the stature of a seizure. Law enforcement officers do not
'seize' a person by merely approaching that individual on the street or in another public
place, or by engaging him in conversation." State v. Belanger, 36 Wn. App. 818, 820,
677 P.2d 781 (1984). On the one hand, police activities such as engaging a citizen in
conversation, identifYing themselves as officers, or simply requesting identification do
not convert a casual encounter into a seizure. Fla. v. Royer, 460 U.S. 491, 498, 103 S. Ct.
I J 1319,75 L. Ed. 2d 229 (1983); State v. Knox, 86 Wn. App. 831, 838,939 P.2d 710
(1997), overruled on other grounds O'Neill, 148 Wn.2d 564. Under Washington law,
I officers may request identification, including date of birth, and check for outstanding
warrants during a social contact. Armenta, 134 Wn.2d at 11; State v. Hansen, 99 Wn.
App. 575, 577,994 P.2d 855 (2000); Ellwood, 52 Wn. App. at 73; Belanger, 36 Wn.
13 No.30824-3-III State v. Marquart
App. at 820. During such contact, the officer need not warn a citizen that he has the right
to remain silent or walk away. State v. Mote, 129 Wn. App. 276, 281, 120 PJd 596
(2005). Nor does a seizure automatically occur because an officer is in uniform or
carrying a firearm. Belanger, 36 Wn. App. at 820.
On the other hand, a seizure occurs if the officer orders the person to sit or wait
while the he checks the person's warrant status. Ellwood, 52 Wn. App. at 73. When an
officer commands a person to halt or demands information from the person, a seizure
occurs. O'Neill, 148 Wn.2d at 581; Be ito , 147 Wn. App. at 509.
To discern whether an encounter is mere social contact or an investigative
detention, the Supreme Court of Washington has repeatedly embraced examples given in
Mendenhall, 446 U.S. at 554-55:
[T]he 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.
See Harrington, 167 Wn.2d at 664; see also Young, 135 Wn.2d at 512. "In the absence
of some such evidence, otherwise inoffensive contact between a member of the public
and the police cannot, as a matter oflaw, amount to a seizure of that person."
Mendenhall, 446 U.S. at 555.
The examples in Mendenhall are instructive. Here, prior to learning of Marquart's
outstanding warrant, there were only two officers present. One officer stood in the
background before Harrington left to confirm warrants. Neither officer displayed a
weapon. Neither officer touched Marquart. Neither officer commanded Marquart to sit.
Neither officer compelled Marquart through tone of voice or word choice to comply with
their requests. No officer directed Marquart to hold his hands where they could be seen.
The gist ofa seizure is a show of force thatwould lead a reasonable person to determine
he may not leave the presence of the officer. The two Kennewick officers carefully
refrained from showing any force by movement or oral direction.
As Officer Harrington spoke with Torry Marquart and Marquart's companion,
Officer Kiel stood nearby as "cover." Thus, two officers were present-a factor to be
considered in the Mendehall analysis. Two Washington decisions have discussed the
presence of two officers. In State v. Harrington, 144 Wn. App. 558, 183 P.3d 352
(2008), the Court of Appeals held that the presence of two officers did not tum the social
contact into a seizure. The Supreme Court reversed noting the arrival of a second officer
contributed to but did not start the seizure. Harrington, 167 Wn.2d at 666. The Supreme
Court emphasized the ordering of Harrington to remove his hands from his pockets as
starting the seizure. Id. at 666-67. In State v. Hansen, 99 Wn. App. 575, the court
impliedly ruled that the presence of two officers does not create a seizure.
We agree with Torry Marquart that, even where an initial contact does not amount
to a seizure, it may "mature" or "transform" into a seizure if the officer's actions
ultimately create a situation where the individual no longer feels free to leave. Royer,
460 U.S. at 503; State v. Richardson, 64 Wn. App. 693, 697, 825 P.2d 754 (1992). A
series of police actions may meet constitutional muster when each action is viewed
individually, but may nevertheless constitute an unlawful search or seizure when the
actions are viewed cumulatively. Harrington, 167 Wn.2d at 668. We find there was no
transformation here. Before Harrington left for his patrol car, the officers had shown no
force or barked any command. Therefore, Marquart has not met his burden of proving a
seizure before the discovery of the arrest warrant.
Marquart cites State v. Crane, 105 Wn. App. 301, as being analogous. In Crane,
the officer parked his patrol car into a driveway behind the car in which Crane was a
passenger. As Crane exited the vehicle, the officer asked for identification and checked
for warrants. Crane had entered a secured area. Because the car in which he was riding
was blocked, Crane was more a passenger than a pedestrian for purposes of determining
whether he was seized. As our Supreme Court stated in Rankin:
We think there are good reasons for making a distinction between pedestrians and passengers. As we have said, "many [individuals] find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel." City of Seattle v. Mesiani, 110 Wn.2d 454,457, 755 P.2d 775 (1988). Indeed, a passenger faced with undesirable questioning by the police does not have the realistic alternative of leaving the scene as does a pedestrian.
151 Wn.2d at 697 (alteration in original) (internal quotation marks omitted) (quoting
Delaware v. Prouse, 440 U.S. 648, 662, 99 S. Ct. 1391,59 L. Ed.2d 660 (1979)). Here,
Marquart was a pedestrian. The officers retained his identification for only a brief time.
No additional circumstances merit deeming the encounter a seizure.
State v. Bailey contains facts more similar to this case than Crane. State v. Bailey,
154 Wn. App. 295, 224 P.3d 852 (2010). In Bailey, the officer approached the defendant,
and asked ifhe had a moment. When the officer repeated the question, the defendant said
that he did, and walked towards the officer. The defendant handed the officer his
identification, and stated that he might have a warrant. No seizure occurred.
Torry Marquart emphasizes that Officer Kiel took his identification card. But the
trial court found that Kiel did not leave the presence of Marquart with the card. A seizure
occurs when the officer retains the suspect's identification while conducting a warrants
check away from the suspect. Crane, 105Wn. App. at 310; State v. Thomas, 91 Wn.
App. 195,200-01,955 P.2d 420 (1998). Anyway, Kiel's action occurred after
Harrington left for his patrol car, during which time Harrington discovered the warrant
for Marquart.
We acknowledge that empirical evidence supports a conclusion that citizens do
not "feel free to leave when [they are] questioned by a police officer on the street."
David K. Kessler, Free to Leave? An Empirical Look at the Fourth Amendment's Seizure
Standard, 99 J. CRIM. L. & CRIMINOLOGY 51, 73 (2009); Illya Lichtenberg, Miranda in
Ohio: The Effects ofRobinettte on the "Voluntary" Waiver ofFourth Amendment Rights,
44 How. L.1. 349 (2001). Psychological literature teaches that people feel compelled to
comply with authority figures, particularly law enforcement. Torry Marquart's behavior
and the behavior of a host of other defendants in an unending procession of court
decisions corroborates that citizens readily relinquish information and consent to searches
by law enforcement officers despite the cooperation directly leading to the discovery of
inCUlpating evidence. The behavior of these defendants is counterintuitive to a finding
that they did not deem themselves restrained, intimidated, or coerced by the presence of
lawenforcement. The behavior of these defendants was irrational. Unless jail was
desired, Marquart acted as an unreasonable person when telling Officer Harrington his
name and hotel room number.
Two prominent State court of appeals judges, including a veteran of our division,
penned dissents. questioning Washington courts' labeling of street encounters as social
contact and challenging our reluctance to declare street encounters "seizures." See State
v. Nettles, 70 Wn. App. 706, 714, 855 P.2d 699 (1993) (Baker, J., dissenting); see also
Harrington, 144 Wn. App. at 564 (Sweeney, J., dissenting). Judge Sweeney wrote:
We do a disservice to the public and to police by moving the so-called 'social contact' into just another form of seizure, albeit without any cause or suspicion of crime or danger to the public or the police. A social contact should be just that-a social contact-not an opportunity for police to investigate, provoke, or 'find' criminal activity. This may have started as a casual encounter, but it escalated into something more, without probable cause or even a reasonable suspicion that Mr. Harrington had done anything wrong.
Harrington, 144 Wn. App. at 564.
But Washington law demands that an officer, without an overt show of force, be
free to ask questions and provoke incriminating evidence without the encounter being
labeled a seizure. This rule is universal in state and federal courts. Our state Supreme
Court has found that effective law enforcement techniques not only require passive police
observation, but also necessitate interaction with citizens on the streets. Harrington, 167
Wn.2d at 665. The court wrote in 0 'Neill:
18 No. 30824-3-111 State v. Marquart
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 informed about what is happening in a neighborhood, and to be available for citizens' questions, comments, and infonnation citizens may offer.
148 Wn.2d at 576. Division two of this court wrote in State v. Stroud:
[C]haracterizing every street encounter between a citizen and police as a 'seizure,' while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. The Court has on other occasions referred to the acknowledged need for police questioning as a tool in the effective enforcement of the criminal laws. Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished.
30 Wn. App. 392, 395, 634 P.2d 316 (1981) (quoting Mendenhall, 446 U.S. at 554)
Until a change in seizure law by our state high court or state legislature, good and
effective neighborhood policing will continue to produce evidence of criminality despite
the charade that the gathering of the evidence is through voluntary social contact. Thus,
we affinn a ruling that Torry Marquart was not seized until Officer Harrington, with
knowledge of the outstanding warrant, arrested Marquart.
Legal Financial Obligations
Whenever a person is convicted in superior court, the court may order the payment
of a legal financial obligation (LFO) as part of the sentence. RCW 9.94A.760(1). "Legal
financial obligation[s]," defined by RCW 9.94A.030(30), include "restitution to the
victim, statutorily imposed crime victims' compensation fees ... court costs, county or
interlocal drug funds, court-appointed attorneys' fees, and costs of defense, fines, and any
other financial obligation that is assessed to the offender as a result of a felony
conviction. "
The trial court ordered Marquart to pay $500 victim assessment (RCW 7.68.035),
$100 DNA collection fee (RCW 43.43.7541), $200 filing fee (RCW 36.l8.020(2)(h)),
and $2,000 drug fee (RCW 69.50.430(2)). These fines do not require the trial court to
consider Marquart's ability to pay and are imposed by statute.
At its discretion, the trial court may order a convicted defendant to pay court
costs. RCW 10.01.160. RCW 10.01.160(3) requires that, "[i]n determining the amount
and method of payment of costs, the court shall take account of the financial resources of
the defendant and the nature of the burden that payment of costs will impose." The trial
court ordered Marquart to pay costs ofa $60 sheriffs service fee and $700 attorney's
fees, but made no specific finding of his ability to pay the costs. Nonetheless, we
conclude it is premature for this court to address the error for two reasons.
First, challenges to LFOs are not properly before this court until the State seeks to
enforce them. State v. Hathaway, 161 Wn. App. 634, 651, 251 P.3d 253 (2011)~ State v.
Smits, 152 Wn. App. 514, 524, 216 P.3d 1097 (2009). Because a person is not an
"aggrieved party" under RAP 3.1 "until the State seeks to enforce the award of costs and
it is determined that [the defendant] has the ability to pay," appellate review is
inappropriate. State v. Mahone, 98 Wn. App. 342, 349, 989 P.2d 583 (1999); see also
State v. Blank, 131 Wn.2d 230,242,930 P.2d 1213 (1997). In State v. Crook, 146 Wn.
No. 30824-3-111 State v. Marquart
App. 24,27-28, 189 P.3d 811 (2008), this division held that "[m]andatory Department of
Corrections deductions from inmate wages for repayment of legal financial obligations
are not collection actions by the State requiring inquiry into a defendant's financial
status." Thus, "[i]nquiry into the defendant's ability to pay is appropriate only when the
State enforces collection under the judgment or imposes sanctions for nonpayment."
Crook, 146 Wn. App. at 27.
The trial court ordered Marquart to "pay up to $50.00 per month to be taken from
any income the defendant earns while in the custody of the Department of Corrections."
CP at 25. Since RCW 72.09.111 (1) directs the DOC to "deduct taxes and legal financial
obligations from the gross wages, gratuities, or workers' compensation benefits," such
deductions do not constitute a collection action by the State. (Emphasis added.) The trial
court's order, in this case, of "up to" $50 per month is flexible enough to comport with
these guidelines and formulas. Thus, further inquiry into Marquart's ability to pay would
be inappropriate until the State seeks to collect his LFOs.
Second, when and if the State seeks to collect, Marquart may petition the court for
remission under RCW 10.01.160(4), which states:
A defendant who has been ordered to pay costs and who is not in contumacious default in the payment thereof may at any time petition the sentencing court for remission of the payment of costs or of any unpaid portion thereof. Ifit appears to the satisfaction of the court that payment of the amount due will impose 'manifest hardship on the defendant or the defendant's immediate family, the court may remit all or part of the amount due in costs, or modify the method of payment under RCW 10.01.170.
The denial or granting of that motion would warrant appellate review.
21 No.30824-3-III State v. Marquart
CONCLUSION
We affirm the trial court's denial of the motion to suppress and the conviction.
We decline to address validity ofthe LFOs imposed. Torry Marquart may raise their
validity at the time the State seeks to enforce the obligations.
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.
I CONCUR IN RESULT:
Siddoway,1.
No.30824-3-II1
KORSMO, C.J. (concurrence) - The lead opinion unnecessarily opines about
perceived shortcomings in article I, section 7 analysis and the application of the
reasonable person standard to street encounters. We are an appellate court whose job is
to review trial court proceedings for error and, where prejudicial error exists, do what we
can to correct that error. We are not a policy body or a debating society, particularly
where (as in this case) the parties have neither asked us to explicate nor change existing
policy or forms of analysis. Such exchanges have marginal utility in courts of last resort,
but have next to zero utility in intermediate appellate courts. Accordingly, I concur only
in the outcome of the lead opinion.
While that is probably all that needs to be said, I briefly will risk further comment
although I do so with the full knowledge that this exercise is ultimately meaningless.
There is no need to lament the fact that police seizures are analyzed as seizures rather
than under a more generic concept of privacy because there is no evidence that article I,
section 7 was intended to do more than reflect the prevailing Fourth Amendment norms
of the day. See Boydv. United States, 116 U.S. 616,6 S. Ct. 524,29 L. Ed. 746 (1886)
(finding Fourth and Fifth Amendment protections for one's "private papers" reflecting No. 30824-3-III
State v. Marquart (Concurrence)
business operations). Indeed, the seminal work suggesting a common law right of
privacy was not published until the year after our constitution took effect. See S. Warren
& L. Brandeis, The Right to Privacy, 4 HARV. L. REv. 193 (1890). Even at that,
Washington declined to accept the existence of a right ofprivacy for a significant period
of time. See, e.g., Lewis v. Physicians and Dentists Credit Bureau, Inc., 27 Wn.2d 267,
177 P.2d 896 (1947) (discussing history of privacy in Washington and declining at that
time to decide whether right to privacy existed).
Given the rather tepid history of privacy in this state, it is understandable that our
constitutional protections are litigated at the level of an actual government intrusion
rather than at some more abstract level. After all, our constitutions protect us from our
governments, not from all other inhabitants. If there is a free-standing right of privacy
under the constitution, it is only the invasion of that right by the government that gives
I rise to a violation. Hence, the first thing that typically is analyzed is whether an intrusion
occurred. There is no need to attempt to discern what the term "private affairs"
encompasses if the government has not intruded.
Since both article I, section 7 and the Fourth Amendment clearly do apply to
seizures by the police, the facts of this case are properly analyzed under those provisions
in accordance with the well-developed case law. When it does that, the lead opinion
properly reaches the same conclusion as the trial court. That is where the analysis should
2 I I No. 30824-3-111
have begun and ended. Given that there was no intrusion here before the arrest warrant
was discovered, there was no error.
1 respectfully concur in the result.
Korsmo, C.l