Date: 11-02-2017

Case Style:

Case Number: 93732-0

Judge: Gordon McCloud

Court: Supreme Court of Washington

Plaintiff's Attorney: Karl G. Sloan, Branden Eugene Platter and Pamela Beth Loginsky

Defendant's Attorney: Ron Hammett

Description: In 2012, Officer Troy McCormick of the
Washington State Department of Fish & Wildlife saw Eric Daniel Cruz illegally
"snag" a salmon in the Similkameen River. McCormick arrested Cruz for this
misdemeanor fishing violation. McCormick also handcuffed Cruz, searched his
body, and found no weapons, but further questioned the handcuffed Cruz about
whether he had weapons elsewhere. Cruz truthfully acknowledged that he had
firearms in his truck. McCormick locked Cruz, who was still handcuffed, in the
back of his patrol car and removed three guns from Cruz's truck. McCormick did
not have—and never sought—a search warrant. The State subsequently charged
State V. Cruz (Eric Daniel), No. 93732-0
Cruz, who had a prior felony, with three counts of second degree unlawful
possession of a firearm.
Cruz moved to suppress the firearms. He argued that Arizona v. Gant, 556
U.S. 332, 343, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009),' prohibited the search of
his truck. The State argued that Gant did not provide the applicable rule of law; that
Terry v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), as extended
to vehicles in Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 77 L. Ed. 2d
1201 (1983),^ provided the framework for analysis instead; and that those decisions
permitted the search. The trial court agreed with Cruz. It ruled that Gant controlled,
rejected the State's Terry and Long argument, and suppressed the firearms. It also
found that its suppression order effectively "terminate[d] the case," Clerk's Papers
(CP) at 7, thus making that order immediately appealable under RAP 2.2(b)(2).
The State then moved to dismiss. The trial court granted that motion and
dismissed with prejudice. The State then appealed the suppression order, but not the
' Gant authorizes a warrantless search of a vehicle incident to arrest only if the
arrestee is "unsecured and within reaching distance of the passenger compartment at the
time of the search." 556 U.S. at 343.
^ Terry held that an officer may conduct a limited protective "frisk" for weapons of
a person who has been lawfully stopped if an officer reasonably believes that a suspect is
"armed and presently dangerous" based on specific, articulable facts. 392 U.S. at 24. Long
additionally held that an officer may conduct a limited Terry search for weapons in a
vehicle if a suspect is armed and dangerous and "may gain immediate control of weapons"
in the vehicle. 463 U.S. at 1049.
State V. Cruz (Eric Daniel), No. 93732-0
dismissal order. Division Three of the Court of Appeals affirmed. State v. Cruz,
195 Wn. App. 120, 380 P.3d 599 (2016).
We granted review, iSto/e V. Cruz, 187 Wn.2d 1031,399 P.3d 1104 (2017), to
decide whether the rule of Gant and State v. Snapp, 174 Wn.2d 177, 190-91, 275
P.3d 289 (2012) (concerning the exception to the warrant requirement for a search
incident to arrest) controls the outcome; or whether the rule of Terry and Long
(concerning the exception to the warrant requirement for frisks based on
individualized suspicion that a suspect is armed and dangerous) controls instead; and
how each rule would apply to these facts.
But a procedural issue became apparent after we granted review. We now
dismiss for the reasons explained below.
Facts
On August 10, 2012, Officer McCormick with the Washington Department of
Fish & Wildlife Police was out on a solo patrol of the Similkameen River in
Okanogan County. McCormick, from up on a cliff, watched Cruz fish for about 30
minutes. During this time, he saw Cruz "snagging," an illegal fishing technique.
The officer got in his truck and quickly drove to Cruz's location. It was
approximately 10 a.m.
State V. Cruz (Eric Daniel), No. 93732-0
Once there, Officer McCormick contacted Cruz and asked to see his fish.
Cruz complied, and after examining them, the officer confirmed that the fish had
been snagged. McCormick then handcuffed Cruz and informed him that he was
under arrest for snagging. McCormick searched Cruz's body incident to arrest and
found a small amount of marijuana, but no weapons. He did not have a search
warrant, nor did he attempt to get one.
Cruz had been fishing with a companion, "Mr. Rose." McCormick ordered
Rose to stay away from Cruz and Cruz's truck. Rose complied and remained 15-20
feet away. McCormick did not detain or restrain Rose in any way, and he did not
consider Rose to be a suspect. Cruz also cooperated with all of McCormick's
requests.
After handcuffing Cruz and searching his body, McCormick asked Cruz if he
had any weapons. Cruz answered that he had guns in his truck. McCormick put
Cruz, who was still handcuffed, in his patrol car, locked him in, and went to get the
guns out of the truck.^ When McCormick went to retrieve those guns from Cruz's
truck, Cruz "could not access his vehicle to gain immediate control of the weapons."
CP at 10 (Finding of Fact (FF) 16). And at that moment, McCormick had no reason
^ According to McCormick's report, he seized three guns from Cruz's truck—"two
rifles and a pistol." CP at 31.
4
State V. Cruz (Eric Daniel), No. 93732-0
to believe that these weapons were connected to any criminal activity. His intent at
the time was to secure the weapons during the encounter but to return them to Cruz
after citing him for illegal fishing and marijuana possession. CP at 11 (FF 19).
After he seized Cruz's guns, Officer McCormick learned that Cruz had a prior
felony conviction that made him ineligible to carry firearms. McCormick cited Cruz
for the marijuana and for snagging fish and then released him, in accordance with
his department's policy. But the officer retained the guns as evidence of the crime
of unlawful possession of a firearm. The trial court explicitly found that during this
encounter, "there was no evidence presented that Officer McCormick was in
danger." Id. (FF 24). The trial court made this finding despite the fact that the officer
testified that he initially seized the guns "for officer safety and to secure the scene."
Id (FF 23).
Procedural History
Two years after this encounter, in December 2014, the State charged Cruz
with three counts of second degree unlawful possession of a firearm in Okanogan
County Superior Court. Cruz moved to suppress the firearms. The court granted the
motion, finding that McCormick's warrantless search of Cruz's truck and
warrantless seizure of his guns violated Gant, the Fourth Amendment, and article I,
section 7, and that the search did not meet the criteria for the Terry and Long
State V. Cruz (Eric Daniel), No. 93732-0
exception to the warrant requirement. U.S. CONST, amend. IV; WASH. CONST, art.
I, § 7. The court also ruled that its order "terminate[d] the case" against Cruz, CP at
7, thus making that suppression order immediately appealable. RAP 2.2(b)(2).
The State moved to dismiss the case without prejudice that same day; the trial
court instead dismissed with prejudice. CP at 4.
The State appealed the suppression order, but not the dismissal order. It
argued that the search fit either the exigent circumstances exception or the Terry and
Long exception to the warrant requirement. The Court of Appeals rejected both
arguments and held that McCormick's actions violated the Fourth Amendment and
article I, section 7. Cruz, 195 Wn. App. at 126.
We granted review. Cruz, 187 Wn.2d 1031. At oral argument, the parties
addressed a possible mootness issue raised by this court. After that argument, the
State filed a motion to amend the notice of appeal, pursuant to RAP 5.3(h). A
majority of this court granted that motion.
We now dismiss review.
Analysis
I. The State Failed To Brief and Assign Error to the Trial Court's Decision
To Grant the State's Own Motion To Dismiss
We begin with an issue that neither party mentioned in its briefing. On March
26, 2015, the trial court entered its order suppressing evidence. This order included
6
State V. Cruz (Eric Daniel), No. 93732-0
a handwritten finding that "the practical effect of this order is to terminate the case."
CP at 7. Immediately thereafter, the State moved for an order of dismissal without
prejudice. The trial court granted dismissal but, according to both its March 26,
2015, written order and the docket entry, it dismissed "with prejudice." CP at 4.
The State appealed from the order of suppression. It did not appeal from the
order of dismissal.
RAP 2.2(b)(2) gives the State a right to file an interlocutory appeal from a
pretrial order suppressing evidence in a case like this. It states in relevant part,
{T\he State . . . may appeal in a criminal case only from the following
superior court decisions and only if the appeal will not place the
defendant in double jeopardy:
. . . A pretrial order suppressing evidence, if the trial court
expressly finds that the practical effect of the order is to terminate the
case.
RAP 2.2(b)(2) (emphasis added). The superior court made that "express[]
fmd[ing]," so the suppression order was immediately appealable.
But the State then "gratuitously presented the trial court" (in the words of
State V. Fortun, 94 Wn.2d 754, 755, 626 P.2d 504 (1980) (per curiam)) a motion to
dismiss its own case, despite the already appealable suppression order. The trial
court dismissed with prejudice.
State V. Cruz (Eric Daniel), No. 93732-0
II. We Have Previously Held, In Virtually Identical Circumstances, That
the State's Invitation To Dismiss, Failure To Brief, and Failure To
Assign Error to the Invited Dismissal Bars Our Review
We have considered the appealability of suppression orders entered in
virtually identical situations on at least three occasions. In State v. Perry, 120 Wn.2d
200, 202, 840 P.2d 171 (1992) (per curiam), overruled on other grounds by State v.
Olson, 126 Wn.2d 315, 319, 893 P.2d 629 (1995), we dismissed the State's appeal
of a suppression order because the State failed to "assign error to the dismissal of
the information" that the State itself sought. In State v. Pam, 101 Wn.2d 507, 510-
11, 680 P.2d 762 (1984), overruled on other grounds by Olson, 126 Wn.2d 315, we
dismissed the State's appeal of a privilege ruling that gutted the State's habitual
offender charges, counts 1 and 2, because the State failed to challenge, brief, or argue
the dismissal of the entire case, including count 3; we characterized the State's action
as "invited error." And in Fortun, 94 Wn.2d at 756-57, we dismissed the State's
appeal of a suppression order because the State failed to challenge, brief, or mention
the dismissal of the entire case that it sought and obtained.
Indeed, Fortunes, procedural posture was identical to the procedural posture
of this case. In Fortun, the court entered a suppression order that was appealable
under RAP 2.2(b)(2). But the State also sought and obtained a dismissal order. On
State V. Cruz (Eric Daniel), No. 93732-0
appeal, the State failed to brief or assign error to that dismissal. Fortun, 94 Wn.2d
at 756. We explained in Fortun that even if we ordered reversal of the suppression
order, "fundamental common sense compels us to conclude there remains no
existing charge to which a possible reversal of a pretrial order could apply" because
"the dismissal order would remain unchanged and the case below would still be at
an end." Id. at 757, 756. We dismissed the appeal. Id.
Pam was similar. The trial court sustained a defense objection to the
prosecutor's questions seeking to elicit attorney-client privileged information. 101
Wn.2d at 510. This privilege ruling gutted two of the State's three charges. The
trial court then dismissed its entire information, though not at the State's request.
The State then appealed the privilege order, but not the dismissal order that ended
its case. The Court of Appeals reversed the trial court's privilege ruling. But we
reversed the Court of Appeals. We followed Fortun and held that the State's failure
to appeal the dismissal—even though the State did not seek that dismissal—
amounted to a "waive[r]" of that "claimed error," and even constituted "invited
error." Id. at 511.
The circumstances in Perry were "precisely the same as in Fortun^ 120
Wn.2d at 202, and as in this case. The trial court suppressed a telephone call that
gutted the State's possession with intent to distribute case. Id. at 201. The trial court
State V. Cruz (Eric Daniel), No. 93732-0
then dismissed the case, at the State's request. Id. at 202. We accepted certification
from the Court of Appeals. Three and a half months later, the defendant first "raised
the issue of the State's failure to assign error to the order of dismissal." Id. We
followed Fortun and dismissed the case, explaining.
The State did not assign error to the dismissal of the information.
. Therefore, State v. Fortun, 94 Wn.2d 754, 626 P.2d 504 (1980)
mandates dismissal of this case because the circumstances here are
precisely the same as in Fortun. See also State v. Pam, 101 Wn.2d 507,
510-11, 680 P.2d 762 (1984). The State has not asked us to reconsider
the holding in Fortun, nor offered any policy arguments why Fortun
should not dictate dismissal. We have not reconsidered Fortun. The
State only argues that its notice of appeal is from the order of
suppression and dismissal. That argument fails to recognize the
difference between a notice of appeal and an assignment of error. See
RAP 10.3(a)(3).
Perry, 120 Wn.2d at 202.
The State makes the same attempt in this case that it made in Perry. In both
cases, "[t]he State's failure to assign error to the order of dismissal" was not raised
until after our court accepted review. Id. In both cases, the State attempted to correct
that problem after review was accepted—in Perry, by "argu[ing] that its notice of
appeal is from the order of suppression and dismissal," id., and in Cruz's case, by
filing a postargument motion to amend the notice of appeal pursuant to RAP 5.3(h)
to add in the dismissal order. A majority of the court has voted to grant the State's
motion to amend in this case. But it does not change the Fortun/Pam/Perry analysis.
10
State V. Cruz (Eric Daniel), No. 93732-0
As this court has explained, there are three critical problems with the State's appeal
in a situation like this: first, the State failed to assign error to the order of dismissal,
in violation of one RAP (RAP 10.3(a)(4)); second, the State failed to brief and argue
the propriety of the order of dismissal, in violation of another RAP (RAP 10.3(a)(6));
and third, the State was the party that affirmatively requested—or "invited"—the
trial court to enter the dismissal order that it now complains about. Characterizing
the "notice of appeal [as being] from the order of suppression and dismissal," as the
amended notice of appeal now does, fails to solve these invited error, failure to brief,
and failure to assign error problems.
Perhaps tacitly acknowledging this, the State instead relies on a slightly more
recent case on a related issue, Olson, 126 Wn.2d 315, to bolster its argument. But
Olson considered the opposite situation. In Olson, the State lost a suppression
motion and then sought and obtained an order of dismissal, but the State
subsequently appealed the dismissal order—not the suppression order. Id. at 316-
17.
We stated in Olson that this was incorrect. Id. at 317 n.l. And we speculated
that the State made this error because it misread the Rules of Appellate Procedure.
Id. We adhered to our holdings in Fortun, Pam, and Perry, but distinguished those
cases as addressing unappealed dismissal orders. Olson, in contrast, involved an
11
State V. Cruz (Eric Daniel), No. 93732-0
unappealed suppression order—and we considered the suppression order to be
wrapped up in the dismissal. Id. at 323.
That fact distinguishes Olson from Fortun, Perry, Pam, and this case. Here,
even if we reversed the suppression order, "the case below would still be at an end."
Fortun, 94 Wn.2d at 756.
III. There Is No Applicable Exception to the Dismissal Rules of Pam,
Perry, and Fortun
The errors described above make it impossible for this court to grant effective
relief since the dismissal order ending the State's case is not properly in front of us.
"[I]f a court can no longer provide effective relief," then the case is basically moot.
State V. Hunley, 175 Wn.2d 901, 907, 287 P.3d 584 (2012) (citing State v. Gentry,
125 Wn.2d 570, 616, 888 P.2d 1105 (1995)). The general rule is that moot cases
should be dismissed. Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d
512 (1972).
There is an exception: we may retain and decide a moot case "when it can be
said that matters of continuing and substantial public interest are involved." Id. at
558. We consider three factors in determining whether a case satisfies this
exception: "'"[(1)] the public or private nature of the question presented, [(2)] the
desirability of an authoritative determination for the future guidance of public
officers, and [(3)] the likelihood of future recurrence of the question.'"" In re Det.
12
State V. Cruz (Eric Daniel), No. 93732-0
ofM.W., 185 Wn.2d 633, 648-49, 374 P.3d 1123 (2016) (alterations in original)
(quoting State v. Hunley, 175 Wn.2d 901, 907, 287 P.3d 584 (2012) (quoting re
Pers. Restraint of Mattson, 166 Wn.2d 730, 736, 214 P.3d 141 (2009))).
To be sure, constitutional questions are public in nature. State v. Beaver, 184
Wn.2d 321, 331, 358 P.3d 385 (2015) (citing Hunley, 175 Wn.2d at 907). And this
case presents Fourth Amendment and article I, section 7 issues. But Pam, Perry,
and Fortun show that the existence of such constitutional issues alone does not
excuse the invited error, failure to assign error (RAP 10.3(a)(4)), failure to brief
(RAP 10.3(a)(6)), and potential mootness problems.
We therefore dismiss review.

Outcome: We reaffirm the rules of Pam, Perry, and Fortun. Review is dismissed.

Plaintiff's Experts:

Defendant's Experts:

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