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State v. Cruz

Supreme Court of Washington, En Banc

November 2, 2017


          GORDON McCLOUD, J.

         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 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), [1] 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), [2] 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 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, State 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.


         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.

         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.[3] 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 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 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 ...

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