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
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).
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).
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.
procedural issue became apparent after we granted review. We
now dismiss for the reasons explained below.
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.
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
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.
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 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).
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.
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
State moved to dismiss the case without prejudice that same
day; the trial court instead ...