State Of Washington, Respondent V Reanasha Ann Mccord, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53039-2-II
Respondent,
v.
REANASHA ANN MCCORD, UNPUBLISHED OPINION
Appellant.
CRUSER, J. – Reanasha Ann McCord appeals from her jury trial conviction for unlawful
possession of heroin.1 She challenges the trial court’s denial of her CrR 3.6 motion to suppress,
arguing that portions of two of the trial court’s findings of fact are not supported by substantial
evidence and that the initial seizure was unlawful because it was not based on an individualized
reasonable suspicion that she was engaged in criminal activity. Although McCord is correct that
portions of the trial court’s findings of fact are not supported by substantial evidence, the remaining
findings of fact establish an individualized reasonable suspicion that McCord was engaged in
criminal activity. Accordingly, the trial court properly denied McCord’s suppression motion, and
we affirm McCord’s conviction.
1 McCord was also convicted of bail jumping, but she does not challenge that conviction.
Filed
Washington State
Court of Appeals
Division Two
October 6, 2020

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FACTS
I. BACKGROUND2
On August 23, 2017, City of Lacy Police Officer Dave Miller was dispatched to investigate
a narcotics complaint. The dispatcher advised Miller that a citizen had reported that the occupants
of a vehicle at 3815 Pacific Avenue were using heroin. When Miller arrived at the specified
location, he observed three women inside a vehicle at the back of a restaurant parking lot.
As Miller approached the vehicle, he saw that the rear passenger door was open and that
the woman in the rear passenger seat was preparing to “inject herself with a syringe in the vein of
her front side elbow.” Clerk’s Papers (CP) at 28 (Finding of Fact (FF) 8). Miller determined “that
the syringe was consistent with one used to inject heroin.” Id. (FF 9). Miller did not see the two
other women in the vehicle injecting or preparing to inject themselves with anything.
Miller walked up to the vehicle and “stated, ‘Police, show me your hands.’” Id. (FF 12).
He then “saw all occupants, including [McCord], attempting to conceal things” inside the vehicle.
Id. (FF 13). Specifically, he observed “the driver, Ms. McCord, quickly . . . stuffing things in the
driver side door pocket or compartment of the vehicle.” Id. (FF 14).
After advising McCord of her of her Miranda3 rights, McCord told Miller that there was
some heroin “in the driver’s side [door] pocket,” and gave him permission to search the vehicle.
Report of Proceedings (RP) (Nov. 5, 2018) at 15. Miller later testified that he found the drugs
where McCord said they would be.
2 Unless otherwise indicated, these facts are drawn from the trial court’s unchallenged findings of
fact from the CrR 3.5 and CrR 3.6 suppression hearing, which are verities on appeal. State v. Hill,
123 Wn.2d 641, 647, 870 P.2d 313 (1994).
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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The State charged McCord with unlawful possession of methamphetamine, unlawful
possession of heroin, and bail jumping.
II. SUPPRESSION MOTION
McCord moved to suppress the drug evidence. She argued that the investigative detention
of everyone in the car was not supported by articulable suspicion.
The State argued that Miller had reasonable and articulable suspicion of criminal activity.
The State’s response included a “certified statement” from the deputy prosecutor in which he stated
that he “believe[d] a hearing or trial on this matter [would] elicit, in part,” evidence establishing
that (1) the dispatcher had advised Miller that a reporting citizen had observed “the occupants in a
sliver Mercedes [sport utility vehicle (SUV)] Washington license BCW1957” using heroin, and
(2) Miller “observed a silver Mercedes SUV with the same license plate” in the parking lot. CP at
19.
Miller was the sole witness at the suppression hearing. His testimony was consistent with
the background facts set out above. Miller did not, however, describe the vehicle’s make, model,
color, or license plate number or testify that the dispatcher provided him with this information.
In addition to the facts set out above, the trial court made the follow findings:
4. Officer Miller was advised by dispatch that a citizen reported that occupants
in a silver Mercedes Washington license BCW1957 were using heroin.
5. Upon arrival, Officer Miller observed a silver Mercedes SUV with the same
license plate in the rear parking lot of Taco Bell.
Id. at 27 (emphasis added).
The trial court’s conclusions of law stated:

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5. At that point the defendant was seized, the seizure was supported by lawful
authority under Terry v. Ohio,[4] because the totality of circumstances
supports the seizure of [McCord] .
Id. at 29. The trial court denied the motion to suppress.
The jury found McCord guilty of unlawful possession of heroin and bail jumping.5 McCord
appeals her unlawful possession of heroin conviction.
ANALYSIS
McCord argues that (1) the portions of findings of fact 4 and 5 that refer to the vehicle’s
description and license plate number are not supported by substantial evidence, and (2) the trial
court’s findings do not support conclusion of law 5, which concludes that the seizure was lawful
under Terry. McCord is correct that the portions of the trial court’s findings related to the vehicle’s
description and license plate number are not supported by the substantial evidence. But because
the remainder of the findings are sufficient to establish that Miller had a reasonable, articulable,
individualized suspicion that McCord was engaging in or about to engage in criminal activity, we
hold that the trial court did not err when it denied McCord’s suppression motion.
I. LEGAL PRINCIPLES
We review challenged findings of fact to determine whether they are supported by
substantial evidence. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). Substantial
evidence exists when there is sufficient evidence in the record “‘to persuade a fair-minded person
of the truth of the stated premise.’” Id. (quoting State v. Reid, 98 Wn. App. 152, 156, 988 P.2d
1038 (1999)). “[T]he ultimate determination of whether those facts constitute a violation of the
4 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968).
5 The jury found McCord not guilty of unlawful possession of methamphetamine.

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constitution is one of law and is reviewed de novo.” State v. Budd, 186 Wn. App. 184, 196, 347
P.3d 49 (2015), aff’d, 185 Wn.2d 566, 374 P.3d 137 (2016).
The Fourth Amendment to the United States Constitution and article I, section 7 of the
Washington Constitution provide that officers may not generally seize a person without a warrant.
Garvin, 166 Wn.2d at 249. One exception to the warrant requirement is the Terry investigative
detention. Id.
Under Terry, an officer “may briefly stop and detain an individual for investigation without
a warrant if the officer reasonably suspects the person is engaged or about to be engaged in criminal
conduct.” Id. at 250. We evaluate the reasonableness of the officer’s suspicion by examining the
totality of the circumstances known to the officer. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d
760 (1991).
Whether an officer had reasonable suspicion is an objective standard, and the officer’s
suspicion must be based on specific and articulable facts known to the officer at the inception of
the stop. State v. Gatewood, 163 Wn.2d 534, 539-40, 182 P.3d 426 (2008). When the activity is
consistent with criminal activity but also consistent with noncriminal activity, it may still justify a
brief detention. State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986). The officer’s reasonable
suspicion must, however, be individualized to the person being seized, and “mere proximity to
others independently suspected of criminal activity does not justify the [seizure].” State v.
Thompson, 93 Wn.2d 838, 841, 613 P.2d 525 (1980).
II. FINDINGS OF FACT 4 AND 5
McCord first argues that the portions of findings of fact 4 and 5 referring to the description
of the vehicle are not supported by substantial evidence because Miller did not testify that the

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dispatcher advised him of the vehicle’s make or license plate number or that he identified the
vehicle by its make or license plate number. We agree.
The State did not present any evidence at the suppression hearing establishing that the
dispatcher advised Miller of any identifying information regarding the vehicle or that he identified
the vehicle as the one described by the dispatcher based on such identifying information.
Accordingly, the portions of findings of fact 4 and 5 referring to the vehicle’s description are not
supported by substantial evidence.
We acknowledge that the State argues that under ER 1101(c)(1), the trial court could have
relied on the deputy prosecutor’s certified statement for these factual findings. But the State does
not cite, nor could we locate any authority establishing that ER 1101(c)(1) applies to a prosecutor’s
summary of the evidence he or she “believe[s]” will be elicited at a hearing, so the trial court could
not rely on this statement. CP at 19. The State also suggests that we can consider Miller’s trial
testimony to support these findings. But our review of a trial court’s decision on a motion to
suppress is limited to the evidence before the trial court when it made its decision, and, in this
instance, that does not include trial testimony.
Because the challenged portions of findings of fact 4 and 5 are not supported by substantial
evidence, we do not consider those portions of the findings when we examine the conclusions of
law.
III. REASONABLE, INDIVIDUALIZED SUSPICION
McCord next challenges the trial court’s conclusion of law 5, in which the trial court
concluded that the totality of the circumstances supported McCord’s seizure under Terry. McCord
argues that the trial court erred when it concluded that the initial detention, when Miller ordered

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everyone in the vehicle to show their hands,6 was based on reasonable, individualized suspicion as
to McCord, and McCord’s later movement inside the vehicle was sufficient to establish reasonable
suspicion. We disagree.
The trial court’s unchallenged findings of fact establish that before Miller initiated the
seizure by telling the vehicle’s occupants to put their hands up, he had received a report of people
using heroin in a vehicle at this location, and he personally observed one of the three people in the
car actively engaging in drug use consistent with the reported activity. Although Miller did not
personally observe McCord engaging in drug use, his observation of the passenger using drugs
verified the reported information; McCord, the driver of the car, was in close proximity to the
passenger who was actively engaging in illegal drug use. Furthermore, within moments of the
initial seizure, Miller observed McCord herself engage in suspicious behavior. The totality of these
circumstances, would allow an objective person to form a reasonable suspicion that McCord
herself was engaged in or about to be engaged in criminal activity. And although McCord’s furtive
movement could have been consistent with noncriminal activity, it still justified a brief detention
to investigate. Kennedy, 107 Wn.2d at 6. Thus, the trial court did not err when it concluded that
the seizure was proper and denied the motion to suppress.
McCord’s arguments do not persuade us that the seizure was improper. First, McCord
argues that this case is similar to State v. Richardson, 64 Wn. App. 693, 825 P.2d 754 (1992), and
6 Because we hold that the seizure was proper, we do not address the State’s contentions that
McCord was not detained when Miller announced, “‘Police, show me your hands,’” or that
McCord’s voluntary consent overcame any illegal seizure. CP at 28 (FF 12). For the same reason,
we do not address McCord’s argument that her later consent to the vehicle search was vitiated by
the unlawful seizure.

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that, as in Richardson, McCord’s mere proximity to the rear seat passenger was not sufficient to
establish individualized suspicion. But Richardson is distinguishable.
In Richardson, the defendant, Richardson, was seized while “in a high crime area, late at
night, walking near someone the officer suspected of ‘running drugs.’” 64 Wn. App. at 697. The
arresting officer had not heard any conversations between the two men or observed any suspicious
activity between them. Id. Division Three of this court held that these circumstances were not
sufficient to establish a reasonable suspicion that Richardson was or had been engaged in criminal
activity. Id. The court stated, that although Richardson was seen with a person reasonably
suspected of drug-related activity, “an individual’s mere proximity to others independently
suspected of criminal activity justify an investigative stop; the suspicion must be individualized.”
Id.
But in Richardson, the arresting officer had observed the man Richardson was with
engaging in “suspicious activity consistent with ‘running drugs’” 20 minutes before the officer
encountered Richardson. Id. at 694. Unlike here, the officer had not observed the other man
engaging in illegal activity in Richardson’s presence at the time of the seizure within a confined
area, such as a vehicle. Id. at 694-95. Here, McCord’s immediate association to the back seat
passenger’s illegal activity, the confined nature of the space, and the report that the people in the
vehicle were using drugs, provide a basis for an individualized reasonable suspicion that McCord
was engaged in or about to be engaged in illegal behavior.
Next, citing Gatewood, 163 Wn.2d 534, McCord argues that her furtive movement inside
the vehicle was not sufficient to establish a substantial probability that she was engaging in
criminal activity. But Gatewood is also distinguishable.

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In Gatewood, patrol officers drove past a bus shelter where Gatewood was sitting, observed
Gatewood’s eyes widen, and saw him twist his body as though to hide something. 163 Wn.2d at
537. Gatewood then left the bus shelter and jaywalked across the street, where the officers stopped
him. Id. at 537-38. Our Supreme Court held that “[s]tartled reactions to seeing the police do not
amount to reasonable suspicion.” Id. at 540.
But unlike in Gatewood, Miller observed more than a startled reaction. Miller observed the
passenger engaged in criminal activity in the immediate proximity of McCord; he had information
that the occupants of the vehicle were engaged in illegal activity; and he then observed McCord
engage in what appeared to be purposeful furtive movements in response to his announcing his
presence, not just a startled reaction. As discussed above, these facts would allow an objective
person to form a reasonable suspicion that McCord herself was engaged in or about to be engaged
in criminal activity. Thus, McCord’s reliance on Gatewood is not persuasive.

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Although, as discussed above, McCord is correct that portions of the trial court’s findings
of fact are not supported by substantial evidence, the remaining findings of fact establish
individualized reasonable suspicion that McCord was engaged in or about to engage in criminal
activity. We hold that the trial court did not err when it denied McCord’s suppression motion.
Accordingly, we affirm McCord’s conviction.
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.
CRUSER, J.
We concur:
WORSWICK, P.J.
MELNICK, J.