* State of Washington v. Jarod Roland Taylor

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
JAROD ROLAND TAYLOR,
Appellant.
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No. 39019-5-III
OPINION PUBLISHED
IN PART
LAWRENCE-BERREY, J. — Jarod Roland Taylor appeals his conviction for
unlawful possession of a firearm in the second degree. In the published portion of this
opinion, we address his arguments that (1) the trial court erred by concluding he was not
seized when a police officer held his identification and called dispatch, and (2) the
prosecutor committed misconduct during rebuttal closing argument when he told jurors
they were not required to find that Mr. Taylor actually knew the firearm was in his truck.
We conclude that Mr. Taylor was not seized because the officer did not use
physical force or a show of authority. Absent this, a reasonable person could not believe
they were not free to leave due to an officer’s use of physical force or a show of authority.
This is especially true where, as here, the officer assured the person they were not
FILED
JANUARY 23, 2024
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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suspected of any criminal activity.
We further conclude that Mr. Taylor waived his argument of prosecutorial
misconduct by failing to object to the prosecutor’s misstatement of the law. The
prosecutor’s misconduct of misstating the law was not flagrant or ill intentioned. He
correctly stated the law throughout most of his argument, and a timely objection could
have cured his misstatement.
FACTS
We take our facts from the uncontested portions of the trial court’s findings1 and
from the arresting officer’s audio-video body camera.
On February 2, 2021, at around 9:00 p.m., Moses Lake Police Department Officer
Colton Ayers received a report of a theft from the local Lowe’s hardware store. Dispatch
advised the officer that the suspect was wearing jeans and a white sweatshirt and that he
was carrying items from the store. The officer drove to an open field behind Lowe’s after
a store employee reported the suspect had headed in that direction.
Once in the field, Officer Ayers located a parked Toyota pickup truck. He looked
through the windows of the truck for the suspect or the stolen merchandise but found
1 “[C]hallenged findings entered after a suppression hearing that are supported by
substantial evidence are binding, and, where the findings are unchallenged, they are
verities on appeal.” State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).
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neither. He then ascended a 20-foot high dirt mound near the truck to gain a better view
of the field. At the top of the mound, Officer Ayers encountered Jarod Roland Taylor,
who was sleeping.
The officer shined a flashlight on Mr. Taylor because it was dark and asked for his
identification. At this point, the officer’s body camera audio begins. Mr. Taylor asked,
“What is going on?” Ex. D1 at 00:31-1:00. The officer replied,
So someone saw someone running out the back of Lowe’s over here in the
field with a bunch of stuff in their hands . . . and you don’t match the
description or anything, but we just gotta, I just gotta get your name just so
we have that in case we need to contact you again at some point.
Ex. D1 at 00:31-1:00.
Mr. Taylor handed his identification to Officer Ayers. After the two had a brief
cordial discussion, the officer provided Mr. Taylor’s name and birthdate to dispatch.2
Officer Ayers returned Mr. Taylor’s identification to him. Mr. Taylor then said the truck
was his and asked if it was all right—him being there. The officer responded it was,
unless someone complained.
2 Specifically, Officer Taylor told dispatch: “So, last of Taylor, first of Jarod-john,
adam, robert, ocean, david-seven sixteen of eighty-two.” Ex. D1 (1:27-1:35).
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Soon after, dispatch reported the information to Officer Ayers, and the officer
asked Mr. Taylor if he knew he had a felony warrant. Mr. Taylor said he did not, and the
officer arrested Mr. Taylor.
Around the same time, Officer Caleb Martin arrived and looked inside the
windows of the truck where he saw the barrel of a rifle and two boxes of ammunition.
After Officer Martin obtained a warrant, he seized the rifle.
Pretrial procedure
The State charged Mr. Taylor with unlawful possession of a firearm in the second
degree. Before trial, Mr. Taylor moved to suppress all statements and evidence gathered
by law enforcement during his “warrantless seizure and detention.” Clerk’s Papers (CP)
at 31. He argued that Officer Ayers had no reasonable, articulable suspicion that he was
engaged in criminal activity and that he was unlawfully seized when Officer Ayers asked
to see his identification. He also argued that the officers lacked authority to search the
flatbed of his pickup truck before they obtained a warrant.
The court held a suppression hearing during which both Officer Ayers and Mr.
Taylor testified. At the start of the suppression hearing, the State conceded the portion of
the motion to suppress related to the search of the flatbed of the pickup truck. During the
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hearing, the court admitted and viewed the three-minute audio-video clip from the
officer’s body camera.
At the end of the hearing, the court announced its findings of fact and conclusions
of law. The court determined that there was not “coercion or show of force that would
cause a reasonable person to feel they weren’t able to break off the contact” and denied
Mr. Taylor’s motion to suppress. Rep. of Proc. (RP) (Mar. 24, 2022) at 42. The court
later entered its written findings of fact and conclusions of law. The court’s written
conclusions, which actually are findings, provide in relevant part:
1. There was nothing about the contact that suggested the defendant was
not free to leave prior to the time the officer learned the defendant had a
warrant.
. . . .
3. The encounter was brief and cordial. There was no show of coercion or
force.
4. Officer Ayers did not use any show of authority or force when he
requested identification from the defendant.
. . . .
6. Considering the totality of the circumstances, the Court cannot find there
was any sort of coercion of [sic] force that would lead a reasonable
person to believe he or she was not free to leave.
CP at 53.
Trial
The case proceeded to a jury trial. The State called three Moses Lake Police
Department officers to testify. The officers testified consistent with the facts above. In
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addition, Officer Ayers testified that Mr. Taylor told him the truck was his and that when
he searched Mr. Taylor, he found the keys to the truck.
Mr. Taylor stipulated to the fact that he had a prior felony conviction. The defense
rested without calling any witnesses.
Jury instructions
The court instructed the jury on the charged crime. The to-convict instruction
required the jury to find that the State had proved three elements beyond a reasonable
doubt, including that Mr. Taylor “knowingly had a firearm in his possession or control.”
CP at 67. The court also instructed the jury on the definition of “knowledge”:
A person knows or acts knowingly or with knowledge with respect to
a fact, circumstance or result when he or she is aware of that fact,
circumstance or result. It is not necessary that the person know that the
fact, circumstance or result is defined by law as being unlawful or an
element of a crime.
If a person has information that would lead a reasonable person in
the same situation to believe that a fact exists, the jury is permitted but not
required to find that he or she acted with knowledge of that fact.
When acting knowingly is required to establish an element of a
crime, the element is also established if a person acts intentionally.
CP at 65.
Closing arguments and rebuttal
During the State’s initial closing argument, the prosecutor correctly and repeatedly
told the jury that the State needed to prove that Mr. Taylor knowingly possessed a
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firearm. He read to the jury the instruction that defined “knowledge.” From it, the
prosecutor argued the circumstances why it should find that Mr. Taylor had knowledge,
including that the truck was his, that an officer, when looking through the window, saw
the partly exposed rifle, and that after they obtained the search warrant and searched the
truck, they found gun scopes inside the center console, a bullet inside the pocket of the
front door, and a box of bullets next to the rifle. The prosecutor argued, given these
circumstances, it was unreasonable “to believe that the defendant did not know that that
gun was in there.” RP (Apr. 7, 2022) at 217.
During the State’s rebuttal closing, the prosecutor argued:
[Defense counsel] states that the [S]tate has not proved to you that the
defendant knew that a firearm was inside the truck. And again, I just want
to quickly . . . refresh your memory about . . . the definition of knowledge.
It states in the second paragraph, if a person has information that
would lead a reasonable person in the same situation to believe that a fact
exists, the jury is permitted but not required to find that he or she acted with
knowledge of that fact.
So based on the circumstances, it’s not required that you find that he
knew. But the question is did [Mr. Taylor] have information that would
lead a reasonable person to believe that a firearm was in that truck?
RP (Apr. 7, 2022) at 230-31 (emphasis added). Defense counsel did not object to the
prosecutor’s misstatement of the law. Soon after, toward the end of his closing rebuttal,
the prosecutor told the jury, “the [S]tate’s burden in this case is to prove that the
defendant possessed a firearm knowingly.” RP (Apr. 7, 2022) at 232.
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The jury returned a guilty verdict. The court sentenced Mr. Taylor to 20 months of
confinement and imposed the $500 victim penalty assessment (VPA). The court also
found Mr. Taylor to be indigent.
Mr. Taylor timely appealed.
ANALYSIS
NO SEIZURE
Mr. Taylor contends the trial court erred when it denied his motion to suppress
because he was unconstitutionally seized. We disagree.
Whether police have 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 trial court is tasked with resolving
issues of credibility and weighing evidence, and we give great deference to its factual
findings. 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 ultimate determination of whether those facts constitute a
seizure is one of law and is reviewed de novo. State v. Harrington, 167 Wn.2d 656, 662,
222 P.3d 92 (2009).
Challenged findings entered after a suppression hearing that are supported by
substantial evidence are binding and, where findings are unchallenged, they are verities
on appeal. State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). “Substantial
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evidence” is enough to persuade a fair-minded person of the truth of the stated premise.
State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
Article I, section 7 of the Washington Constitution protects against unwarranted
governmental intrusion into a person’s private affairs. The Fourth Amendment to the
United States Constitution provides similar protection, prohibiting unreasonable searches
and seizures. Because article I, section 7 of the Washington Constitution “‘grants greater
protection to individual privacy rights than the Fourth Amendment,’” we evaluate
whether a seizure occurred under the Washington Constitution. State v. Flores, 186
Wn.2d 506, 512, 379 P.3d 104 (2016) (quoting Harrington, 167 Wn.2d at 663).
“A seizure occurs only ‘when, in view of all the circumstances surrounding the
incident, a reasonable person would have believed [they were] not free to leave’ or ‘free
to otherwise decline an officer’s request and terminate the encounter’ due to an officer’s
use of ‘physical force or a show of authority.’” State v. Meredith, 1 Wn.3d 262, 270, 525
P.3d 584 (2023) (alteration in original) (internal quotation marks omitted) (quoting State
v. Young, 135 Wn.2d 498, 510, 957 P.2d 681 (1998)). The relevant question is whether a
reasonable person in the individual’s position would feel he or she was being detained.
Harrington, 167 Wn.2d at 663. The defendant bears the burden of proving a seizure
occurred in violation of article I, section 7. Id. at 664.
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Washington courts distinguish between a warrantless social contact, which article
I, section 7 generally permits, and a warrantless seizure, which it generally prohibits. Id.;
State v. Nettles, 70 Wn. App. 706, 712, 855 P.2d 699 (1993). During a social contact, an
officer need not warn the citizen of his right to remain silent or walk away. State v. Mote,
129 Wn. App. 276, 281, 120 P.3d 596 (2005). Because courts have not defined a social
contact, the term “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.” Harrington, 167 Wn.2d at 664.
Interactions that our Supreme Court has confirmed do not indicate a seizure
include officers asking for identification, or obtaining identification, or calling dispatch
for information about the subject. See, e.g., O’Neill, 148 Wn.2d at 572, 581 (asking for
identification, obtaining car registration and insurance); Armenta, 134 Wn.2d at 6, 11,
21 n.10 (asking for identification, obtaining driver’s license, calling dispatch for
information about the subject). Conversely, interactions that our Supreme Court has
confirmed might indicate a seizure includes “‘the threatening presence of several officers,
the display of a weapon by an officer, 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.’” Young, 135 Wn.2d at 512 (quoting United States v. Mendenhall,
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446 U.S. 544, 554-55, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)). “‘When an
unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes
fruit of the poisonous tree and must be suppressed.’” State v. Kinzy, 141 Wn.2d 373,
393, 5 P.3d 668 (2000) (quoting State v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833
(1999)).
Challenged “conclusions” supported by substantial evidence
Mr. Taylor assigns error to the trial court’s conclusions of law 3 and 4. The former
states, “The encounter was brief and cordial. There was no show of coercion or force.”
CP at 53. The latter states, “Officer Ayers did not use any show of authority or force
when he requested identification from the defendant.” CP at 53. These challenged
conclusions are mislabeled findings of fact. We review a mislabeled finding of fact or
conclusion of law for what it really is. State v. Conway, 8 Wn. App. 2d 538, 552 n.8, 438
P.3d 1235 (2019).
To the extent the mislabeled conclusions are findings, they are supported by
substantial evidence. The audio-video of the encounter is helpful in this regard. It shows
the encounter was brief and cordial. There was nothing in Officer Ayer’s words or
conduct that can be construed as displaying physical force or authority until the officer
learned of Mr. Taylor’s outstanding warrant.
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Purported seizure
Mr. Taylor argues he was unconstitutionally seized when Officer Ayers obtained
his identification and called dispatch for an identification check. The State points to State
v. Hansen, 99 Wn. App. 575, 994 P.2d 855 (2000) as refuting Mr. Taylor’s argument.
In Hansen, the court analyzed whether a seizure occurred when two police officers
approached Mr. Hansen and asked for his identification. Id. at 576-78. Although the
officers were not in uniform, their guns and badges were visible. Id. at 576-77. One
officer asked Mr. Hansen for his identification. Id. at 577. Mr. Hansen complied by
handing the officer his driver’s license. Id. The first officer passed the license to the
second officer, who then wrote down Mr. Hansen’s name and date of birth and handed
the license back to him. Id. The second officer held onto Mr. Hansen’s license for
“approximately five to 30 seconds.” Id. The first officer continued to talk with Mr.
Hansen while the second officer conducted a warrants check. Id. We concluded that the
encounter did not ripen into an unlawful detention, explaining, “There is no reason
handing the license to another officer standing beside the first would have led a
reasonable person to believe that he was not free to leave.” Id. at 579.
Mr. Taylor argues this case is less like Hansen and more like State v. Crane, 105
Wn. App. 301, 19 P.3d 1100 (2001), overruled on other grounds by O’Neill, 148 Wn.2d
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at 571. In Crane, a police officer was monitoring a house while other officers obtained a
warrant to search the residence for stolen property. Id. at 304. The officer saw a car pull
into the driveway. Id. The officer pulled his patrol car into the driveway and blocked the
car as three men got out and walked toward the house. Id. The officer got out of his car
and “asked or told” the men to stop. Id. The men complied and walked toward the
officer. Id. At that point, a woman came out of the house to ask what was going on. Id.
The officer told the woman to remain inside and not come out and that the police were
not allowing people to come in and out of the house because they were obtaining a
warrant. Id. The officer asked each man for his identification and stood with the men
while he radioed to check for warrants. Id. at 304-05. The warrants check took a couple
of minutes and returned a warrant for Mr. Crane. Id. at 305. At that point, the officer
arrested Mr. Crane and located a bag of cocaine that had fallen from his wallet. Id. Mr.
Crane moved the trial court to suppress the cocaine, arguing he was illegally seized. Id.
The trial court denied his motion and found him guilty of possession of a controlled
substance. Id.
On appeal, we explained that Mr. Crane’s case “falls between the situation . . .
where the officer walks away with the identification and runs a warrants check and the
situation in Hansen, where the officer merely records information from the identification
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and returns it.” Id. at 311. We determined that a reasonable person in Mr. Crane’s
position would not feel free to leave because the contact did not occur in public, the
officer parked his car behind the car Mr. Crane arrived in, the officer retained Mr.
Crane’s identification while he ran the warrant check, and the officer made Mr. Crane
aware that he had entered an area that the police had secured. Id. Our review of Crane
convinces us of a more principled reason why a seizure had occurred: a reasonable person
in Mr. Crane’s position would not feel free to leave due to the police officer’s show of
authority. There, the officer displayed his authority by blocking the car in the driveway,
directing the home’s occupant to go back inside, and telling everyone they were not
allowed to go in or out of the house because a warrant was being obtained.
We believe this case is similar to Hansen and distinguishable from Crane. As in
Hansen, Officer Ayers held onto Mr. Taylor’s identification briefly and spoke with him
while dispatch obtained information about Mr. Taylor. As opposed to the officer in
Crane, Officer Ayers did not display his authority by blocking Mr. Taylor from leaving
nor did he issue any verbal commands. Because Officer Ayers did not use physical force
or display authority, a reasonable person in Mr. Taylor’s position would not have believed
he was unable to leave or terminate the encounter “due to an officer’s use of ‘physical
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force or a show of authority.’” Meredith, 1 Wn.3d at 270 (emphasis added) (quoting
Young, 135 Wn.2d at 510).
Mr. Taylor cites two cases to support his argument that a seizure can occur even if
an officer is cordial. We agree. The first case he cites is State v. Beito, 147 Wn. App.
504, 195 P.3d 1023 (2008). The second case he cites is Meredith.
In Beito, officers drove by a convenience store at 3:40 a.m. and noticed two people
standing near a car parked in the lot. 147 Wn. App. at 507. Minutes later, they drove by
again and noticed the two people now sitting in the car. Id. To ensure the safety of the
premises, the officers parked directly behind the parked car. Id. One officer approached
the driver and the other approached the passenger, Mr. Beito. Id. After a short
discussion, the driver asked if she could go. Id. The officer near her said she could not.
Id. The officer near Mr. Beito asked for his identification but Mr. Beito did not have any,
so he gave his name. Id. A police data base search showed Mr. Beito had a warrant for
his arrest. Id. In a search incident to arrest, the officers found a stolen gas card in Mr.
Beito’s back pocket. Id. The State charged him with second degree possession of stolen
property. Mr. Beito filed a motion to dismiss. The trial court granted the motion and
dismissed the charge. Id. at 507. On appeal, we affirmed because the totality of the
circumstances showed that Mr. Beito was not free to leave. Id. at 510-11.
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Beito is readily distinguishable. There, the officers displayed their authority by
blocking the driver’s car from leaving and by later telling the driver she was not free to
go. A reasonable person in the passenger seat would not have felt free to leave or
terminate the encounter due to the officers’ show of authority.
In Meredith, two deputies boarded a public bus and checked whether Mr. Meredith
had paid the fare. 1 Wn.3d at 263-66. One of them, in a conversational tone, asked Mr.
Meredith for his proof of payment. Id. at 265, 274. Mr. Meredith could not prove
payment, and the deputies removed him from the bus at the next stop and detained him.
Id. at 266. The majority of justices concluded that Mr. Meredith was unconstitutionally
seized, but when that seizure occurred was a source of the fractured opinion.
The lead opinion, relied on by Mr. Taylor, garnered only three signatures. It noted
that a conversational tone weighed against the notion that Mr. Meredith was seized but
added, “we must consider the language the deputy used, in addition to his tone of voice.”
Id. at 274.
This point cuts across Mr. Taylor’s argument. Here, Officer Ayers’s language
would have assured a reasonable person that the officer was not making a show of
authority: the officer assured Mr. Taylor he was not a suspect, but wanted to “get [his]
name just so we have that in case we need to contact you again at some point in time.”
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Ex. D1 at 00:51-1:00. Context matters. Here, a reasonable person in Mr. Taylor’s
position would not feel he was being detained. See Harrington, 167 Wn.2d at 663 (The
relevant question is whether a reasonable person in the defendant’s position would feel
they were being detained.).
Our dissenting colleague would proffer a new rule: whenever an officer retains a
citizen’s driver’s license, no matter how brief, the citizen is seized. Dissent at 9. This
new rule is premised on the notion that an officer’s request for identification is
sufficiently coercive to amount to a show of authority. Dissent at 9. It would apply to all
encounters, whether the citizen is a suspect, a witness, or a crime victim. Later, to render
this new rule “consistent” with O’Neill, the dissent amends it to: a seizure occurs when
the officer has the driver’s license and calls dispatch for a warrants check. Dissent at 10-
11. This is not the law in Washington. A show of authority requires more than obtaining
a subject’s driver’s license and calling dispatch for information about the subject. See,
e.g., Armenta, 134 Wn.2d at 6, 11, 21 n.10 (seizure did not occur when officer obtained
Armenta’s driver’s license and called dispatch for a driver’s check, especially, as in the
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case here, when not investigating criminal activity).3
We reject Mr. Taylor’s arguments that he was unconstitutionally seized. We
conclude that the trial court did not err when it denied Mr. Taylor’s suppression motion.
PROSECUTORIAL MISCONDUCT CLAIM WAIVED
Mr. Taylor contends the prosecutor committed misconduct in rebuttal closing
argument when he misstated the mens rea element, actual knowledge. As explained
below, we conclude he waived this error.
The defendant bears the burden of showing that the prosecutor’s comments were
improper and prejudicial. State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008). A
prosecuting attorney commits misconduct by misstating the law. State v. Allen, 182
Wn.2d 364, 373, 341 P.3d 268 (2015).
However, where, as here, the defendant fails to object or request a curative
instruction, the issue of misconduct is waived unless the prosecutor’s conduct was so
flagrant and ill intentioned that an instruction could not have cured the resulting
3 The dissent attempts to distinguish this case from Armenta by saying here, the
officer requested a warrants check while the officer in Armenta requested a driver’s
check. Not so. Here, the recorded video shows the officer providing only Mr. Taylor’s
name and date of birth to dispatch; he did not ask dispatch to check for warrants. It is
mere semantics, whether one refers to such calls as a “driver’s check,” an “identification
check,” or a “warrants check.” Regardless of semantics, invariably, the officer provides
dispatch with a name and date of birth, and dispatch runs them through its database.
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prejudice. State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997). Under this
heightened standard, the defendant must show that (1) “‘no curative instruction would
have obviated any prejudicial effect on the jury’” and (2) the misconduct resulted in
prejudice that “‘had a substantial likelihood of affecting the jury verdict.’” State v.
Emery, 174 Wn.2d 741, 761, 278 P.3d 653 (2012) (quoting State v. Thorgerson,
172 Wn.2d 438, 455, 258 P.3d 43 (2011)). The focus should be less on whether the
prosecutor’s misconduct was flagrant and ill intentioned and more on whether the
resulting prejudice could have been cured. Id. at 762. We review the purported
misconduct in the context of the entire argument, the issues in the case, and the
instructions given to the jury. See State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747
(1994). Jurors are presumed to follow jury instructions. In re Pers. Restraint of Phelps,
190 Wn.2d 155, 172, 410 P.3d 1142 (2018).
The State charged Mr. Taylor with unlawful possession of a firearm in the second
degree under RCW 9.41.040(2). Although the statute does not contain an express mens
rea element, our Supreme Court recognized an essential knowledge mens rea element
implied in the statute. State v. Anderson, 141 Wn.2d 357, 359, 5 P.3d 1247 (2000).
Our Supreme Court’s precedent requires the State to prove a subjective standard of
“actual knowledge” whenever the State must prove the mens rea of knowledge. Allen,
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No. 39019-5-III
State v. Taylor
20
182 Wn.2d at 374; State v. Shipp, 93 Wn.2d 510, 515-17, 610 P.2d 1322 (1980). Despite
this, Washington courts allow the jury to be instructed, as was Mr. Taylor’s jury, of a
permissible presumption of actual knowledge by a finding of constructive knowledge.
State v. Jones, 13 Wn. App. 2d 386, 404-05, 463 P.3d 738 (2020). Despite this
permissive presumption, the jury must still find subjective actual knowledge. Id. at 405.
Here, the State concedes the prosecutor’s misstatement of the law in his rebuttal
argument was improper. We accept the State’s concession. During rebuttal, the
prosecutor said: “So based on the circumstances, it’s not required that you find that he
knew.” RP (Apr. 7, 2022) at 231. This misstated the law. The jury was required to find
that Mr. Taylor had actual knowledge that he possessed the rifle. However, because Mr.
Taylor’s defense counsel did not object, well-settled law results in the error being waived
unless the prosecutor’s misconduct was so flagrant and ill intentioned that an instruction
could not have cured the resulting prejudice. Stenson, 132 Wn.2d at 719.
The State argues that an objection and curative instruction could have cured any
resulting prejudice and that Mr. Taylor cannot show the statement likely affected the
jury’s verdict. We agree.
As detailed above, the prosecutor correctly and repeatedly argued the required
knowledge element during his initial closing argument and also toward the conclusion in
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No. 39019-5-III
State v. Taylor
21
his rebuttal argument. He also correctly argued that the instruction defining “knowledge”
allowed the jury to consider all of the circumstances that would cause a reasonable person
to know the rifle was in the truck. Defense counsel responded that there was no evidence
Mr. Taylor had touched the rifle and no evidence he actually knew the rifle was there.
In rebuttal, the prosecuting attorney again reminded jurors that they were permitted
but not required to find that Mr. Taylor had knowledge of the gun, “if a person has
information that would lead a reasonable person in the same situation to believe that a
fact exists.” RP (Apr. 7, 2022) at 230. The prosecutor then misstated the law, “So based
on the circumstances, it’s not required that you find that he knew. But the question is did
he have information that would lead a reasonable person to believe that a firearm was in
that truck?” RP (Apr. 7, 2022) at 231.
Defense counsel could have timely objected to the prosecutor’s misstatement.
A correct ruling by the court would have sustained the objection, and a proper curative
instruction would have reminded the jurors that the law requires the State to prove actual
knowledge. Because a curative instructive would have cured any resulting prejudice, we
conclude Mr. Taylor waived his prosecutorial misconduct claim.
Mr. Taylor argues that under our Supreme Court’s decision in Allen and our recent
decision in Jones, a prosecutor’s misstatement of the knowledge element constitutes
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No. 39019-5-III
State v. Taylor
22
flagrant and ill-intentioned conduct that need not be preserved with an objection and that
an objection could not have cured the resulting prejudice. We disagree. In Allen, the
State charged Mr. Allen with being an accomplice to aggravated first degree murder and
needed to prove that Mr. Allen knew the murder victims were police officers. 182 Wn.2d
at 370-73. During closing arguments, the prosecuting attorney repeatedly used the phrase
“should have known” when describing the definition of “knowledge.” Id. at 371-72. The
prosecutor repeated this phrase at least five times during closing argument—in a slide
show shown during closing multiple times, in rebuttal argument, and in four slides shown
during rebuttal. Id. at 376-77. Defense counsel twice objected, and the trial court
overruled both objections. Id. at 372. During jury deliberations, the jury sent a question
to the court: “‘If someone “should have known” does that make them an accomplice?’”
Id. The court instructed the jury to refer back to its instructions. Id. at 373. The jury
returned guilty verdicts. Id.
On appeal, the Supreme Court reversed, concluding that the prosecuting attorney’s
arguments were both improper and prejudicial. Id. at 373-80. The court reasoned that the
prosecutor misstated a key element of the State’s case multiple times and that the
repetitive misstatements could have had a cumulative effect. Id. at 375-76. The court
also reasoned that the trial court’s overruling of defense counsel’s objections “potentially
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No. 39019-5-III
State v. Taylor
23
[led] the jury to believe that the ‘should have known’ standard was a proper interpretation
of the law.” Id. at 378. Because defense counsel twice objected to the prosecutor’s
misstatements of law, the Allen court did not discuss the heightened flagrant or ill-
intentioned standard for prosecutorial misconduct, nor did it hold that a prosecutor’s
misstatement of the knowledge element satisfied that standard. See id. at 378-80.
In Jones, the State charged Mr. Jones for possession of a stolen vehicle.
13 Wn. App. 2d at 389. The prosecutor told the jury at least five times that they could
convict if Mr. Jones “‘should have known.’” Id. at 405. Unlike defense counsel in
Allen, defense counsel in Jones did not object to the prosecutor’s misstatements. Id. at
398. The jury convicted Mr. Jones. Id. On appeal, the lead and majority opinions
concluded that the prosecutor committed misconduct and that the conduct satisfied the
flagrant and ill-intentioned standard. Id. at 406. The concurring opinion, signed by a
majority of the panel, emphasized the flagrant and ill-intentioned nature of the
prosecutor’s repeated misstatements of law: “By blatantly inviting the jury to convict
based on a lesser standard of proof, the prosecutor deprived Mr. Jones of a fair trial.”
Id. at 409 (Pennell, C.J., concurring).
Here, the prosecutor correctly and repeatedly argued to the jury that the State was
required to prove Mr. Taylor knowingly possessed the rifle. Soon after the prosecutor’s
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No. 39019-5-III
State v. Taylor
24
misstatement in rebuttal, he corrected it. The prosecutor’s misstatement was not flagrant
or ill intentioned and, just as important, a timely objection could have allowed the trial
court to cure any resulting prejudice by reminding the jury that the State must prove
actual knowledge. For the foregoing reasons, we conclude that Mr. Taylor waived the
claimed error.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder,
having no precedential value, shall be filed for public record pursuant to RCW 2.06.040,
it is so ordered.
INEFFECTIVE ASSISTANCE OF COUNSEL
Mr. Taylor argues his trial counsel was ineffective for failing to object and request
a curative instruction after the prosecutor misstated the law. We disagree.
We review a claim of ineffective assistance of counsel de novo. State v. Sutherby,
165 Wn.2d 870, 883, 204 P.3d 916 (2009). Criminal defendants have a constitutionally
guaranteed right to effective assistance of counsel. U.S. CONST. amend. VI; WASH.
CONST. art. I, § 22; State v. Lopez, 190 Wn.2d 104, 115, 410 P.3d 1117 (2018).
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No. 39019-5-III
State v. Taylor
25
Washington follows the Strickland4 standard for reversal of criminal convictions
based on ineffective assistance of counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d
1260 (2011). A defendant bears the burden of showing that (1) his counsel’s performance
fell below an objective standard of reasonableness based on consideration of all the
circumstances and, if so, (2) there is a reasonable probability that but for counsel’s poor
performance, the outcome of the proceedings would have been different. See id. at 32-35.
If either prong is not satisfied, the inquiry ends. State v. Kyllo, 166 Wn.2d 856, 862, 215
P.3d 177 (2009).
Focusing on the second prong, Mr. Taylor cannot demonstrate there is a reasonable
chance that, but for defense counsel’s failure to object, the outcome would have been
different. The to-convict instruction and the “knowledge” instruction were correct
statements of the law and they informed the jury that the State was required to prove that
Mr. Taylor knowingly possessed a firearm. Jurors are presumed to follow jury
instructions. Phelps, 190 Wn.2d at 172. Also, the prosecutor generally stated the law
correctly and, of particular importance, toward the end of his rebuttal argument, the
prosecutor told the jury it was the State’s burden to prove Mr. Taylor possessed a firearm
4 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
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No. 39019-5-III
State v. Taylor
26
knowingly. The jury was not confused on the law.
VPA
Mr. Taylor argues that recent changes in the law require us to direct the trial court
to strike the VPA from his judgment and sentence. We agree.
Under former RCW 7.68.035(1)(a) (2018), the sentencing court was required to
impose a VPA on any individual found guilty of a crime. Effective July 1, 2023,
the legislature amended former RCW 7.68.035 to preclude superior courts from imposing
a VPA on a defendant who, at the time of sentencing, is found to be indigent as defined in
RCW 10.01.160(3). See LAWS OF 2023, ch. 449, § 1(1), (27). Statutory amendments
related to costs imposed upon conviction generally apply to all cases pending on direct
appeal that are not yet final. See, e.g., State v. Wemhoff, 24 Wn. App. 2d 198, 201-02,
519 P.3d 297 (2022); State v. Ramirez, 191 Wn.2d 732, 749, 426 P.3d 714 (2018).
Here, the trial court found Mr. Taylor to be indigent. Because his direct appeal
was pending when the amendment became effective, the amendment applies to him. We
direct the trial court to vacate the VPA from Mr. Taylor’s judgment and sentence.
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1
No. 39019-5-111
State v. Taylor
Affirmed, but remanded to strike VP A.
I CONCUR:
Pennell, J.
27
Lawrence-Berrey, J.
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No. 39019-5-III
FEARING, C.J. (dissenting)- I dissent from the majority's holding that Officer
Colton Ayers of the Moses Lake Police Department did not seize Jarod Taylor for
purposes of article I, section 7 of the Washington Constitution. A seizure occurred
when Ayers requested that Taylor tender his identification card and particularly when
Officer Ayers employed the card to perform a warrant check. I would suppress evidence
of a gun being inside the vehicle driven by Taylor.
SEIZURE OF TAYLOR
As odd as it may seem, a weary Jarod Taylor climbed atop a 15-foot dirt dune
to doze at 9:00 p.m. on a dark, frigid night, with the pickup truck he drove parked nearby.
Officer Colton Ayers clambered up the same rise of soil to reconnoiter the area
surrounding a Lowe's Home Improvement store, where a theft had earlier transpired.
Taylor did not match the description of the pilfering suspect as radioed by police
dispatch.
After reaching the summit of the hillock, Officer Colton Ayers awoke a startled
Jarod Taylor. Ayers stood over Taylor and flashed a light at Taylor. 	Taylor testified that
the light shone in his face, although the trial court entered no such finding. 	The Axon
video of the encounter shows that, if the light flashed in Taylor's face, direct light into the
eyes was only momentary. Ayers wore a police uniform with a service belt that holstered
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No. 39019-5-111
State v. Taylor (dissent)
a gun and a taser. Ayers told Taylor that he did not match the description of the suspect,
but that Ayers still intended to ask questions. 	Officer Ayers asked Jarod Taylor: what
are you doing here? Taylor answered he did not feel good. Ayers asked Taylor for
identification. Taylor testified that Ayers spoke with an authoritative tone, although the
trial court found Ayers spoke politely. Taylor handed the officer an identification card,
presumably a driver's license. The officer called dispatch. Dispatch informed Ayers of
an outstanding warrant for Taylor.
Regardless of how sanguinely Officer Colton Ayers spoke, any unreasonable or
reasonable person in the prone position, in which Jarod Taylor lay, would conclude that
he could not ignore the directions of Officer Ayers to surrender identification and he
could not casually walk from the presence of the officer who towered above him with a
gun and taser at his ready. A reasonable person, under these circumstances, would
conclude that Ayers asserted authority over him or her. These conclusions arrive even
easier when considering Taylor's disorientation when awakened from sleep.
The majority opinion, holding otherwise, illustrates an inability of judges to view a
police encounter from the perspective of a common person. The holding of the majority
corroborates an observation expressed in an earlier concurring opinion that preached that
pampered judges lack qualifications to assess how a reasonable person would act or think
when contacted by a law enforcement officer. State v. Carriero, 8 Wn. App. 2d 641, 667,
439 P.3d 679 (2019) (Fearing, J., concurring). The majority opinion here also ignores the
2
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No. 39019-5-111
State v. Taylor (dissent)
known consequences of a citizen ignoring an officer's request no matter how benign the
request may be.
If a defendant testifies that he or she did not deem himself or herself free to exit or
free to ignore the officer's requests, the court ignores such testimony. State v. Carriero,
8 Wn. App. 2d 641, 655-56 (2019); State v. Mote, 129 Wn. App. 276, 292-93, 120 P.3d
596 (2005). 	Still, Jarod Taylor testified to the obvious and he spoke to the sentiments
of all people, including suspect or nonsuspect, criminal or saint, child or nonagenarian,
misfit or connected, logical or illogical, educated or unlettered, reasonable or
unreasonable people. 	Taylor declared that police officers immediately intimidate him
and he was intimidated on this occasion. He thought he was guilty of a crime. The
officer would not leave him alone. Officer Ayers asked a series of questions that Taylor
believed he was obliged to answer. 	When posing the questions, Ayers kept the flashlight
on Taylor and stood over him with a badge and gun showing. Taylor grows defensive
when someone beams a flashlight at him. On this occasion, he felt like he was being
interrogated. 	When Officer Ayers asked for identification, Taylor concluded he had no
choice. In short, Taylor believed he could not terminate the conversation or leave the
officer's presence because of a show of authority.
Courts pay lip service to the principle that the court must look to the totality of
the circumstances but, when discrete factors favor a holding that no seizure occurred,
we seize on one or more of those factors to rule in favor of the government. For example,
Washington Supreme Court precedent has made clear that an officer's use of a flashlight
3
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No. 39019-5-III
State v. Taylor (dissent)
or spotlight to illuminate a person, without a show of authority or command, does not
raise an encounter to the level of a seizure. See State v. 0 'Neill, 148 Wn.2d 564, 578,
62 P.3d 489 (2003); State v. Young, 135 Wn.2d 498, 512-13, 957 P.2d 681 (1998). In
State v. 0 'Neill, the law enforcement officer shined a flashlight into the driver's side of
the car in order to see Matthew O'Neill. In State v. Young, an officer aimed a spotlight
on Kevin Young as he walked on a sidewalk. Neither officer hovered over a prone,
weary man, however.
The United States Supreme Court has rejected any per se rules and denied that
any one discrete act by officers necessarily constitutes a seizure. Florida v. Bostick,
501 U.S. 429, 439, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). Instead, a court must
consider the totality of circumstances surrounding the encounter. Florida v. Bostick,
501 U.S. 429, 439 (1991); State v. Carriero, 8 Wn. App. 2d 641, 656 (2019).
Washington courts have issued a string of decisions occasioning a law
enforcement officer asking a citizen for identification despite the officer lacking
reasonable suspicion for a stop. In State v. O'Neill, 148 Wn.2d 564 (2003), Matthew
O'Neill stopped his car in a parking lot of a closed business that recently had been
burglarized. Bellingham Police Sergeant West approached the car and asked O'Neill
for identification. O'Neill replied that he had been driving with his license revoked.
O'Neill gave the officer a false name. 	Our Supreme Court ruled that an officer does
not seize the citizen by asking for the person's name and requesting identification.
4
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No. 39019-5-III
State v. Taylor (dissent)
State v. Armenta, 134 Wn.2d 1, 948 P.2d 1280 (1997), involved the unusual
circumstances of two men, Huberto Armenta and David Cruz, while transporting cocaine
from Parma, Idaho to Seattle, approaching Prosser Police Officer G .J. Randles at a truck
stop to inquire about the location of a mechanic. The two later accepted the clever
officer's offer to assist in repairing their car, in which the cocaine rested. 	On the route
to the car, Officer Randles asked both men for their identification so he could inform
dispatch as to his location. Randles explained that requesting identification was standard
operating procedure for officer safety. Armenta handed Randles an Arizona driver's
license. We do not know if Randles took possession of the driver's license and, if so, for
how long. Cruz claimed his name to be Luis Perez. Cruz told Randles that he had lost
his wallet in Idaho and did not currently have any identification on his person. Officer
Randles noticed a bulge in one of Cruz's pockets and asked him if the bulge was a wallet.
Cruz said "no" and removed a wad of money with a $20 bill on top, wrapped with a
rubber band. Randles then asked Cruz how much money he carried. 	Cruz said he had
$1,000. Armenta then voluntarily produced three bundles of money, each with a $20 bill
on top and wrapped with a rubber band, while volunteering that he had three bundles of
$1,000 each.
After the production of the bills, Officer G .J. Randles called dispatch for a driver's
license check on the names Huberto Armenta and David Cruz. We do not know if
Officer Randles then held the license of Armenta. The dispatcher notified Randles
that the car was registered to Armenta, that Armenta's Arizona driver's license had been
5
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No. 39019-5-111
State v. Taylor (dissent)
suspended, and that Armenta had only an identification card in Washington. The
dispatcher told Randles that there was no record of a "Luis Perez." Randles then
requested assistance from other officers. He also placed the bundles of money in his
patrol car for safekeeping. Further contact led to Randles asking about the presence of
any drugs or weapons in the vehicle and a request to search the car. After Armenta
expressed consent, Randles found baggies of cocaine in the car trunk.
On appeal, the Supreme Court held that Officer G .J. Randles did not seize Huberto
Armenta and David Cruz when he asked them for identification. The court held,
however, that the officer seized the two men when he placed the money in his patrol car
because a reasonable person would not have then considered himself or herself free to
leave by that time.
In State v. Mote, 129 Wn. App. 276, 120 P.3d 596 (2005), Sheriff Deputy Steve
Cox patrolled a neighborhood experiencing drug problems. Cox parked his patrol car
behind a second car he deemed suspicious because of the late night and because of a
dome light and tail light activated in and on the car. 	Cox approached the car and asked
the driver for identification. 	When the driver complied, Deputy Cox politely asked the
passenger, Curtis Mote, for his identification. Mote knew of an outstanding warrant for
his arrest, but complied with Cox's request. He believed compliance was required.
Cox returned to his car and learned from dispatch of the arrest warrant. 	Cox arrested
Mote and found the ubiquitous plastic baggie with a white powdery substance inside.
6
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No. 39019-5-111
State v. Taylor (dissent)
Mote sought to suppress evidence on the basis that he was seized when Sheriff Deputy
Cox asked for his identification.
The trial court denied Curtis Mote's motion to suppress and this court affirmed.
This court reasoned that Mote, as a passenger in a car parked in public, stood in the same
status as a pedestrian. The court followed the rule that the asking of identification from a
pedestrian does not constitute a seizure. The court gave no thought to whether the citizen
genuinely believes he retains the right to ignore the officer.
Numerous accused, like Curtis Mote, testify that they believed they lacked a
choice when asked by a law enforcement officer to provide information or hand the
officer identification. Courts never challenge the veracity of such testimony, but rule the
testimony irrelevant. 	Washington courts, after such consistent testimony from accused
and no studies showing that a reasonable person considers himself or herself free to
ignore the officer, should finally recognize that, when an officer approaches a citizen and
asks for identifying information, a reasonable person believes they must comply because
of a show of authority. An officer asks for identification only because of his or her
authority as a law enforcement officer.
In State v. Hansen, 99 Wn. App. 575, 994 P.2d 855 (2000), two officers
approached Michael Hansen and asked him for identification. Hansen complied. One
officer handed Hansen's license to the other officer, who recorded Hansen's name and
birth date and returned the license to Hansen. The second officer held the driver's license
for five to thirty seconds. 	We do not know how long the first officer held the license.
7
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No. 39019-5-III
State v. Taylor (dissent)
A records check confirmed an arrest warrant for Hansen. A search incident to arrest
netted controlled substances. This court held that the handing of the license from one
officer to another, when both officers remained in Hansen's presence, did not constitute
a seizure.
Numerous decisions pose the circumstances when a citizen, with an outstanding
warrant and illegal drugs on his or her person, cooperates with law enforcement officers
by giving identification instead of walking away from the officer. No reasonable person
would cooperate under these circumstances unless he or she believed the law compelled
him or her to obey the officer's request. 	Walking away is in the citizen's penal interest.
If Washington courts truly wish to apply a reasonable person standard, the courts need to
recognize the compelling and frightening nature of an officer confronting a citizen.
In four decisions, this court held that the taking of an identification card
constituted a seizure. One may differentiate between the facts in those four cases, from
the facts already recited in State v. 0 'Neill, State v. Hansen, and State v. Mote, but the
distinctions lack any intellectual satisfaction.
In State v. Thomas, 91 Wn. App. 195, 955 P.2d 420 (1998), this court held that
a seizure occurred when an officer, while retaining the defendant's identification, took
three steps back to conduct a warrant check on his hand-held radio. 	In State v. Dudas,
52 Wn. App. 832, 764 P.2d 1012 (1988), this court determined that the defendant was
seized under the Fourth Amendment to the United States Constitution when the sheriff
deputy took his identification card and returned to the patrol car, thus immobilizing the
8
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No. 39019-5-111
State v. Taylor (dissent)
defendant. In State v. Ellwood, 52 Wn. App. 70, 757 P.2d 547 (1988), a seizure occurred
when Steven Ellwood verbally identified himself and the officer told him to "wait right
here" while the officer ran a warrant check on Ellwood's name. In State v. Crespo
Aranguren, 42 Wn. App. 452, 711 P.2d 1096 (1985), this court found that a seizure
occurred when an officer took the defendants' identification documents to his vehicle to
write their names down and run warrants checks. The seizure occurred at the time of
retaining the identification to determine the existence of any outstanding warrants.
Since a reasonable person does not wish to leave his or her location until an officer
returns the driver's license and since the officer knows that one will not leave the location
until the return of the license, the law should deem the citizen seized at least by the time
of the handing of the driver's license to the law enforcement officer. The citizen
reasonably believes the officer expects him or her to stay, and the citizen rationally
concludes that he or she must remain in the officer's presence until the return of the
identification. 	Whether the officer stands back three feet, hands the license to another
officer three feet away, or walks to the patrol car bears no importance to the belief of
the reasonable person. A reasonable person does not make such silly distinctions. Only
judges do. 	The reasonable person believes he or she should stay in place regardless of
whether or not the officer instructs the person to stay put and regardless of the tone of
voice used. Any direction to surrender one's identification entails a display of the law
enforcement officer's authority.
9
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No. 39019-5-111
State v. Taylor (dissent)
Other courts have recognized that a suspect is effectively immobilized when an
officer takes the license. 	United States v. Jordan, 958 F.2d 1085, 1087 (D.C. Cir. 1992);
United States v. Thompson, 712 F.2d 1356 (11th Cir. 1983); State v. Painter, 296 Or.
422, 676 P.2d 309 (1984). Courts have observed the impractical and unrealistic option
of a reasonable person in modem society to abandon one's identification, since an
individual practically becomes immobilized without adequate identification. 	United
States v. Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995); State v. Martin, 2011-0082, p. 9
{La. 10/25/11), 79 So.3d 952, 957; State v. Daniel, 12 S.W.3d 420, 427 (Tenn. 2000).
The United States District Court, in United States v. Washington, 992 F. Supp. 2d 789,
793 (N.D. Ohio 2014), characterized an officer's retention of a driver's license as a
"virtual leash."
Jarod Taylor could not cease his contact with Officer Ayers after relinquishment
of his identification. He would have abandoned his driver's license, which he needed
to drive the pickup truck, if not purchase many goods on credit. Officer Ayers thereby
seized him.
Because of the lack of horizontal stare decisis within the Washington Court of
Appeals, I am not bound by dubious, or even reliable, previous decisions of this court.
In re Personal Restraint Petition ofArnold, 190 Wn.2d 136, 13 8, 410 P .3d 1133 (2018).
I am bound by decisions of the Washington Supreme Court. State v. Gore, 101 Wn.2d
481,487,681 P.2d 227 (1984). Ifl could not readily distinguish Matthew O'Neill's
interaction with Bellingham Police Sergeant West, in the Supreme Court's decision in
10
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No. 39019-5-111
State v. Taylor (dissent)
State v. 0 'Neill, from the circumstances of Jarod Taylor's encounter with Officer Colton
Ayers, I would reluctantly join in the majority's ruling. But O'Neill can be readily
distinguished, albeit for a silly reason, but a reason employed by Washington courts.
Sergeant West did not call for a warrant check on Matthew O'Neill.
I would also hesitantly join the majority if I could not distinguish State v. Armenta
or if I concluded that Armenta stood for the proposition that an officer can, without
reasonable suspicion of criminal activity, ask for and seize one's driver's license for the
purpose of conducting a warrant check. The facts, in State v. Armenta, include Huberto
Armenta handing the officer his driver's license, but we do not know if the officer took it
and, if so, for how long. He could have only read the license, while in the hand of
Armenta, and remembered the name when later performing a driver's license check.
Since either Armenta or David Cruz had driven the car in the state of Washington, a
driver's license check was permissible. Under RCW 46.61.020, any person, while
operating or in charge of any vehicle, must surrender their driver's license on the request
of a law enforcement officer. One's privilege in driving on Washington roads entails an
obligation to possess, carry, and surrender the license. RCW 46.61.020 does not
authorize the officer to employ the license for a warrant check. Officer G .J. Randles did
not perform a warrant check. State v. Armenta does not stand for the proposition that a
law enforcement officer does not seize a citizen when taking identification and using the
identification to perform a warrant check.
11
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No. 39019-5-111
State v. Taylor (dissent)
After appropriating Jarod Taylor's identification, Officer Colton Ayers
immediately requested a warrant search. In Commonwealth v. Cost, 657 Pa. 104, 224
A.3d 641 (2020), the Pennsylvania high court held that an officer performs a seizure
within the meaning of the federal and state constitutions when asking for identification
and using the identification for a warrant investigation. The Oregon Court of Appeals
also ruled that retaining a defendant's driver's license while conducting a warrant check
effectuated a seizure. State v. Holcomb, 203 Or. App. 35, 37-38, 125 P.3d 22 (2005). By
a show of authority, the officer demands, from the citizen, information that could directly
lead to an arrest.
The majority writes that Officer Colton Ayers never asked for a warrant check,
and the majority adds that a driver's license check, performed in State v. Armenta, is no
different from a warrant check. Regardless, dispatch considered Officer Ayers to desire
a warrant check and provided one to him. Ayers used the check to arrest Jarod Taylor.
No facts reported in State v. Armenta suggest that law enforcement searched any database
for an arrest warrant.
The majority writes that Washington law does not support the dissent' s rule that
an officer seizes a citizen when taking the citizen's driver's license and calling dispatch
for information about the citizen. I am not concerned, however, about Colton Ayers
calling dispatch for information as to the status of the driver's license. I base the dissent
on Ayers calling for information on arrest warrants. 	When using the road, one consents
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No. 39019-5-111
State v. Taylor (dissent)
to providing information about one's driver's license, but not as to an arrest warrant. A
warrants check, just like engaging in criminal activity, can lead directly to incarceration.
If the majority, by its characterization of the dissent's proposed rule, seeks to
highlight that no Washington decision expressly holds that an officer seizes a citizen
when taking his driver's license and conducting a warrant check, I agree with the
majority. Nevertheless, the converse is also true. No Washington case holds that the
officer remains within the confines of article I, section 7 of the state constitution when,
without reasonable suspicion of a crime, he or she takes the citizen's identification and
performs a warrant check. The dissent's rule aligns with the Washington principle
that courts look at the totality of the circumstances, follows the general rule that courts
analyze the situation in light of the expectations of a reasonable person, affiliates with
common sense, and coincides with the persuasive opinions of other courts. Anyway, the
majority's and dissent's quibble over the difference between a driver's license search and
a warrant check and the nitpicking over whether the officer stepped away from the citizen
and, if so, how far the officer walked illustrates the inanity now prevalent in search and
seizure law and the fictions promulgated by Washington decisions.
The State emphasizes that Officer Colton Ayers told Jarod Taylor that the latter
did not fit the description of the suspect, but that the officer presumably wanted Taylor's
identification only in case law enforcement needed to contact Taylor later. 	One wonders
why law enforcement would need to contact Taylor again when Officer Ayers lacked any
knowledge that Taylor had seen the burglar. Regardless, law enforcement is entitled to
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No. 39019-5-111
State v. Taylor (dissent)
deceive a citizen. State v. Lively, 130 Wn.2d 1, 20, 921 P.2d 1035 (1996); State v.
Markwart, 182 Wn. App. 335,348,329 P.3d 108 (2014). 	Officer Ayers could have been
deceiving Taylor in order to gain his confidence so that Taylor would share information
implicating himself.
When resolving whether a reasonable person deems himself or herself free to
leave the presence of a law enforcement officer or to disregard an officer's request,
courts disregard the known consequences to a citizen of ignoring an officer's requests.
Relatedly, this court's majority fails to ask what steps Officer Ayers would have taken
if Jarod Taylor refused to answer questions or hand his identification card to Ayers.
The majority's ruling creates societal consequences beyond the narrow facts of
Jarod Taylor's detention. "The talk" given by African-American parents to children has
become legendary. According to The Talk: Race in America, "the talk" usually includes
instructions such as:
If you are stopped by the police: Always answer 'yes sir, no sir';
never talk back; don't make any sudden movements; don't put your hands
in your pockets; obey all commands; if you think you are falsely accused,
save it for the police station. I would rather pick you up at the station than
the morgue.
(PBS television broadcast Feb. 20, 2017) (emphasis added). The African-American and
other minority communities know that a "request" by a law enforcement officer equates
to a "command."
African-American teenager D.E.D. learned the consequences of ignoring a law
enforcement officer's "request" the difficult way. State v. D.E.D., 200 Wn. App. 484,
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No. 39019-5-III
State v. Taylor (dissent)
402 P .3d 851 (2017). 	Wapato Police Department Officer Michael Deccio responded to
a call from a woman complaining about a group of youths who did not belong in her
neighborhood. 	When responding, Officer Deccio, instead of seeing a group of youths,
saw D.E.D. walking in the middle of the street by himself. Deccio knew that D.E.D.
was walking in the direction of his home, three blocks away. Deccio knew that he lacked
reasonable suspicion to detain D.E.D., but he drove alongside the teenager in his patrol
car and asked, '"what's going on?"' D.E.D., 200 Wn. App. 484, 487-88 (2017). D.E.D.
responded with profanity and accused the officer of bothering him. 	Officer Deccio
persisted by parking and exiting his car to speak with D.E.D.
As Officer Michael Deccio departed from his patrol car, the police dispatch
advised that another caller had reported a group of kids, one of whom displayed a gun,
outside the caller's front yard in another area of town. Officer Deccio detained D.E.D.
anyway. Deccio told the youth he was not under arrest. Nevertheless, Deccio tried to
handcuff D.E.D. The young man pulled his arm away and demanded that the officer not
touch him. The officer directed D.E.D. to put his arms behind his back, but the teenager
refused. After a two-minute scuffle, Officer Deccio overpowered D.E.D. and handcuffed
him. The juvenile court convicted D.E.D. of obstructing a law enforcement officer.
D.E.D. procured a reversal on appeal, but the criminal justice system interrupted and
detoured D.E.D. 's life for two years because he ignored an officer's request despite being
entitled to do so.
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No. 39019-5-III
State v. Taylor (dissent)
Unpleasant consequences also happen to white citizens who ignore "requests" of a
law enforcement officer despite supposedly possessing the right to leave the presence of
the officer and disregard the requests. On August 14, 2023, Kevin Hinton drove home
from a long-distance trip to see his newborn grandchild. 	Sarah Al-Arshani, Washington
Sheriffs Deputy Accused of Bloodying 62-Year-Old Driver Who Pulled Over to Sleep,
USA Today (Oct. 9, 2023, 3:13 PM), https://www.usatoday.com/story/news/nation/
2023/10/09/spokane-sheriff-deputy-clay-hilton-excessive-force-case/71116920007 /.
He stopped outside a Spokane park gate to nap at night. Al-Arshani, supra. An hour
later, Spokane County Sheriff Sergeant Clay Hilton shined his light into Hinton's
window and told Hinton that he could not be in the park after hours. Al-Arshani, supra.
Hilton falsely accused Hinton of committing a crime. Al-Arshani, supra. Deputy Hilton
requested Hinton to show his identification. Al-Arshani, supra. Hinton refused to do so,
while denying he committed any crime. Al-Arshani, supra. Hilton barked: '"You are
refusing to tell me who you are, and you are probably going to end up going to jail.'"
Al-Arshani, supra. Hinton retorted: "'Oh, for not giving you, my name?'" Al-Arshani,
supra. Deputy Hilton placed his hands on Hinton and commented: you are "' going to get
hurt.'" Al-Arshani, supra. Hinton told the sergeant to remove his hands. Al-Arshani,
supra. Hilton violently arrested Hinton. Al-Arshani, supra. Hinton suffered eight
broken ribs, including some with multiple breaks and others that were dislocated from
the sternum, a punctured lung, and memory loss. Al-Arshani, supra.
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No. 39019-5-III
State v. Taylor (dissent)
Spokane County prosecutors charged Kevin Hinton with resisting arrest and
obstructing a law enforcement officer. Prosecutors dismissed the charges after Hinton's
counsel showed a body camera video to the prosecutors. Emma Epperly, Spokane
County Sheriff's Deputy Placed on Leave after Video Surfaces of Him Bloodying
62-Year-Old Man, SPOKESMAN REV. (Wash.) (Oct. 6, 2023, 8:54 PM),
https://www.spokesman.com/stories/2023/oct/06/spokane-county-sheriffs-deputy-placed-
on-leave-aft/; Al-Arshani, supra. Kevin Hinton sustained serious bodily injury for
ignoring an officer's request despite Washington courts proclaiming he enjoyed the
right to ignore the officer. If we rolled the police cam footage in reverse to the point
when Deputy Hinton first asked for Hinton's identification, the majority would insist that
Hinton never seized Hilton because Hilton had the right to flout the deputy's demand for
identification.
CLOSING ARGUMENT
Because I would reverse and suppress evidence of the firearm found in the pickup
truck, I need not address whether the State's attorney engaged in misconduct during
closing. Counsel remarked during argument: "So based on the circumstances, it's not
required that you find he knew. But the question is did he have information that would
lead a reasonable person to believe that a firearm was in the truck?" 	1 Report of
Proceedings (Apr. 7, 2022) at 231.
The State's closing argument illustrates the confusion in the law recognized by
the dissenting opinion in the unpublished opinion in State v. Lorrigan, No. 36379-1-111,
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No. 39019-5-111
State v. Taylor ( dissent)
(Wash. Ct. App. Apr. 7, 2020) (Fearing, J., dissenting) (unpublished),
https://www.courts.wa.gov/opinions/pdf/363791_unp.pdf. Under constitutional
principles, convicting the accused of a crime demanding knowing misconduct on a theory
of constructive knowledge is unconstitutional. State v. Allen, 182 Wn.2d 364, 373-74,
341 P.3d 268 (2015); State v. Shipp, 93 Wn.2d 510, 515-16, 610 P.2d 1322 (1980).
Nevertheless, RCW 9A.08.010(l)(b)(ii) directs the jury to find knowledge based on
constructive knowledge.
The majority principally relies on the principle that the prosecutor may speak one
misstatement of the law without the wrong statement becoming reversible misconduct. I
question this conclusion under the setting of the prosecutor suggesting to a jury that the
State need only show constructive knowledge for a crime with a mens rea of "knowing."
The Washington Supreme Court and this court have warned counsel not to intimate to the
jury that constructive knowledge suffices. State v. Allen, 182 Wn.2d 364 (2015); State v.
Jones, 13 Wn. App. 2d 386, 463 P.3d 738 (2020). Although this court's majority did not
reverse the conviction in State v. Lorrigan, the opinion reads as a third warning. 	One,
two, or three mistakes may not require reversal, but four may be one too many.
I respectfully dissent:
Fearing, C.J.
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