State Of Washington, V Jake Michael Belanger ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
September 4, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51399-4-II
Respondent,
v.
JAKE MICHAEL BELANGER, UNPUBLISHED OPINION
Appellant.
SUTTON, J. — Jake M. Belanger was under community custody when law enforcement
received information that he had a Department of Corrections (DOC) warrant for failure to report
and could be found at a Tacoma park. Following his arrest at the park and subsequent jury trial,
Belanger appeals his convictions for two counts of possession of a controlled substance with intent
to deliver, each with two firearm enhancements; one count of possession of a controlled substance;
and two counts of first degree unlawful possession of a firearm. Belanger argues that (1) the trial
court erred when it denied his CrR 3.6 motion to suppress evidence obtained during a warrantless
community custody search of his vehicle, (2) the State produced insufficient evidence to prove
that he was “armed” for purposes of the firearm enhancements, (3) the trial court abused its
discretion by doubling the maximum sentence length for the unlawful possession with intent to
deliver controlled substances convictions, and (4) the trial court improperly imposed legal financial
obligations (LFOs).
In a statement of additional grounds (SAG), Belanger also asserts that the trial court erred
by denying his motion to suppress because the search of his vehicle violated his passenger’s third-
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party privacy interests, and the trial court failed to properly inquire into the reliability of the
informant who told law enforcement that Belanger would be at the park. Belanger also asserts that
the trial court erred by granting the State’s motion for reconsideration of the court’s decision to
dismiss the firearm sentencing enhancements.
We affirm and remand to the sentencing court to address the LFOs in light of new law.
FACTS
I. BACKGROUND
In November 2016, Belanger was under community custody, and his conditions included
no possession of controlled substances, no possession of firearms, and the duty to report to the
DOC as directed. On November 7, 2016, Pierce County Deputy Seth Huber received information
that Belanger had a DOC warrant for failure to report to DOC and that Belanger could be found
near a park in the Proctor area of Tacoma. Deputies Huber and Jason Bray, and Community
Custody Officers (CCO) Thomas Grabski and Mike Poston planned to contact Belanger at the
park.
As the law enforcement officers approached the park, they confirmed that Belanger was
present and proceeded to box in Belanger’s vehicle to prevent his escape. Belanger resisted, but
the officers ultimately detained Belanger. Deputy Huber searched Belanger’s person and
discovered methamphetamine, heroin, alprazolam pills, a used glass pipe, and a large sum of cash.
Deputy Huber advised Belanger of his constitutional rights and arrested Belanger.
After the discovery of drugs on Belanger’s person, CCO Grabski conducted a search of
Belanger’s vehicle to verify whether Belanger was complying with the conditions of his
community custody. CCO Grabski discovered a safe on the driver’s side floorboard containing a
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loaded .38 handgun; a safe behind the driver’s seat containing heroin, methamphetamine, and
baggies for packaging; a backpack laying on the rear seat containing a .22 handgun; and
ammunition for the handgun was located in a clothin bin.
When questioned about the items discovered in the vehicle, Belanger explained that he had
previously been employed but was no longer working and that he “does what it takes to make ends
meet,” including selling methamphetamine, heroin, and pills to make money. Report of
Proceedings (RP) at 548-49. Belanger stated that everything in the vehicle belonged to him,
including the firearms, which he used for self-protection and to keep from getting robbed.
Belanger acknowledged that it was illegal for him to possess a gun.
The State charged Belanger with three counts of unlawful possession of a controlled
substance with intent to deliver, each with two firearm sentencing enhancements. The State also
charged Belanger with two counts of first degree unlawful possession of a firearm.
II. CRR 3.6 HEARING
Belanger filed a motion to suppress under CrR 3.6, arguing that the evidence collected as
a result of CCO Grabski’s search of Belanger’s vehicle should be suppressed.
At a hearing on the motion, testimony from CCO Grabski and Deputy Huber was consistent
with the above facts. Specifically, CCO Grabski testified as follows. In November 2016, law
enforcement received information that Belanger was going to be in the North Proctor area on the
evening of November 7, with drugs and likely with a firearm. CCO Grabski learned that Belanger
had an active DOC felony warrant and would be driving a white Pontiac Grand Am.
On November 7, CCO Grabski coordinated with other law enforcement officers to arrest
Belanger. That day, CCO Grabski saw Belanger driving a white Pontiac Grand Am with a woman
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in the passenger seat. CCO Grabski’s and CCO Poston’s vehicles converged on Belanger’s vehicle
and boxed Belanger in. Belanger put his vehicle in reverse, striking CCO Poston’s vehicle, then
put his vehicle in drive, striking CCO Grabski’s vehicle.
Once Belanger was unable to move his vehicle, CCO Grabski and CCO Poston exited their
vehicles and attempted to remove Belanger from his vehicle. Belanger resisted arrest, lunging his
hands down towards the floorboard of the vehicle. CCO Grabski explained:
Anytime that you are giving a command to somebody or a directive to, you know,
comply, and they are failing to do so and then they are reaching into an unknown
area that you can’t see is a concern for anybody.
....
I don’t think that I was thinking that there was a weapon on the floorboard. I am
thinking that I need to get this guy in cuffs. I mean, I’m just controlling hands,
controlling the body, getting him into cuffs, and then I can sort out everything else
after the fact.
RP at 41. Eventually the officers succeeded in getting Belanger out of the vehicle and into
restraints. CCO Grabski described Belanger as non-compliant for “a minute maybe.” “[Belanger]
kept trying to stand up. He wanted to get away. He wasn’t fighting with us, throwing punches at
us, or anything crazy like that, but he just did not want to be there. He was trying to . . . get away
from there.” RP at 42.
The State asked CCO Grabski, “Given your training and experience over the last 15 years,
was that an indication that perhaps [Belanger] was in violation of his terms of community custody,
the desire to get away?” RP at 44. CCO Grabski replied,
When somebody is trying to get away from a vehicle or tries to distance themselves
from a vehicle like that, it usually means there is something in the vehicle, yes. Not
always is there something, but odds are.
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....
[S]omething in violation of the probation, such as a firearm or narcotics or
something of that nature.
RP at 44. The officers searched Belanger incident to arrest, which resulted in the discovery of
methamphetamines, heroin, and pills. CCO Grabski believed it reasonably likely that additional
drugs and/or weapons could be found in Belanger’s vehicle.
CCO Grabski explained that he decided to do a DOC compliance check of the vehicle
based on the fact that Belanger had controlled substances on his person, as well as Belanger’s
behavior, resisting arrest, and attempt to distance himself from the vehicle. During his search,
CCO Grabski discovered a black safe containing a silver handgun on the driver’s side floorboard;
a black and gray safe behind the driver’s seat containing heroin, methamphetamine, and baggies
for packaging; a black backpack laying on the rear seat of the vehicle containing a silver handgun;
and ammunition in a clothes bin on the backseat. CCO Grabski could not remember how he
opened the safes.
Deputy Huber testified that around November 7, 2016, he was informed that he might find
Belanger near a park in Tacoma where Belanger often sold drugs and that Belanger would likely
be armed with a firearm. As Deputy Huber approached Belanger’s vehicle at the park, he
witnessed Belanger reaching around inside of the car. When Belanger refused to comply with
commands, Deputy Huber used his electronic control device. Deputy Huber explained that he
chose to use his electronic control device because “[f]irst off was the information that Mr. Belanger
may be armed. He was a violent felon. He was wanted on a felony warrant that cautioned him as
a violent offender. Secondly, he was reaching down towards the floorboard.” RP at 97. Belanger
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No. 51399-4-II
continued to resist arrest despite Deputy Huber using the electronic control device three times.
Eventually, CCO Poston and CCO Grabski removed Belanger from the vehicle, but Belanger
continued to resist and attempted to stand up for several minutes. Deputy Heber testified that
“[e]ven once [Belanger] was secured in [hand]cuffs, he continued to twist his body, stand up, look
for avenues of escape.” RP at 100-01.
After the drugs and firearms were confiscated from Belanger’s vehicle, Deputy Huber
questioned Belanger about the items. Belanger told Deputy Huber that he sold drugs to make ends
meet and that he used the guns for “self-protection and to keep him[self] from being robbed.” RP
at 110-11.
The trial court ruled that given the drugs found on Belanger’s person and his behavior
reaching around the vehicle before arrest, CCO Grabski had a reasonable suspicion that there may
be additional drugs or weapons in the vehicle in violation of Belanger’s community custody
conditions. Consequently, the trial court denied Belanger’s CrR 3.6 motion to suppress.
III. MOTION TO DISMISS & RECONSIDERATION
Following the close of evidence at trial, Belanger moved to dismiss the firearm sentencing
enhancements. Relying on State v. Gurske1 for support, Belanger argued that the State produced
insufficient evidence that Belanger was armed.. The trial court granted Belanger’s motion to
dismiss the firearm sentencing enhancements based on the .22 handgun, which was located in a
backpack in the back of Belanger’s vehicle, but denied the motion to dismiss the firearm sentencing
enhancements based on the .38 handgun, which was on the driver’s side floorboard.
1
155 Wash. 2d 134, 118 P.3d 333 (2005).
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No. 51399-4-II
The following day, the State moved for reconsideration of the trial court’s decision to
dismiss the firearm sentencing enhancements as to the .22 handgun. The State presented additional
case law and argued that the firearm sentencing enhancements should not be dismissed. The trial
court reconsidered its decision and denied the motion to dismiss the firearm sentencing
enhancements.
IV. CONVICTION & SENTENCING
The jury found Belanger guilty of two counts of unlawful possession of a controlled
substance with intent to deliver, each with two firearm enhancements. The jury also found
Belanger guilty of a lesser charge of unlawful possession of a controlled substance without any
enhancements, and two counts of first degree unlawful possession of a firearm.
At the sentencing hearing, the State argued that because of Belanger’s prior drug
convictions, the trial court should apply RCW 69.50.408 to double the statutory maximum of
Belanger’s sentence. By doubling the statutory maximum, the trial court would be authorized to
impose 60 months confinement for each firearm enhancement, as opposed to 36 months. Belanger
objected and sought an exceptional downward sentence, arguing that the State’s recommendation
would impose a lengthy sentence disproportionate to Belanger’s nonviolent offense.
The trial court doubled the statutory maximum for the two unlawful possession with intent
to deliver convictions, and sentenced Belanger to 100+ months confinement on each unlawful
possession with intent to deliver convictions, 116 months confinement on the two unlawful
possession of a firearm convictions, and 24 months on the unlawful possession of a controlled
substance conviction, with all sentences to be served concurrently. The trial court also imposed
60 months confinement on each of the four firearm sentencing enhancements to be served
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No. 51399-4-II
consecutively to each other and as flat time. Ultimately, the trial court imposed a 356-month term
of incarceration, with 240 months to be served as flat time firearm sentencing enhancements. The
trial court found Belanger indigent and imposed mandatory LFOs.
Belanger timely appeals.
ANALYSIS
I. MOTION TO SUPPRESS
Belanger argues that the trial court erred by denying his motion to suppress because there
was no nexus between Belanger’s suspected probation violations and his vehicle. We disagree.
Following a suppression hearing, we review challenged findings of fact to determine
whether they are supported by substantial evidence. State v. O’Neill, 148 Wash. 2d 564, 571, 62 P.3d
489 (2003). Unchallenged findings are verities on appeal, and challenged findings supported by
substantial evidence are binding. O’Neill, 148 Wash. 2d at 571. We review the trial court’s
conclusions of law following a suppression hearing de novo. State v. Homan, 181 Wash. 2d 102,
106, 330 P.3d 182 (2014). We affirm conclusions of law that are supported by the findings of fact.
State v. Vickers, 148 Wash. 2d 91, 116, 59 P.3d 58 (2002).
A. SUBSTANTIAL EVIDENCE SUPPORTS CHALLENGED FINDINGS OF FACT
First, we review the challenged findings of fact to determine whether they are supported
by substantial evidence. Belanger assigns error to two of the trial court’s findings of fact 60 and
61:
(60) Officer Grabski knows, based on his training and experience, that offenders
will keep weapons such as knives, guns, and brass knuckles on or near their persons.
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No. 51399-4-II
(61) Officer Grabski believed, based on his training and experience, that given the
defendant’s behavior of reaching towards the driver’s floorboard of his vehicle
during the initial struggle, there was possibly a weapon the defendant was
prohibited from possessing in that location.
Clerk’s Papers (CP) at 254.
CCO Grabski testified that based on his training and experience, he has found many
offenders who keep contraband such as “[g]uns, meth[amphetamine], heroin, pills, cocaine . . . .
Things of that nature.” RP at 47. While his testimony did not expressly mention knives or brass
knuckles, that portion of the trial court’s finding of fact was merely superfluous, providing
examples of other “things of that nature.” CCO Grabski’s testimony provides substantial evidence
to support the trial court’s finding of fact 60.
CCO Grabski also testified that based on his training and experience, taking into account
Belanger’s behavior of reaching around the vehicle, it was reasonably likely that a weapon could
have been in the vehicle. There was substantial evidence to support the trial court’s finding of
fact 61.
B. WARRANTLESS SEARCH
Next, we review the trial court’s conclusions of law de novo to determine if they are
supported by the findings of fact. Belanger assigns error to the trial court’s conclusions of law 4
and 6. Conclusion of law 4 states:
There was a nexus between the defendant’s violations—the possession of narcotics,
the attempted flight from DOC officers and the Pierce County Sheriff’s
Department, the failure to appear to DOC, the apparent attempts to reach for a
weapon in the driver’s floorboard of the vehicle—and the place that was searched—
the defendant’s vehicle.
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No. 51399-4-II
CP at 261. Conclusion of law 6 denied Belanger’s motion to suppress.
Article I, section 7 of the Washington Constitution states that “[n]o person shall be
disturbed in his private affairs . . . without authority of law.” CONST. art. 1, § 7. The term
“authority of law” refers to a valid warrant, subject to limited exceptions. State v. Cornwell, 190
Wash. 2d 296, 301, 412 P.3d 1265 (2018).
However, “individuals on probation are not entitled to the full protection of article I, section
7” because they have reduced expectations of privacy. Cornwell, 190 Wash. 2d at 301. Probationers
have diminished privacy rights because, while they continue to serve their sentence in the
community, they remain in the custody of the law even though they have been released from
confinement. State v. Reichert, 158 Wash. App. 374, 386, 242 P.3d 44 (2010). The same principles
apply to offenders released from confinement who are subject to community custody conditions.
State v. Rooney, 190 Wash. App. 653, 659, 360 P.3d 913 (2015).
A CCO may search an individual without a warrant if the CCO has a “‘well-founded or
reasonable suspicion of a probation violation.’” Cornwell, 190 Wash. 2d at 302 (quoting State v.
Winterstein, 167 Wash. 2d 620, 628, 220 P.3d 1226 (2009)); see also RCW 9.94A.631(1) (allowing
a CCO to conduct a warrantless search if he or she has “reasonable cause to believe that an offender
has violated a condition or requirement of the sentence”). A reasonable suspicion exists if specific
and articulable facts suggest that there is a substantial possibility a violation occurred. See State
v. Jardinez, 184 Wash. App. 518, 524, 338 P.3d 292 (2014). In addition, probationers retain some
expectation of privacy, and the State’s authority to search probationers without a warrant is limited
to property that bears a nexus to the suspected probation violation. Cornwell, 190 Wash. 2d at 306.
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Applying the nexus requirement to this case, we conclude that CCO Grabski’s search of
Belanger’s vehicle was lawful. Belanger’s failure to report to DOC resulted in a warrant for his
arrest. The lawful search of Belanger’s person incident to arrest resulted in the discovery of heroin,
methamphetamine, and alprazolam pills, in violation of Belanger’s community custody conditions.
CCO Grabski testified that in his experience, a person with controlled substances on his person
may have additional controlled substances in the person’s vehicle. Additionally, as law
enforcement approached Belanger, he was seen reaching down towards the driver’s floorboard of
the vehicle and CCO Grabski believed there was a possibility he was reaching for a weapon he
was prohibited from possessing.
Thus, the findings of fact support the trial court’s conclusion that a sufficient nexus existed
between Belanger’s vehicle and the probation violations of possessing controlled substances and
possessing a firearm. As such, CCO Grabski’s search of Belanger’s vehicle was not unlawful and
the trial court did not err by denying Belanger’s motion to suppress.
II. FIREARM ENHANCEMENTS
Belanger argues that the State failed to produce sufficient evidence to support the firearm
enhancements because it failed to prove that the guns found in his vehicle were easily accessible
and readily available for use. We disagree.
The test for determining sufficiency of the evidence is whether, after viewing the evidence
in the light most favorable to the State, any rational trier of fact could have found guilt beyond a
reasonable doubt. State v. Cardenas-Flores, 189 Wash. 2d 243, 265, 401 P.3d 19 (2017). In a
sufficiency of the evidence claim, the defendant admits the truth of the evidence and the court
views the evidence and all reasonable inferences drawn from that evidence in the light most
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No. 51399-4-II
favorable to the State. Cardenas-Flores, 189 Wash. 2d at 265-66. Credibility determinations are
made by the trier of fact and are not subject to review. Cardenas-Flores, 189 Wash. 2d at 266.
Circumstantial and direct evidence are equally reliable. Cardenas-Flores, 189 Wash. 2d at 266.
Under RCW 9.94A.533(3), a court must add additional time to a sentence if the defendant
is found to have been armed with a firearm while committing the crime. State v. Houston-Sconiers,
188 Wash. 2d 1, 16-17, 391 P.3d 409 (2017). “To establish that a defendant was armed for the
purpose of a firearm enhancement, the State must prove (1) that a firearm was easily accessible
and readily available for offensive or defensive purposes during the commission of the crime and
(2) that a nexus exists among the defendant, the weapon, and the crime.” State v. Van Elsloo, 191
Wash. 2d 798, 826, 425 P.3d 807 (2018).
“The defendant does not have to be armed at the moment of arrest to be armed for purposes
of the firearms enhancement.” State v. O’Neal, 159 Wash. 2d 500, 504, 150 P.3d 1121 (2007).
“[T]he State need not establish with mathematical precision the specific time and place that a
weapon was readily available and easily accessible, so long as it was at the time of the crime.”
O’Neal, 159 Wash. 2d at 504-05. A drug distribution operation is a continuing crime that is ongoing.
See State v. Neff, 163 Wash. 2d 453, 464-65, 181 P.3d 819 (2008).
Belanger relies heavily on our Supreme Court’s opinion in State v. Gurske to support his
argument. 155 Wash. 2d 134, 118 P.3d 333 (2005). However, Gurske is distinguishable.
Gurske was convicted of possession of a controlled substance and a deadly weapon
sentence enhancement for a pistol found in a backpack in his truck when he was arrested. Gurske,
155 Wash. 2d at 136-37. In Gurske, the parties stipulated to the facts, including that the gun found
in a backpack by officers was “not removable by the driver without first either exiting the vehicle
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No. 51399-4-II
or moving into the passenger seat location.” 155 Wash. 2d at 136. Because Gurske could not reach
the gun and there was no evidence that Gurske had used or had access to use the gun at any other
time when he acquired or was in possession of the methamphetamine, the Supreme Court held that
insufficient evidence supported the deadly weapon sentencing enhancement. Gurske, 155 Wash. 2d
143-44.
Here, Belanger was charged and convicted of possession of controlled substance with
intent to deliver. The State presented evidence that the .38 handgun was found in a safe on the
driver’s side floorboard, which Belanger was actively reaching towards as law enforcement
officers attempted to detain him. The .22 handgun was found in a backpack in the backseat of the
vehicle near the safe containing drugs, baggies, and scales. Belanger admitted to the police that
he was selling drugs to make money and had the guns for self-protection. In viewing the evidence
most favorable to the State, a reasonable jury could have found beyond a reasonable doubt that the
guns were readily accessible and available to Belanger. Belanger possessed drugs with the intent
to deliver them at the time of his arrest, he admitted that he had the guns for self-protection because
of his drug dealing, and he reached for the guns when he was stopped. See State v. Simonson, 91
Wash. App. 874, 883, 960 P.2d 955 (1998) (holding that where defendants were committing a
continuing offense over a six-week period, and during some or all of that time they kept guns on
the premises, it could be inferred that the guns were used to defend the drug operation).
Because Belanger’s firearms were found near the evidence of his drug sale operation, a
reasonable jury could conclude that these guns were readily accessible and available to Belanger
during his continuing possession with intent to deliver offenses. Moreover, CCO Grabski testified
that both firearms could have been within Belanger’s reach while seated in the driver’s seat.
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Accordingly, taking the evidence in the light most favorable to the State, we hold that there
is sufficient evidence to support the firearm sentencing enhancements.
III. DOUBLED MAXIMUM SENTENCE
Belanger argues that the trial court abused its discretion by applying RCW 69.50.408 to
double the maximum sentence length for the unlawful possession with intent to deliver controlled
substances convictions. We disagree.
In State v. Cyr, we concluded that the application of RCW 69.50.408 was not within the
trial court’s discretion. See generally State v. Cyr, 8 Wash. App. 2d 834, 441 P.3d 1238 (2019). In
Cyr, we held that where a defendant has a prior conviction under chapter 69.50 RCW, RCW
69.50.408 automatically applies to double the statutory maximum sentence. 8 Wash. App. 2d at 836.
Thus, here, the trial court did not have discretion to treat the 10 years as the maximum sentence
for the unlawful possession of controlled substances with intent to deliver convictions. The
statutory maximum sentence automatically doubled to 20 years under RCW 69.50.408.
The trial court’s discretion involved what sentence to actually impose within the doubled
maximum and the standard range, which it exercised by imposing the low end of the standard
sentence range for the unlawful possession of controlled substances with intent to deliver
convictions. See Cyr, 8 Wash. App. 2d at 836.
Because the trial court did not have the discretion to decline to double the maximum
sentence under RCW 69.50.408, Belanger’s argument fails.
IV. LEGAL FINANCIAL OBLIGATIONS
In 2018, the legislature amended the statutory landscape of LFOs. LAWS OF 2018, ch. 269.
The recent legislation applies prospectively to defendants, like Belanger, whose cases were
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No. 51399-4-II
pending appellate review and were not yet final when the legislation was enacted. State v. Ramirez,
191 Wash. 2d 732, 747-49, 426 P.3d 714 (2018). The parties agree that the trial court improperly
imposed LFOs in light of the 2018 legislative amendments and Ramirez.2 Accordingly, we remand
this case to the sentencing court to address the imposition of LFOs consistent with the 2018
legislative amendments to the LFO provisions and Ramirez.
STATEMENT OF ADDITIONAL GROUNDS
I. THIRD PARTY PRIVACY INTERESTS
In his SAG, Belanger argues that the trial court erred by denying his CrR 3.6 motion to
suppress because the search of his vehicle violated third party privacy interests. We disagree.
Under RCW 9.94A.631(1), a CCO may require a probationer to submit to the search of his
vehicle if the CCO has a reasonable belief that the person has violated a condition of his
community custody sentence. A search under the probationer exception remains valid as long as
the CCO relies on specific facts—and inferences drawn therefrom—that establish the property
searched belongs to the probationer. State v. McKague, 143 Wash. App. 531, 542, 178 P.3d 1035
(2008).
Here, CCO Grabski had specific and articulable facts that led him to believe the vehicle
belonged to Belanger. Belanger does not challenge the trial court’s findings that Belanger admitted
2
The State specifically concedes that the trial court improperly imposed the criminal filing fee and
DNA collection fee. The State notes that it “has reason to believe that a DNA sample has been
taken from the defendant on a separate case” and requests that we remand with instructions to
amend the judgment and sentence striking the fee. Br. of Resp’t at 26. But the record on appeal
is silent as to whether Belanger’s DNA has previously been collected.
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No. 51399-4-II
the vehicle and everything in the vehicle belonged to him. Thus, Belanger fails to establish that
the search implicated or violated any third party privacy interest.
II. AGUILAR-SPINELLI
Belanger also argues that the trial court erred by denying his CrR 3.6 motion to suppress
without conducting a proper Aguilar-Spinelli3 test to determine the reliability of the informant who
told the officers Belanger would be at the park selling drugs while armed. However, because the
informant’s information did not form the basis of the reasonable suspicion leading to CCO
Grabski’s search, we hold that the trial court did not need to conduct a full Aguilar-Spinelli test.
When the source of the information supporting the request for a search warrant is an
unnamed informant, the complaint for a search warrant must satisfy the two-pronged Aguilar–
Spinelli test. State v. Cole, 128 Wash. 2d 262, 287, 906 P.2d 925 (1995); State v. Salinas, 119 Wash. 2d
192, 199–200, 829 P.2d 1068 (1992). Under Aguilar–Spinelli, the complaint for a search warrant
must establish (1) the basis for the informant’s knowledge and (2) the informant’s veracity and
reliability. State v. Tarter, 111 Wash. App. 336, 340, 44 P.3d 899 (2002). An informant’s tip must
also carry some indicia of reliability when the tip generates the requisite level of suspicion to
justify a warrantless search under RCW 9.94A.631(1) of a person on community custody. State
v. Z.U.E., 178 Wash. App. 769, 780-81, 315 P.3d 1158 (2014), aff’d 183 Wash. 2d 610 (2015).
Here, CCO Grabski’s search of Belanger’s vehicle was not based on information CCO
Grabski gained from the informant. Rather, CCO Grabski’s search resulted from the discovery of
various controlled substances and a significant amount of cash on Belanger’s person during his
3
Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v.
Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
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No. 51399-4-II
search incident to arrest. The informant’s tip served only to clue law enforcement in to where they
could find Belanger, who had missed his parole check-in and had an arrest warrant; it did not form
the basis of CCO Grabski’s reasonable suspicion to search Belanger’s car.4 Consequently, the trial
court did not err.
III. RECONSIDERATION
Belanger also argues that the trial court abused its discretion when it upheld the firearm
enhancements on reconsideration. Specifically, Belanger argues that the trial court violated stare
decisis by not following our Supreme Court’s decision in Gurske. We disagree.
Here, the trial court thoughtfully considered Gurske, as well as several more recent
Supreme Court opinions. Contrary to Belanger’s contention in his SAG, the trial court did not
“[make] a decision that is directly in conflict with Gurske.” SAG at 7. Rather, it considered
Gurske and found the facts of this case distinguishable. As previously discussed, we agree with
the trial court that this case is distinguishable from Gurske.
Belanger also takes issue with the trial court’s consideration of State v. Van Elsloo—an
unpublished appellate court case. State v. Van Elsloo, 197 Wash. App. 1060 (2017). It is true that
an unpublished appellate case does not control over a Supreme Court case. However, here, the
trial court’s consideration of Van Elsloo was as an example of the application of Supreme Court
case law post-Gurske. Further, our Supreme Court has since affirmed the Court of Appeals’
4
Notably, Belanger does not challenge the trial court’s conclusion that “[i]nformation provided
to the officers about the defendant’s location and what he was driving was corroborated by the
officers, and the officers developed information during their investigation that was independent
of the information provided to them prior to the incident.” CP 261.
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reasoning in Van Elsloo in an opinion issued after Belanger’s trial. See Van Elsloo, 191 Wash. 2d at
798.
Accordingly, we hold that the trial court did not abuse its discretion by concluding that the
facts of this case were distinguishable from Gurske and granting the State’s motion for
reconsideration of the dismissal of the firearm sentencing enhancements.
We affirm Belanger’s convictions but remand for the trial court to address the LFOs.
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.
SUTTON, J.
We concur:
MELNICK, P.J.
GLASGOW, J.
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