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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                          )
                                              )   No.  66406-9-I
                       Respondent,            )
                                              )   DIVISION ONE
   v.                                         )
                                              )   UNPUBLISHED OPINION
PAUL MARK VILLALON, aka PETER                 )
JOHN JAMES,                                   )
                                              )
                       Appellant.             )   FILED:  April 23, 2012
                                              )

       Grosse, J.  --  When, during a protective frisk, a police officer encounters 

an item of questionable identity that could reasonably be a weapon, the officer 

may remove that object from the defendant's clothing and examine it.  Here, the 

officer's removal of a hard square object from Paul Villalon's pants pocket was 

reasonable under the circumstances and did not exceed the scope of a valid 

protective frisk.  Nor has Villalon demonstrated any prejudice resulting from the 

trial court's untimely entry of written CrR 3.6 findings of fact and conclusions of 

law.  We therefore affirm Villalon's conviction for one count of possession of 

methamphetamine.

                                        FACTS

       The relevant facts are undisputed. At about 3:00 p.m. on July 30, 2010, 

Whatcom County Sheriff's deputies Magnus Gervol and Mike Taddonio drove to 

check on the status of property on E. Smith Road in Bellingham.  The Sheriff's  

No. 66406-9-I / 2

Office had seized the property, which was the subject of a forfeiture proceeding, 

and the deputies wanted to check whether there had been any vandalism.  The 

property was posted with a "No Trespassing" sign.

       Upon arrival, the deputies found two men on the property who appeared 

to be working on cars.  They recognized one of the men as someone with an 

extensive criminal record involving firearms and drugs.

       Deputy Gervol approached the second man and asked for identification, 

attempting to determine if he was trespassing.      The man claimed that he had not 

seen the "No Trespassing" sign and that he did not have any identification with 

him.  He identified himself as Peter John James and said that his date of birth

was May 26, 1989.  

       Gervol  became suspicious because the man, later identified as Paul 

Villalon, looked significantly older than the indicated date of birth.  Villalon was 

wearing a baggy tee shirt and baggy pants and his pockets were bulging and 

weighted down with what appeared to be heavy objects.  When asked how he 

arrived on the property and whom he was visiting, Villalon replied, "I don't know."  

Villalon also fidgeted nervously and continued to put his hands into his pockets, 

despite Gervol's repeated directions to keep them in view.

       Concerned about the circumstances of the encounter, Gervol decided to 

conduct a pat down for officer safety.  When Villalon refused to cooperate and 

attempted to pull away, the officers handcuffed him. 

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No. 66406-9-I / 3

       During the pat down, Gervol felt "a hard square object" in Villalon's right 

pants pocket.  Concerned that it might be a weapon or contain a weapon, Gervol 

removed  the object and discovered that it was a clamshell-style cell phone.  

Gervol immediately observed an identification card slip out from the middle of 

the phone with the name "Paul Villalon" and a matching photograph.  Deputy 

Taddonio recalled that there had been a bulletin indicating that Villalon had 

outstanding warrants.

       After confirming that Villalon had two outstanding arrest warrants, the 

deputies arrested him.  During a search incident to the arrest, the deputies 

recovered a baggie containing methamphetamine.

       The State charged Villalon with one count of possession of 

methamphetamine.  Prior to trial, Villalon moved to suppress the drugs seized 

incident to the arrest, arguing that the deputies' removal of the cell phone from 

his pocket exceeded the valid scope of a protective frisk.  The trial court denied 

the motion to suppress.  Following a trial on stipulated evidence, the court found 

Villalon guilty as charged.  

                                      DECISION

       Villalon first contends that both his initial detention and the protective frisk 

were unlawful.  He argues that the deputies lacked a reasonable suspicion that 

he was involved in criminal activity and a reasonable safety concern that justified 

a protective frisk for weapons.

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       We review the trial court's denial of a suppression motion to determine 

whether substantial evidence supports the challenged findings of fact and 

whether those findings support the trial court's conclusions of law.1  

Unchallenged findings of fact are verities on appeal.2      We review conclusions of 

law de novo.3

       Generally, a police officer may briefly stop and detain an individual for 

investigation without a warrant if the officer reasonably suspects the person is 

engaged or about to be engaged in criminal conduct.4             The officer may also 

briefly frisk the individual for weapons based on a reasonable belief that the 

officer's safety or the safety of others is endangered.5

       Here, however, defense counsel expressly informed the trial court, both at 

the beginning and at the conclusion of the suppression hearing, that the defense 

was not challenging the validity of the  initial  investigatory detention or the 

officer's decision to conduct a protective frisk:

       We are not questioning whether or not Deputy Gervol was justified 
       for conducting a pat down for weapons at that point.  I believe that 
       at that point he was justified in at least conducting a pat down.  So 
       we are not questioning any of that stuff that the prosecutor just said 
       [relating to the validity of the initial detention and the decision to
       conduct a protective frisk].
       . . . .

1 State v. Bliss, 153 Wn. App. 197, 203, 222 P.3d 107 (2009).
2 State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
3 Bliss, 153 Wn. App. at 203.
4 State v. Day, 161 Wn.2d 889, 895, 168 P.3d 1265 (2007).
5 Day, 161 Wn.2d at 895; see also Terry v. Ohio, 392 U.S. 1, 20-27, 88 S. Ct. 
1868, 20 L. Ed. 2d 889 (1968).

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       We are not disputing, again -- again, as I said, when we began, we 
       are not disputing that the officer had a reasonable basis to conduct 
       a pat down.  We don't dispute that.
       Rather, Villalon alleged only that the deputy had exceeded the proper 

scope of the frisk by removing the cell phone from his pocket.

       Under the circumstances, Villalon has waived any alleged error relating to 

the validity of the initial detention and the justification for conducting a protective 

frisk.  And Villalon has not alleged or demonstrated any basis for raising these 

contentions for the first time on appeal.6

       Villalon  also  contends that     even if the     investigatory  detention    and 

protective frisk were valid, Deputy Gervol exceeded the proper scope of a 

protective frisk.  He argues that Gervol could not reasonably have believed that 

the small, hard object in his pocket was a weapon or potentially dangerous.  

       A valid protective frisk is strictly limited to a search of the outer clothing 

for weapons that might be used to assault the officer.7              Once the officer 

concludes that the individual does not have a weapon, the protective frisk is over 

and any continuing search without probable cause constitutes an unreasonable 

intrusion into the individual's private affairs.8

       There are, however, cases where the patdown is inconclusive, in 
       which case reaching into the clothing is the only reasonable course 
       of action for the police officer to follow.  If the officer feels an item 
       of questionable identity that has the size and density such that it 
       might or might not be a weapon, the officer may only take such 

6 See State v. Robinson, 171 Wn.2d 292, 304-306, 253 P.3d 84 (2011).
7 State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994).
8 Hudson, 124 Wn.2d at 113.

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No. 66406-9-I / 6

       action as is necessary to examine such object.[9]

       Gervol testified that he felt a "hard square object." He did not immediately 

recognize the object and was concerned that it might be a weapon, including a 

possible firearm or a commercial stun gun.  Washington courts have held that 

the removal of questionable objects of comparable size and density was proper 

during a protective frisk.10      Under the circumstances, Gervol's decision to 

remove the object to confirm its identity was reasonable and did not exceed the 

scope of a valid protective frisk.

       The evidence also supports the trial court's finding that upon removing 

the object and confirming that it was a cell phone, the deputies immediately saw, 

with no further manipulation,       Villalon's identification card and a matching 

photograph.  At this point, Deputy Taddonio recognized that Villalon was the 

subject of arrest warrants.  The subsequent arrest and search incident to the 

arrest were therefore lawful.11

       Finally, Villalon contends that the trial court erred in failing to enter written 

CrR 3.6 findings of fact and conclusions of law.  He notes that the trial court 

devoted a significant portion of the oral ruling to a recollection of personal 

9 Hudson, 124 Wn.2d at 112 (citations omitted); see also State v. Garvin,166 
Wn.2d 242, 250-252, 207 P.3d 1266 (2009).
10 See State v. Allen, 93 Wn.2d 170, 172, 606 P.2d 1235 (1980) (wallet); State v. 
Horton, 136 Wn. App. 29, 38, 146 P.3d 1227 (2006) (cigarette pack); State v. 
Fowler, 76 Wn. App. 168, 170-71, 883 P.2d 338 (1994) (pager).
11 Because Villalon's arrest was not the fruit of an unlawful protective frisk, we 
need not address his contentions about whether probable cause to arrest 
existed at the time the deputies discovered the identity card.

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No. 66406-9-I / 7

matters unrelated to the legal issues raised in the suppression hearing.  Villalon 

argues that the trial court's oral decision is inadequate to permit meaningful 

appellate review.  

       The trial court entered written CrR 3.6 findings of fact and conclusions of 

law after Villalon filed his opening brief.  We will not reverse a conviction for the 

late entry of CrR 3.6 findings and conclusions unless the delay prejudiced the 

defendant or the findings and conclusions were tailored to address the issues 

raised in the defendant's appellate brief.12

       The sparseness of the trial court's oral decision was at least partly the 

result of the limited challenge that Villalon  raised  during the          suppression 

hearing.  Villalon did not challenge the lawfulness of his initial detention or the 

deputies' decision to conduct a protective pat down.  Rather, he argued only that 

Gervol's decision to remove the hard object exceeded the proper scope of the 

weapons frisk.  Under the circumstances, the written findings and conclusions 

accurately reflect the evidence presented to the trial court, the parties' 

arguments, and the court's oral decision.  Villalon has not made any showing 

that the written findings and conclusions were tailored to meet the issues in his 

opening brief, that they are inadequate to permit appellate review, or that the 

delayed entry was in any way prejudicial. Reversal is therefore not warranted.13

12 State v. Cannon, 130 Wn.2d 313, 329-30, 922 P.2d 1293 (1996).
13 See State v. Brockob, 159 Wn.2d 311, 344, 150 P.3d 59 (2006); Cannon, 130 
Wn.2d at 330.

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       Affirmed.

WE CONCUR:

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