No. 69892-3-1

WAS H I N G TON C 0 U R T o F A P PEA L S

S TAT E MEN T

D I V I S ION ONE

STATE OF WASHINGTON,

o F

RESPONDENT

VS.

ANTHONY LEE,

APPELLANT

ADD I T ION A L G R 0 U N D S

ANTHONY LEE 633527 : TRU : D­PO Box 888 Monroe WA 98272

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5

stamard Review De Novo

Review of this issue by this court is DE NOVO. And pursuiant to

The fourth admendment right to privacy of a warrantless search.

called incident to arrest.

On march 21st 2012 Officer Fox approached a parked vehicle.

He spoke with Mr. Lee and Ms. Sample and ordered them to Freeze.

At that time he asked for Identification from roth persons. He took

the in formation and ran the identification through his data-base.

Mr. Lee had no outstanding Warrants at that tinE. which Officer Fox

sta ted that he had no reason to arrest Mr. Lee.

See exibit 1 Of page (42) lines 22-25.

"Standing and the personal nature of the rights enforced by

exclution~y sanctions."

A seperate and-'distinctive act that requires a warrant. This is an

intrusion into the privacy act of the fourth ameridemt.

ru1:§ violation, Wong sun v. United States,371US. Exclusionary rule.

(Page 1)

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I - Identity of Party

Anthony Lee, Appellant, Pro se, hereby sub~its this State-

ment of Additional Grounds.

II - ASSIGNMENTS OF ERROR

(1) The seizure of Lee by CCO Tavarez was without Constitutionally Sufficient Authority of Law.

(2) The State Vindictively Retaliated Against Lee for His Lawful Exercise of a Legal Right.

(3) Lee was Sent~enced on a Miscalculated Offender

Score.

III - ISSUES RELATING TO ASSIGNMENTS OF ERROR

(A) CAN CCO TAVAREZ SEIZE LEE WHEN HE IS NOT BEING SUPERVISED BY THE DEPARTMENT OF CORRECTIONS?

(B) CAN THE STATE CONSTITUTIONALLY PUNISH LEE IN ITS CHARGING OR PLEA NEGOTIATION BECAUSE LEE EXERCISED HIS RIGHT TO ASK THE COURT TO SUPPRESS THE EVIDENCE AGAINST HIM?

(C) WAS LEErs OFFENDER SCORE MISCALCULATED?

IV - FACTS RELEVANT TO REVIEW

***(The facts contained in paragraphs 4.1 through and in-

cluding 4.11 derrive from the Arrest Report written by

CCO Tavarez).

On 21 March 2012, Officer Fox of the Seattle Police Depart-

ment [SPD] and Department of Corrections [DOC] Community

Corrections Officer [CCO] Tavarez, contacted the occupants

of a vehicle parked at the 1500 BlOCK of 2nd Avenue, in

the City of Seattle, Wa.

(Page 2)

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The vehicle was occupied by a female driver, and a single

passenger (Appellant, Anthony Lee) who sat in the back

seat.

During the stop, Officer Fox directed both of the occupants

to keeps their hands visible. He directed the driver to

place her hands on the steering wheel, and for Lee to keep

7 his hands on the back of the frontseat headrest.

S 4.4 ceo Tavarez then stood by and watched while Officer Fox ran

9 the identity of the driver.

10 4.5 During this time period Tavarez claims that "Lee kept -moving

11 his hands off of the headrest and I had to direct him to

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replace them. At one point, I observed Lee's right hand

move to his legs and I again stated to him to 'Keep your

hands on the head rest [sic] and stop moving around.' "

15 4.6 Lee was not under the jurisdiction of DOC at the time of the

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stop, neither was he being supervised by Tavarez or on her

case-load from any other jurisdiction , oR reason.

ceo Tavarez next directs Lee to exit the vehicle. While

Lee is attempting to comply with the directive, Tavarez

claims to observe Lee place a white tissue in his right

sock.

In response, Tavarez grabs Lee by his jacket and pulls him

out of the vehicle and forces him to the ground.

Tavarez then asks Officer Fox to conduct a pat-down search

of Lee while Tavarez conducts a search of the backseat of

the vehicle.

(Page 3)

4.10 During the search of Lee's person, it is alleged that Off-

1 icer Fox located 0.1 grams of a substance that field tested

.3 positive for Cocaine.

4 4.11 Lee is arrested and charged with "Possession with Intent to

Deliver: Cocaine"

b 4.12 Lee was initially afforded a sentence of sixty-days if he

7 pled guilty to "Solicitation to Possess a Controlled Sub-

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stance" . (VRP at 205, Ib 11-14)

4.13 Lee instead sought to have the evidence suppressed pursuant

to CrR 3.6.

4.14 The State next offered Lee a low-end sentence to a simple

possession charge (a year-and-a-day) if Lee entered a plea

of guilty by omnibus. (VRP 202, ~ 3-4).

14 4.15 The State next alleges that because ". . we had to pur-

15 chase a plane ticket"to fly an officer into town to tes-

16 tify at the CrR 3.6 hearing, that this justified the pro-

17 secution on a charge of "Possession with Intent to Deliver"

I~ without any need for further negotiation.

Ig 4.16 After the Court inquired into this charging practice (VRP

20 201 - 205) the State took a short recess, at the conclusion

21 of which Lee was offered the current offense of "Solici-

22 tation to Deliver" and a 45-month sentence based upon an

offender score of nine (9).

24 4.17 Lee accepted the offer on advice of Defense Counsel, with a

recommendation of DOSA, and no community custody. (VRP

59, In 16-18).

(Page 4)

4.18 The Court imposed the current DOSA sentence based upon an

1 offender score of nine (9), and providing for a sentence of

52.5-months (26.25-months in custody, and 26.25-months out-

4 side custody).

5 4.19 This offender score calculation included two class-C felony

convictions from 1998 that should have been excluded from

7 the offender score pursuant to RCW 9.94A.525(c) (KING

8 COunty No. 98-1-01733-0 VUCSA BURN; and VUCSA Possession

9 of Cocaine).

10 4.20 In addition, this offender score included a possession of-

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fense which has subsequently been dismissed by an agreed

order in this Court1s No. 65967-7-1 (KING County No. 09-1-

04512-3) .

v - ARGUMENT

(A) CAN CCO TAVAREZ SEIZE LEE WHEN HE IS NOT BEING SUPERVISED BY THE DEPARTMENT OF CORRECTIONS?

RCW 9.94A.501(5) provides as follows:

liThe department is not authorized to, and may not super-

vise any offender sentenced to a term of community custody

or any probationer unless the offender or probationer is

one for whom supervision is required under this section or

RCW 9.94A.5011. 11 (My emphasis).

The interpretation of a statute is a question of law that

is reviewed De Novo. State v. Denny, 173 Wn App 805, fi 6

(2013, Div 2).

(Page 5)

5.3 In any question of statutory construction the court looks

1

'" to ascertain the legislature's intent by first examining

J the statute's plain meaning. In re Pierce, 173 Wn 2d 372,

4 377-78, 11 18 (2011). We discern a statute's plain meaning

5 from the ordinary meaning of the language at issue, the

b context of the statute in which that provision is found,

7 related provisions, and the statutory scheme as a whole.

8 Id. Statutes must be interpreted and construed so that all

9 of the language used is giv~n effe6t, with no portion rert-

10 dered meaningless or superfluous. Id. (Internal citations

11 omitted).

12 5.4 In the matter now presented - and under the plain and ex-

lJ plicit terms of the statute - as Lee was not subject to the

14 supervisiory jurisdiction of the Department of Corrections,

15 Tavarez lacked both the legal and constitutional authority

16 necessary to seize Lee.

17 5.5 Absent the unconstitutional seizure of Lee by Tavarez, it

[X is clear that-Officer Fox would not have - could not have -

19 located the alleged contraband.

20 5.6 Article 1, section 7 of the State Constitution provides:

21 "No person shall be disturbed in his private affairs or his

22 home invaded, without authority of law". Thus, where the

., \ ,,," .. Fourth Amendment precludes only "unreasonable" searches

24 and seizures without a warrant, Article 1, Section 7 pro-

2S hibits any disturbance of an individual's private affairs

2(1 "without authority of law." State v. Buelna-Valdez, 167 Wn

(Page 6)

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2d 761, 771-72, ~ 21 (2009) citing York v. Wahkiakum Sch.

Dist. No. 200, 163 Wn 2d 297, 305-06 (2008).

This creates "an almost absolute bar to warrantless arrests,

searches, and seizures, with only limited exceptions.

The privacy protections of article 1, section 7, are more

extensive than those provided under the fourth amendment.

Id. (My emphasis).

The inquiry under article 1, section 7, requires a two-

part analysis: (1) Does the State Action Constitute a

disturbance of one's private affairs? Ibid, at ~ 22.

(Page 7)

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The court Of appeals OCTOBER,28 2013

of the

state Of Washington

These Are pre-trial exhibits On OCtober 15, 2012

#1 - Exhibit TAVERAEZ Cross examnation Page (83) Line 24.

"(PAGE 84)" LINE 19,and 20.

#2- EXHIBIT Fox -Cross examination Page(40) LIne 1 ~ t60 3, 4 to

25) page 37 Line 20 through 25 and page 38 Lines 1 through 3.

These actions need to be reviewed DE Novo. Also the probable

cause where it states that due to mr. Lee statement officer

Fox stated that I should be charged for a delivery because I

Did not have a pipe in my posession. Which shows in 0f-ficer

Fox's Testomony on page 38 Line 1-3 states there where NO

DRUG TRANSACTIONS!!

All This iformation was addressed in Mr Lee discreati~

ary review case #69817-6-I As Mr. Lee could not get copys to

serve the Superioror Corut Judge and the prosecutor for the~

Emergency stay. Which The Honorable Judge Hayden denied the

motion in open court on February 6 2013 and mr. Lee sentencing

hearing. Thankyou again as I am not and attorney.

A~ 'h 1 0 ./1/" -/-v1,U/ti',A L - --"~C._

Sincerely, Anthony C. Lee

Division 1 One union Square 600 University street Seattle, WA 98101-4170

The court of Appeal

of the

state of washinton

Court Clerk Administration Dear, Richard D. Johnson

Anthony C. Lee#633Sn

MCC-TRU- D20S P.c. Box 888 MONROE, WA 98272

RE: To discreationary review case # 69817-6-1 Exhibit #1

This motion was a referance to an emergency d~scretionary review.

At the time I filed it on Jarua~y,29 2013 Stating that the Judge

m~pt~riglit to dismiss counsel due to conflict of interest and

appoint me new counsel on Jaruary 17th 2013~; This is why the

ameLgency discreationay review was filed. Due to the courts

Malfeasance. Also at the sentance hearing date February 6th

2013, I brought to the attention of the courts tb~tha Honeroble

Judge Hayden, That I submitted this motion For this emergency

discreationary review. Which he denied, and stated that he never

recieved anything from the court of appeals stating that the cou~

of appeals ordered him to stay. So that motion that was brought

into open court was denied also. This is why I am sending you a

dismissed my motion for the discreationary review on July 10 2013

I was in Shelton R- units and unable to recieve all leagle metir~

ials to respond to the current procedings.

Sincerely, Anthony C. Lee

22373346

", Z -~O 3 0 4 2 - 8 SFA CAUSENO. ____ ~------------------

SEATfLE POLICE DEPARTMENT

CERTIFICATION /=OR DETERMINATION

OF PROBABLE CAUSE" NARCOTICS

INCIDENT NUMBER

, 2012-86349 UNIT FILE N!JM8eR

That Police Officer PJ Fox #6153 of the Seattle Police Department believes that there is probable cause that Anthony C. LEE committed the cnme(s) of Violation of the Uniformed Controlled Substances Act on 3121/2012 at 2023 hrs within the City of Seattle. County of King, State of Washington by possessing with intent to deliver .8 grams of crack cocaine, a controlled substance.

This belief is predicated on the following facts and circumstances;

On 03/2.1/2012 at 2023 hrs Officer Fox and DOC Officer TavarE)z were SB on 2 Av. Officers observed WA Lic AD17480 parked occupied on the SE corner of 2/Pine St (1500 blk 2 Av, East side).

The driver was later identified as Heather A. SAMPLEr seated directly behind the . driver was Anthony C. LI:E. There were no other occupants in tHe vehicle. Directly outside of WA Lie ADi7480 were approximately 12 suspected narcotics users-who appeared to be rining up at the window of this vehicle. Officer Fox stopped his v~hicle and explained to the occupants why they were being stopped (suspicious activity/high narcotics area). The approximate 12 narcotics users scurried off to the North and South. . Officer Fox ran a DOL check on SAMPLE and LEE. SAMPLE had a verified. SMC warrant for Theft. LEE refused to stop making furtive movements in the back seat of the vehicle. LEE was specifically told to remain absolutely st:il1 with his hands on the headrest. While SAMPLE was being arrested for her warrant LEE was observed attempting to stuff a white tissue rnto the seat area. SAMPLE was removed and arrested for her warrant. SAMPLE was seated on narcotics paraphernal1a (pipe/pusher) and .:t. graJ)'ls of crack cocaine.

Officers were forced to remove LEE from the vehlcl~ after he refused to stop making furtive movements. Officer Fox patted down lEE for weapons. As soon as Officer Fox patted down LEE's right an.kle for weapons he immediately recognized a large rock of suspected crac;k cocaine in LEE's right sock.

Officer Fox immediately ceased the pat dOl"om for weapons and arrested LEE, for VUCSA-possession. Officer Fox recovere<l the .8 gram rock of crack cocaine from LEE"s sock. All cocafne field tested posItive. .,

Both were Mirandized and understood their rights. LEE stated that the crack Was ,fake. LEE also stated that he did nO,t have a chance to sell any because Officers interrupted the sale. LEE admitted to placing the crack cocaine into his soot:k while making the furtive movements. '

Due to LEE' statement of 'I dfd not have a chance to sell any (crack) and LEE did not possess any narcotics paraphernalia; Officer's specifically request that LEE be charged wfth VUCSA-PWI.

Form 34.1e 1S/9S PAGE Of 2

, ! .

i/

1 (g) The prosecuting attorney wit.! make the following recommendation to the judge: __ _

2 4SY"ro""JL."1 CNh~J o.4.,r ... ,s "k\\ ld2m 'QJv:A (Ju/" isOo \/PP.r=l 3

4 'p.. , ·AlI "'-I () U . ' . .

5 XThe prosecutor will make ,the recornmenda~on stated in the plea Agre~ment and State)~

6 Sentence Recommendation, which are inCorporated by reference.

, 7 (h) The judge does not have to follow anyone's recommendation as to sentence. The judge

8 must impose a sentence within the standard range unless there is a fineting of substantial and

9 compelling reasons not to do so or both parties stipulate to a sentenc~ outside the standard range. If

10 the judge goes outside the standard range, either I, or the State can appeal that sentence to the extent

11 to which it was not stipulated. If the sentence is within the standard range, no one can appeal tbe

12 sentence.

13 Ci) The crime of ___________ _

14 at least years of total confinement. The law d

15 sentence. For crimes committed on or ' uly 24, 2005, this does not apply to juveniles tried as

16

17 IS paragraph should be stricken and initialed by the defendant and .

18 G) The crime charged in Count ____ _

19 sentence enhancement of --------------------~~

20

21

22

must be served consecutively to any other

cement I have already received or will receive in this or any

, " 's paragraph should be stricken and initialed by the defendant

FORM REV 8/23/12 STATEMENT OF DEFENDANT ON PLEA OF GUILTY (Felony) - 5

, )

1

2

3

4

5

that I pay a fine, court costs, attorney fees, and other costs and fees, and place other restricti~ms and

requirements upon me. Fu.r-thermore, the judge may place me on community custody.

(f) In addition to c~nfinement, if the total p~riod of confinement ordered is more th~ ,

mOl\ths, the judge will sentence m~ to the following period of community custody, ~e judge

finds substantial and compelling reasons to 40 otherwise:

6 For crimes committed prior to July 1, 2000: for a drug offense, ass t 2, assault of a child

. 7 2, or any crime against a person where there is a finding that I or an ac' omplice was armed with a

8 deadly weapon, one year; for any vehicular ho~cide or for a veh' u1ar assault by being under the .

9 influerice or by operation of a vehicle in a reckless manner, 1 months; for a serious violent offense,

10 two years.

11 For crimes committed on or after July 1, 20 , and prior to August 1, 2009, as follows:

12

13

14

15

16

17

18

19

20

21

22

o '0 o

Serious violent offense: a range f24 to 36 months. Violent offense: 18 months.

. Crimes against persons-~r v' lation ofRCW 69.50 or 69.52: a range of 9 to 12 months. .

For crimes committed on or er August 1, 2009; as follows:

o o o

Serious violent ense: 36 months. Violent offensl:' 18 months. . Crimes agai~ persons or violation ofRCW 69.50 or 69.52: 12 months.

The longest applicable eriod of community custody will be imposed. During the period of

!pay be undetthe supervision of the Department of Corrections, and I will

and requirements placed upon me. My failure to comply with these conditions will

Department of Corrections transferring me to a more restrictive confinement status or

FORM REV 8/23/12 ' STATEMENT OF DEFENDANT ON PLEA OF GUILTY (Felony) - 4

EXHIBIT #

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state V. M:n:bz.a 157 Vih. a:I 582, 141 P.):] 49

Mr. lEe vm·Tl'IisinfarITEd of his g.rllty plre, cnj mEr: state v. M=n:bza

2 fRill 61 rates that W:> Mp !ff.A:::rteily teld that a d?faxEnt PJW cballarg;

S ~"Mr Lee. tak his g.rilty plre m O:±d::er- 00 or ab:ut tiE 15th or 16th 2012·, ILis pis a:Jm3IBlt

6 W3s fer :IbJrty fi ~ rrrnths wudl is tie Ja.l en oftlE ~. At trot tlire all rartiES state

7 an:l tie ce.faxE agree to tie lew en aril. agree to n± to lB\e carm.nity all3tr:rly.

8 At t:hEti J;Dmt Mr Ire with dn:w his plre .J:mr:un:y 17th 2013. 'Il"e cr:urts d:niErl tie wit:trlr:cwl

JfEring an) cBri.ej him a attarroy fbr his wittdrawl h::-arinJ wdl far:c:ej M:". _ Ire to gJ pn:e.

i1l. Lee t S 'Iti.al at:l:arnJy Mr. Yblfe VBS pres::nt b.It vas rot ill of:fEn3e of Mr. LEe t S 1:::E!1akf.

11 M:". LEe did an erergn:y stay fbr d.i.s:::rEaticrmy rEViEW to tie ca.rrt of c3Hfflls. 'ItEy

Gra1tErl "t:I'"E rrotirn. ]\t tmt tine Mr. lee W3S rot a:ntan:rl am his pLea h"""""'; n ~ 12 "-'OJ.. '::1-'-' L U'j'-= ":He..

13 H:rl still stadrl as vas still writta1 an) cgm:rl As a:]rE'Ed. 01 t:IE clcrt of ~

14

15 '.OE.t it cmriej I:l:B\ c:r I w::uld of IE\.er exa:p::te:l tlBt ju:i::J=nmt. As M:". Ire 'lb:k a

~ .,.I4it:lnrt:: crnmnity <nEtcdy this is vhere Mr. LEe fells re W3S misinfo:rrraj of tiE ~t:cr

17 carmnity co.JSI:rxjy fbr tie J::XE\. state V. Miller, 110 W1. 2d 528, 7% P.2d 122 (1'~)

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4) SEE plea ~ m or ab:ut cd::r:t:Er fifts:nth or sixt:EEnt:h m tiE c:ammity crustr:rly

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EXHIBIT #

TAVAREZ - Cross 83

Q.

A.

Q.

A.

Q.

heard, hey, Mr. Lee has a warrant, though, not like Ms.

Sample.

come up.

But in conversations, you know, Mr. Lee has

In fact, Mr. Lee didn't have a warrant on March 21st,

correct?

Correct.

You testified in detail about Officer Fox's stop and

subsequent detention and arrest of Ms. Sample, and you

described Mr. Lee's actions during those times .

recall that testimony?

Yes.

Do you

Now, you testified that you had to tell Mr. Lee to put

his hands back up on the headrest about two times?

14 A. Correct.

15 Q. And after that second time , he pretty much kept his

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20

A.

Q.

hands there the entire time, correct?

Correct.

You described in some detail a movement by Mr. Lee when

it appeared that he was reaching between the cushions

of the vehicle; is that correct?

21 A. Correct .

22 Q. And you saw a tissue?

23 A . Correct.

24 Q. You didn't believe that tissue was a weapon, correct?

25 A. The tissue was initially in his hand, then it was gone ,

/, I :' (

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EXHIBIT #

TAVAREZ - Cross 84

1 but I didn't actually see his hand after that.

2 Q. But you didn't believe the tissue was a weapon?

3 A. No.

4 Q. And you testified that as he was being -- as Mr. Lee

5 was being directed to exit the vehicle, you saw his

6 hand go down to his sock, correct?

7 A. Not as he was exiting. During the time he was -- in

8 between that seat there.

9 Q. Well, that was after the door was open to the vehicle,

10 correct?

11 A. Correct, the door opened.

12 Q. And that was after Officer Fox had directed you to

13 remove Mr. Lee from the vehicle, correct?

14 A. Correct.

15 Q. You didn't observe any weapons on Mr. Lee, correct?

16 A. Not on him. There was a lot of debris in the back seat

1 7 there , and when his hand went out of view I couldn't

18 see what he was -- if there was or anything, a weapon

19 or anything. But to be safe, I wanted him out of the

20 vehicle.

21 Q. You didn't observe any weapons in the vehicle either,

22 'correct?

23 A. No.

24 THE COURT: That's one where you say correct.

2S THE WITNESS: Correct.

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FOX - Cross 41

A.

Q.

A.

Q.

A.

Q.

A.

I don't think I did. I think I pulled up next to the

vehicle, stopped very quickly , put it in Park and

jumped out. So I was attempting to surprise.

Are you certain you didn't?

I don't know. I'm hoping that it recorded and I will

check on that today.

So you believe there is video?

There might be, yeah. I 'm sure that you would have

checked on that, right?

You believe that there is video?

I do. But video that was started at when I Mirandized,

12 not at the initial stop because my lights weren't on .

13 I had to put my lights on .

14 Q. After

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25 Q.

THE COURT: Can I ask a question here? If the

lights didn't go on -­

THE WITNESS: Right.

THE COURT: -- you still have to somehow activate

the video for there to be video when you're speaking to

someone inside the car?

THE WITNESS: Yes.

THE COURT: Okay. And that would have been you

activating it rather than the lights activating it?

THE WITNESS: Exactly, your Honor.

Officer Fox, you testified that one of the roles of

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EXHIBIT #

FOX - Cross 42

A.

Q.

A.

Q.

A.

Q.

A.

Q.

A.

Q.

A.

having DOC Officer Tavarez with you in these situations

is to interact with individua l s on active DOC

supervision; is that correct?

Correct.

On March 21st, the two individuals that you conta c ted,

were either of them on active DOC supervision?

I have no idea.

Is it fair to say you did the primary investigation?

That's correct.

And you testified that you gathered the identification

information from Ms. Sample and Mr. Lee, correct?

That's correct.

You didn't touch any Ids?

No.

And you took that information back to your cruiser to

run the Ids, correct?

Yes, I did.

18 Q. And there's an arrest warrant on Ms. Sample, c o r r ec t ?

1 9 A. Yes.

20 Q. And then you arrested her?

21 A. Yes.

22 Q. No arrest warrant for Mr. Lee, correct?

23 A. That's correct.

24 Q. At that point did you believe that you had a basis to

25 arrest Mr. Lee?

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EXHIBIT #

FOX - Cross 43

A.

Q.

A.

No, but as I'm taking the sample out, he's still moving

around.

Describe the detention of Ms. Sample; what did that

look like? You testified that she was compliant?

Yes.

6 Q. When you say "compliant," how compliant, what was it

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like, to the best of your recollection?

Well, let's say that if she was noncompliant, that

would stand out in my mind greater, so her arrest,

besides her going to her side when I told her to keep

her hands still was okay, she was complaint for the

most part with the exception of her going to her side.

And so then when we took her out, I don't remember her

doing anything unusual. All I remember is Mr. Lee

moving around in the bac~ seat.

out, she was fine.

So when we pulled her

17 Q. How long did it take to remove Ms. Sample from the

18 vehicle, if you recall?

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- A.

Q.

A.

Real quick, it was quick. So, I mean, this entire stop

was ver y - - it wasn't that intrusive, it was very short

in duration, very short in duration.

Now, you testified that after you arrested Ms. Sample,

-- well, after you detained her, what happens next?

You mean, after she's taken out of the car and

arrested?

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FOX - Cross 44

Q.

A.

Q.

And placed in handcuffs, I presume.

Right, handcuffs, and then she goes in the back of the

patrol car, but he's still moving around at this point.

As we 're taking her out, I see him taking his hands off

and 'going down to his feet and just moving around to

where it's real simple.

giving are very simple:

I mean , the commands I'm

Don't move. Keep your hands

on the back of the headrest. And he's moving. So , I

mean, this is a dangerous point. We're taking one out

of the vehicle and the other one is moving.

obeying our commands .

Not

It's a scary point. This is when patrol officers

get killed, right at this moment. Because there's

divided attention. We're taking somebody out of the

front, somebody in the back is taking advantage of that

because they're thinking these officers are watching

them, this is my chance to do whatever. So that's the

only thing that's going through my head right now is

he's not l istening to us and this is super dangerous

right now right as we 're taking her out.

Officer Fox, after you put the handcuffs on Ms . Sample,

22 what happens next?

23 A. Mr. Lee, I have to pull him out and pat him down

24

25 Q.

because I'm terrified at this point.

So Ms. Sample is on the street?

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EXHIBIT #

FOX - Cross 39

Q.

A.

Q.

A.

So you believe you had enough for a Terry stop?

I believe I did, correct.

But you didn't initiate a Terry stop of any of those

individuals?

Well, you have to understand, I'm one person, so I need

to go after -- you need to be careful how much you bite

off.

8 Q. Sure.

9A. For officer safety. So I can't go running after 12

10 people or eight people, I can't do it. I have two

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people that are stationary, static in a vehicle,

they're not moving, I'm going to talk to these people.

And these people were what interested the eight to

twelve people. Their interest was inside the car, so

it's natural that I -- hey, if they're static, I'm

going to talk to them.

17 Q. And Officer Tavare z didn't attempt to apprehend any of

18 tho se eight to twelve people to your knowledge?

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A. Yeah, "apprehend" is the wrong word. No, conduct a

Terry stop. No, no. Because once again she's o n e

person, we've got two people In the car and she's

acting upon my direction and my direction is nonverba l

at this point. She knows I'm going to go after the t wo

people that are in the car to figure out what's go i ng

on, so she's right there by my side covering my back.

FOX - Cross 40

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2

Q. All right. Officer Fox, during this entire

interaction, you never observed any weapons, correct?

3 A. No.

4 Q. No knives on Ms. Sample, correct?

5 A. I'll tell you right now, no weapons were seen.

6 Q. Now, you testified that as soon as you got to the

7 vehicle you said freeze, correct?

8 A. Exactly.

9 Q. SO Ms. Sample and Mr. Lee were not free to go at that

10 point?

11 A. That's correct.

12 Q. You directed them to stay in their location?

13 A. This is a Terry stop, correct.

14 Q. And they did not attempt to flee?

15 A. No.

16 Q. After you said freeze?

17 A. No, but they moved.

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Q. They moved.

The cruiser that you were in, that's capable of

video surveillance, correct?

21 A. Yes, it is.

22 Q. And is this one of those systems where as soon as the

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A.

Q.

lights go on, the surveillance begins?

Yes.

Do you reca ll if you turned your l ight s on?

FOX - Cross 37

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It's your t est imony that when you approached the

vehicle in question that you saw eight to ten people;

is that correct?

4 A. Eight to a dozen.

5 Q. Eight to a dozen.

6 A. Yes.

7 Q. And how many of those people do you believe that y ou

8 recognized?

9

10

A.

Q.

By face, several, four or five.

You mentioned Jackie Brown by name.

11 A. Yeah.

12 Q. Any other names that you recall?

13 A. I'm not really good with names, I'm better with faces,

14 so.

15 Q. And you test ified that a t least as it relates to Ms.

16 Brown, these are individua ls that you advise to leav e

17 the area regularly; is that correct?

18 A. Regularly, yeah, they're drug-users.

19 Q. NOw, even as this line of people at the vehicle caught

20 your attention, is it fair to say you didn't actually

21

22 A.

see any drug transactions take place?

No, I did not.

23 Q. You didn 't see any money exchanging hands?

24 A. Nothing like that.

25 Q. No packages of what you in your training and experience

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EXHIBIT #

FOX - Cross 38

A.

Q.

A.

Q.

A.

Q.

A.

Q.

A.

Q.

A.

Q.

A.

Q.

A.

recognize as crack cocaine going in or out of the

window?

No drug transactions.

Now, when you approached the vehicle, you went at a

pretty quick pace, correct?

I did.

And you said that eve!ybody just sort of scattered; is

that correct?

Yes, as I was driving up.

All right. Ms. Sample didn't attempt to flee, correct?

No, I surprised her.

Okay. And Mr. Lee didn't attempt to flee?

No, he was surprised as well.

But the eight to twelve people, they did scatter?

Because they were looking at the patrol car.

You didn't attempt to apprehend any of those

individuals based on what you had seen?

No, I couldn't. There were too many of them.

Do you believe you had a basis to apprehend any of

those people based on what you had seen?

"Apprehend" is the wrong word. I think you want to

change the word -- I think I had enough for a Terry

stop on those folks, enough to detain them for a short

period of time and identify them and ask them some

questions.

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) ) ) ) ) ) )

J'l L,·'l . //--1- ) ___________ ~==-14·f=~~if.=,t~?I±(=~='·=V=I=I=.~) I r '.

CERTIFICATE OF SERVICE BY MAILING

, certify that on the below date, I caused to be

placed in the U.S. Mail, first class, postage prepaid, .3 envelope(s) addressed to the bel~w-

listed individual(s):

CERTIFICATE OF SERVICE BY MAILING

I (')(

MCC LAW LIBRARY FORM NO. A-2.a

I am a prisoner confined at the Washington State Department of Corrections ("DOC"),

2 housed at the Monroe Correctional Complex ("MCC"), P.O. Box , Monroe, WA ---

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98272, where I mailed the said enve1ope(s) in accordance with DOC and MCC Policy 450.100

and 590.500. The said mailing was witnessed by one or more correctional staff. The

envelope(s) contained a true and correct copy of the below-listed documents:

l. stCL-±e D f- /ktlr'hC)/vC1./ -f)rOeJJ(JCl 2. _________________________________________ ___

3. __________________________________ _

4. -----------------------------------------------5. _______________________________________ _

6. ________________________________________ ___

I hereby invoke the "Mail Box Rule". See Houston v. Lack, 487 U.S. 266, 273-76, 108

S.Ct. 2379 (1988); FRAP 2S(a)(2)(C); and Washington Court Rule OR 3.l (a) -- the above

listed documents are considered filed on the date that I deposited them into DOC's legal mail

system.

DATED this .f--/_tJ ___ day of ~2 t

CERTIFICATE OF SERVICE BY MAILING

2

IL ,20L::':.

I I (Print) l-drd=ltoJJ1i C Lc ~

I I , Pro se. ____

-D-O-C#-Z;""?IC. S3nT'r""?S--Z"'1;-- , Unit J-)'-)~~2Cj Monroe Correctional Complex (Street address) ;:-----::-________ _

P.O. Box Irt Er Monroe, W A 98272