Personal Restraint Petition Of: Nicholas Brandon Van Duren, 81449-4

Background:

Homeowner Lloyd Pollard received a security-alert video showing an unknown man inside his house; officers found a broken rear window and signs of a burglary.
Witness Jill Gonzales saw a man in a gray hoodie carrying a backpack walk from behind Pollard’s house into a red sedan and photographed him.
Earlier that morning Officer DeWitt had briefly approached a red Toyota in the same area; later officers located the red car within two miles, stopped it, and removed the driver and passenger (Van Duren).
Officers conducted a warrantless inspection of the vehicle (opening the trunk) and observed golf clubs; Pollard had not reported golf clubs missing. A subsequent warrant (affidavit omitted the trunk search) authorized a search that yielded items stolen from Pollard’s home (record does not specify where in the car they were found).
Van Duren moved to suppress the recovered items and requested a Franks hearing; the trial court denied both, a jury convicted him of residential burglary while on community custody, and the court imposed an exceptional upward sentence using the “free crimes” aggravator.
Direct appeal affirmed; Van Duren filed a personal restraint petition raising suppression/Franks and sentencing claims; the Court of Appeals denied the petition.

Issues:

Issue	Van Duren's Argument	State's Argument	Held
Legality of warrantless trunk search / suppression	Trunk search violated Fourth Amendment; admission of car evidence prejudiced him	Search justified as a protective sweep / no nexus shown between trunk view and seized evidence	Denied relief—petitioner failed to show nexus between trunk search and later seizure; suppression claim fails
Entitlement to Franks hearing (omitted facts in affidavit)	Affidavit intentionally omitted material facts (Gonzales didn’t see car, didn’t give photo, and officers did pre-warrant trunk search); omissions undermined probable cause	Affidavit supported probable cause; omissions not material and petitioner fails to show prejudice	Denied—trial court did not abuse discretion; omissions were not shown to be intentional or material to probable cause
Jury factfinding for exceptional sentence (Blakely)	Facts supporting exceptional sentence required jury findings	Free-crimes aggravator is based on criminal history/current offenses and requires no jury finding	Denied—Blakely exception for prior convictions applies; free-crimes aggravator may be applied by judge without jury (Alvarado)
Use of "multiple current offenses" and written findings	RCW 9.94A.535(2)(c) doesn’t apply because only one conviction in this case; court failed to enter required written findings/conclusions	Sentencing on three cases the same day creates multiple current offenses; oral reasons reflected free-crimes aggravator; no actual and substantial prejudice shown	Denied—sentencing multiple cases same day = multiple current offenses; lack of written findings did not demonstrate miscarriage of justice or actual substantial prejudice

Key Cases Cited

Franks v. Delaware, 438 U.S. 154 (1978) (standard for requiring an evidentiary hearing to challenge false or intentionally omitted affidavit statements)
Katz v. United States, 389 U.S. 347 (1967) (warrant requirement subject to limited exceptions)
Sun v. United States, 371 U.S. 471 (1963) (exclusionary rule suppresses evidence that is direct or indirect result of unlawful search)
Blakely v. Washington, 542 U.S. 296 (2004) (judge may not find facts that increase a sentence beyond statutory maximum absent prior conviction exception)
State v. Alvarado, 164 Wn.2d 556 (2008) (Washington holding that free-crimes aggravator may be applied by judge without jury factfinding)
In re Pers. Restraint of Finstad, 177 Wn.2d 501 (2013) (definition of "current offense" for sentencing as convictions entered/sentenced same day)
State v. Friedlund, 182 Wn.2d 388 (2015) (requirement that written findings be entered when imposing an exceptional sentence)