State of Washington v. Wendell Lee Muse, 34077-5

On Aug. 24, 2015, in downtown Pasco at dusk, Det. Chad Pettijohn stopped Wendell Muse for riding a bicycle in the street.
Muse was slow to stop and repeatedly removed his hands from the handlebars, reaching toward his waistband/pocket while turning his body away from Pettijohn.
Pettijohn and Officer John D’Aquila feared Muse might be reaching for a weapon; Pettijohn grabbed Muse, handcuffed him, and conducted an outer-clothing frisk.
During the frisk Pettijohn felt a meth pipe in Muse’s pocket, arrested Muse for possession of drug paraphernalia, and incident to arrest seized methamphetamine and a scale.
Muse moved to suppress the evidence; the trial court denied the CrR 3.6 motion. At trial Muse’s prior stipulation as to voluntariness allowed admission of his statements; Muse later sought to withdraw the stipulation but the court admitted the statements.
A jury convicted Muse of possession of methamphetamine; he was sentenced to time served and 12 months community custody. Muse appealed arguing unlawful frisk/seizure, unlawful arrest, suppression of statements, and ineffective assistance of counsel.

Issue	Muse's Argument	State's Argument	Held
Was the frisk lawful?	Pettijohn lacked reasonable, articulable fear that Muse was armed and dangerous, so the protective frisk was unlawful.	Specific facts (slow stop, repeated reaching toward waistband while turning body away) justified a reasonable fear and limited protective frisk.	Frisk lawful: officers had reasonable safety concern; frisk limited to outer clothing.
Should Muse's statements to Pettijohn be suppressed?	Statements were fruits of an unlawful search/seizure and should be suppressed.	Muse stipulated at trial that his statements were voluntary; no timely CrR 3.5 motion was filed.	Not suppressed: court upheld search and Muse’s stipulation permitted admission.
Was Muse’s arrest without probable cause because paraphernalia possession is not a crime?	Arrest invalid because possession of drug paraphernalia allegedly not criminal.	Pasco Municipal Code criminalizes possession/use of drug paraphernalia, so arrest was lawful.	Arrest lawful under municipal code; probable cause existed.
Was counsel ineffective for failing to preserve arrest challenge?	If arrest challenge forfeited on appeal, counsel was ineffective for failing to preserve it.	Counsel not deficient because arrest was lawful; no prejudice.	Ineffective assistance claim rejected—no deficiency or prejudice shown.

Terry v. Ohio, 392 U.S. 1 (1968) (establishes investigatory stop and limited protective frisk doctrine)
State v. Xiong, 164 Wn.2d 506 (2008) (frisk requires specific, articulable facts that suspect is armed and presently dangerous)
State v. Garvin, 166 Wn.2d 242 (2009) (officer must reasonably believe safety is endangered to justify frisk)
State v. Duncan, 146 Wn.2d 166 (2002) (sets three-prong test for Terry frisk: valid stop, reasonable safety concern, limited scope)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance framework: deficiency and prejudice)