Washington Appeals Court Considers Expanded Seizure and Evidence of Prior Convictions

In many Washington criminal cases, defendants challenge the evidence the state wants to use against them.  In a recent case, a defendant appealed his conviction, arguing the trial court erred in admitting evidence obtained from his vehicle and evidence of previous criminal convictions.

According to the appeals court’s unpublished opinion, the police received a report someone was trespassing in the parking lot of a hotel.  The responding officer found the defendant sleeping in a running vehicle with a beer can outside the driver’s door.  The officer could not wake the man and called in another officer to investigate.  The first officer looked inside the vehicle and observed what appeared to be credit card numbers on notebook paper in the backseat.  The 16-digit numbers were broken into four sets of four numbers and there was also information the officer believed to be expiration dates.

The second officer woke the man when he arrived.  The officers identified the defendant and discovered he had a felony warrant and prior convictions for identity theft and other “fraud-related” crimes. The second officer conducted field sobriety tests and decided not to arrest the defendant for physical control of a vehicle while impaired.

The first officer continued to detain the defendant based on the outstanding warrant and possible fraudulent credit card numbers.  He read the defendant his Miranda rights and questioned him about the papers. The defendant initially denied knowing anything about them, but ultimately consented to the officer taking them out of the car.  When shown the documents, the defendant said he had borrowed them and did not know their meaning.

The officer arrested the defendant on the outstanding warrant.  Police found a credit card and debit card that were not the defendant’s and two EBT cards that did not have names.  The defendant was charged with second degree theft, possessing stolen property in the second degree, resisting arrest, and unlawful possession of payment instruments.

The defendant moved to suppress the documents found in the vehicle.  He argued the officer did not have a reasonable suspicion to detain him to investigate them.  The motion was denied.

The state dismissed the possession of stolen property and identity theft charges and the defendant pleaded guilty to resisting arrest.  The remaining charge of unlawful possession of payment instruments went to trial.

The state wanted to admit evidence of the defendant’s 2014 conviction for second degree identity theft, where the defendant was found in possession of someone else’s debit card, driver’s license, and social security card.  The state also wanted to admit evidence of a 2015 conviction for two counts of attempted forgery, where the defendant had been found in possession of checks belonging to another person. The state argued these prior convictions were for “identical crimes with identical requirements regarding intent” and showed the defendant intended to use the numbers for criminal activity.  The defendant argued they highly prejudicial and nothing more than propensity evidence.

The trial court found the prior convictions were relevant and probative toward intent.  The court found their probative value was not substantially outweighed by any risk of unfair prejudice.

A financial crimes detective testified two of the cards found in the defendant’s wallet had names that did not match any report of lost or stolen property in the county.  He also testified the number on the debit card had been marked or scratched out, which he said suggested fraud.  He also testified lists of apparent card numbers and expiration dates suggested fraud.  He said people try to find a valid card number by process of elimination because Mastercard and Visa bank cards start with the same four digits.

The court gave a limiting instruction to the jury that evidence of prior misconduct could only be considered for the purpose of intent.  The detective read the jury part of the affidavit of probable cause for the 2015 conviction and part of the defendant’s 2014 guilty plea.

The state argued the prior convictions showed the defendant’s intent to use the fictitious numbers in his possession to “generate new methods or a new capability to commit fraud.”  The defendant was convicted of unlawful possession of payment instruments and sentenced to electronic home monitoring for six months.


The defendant appealed, arguing the trial court erred in denying his motion to suppress.  He argued the officer had improperly extended the scope of his seizure, while the state argued the extension of the seizure was lawful.

An investigative detention constitutes a seizure and therefore must be reasonable. A seizure is reasonable when the officer has “a reasonable and articulable suspicion that the individual is involved in criminal activity.”  A reasonable suspicion must be based on “specific and articulable facts,” though the information does not have to be as reliable as necessary to establish probable cause.  It cannot just be a generalized suspicion; the facts must tie the individual to a specific crime. The scope and duration of a Terry stop are limited to the investigative purpose. An officer must stop the detention if the suspicions are dispelled, but may extend the scope and duration if those suspicions are confirmed.

The defendant was originally detained so officers could investigate if he was in physical control of a motor vehicle while impaired.  The appeals court acknowledged the field tests dispelled that suspicion, but the original officer had discovered the apparent credit card numbers in the meantime.  He also found out the defendant had prior convictions for identity theft and fraud.

The appeals court concluded specific and articulable facts supported the officer’s suspicion the defendant could be engaged in fraudulent behavior and that it was reasonable for him to extend the seizure to continue to investigate.  The appeals court concluded the consent to search occurred while the defendant was lawfully seized and was therefore not vitiated.

Prior Convictions

The defendant also argued the trial court erred in admitting the prior conviction evidence. Evidence of prior convictions is not admissible to prove a person’s character to show they acted in conformity with it. ER 404(b). Evidence of prior bad acts can be admitted for other limited purposes, however, including motive, intent, opportunity, or plan.

Such evidence is presumed inadmissible and the party seeking to admit it must show a proper purpose. The trial court must find the misconduct occurred, identify the purpose of the evidence, determine if the evidence is relevant to prove an element of the crime, and weigh its probative value against any prejudicial effect.

The state contended the prior bad acts evidence was presented to show the defendant’s intent.  The state must provide a theory of how the prior bad acts are tied to intent, other than propensity.  The trial court concluded the prior convictions were probative of intent because they showed the defendant knew how to commit identity theft and fraud with the information and cards he had.  The state did not, however, present any facts from the prior cases that the defendant had modified cards.  The detective provided only limited information regarding the prior convictions, that contained no nexus between those convictions and the current charges.  The appeals court concluded the only similarity between the prior convictions and the current case was the defendant and the evidence therefore only showed a propensity for the defendant to commit financial crimes.  The appeals court determined the trial court erred when it admitted the evidence. The appeals court further concluded under the circumstances it was reasonably probable the trial court’s error in admitting the evidence affected the trial outcome.  The appeals court reversed and remanded the case for a new trial.

Call an Experienced Washington Defense Lawyer

If you have been charged with a crime, a skilled Washington criminal defense attorney can help you fight to exclude improper evidence. Schedule a consultation with Blair & Kim, PLLC at (206) 622-6562.

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