Opinion
No. 33008-3-II.
Filed: April 11, 2006.
Appeal from Superior Court of Pierce County. Docket No: 04-1-01250-5. Judgment or order under review. Date filed: 03/04/2005. Judge signing: Hon. Thomas J. Felnagle.
Counsel for Appellant(s), Stephanie C. Cunningham, Attorney at Law, 4616 25th Ave NE # 552, Seattle, WA 98105-4183.
Counsel for Respondent(s), Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171
UNPUBLISHED OPINION
Kirk Edward Larson appeals multiple robbery and assault convictions. He argues that the trial court erred in denying his CrR 3.6 motion to suppress evidence seized when a police officer stopped his car in connection with a robbery because (1) in determining whether the stop was valid, the trial court improperly considered information the officer had obtained before the stop; and (2) even if the trial court properly considered this information, the facts did not justify the initial stop. Larson raises additional issues in a pro se Statement of Additional Grounds for Review (SAG).
RAP 10.10.
We hold that the State established a sufficient factual basis for the information on which the detaining officer relied, the facts support the trial court's conclusion of law that the detaining officer had a reasonable articulable suspicion that Larson was involved in a recent robbery, and Larson's pro se arguments are without merit. Therefore, we affirm.
FACTS I. Robbery Report and Investigatory Stop
At approximately 1:15 a.m., Officer Ryan Lane heard a police dispatch report of an armed robbery at an Exxon gas station located at 1730 S. 72nd Street in Tacoma. The dispatch described the robbery suspect 'as a white male, approximately 40-45 years old, six feet tall, thin build, wearing a black jacket and black hat.' The dispatch also advised that the suspect had pretended to purchase a candy bar as a ruse to prompt the clerk to open the cash register before demanding the money.
Lane was in the vicinity of 84th and Hosmer in Tacoma when he heard this dispatch report. He had already heard about previous Pierce County robberies and was aware Pierce County had advised that a blue Camaro was a vehicle of interest in one of these other robberies. Accordingly, as he drove in the general direction of the recently-robbed Exxon station, he watched for a blue Camaro.
Lane noticed a blue Camaro turn from 84th Street onto Hosmer, heading away from the Exxon station. Lane observed that the driver, later identified as Larson, was a white male who generally fit the physical description of the robbery suspect and that the driver was wearing a black jacket and eating a candy bar.
Lane turned his patrol car around and pulled alongside the Camaro to verify that Larson fit the general description of the robbery suspect. According to Lane, when Larson noticed the patrol car, Larson 'immediately had a startled look on his face,' drove into a motel parking lot 'in a hasty manner,' and stopped, further arousing Lane's suspicions. Lane followed the Camaro into the parking lot and parked behind it.
Larson, who was apparently intoxicated, jumped out of the Camaro. During his initial contact with Larson, Lane looked into the Camaro and observed a pile of loose money, a black hat, and a candy wrapper in plain view on the front passenger seat. After a physical struggle, Lane placed Larson in the patrol car and once again looked in through the Camaro's window. This time, Lane noticed the barrel of a gun sticking out from under the pile of money. Lane arrested Larson for the Exxon station robbery.
II. Procedure
After some additional investigation, the State charged Larson with six counts of first degree robbery, including the March 14 Exxon robbery, and six counts of second degree unlawful possession of a firearm. The State also charged a firearm enhancement related to the Exxon robbery.
Counts I, III, V, VII, IX, and XI.
Count I.
Counts II, IV, VI, VIII, X, and XII.
Larson moved to suppress the evidence discovered in his Camaro. He argued that the initial stop was unlawful because Lane lacked reasonable suspicion to believe that he had been involved in the Exxon station robbery and the connection between the robbery and blue Camaro found nearby was questionable. The trial court disagreed, ruling:
This reasonable and articulable suspicion was based on the facts that the defendant matched the description of the robber, was driving away from the robbery immediately after the robbery, and was driving a vehicle associated with recent similar robberies.
Clerk's Papers at 38.
Larson waived his right to a jury trial, and the trial court heard the case on stipulated facts. The trial court found Larson guilty as charged.
Larson appeals.
ANALYSIS I. Standard of Review
We review a trial court's denial of a suppression motion by determining whether substantial evidence supports the challenged findings of fact and whether these findings support the trial court's conclusions of law. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). We consider any unchallenged findings of fact verities on appeal. And we review questions of law de novo. Mendez, 137 Wn.2d at 214; State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
II. Investigative Stop A. Factual Foundation
Citing State v. O'Cain, 108 Wn. App. 542, 31 P.3d 733 (2001), Larson first argues that, in ruling on his suppression motion, the trial court erred in considering Lane's knowledge that a blue Camaro was a vehicle of interest in a prior robbery because the State failed to establish a sufficient factual foundation.
Larson also cites State v. Gaddy, 114 Wn. App. 702, 60 P.3d 116 (2002), aff'd 152 Wn.2d 64 (2004). Although the Gaddy court applied the foundational rule discussed in O'Cain, Gaddy involved information that Gaddy's license had been suspended, which the Department of Licensing had provided to the officer who stopped her vehicle. This information was presumptively reliable, and Gaddy did not rebut it. Gaddy, 114 Wn. App. at 708.
In O'Cain, a trooper observed what appeared to be drug activity in a store parking lot, and he ran the license plate of one of the cars involved in the suspicious activity. O'Cain, 108 Wn. App. at 546. When dispatch informed the trooper that the car had been reported stolen, the trooper and other officers stopped the car. O'Cain, 108 Wn. App. at 546-47. The officers found a gun under the defendant's seat. O'Cain, 108 Wn. App. at 547. Division One of this court reversed O'Cain's conviction of first degree unlawful possession of a firearm, holding that the State had failed to establish a sufficient factual foundation for the information dispatch had provided to the trooper:
When evidence is uncovered during a warrantless seizure based on a police dispatch that a particular vehicle has been reported stolen, the admissibility of the evidence turns on whether the State can prove at a subsequent suppression hearing that the police dispatch was based on a sufficient factual foundation to support the kind of seizure at issue — probable cause in the event of an arrest, or well-founded suspicion based on articulable facts in the event of an investigative stop. Officers who act on the basis of the dispatch are not required to have personal knowledge of the factual foundation, and are not expected to cross-examine the dispatcher about the foundation for the transmitted information before acting on it. Rather, the collective knowledge of law enforcement agencies giving rise to the police dispatch will be imputed to the officers who act on it. If the resulting seizure is later challenged in court, the State cannot simply rely on the fact that there was such a dispatch, but must prove that the dispatch was based on a sufficient factual foundation to justify the stop at issue.
O'Cain, 108 Wn. App. at 544-45 (emphases added).
Larson argues that an adequate foundation was similarly lacking here because there was no direct link between the prior robbery and the blue Camaro found near the store that had previously been robbed. Even assuming, without deciding, that O'Cain's foundational requirement applies here, we disagree.
In O'Cain, the only information supporting the search was the dispatch report that the car had been stolen. Thus, the O'Cain court held that the State had to prove that the factual basis of the dispatch was sufficient factual foundation to justify the stop at issue.
Here, Lane did not rely solely on the information supplied by dispatch; he also relied on his own independent observations. Thus, the issue is the admissibility of the information Lane obtained from dispatch, not whether that information alone justified the stop.
The State presented testimony from Detective Lawrence Weiland, a public safety officer from the Town of Steilacoom, who had investigated an armed robbery of the Steilacoom Food Mart on March 2, 2004. Shots had been fired during this earlier robbery.
Weiland testified that while investigating the Steilacoom Food Mart robbery, another officer informed him that at the time the Food Mart robbery occurred he was investigating an illegally parked, unoccupied blue Camaro. The car was parked near the Food Mart, and the officer suspected the car was possibly the robbery suspect's vehicle. Weiland further testified that he sent this information out to other local law enforcement via a bulletin.
Although Larson correctly notes that there was no direct link between the Food Mart robbery and the blue Camaro found nearby, the information on which Lane relied did not conclusively state that the Camaro had been involved in the prior robbery; rather this information was only that the Camaro was a vehicle of interest in that robbery. Weiland's testimony established that the information was provided to other area law enforcement via a bulletin and that the information in the bulletin was based on his personal knowledge. Thus, Weiland's testimony provided an adequate factual basis, and the trial court did not err in considering this evidence.
In his SAG, Larson argues that the trial court should not have considered Lane's knowledge about the blue Camaro because there was nothing in the record showing that the information Lane relied on related to Weiland's report or the Food Mart robbery. Again, we disagree.
Larson is correct that Lane was not specific about when he had learned of the prior robbery or the blue Camaro's possible involvement, but Lane's testimony does show that he had heard this information before he saw Larson's blue Camaro. Larson is also correct that Lane had heard about more than one recent robbery in Pierce County and that he was not specific about where the robbery involving the blue Camaro occurred. But Lane also testified that the blue Camaro was a vehicle of interest in only one Pierce County robbery.
Furthermore, Larson did not object to any of Weiland's testimony on the basis of relevancy. The facts Weiland presented matched those Lane described. We hold, therefore, that the evidence was sufficient to support the trial court's conclusion that the report Lane had heard was based on the information Weiland had provided.
In his SAG, Larson cites information about two other Pierce County robberies on March 13 and 14, 2004. But this information is outside the record and, therefore, we cannot consider it on appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
B. Reasonable Suspicion
Larson next argues that even if the trial court did not err in considering Weiland's earlier information about the blue Camaro, the initial detention was still not justified. Again, we disagree.
In the absence of probable cause to arrest, police may conduct a brief investigative detention known as a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). To satisfy constitutional requirements, a Terry stop must be based on 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' Mendez 137 Wn.2d at 223 (quoting Terry, 392 U.S. at 21). The level of articulable suspicion required is 'a substantial possibility that criminal conduct has occurred or is about to occur.' Mendez, 137 Wn.2d at 233 (quoting State v. Kennedy, 107 Wn.2d 1, 726 P.2d 445 (1986)). Courts examine the reasonableness of the officer's suspicion based on the totality of the circumstances known to the officer at the time of the initial detention. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991).
Here, Lane knew that a blue Camaro was a 'vehicle of interest' related to a previous armed robbery. Lane observed Larson driving a blue Camaro heading away from the scene of a recent armed robbery. Lane had a general description of the recent robber and his clothing, which general description Larson appeared to fit. Lane knew the robber had stolen a candy bar during the recent robbery and he observed Larson eating a candy bar. And when Larson noticed Lane's patrol car, Larson appeared startled, immediately turned into a parking lot, and jumped out of the blue Camaro.
Although any one of these facts taken alone might not have justified the stop, taken as a whole, they support the trial court's conclusion that Lane had a reasonable articulable suspicion that Larson had been involved in the Exxon robbery and that the initial stop was justified.
III. Additional SAG Issues
Larson raises several additional issues in his SAG. First, he argues that the trial court erred when it found that Lane was able to see him well enough to conclude that Larson matched the recent robber's physical description. But Lane testified he could
see Larson well enough to determine that Larson generally matched the robber's description dispatch had provided, even though dispatch's description and his own observations were somewhat vague. Whether the trial court found Lane's testimony sufficient involves issues of credibility and weight. On appeal, we defer to the trial court on issues of credibility and weight. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Hayes, 81 Wn. App. 425, 430, 914 P.2d 788, review denied, 130 Wn.2d 1013 (1996). Accordingly, this argument fails.
Second, Larson argues that the trial court erred in finding reasonable suspicion because (1) he had a legitimate reason for turning into the motel parking lot, staying at the motel; and (2) he did nothing erratic or unusual suggesting criminal activity. In contrast, Lane testified that Larson quickly turned into the motel parking lot in startled response to the officer's sudden presence. As was its prerogative, the trial court found Lane's testimony more credible than Larson's on this point. Again, we defer to the trial court's credibility determinations. Camarillo, 115 Wn.2d at 71; Hayes, 81 Wn. App. at 430. Thus, this argument also fails.
Third, Larson argues that the trial court should have excluded Weiland's testimony because it related to the Food Mart robbery, not to the Exxon robbery. Weiland's testimony was clearly relevant to Lane's reliance on the prior report alerting him that a blue Camaro was a vehicle of interest in a prior robbery. We hold, therefore, that the trial court did not abuse its discretion in admitting this testimony.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, C.J. and VAN DEREN, J., concur.