Opinion
No. 25933-1-III.
May 6, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-1-04306-6, Jerome J. Leveque and Robert D. Austin, J., entered February 5 and March 12, 2007.
Affirmed by unpublished opinion per Stephens, J. Pro Tem., concurred in by Schultheis, C.J., and Sweeney, J.
Michael Alan Orman appeals his conviction for one count of possession of marijuana with intent to deliver. He contends the court erred by denying his motion to suppress. We affirm.
FACTS
At approximately 10:20 p.m. on October 7, 2006, Deputy Jeff Conway was patrolling the rural "Rimrock" area of Spokane County when he saw a vehicle on the side of a road. Report of Proceedings (RP) at 6. The vehicle was partially concealed by vegetation. Given the location of the vehicle and based on his knowledge that this was a high-crime area, the deputy stopped his patrol car to investigate. Deputy Conway approached the front of the vehicle and illuminated it with his spotlight. He saw Mr. Orman and his passenger, Megan Jones, in the car. The deputy then saw Mr. Orman "ducking and diving" with his hands in the seat area of the vehicle. RP at 15. The deputy ordered Mr. Orman and Ms. Jones to put their hands on the dashboard of the vehicle. Deputy Conway approached the vehicle and asked Mr. Orman to step out of the vehicle. When Mr. Orman opened the door, the deputy smelled marijuana. He arrested Mr. Orman. In the search incident to arrest, Deputy Conway found two baggies of marijuana, clear sandwich bags and a scale. Mr. Orman was charged with one count of possession of marijuana with intent to deliver.
On January 9, 2007, Mr. Orman moved to suppress the marijuana evidence. He argued that the deputy did not have an articulable suspicion to conclude that Mr. Orman was involved in any criminal activity and therefore the initial seizure was unlawful.
The court denied Mr. Orman's motion. The court determined that the requirements of a valid Terry stop were met, and that Mr. Orman's movements gave the deputy reasonable suspicion of criminal activity.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Following a bench trial, the court found Mr. Orman guilty as charged. This appeal follows.
ANALYSIS
When reviewing the denial of a suppression motion, we determine whether substantial evidence supports the findings of fact and whether the findings support the conclusions of law. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). This court gives great deference to a trial court's resolution of differing accounts of the circumstances surrounding the encounter set forth in its factual findings. Id. at 646. When challenged, findings entered in a CrR 3.6 suppression hearing are reviewed for substantial evidence. Id. at 644. "Evidence is substantial when it is sufficient to persuade a fair-minded person of the truth of the stated premise." State v. Reid, 98 Wn. App. 152, 156, 988 P.2d 1038 (1999).
"`As a general rule, warrantless searches and seizures are per se unreasonable.'" State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996) (quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980). Warrantless searches and seizures may, however, be reasonable under "a few `jealously and carefully drawn' exceptions." State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999) (quoting Houser, 95 Wn.2d at 149). Among those exceptions are brief investigative stops, also referred to as Terry stops. Terry, 392 U.S. at 21; State v. White, 97 Wn.2d 92, 105, 640 P.2d 1061 (1982). A Terry stop is permissible whenever the police officer has a reasonable suspicion, grounded in specific and articulable facts, that the person stopped has been or is about to be involved in a crime. State v. Glover, 116 Wn.2d 509, 513, 806 P.2d 760 (1991).
In evaluating the reasonableness of a Terry stop, courts consider the totality of the circumstances, including the officer's training and experience, the location of the stop, and the conduct of the person detained. Id. at 514. Other factors that may be considered in determining whether a stop was reasonable include "the purpose of the stop, the amount of physical intrusion upon the suspect's liberty, and the length of time the suspect is detained." State v. Williams, 102 Wn.2d 733, 740, 689 P.2d 1065 (1984).
A lawful Terry stop is limited in scope and duration to fulfilling the investigative purpose of the stop. If the results of the initial stop dispel an officer's suspicions, then the officer must end the investigative stop without further intrusion. Id. at 739-41. If, however, the officer's initial suspicions are confirmed or are further aroused, the scope of the stop may be extended and its duration may be prolonged. Id. at 739-40. Three factors must be considered "in determining whether an intrusion on an individual is permissible under Terry or must be supported by probable cause: (1) the purpose of the stop; (2) the amount of physical intrusion upon the suspect's liberty; and (3) the length of time the suspect is detained." State v. Wheeler, 108 Wn.2d 230, 235, 737 P.2d 1005 (1987).
Mr. Orman argues that the Terry stop was not justified because Deputy Conway could not articulate any facts showing a reasonable suspicion that he was committing a crime by being in his car. He relies on State v. Martinez, 135 Wn. App. 174, 143 P.3d 855 (2006), in support of his argument.
In Martinez, a police officer was patrolling the grounds of an apartment complex in a high crime neighborhood where several vehicle prowls had been reported. Id. at 177. While on patrol, the officer saw the defendant walking in the shadows from where several cars were parked. Id. The defendant was walking briskly and looking around nervously. Id. The officer asked the defendant if he lived in the apartment complex. Id. at 177-78. The defendant responded that he did not. Id. at 178. The officer ordered the defendant to sit down while he contacted dispatch. Id. The officer then patted the defendant down for weapons and felt a hard container. Id. He removed the container and saw that it held methamphetamine. Id. The defendant was arrested. Id. During the search incident to arrest, the officer found methamphetamine and a glass pipe in the defendant's pocket. Id. The defendant was charged with possession of methamphetamine. Id.
The defendant moved to suppress the evidence, arguing that the facts did not support a reasonable suspicion that he was engaged in criminal activity. Id. The trial court denied the motion finding that the totality of the circumstances justified the stop and frisk. Id. The defendant was convicted as charged. Id.
On appeal, the defendant argued that the officer did not have any particularized suspicion necessary to stop him. Id. The appellate court agreed and reversed the defendant's conviction, finding that the officer was patrolling the parking lot because of past problems and that he had no information linking the defendant to any crime at any time. Id. at 181-82. The court observed that there must be some suspicion of a particular crime or a particular person and that the officer's general suspicion that the defendant may have been up to no good was not enough to warrant a stop. Id. at 182.
Mr. Orman's case is distinguishable from Martinez. Unlike the facts in Martinez, Deputy Conway's attention was drawn to Mr. Orman's vehicle because he suspected that the vehicle was either stolen or abandoned, given where it was parked off the side of the road in rough terrain and tucked in the vegetation. Upon discovering that Mr. Orman and Ms. Jones were in the vehicle, Deputy Conway approached the car to ascertain what they were doing in such a rural area at night. The amount of intrusion on Mr. Orman's liberty at this point was minimal, especially considering that Mr. Orman remained in the vehicle during this time.
At the point that Deputy Conway saw Mr. Orman making "dark movements" and "ducking and diving" with his hands down into the seat area, however, a further Terry detention was justified because the deputy did not know whether Mr. Orman was reaching for a weapon or trying to hide something. At this point Deputy Conway had reasonable suspicion of criminal activity. See State v. Reid, 98 Wn. App. 152, 158, 988 P.2d 1038 (1999) (stating that the scope of an investigative stop may be enlarged or prolonged by the circumstances where further suspicions are aroused). Mr. Orman does not challenge the events that followed once the deputy smelled marijuana and placed Mr. Orman under arrest. In these circumstances, Mr. Orman's motion to suppress the marijuana evidence was properly denied.
CONCLUSION
We hold Deputy Conway's actions in investigating Mr. Orman's vehicle while parked off the road and tucked in the vegetation did not exceed the scope of a valid Terry stop. The trial court did not err by denying the motion to suppress.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Schultheis, C.J., Sweeney, J., CONCUR.