Opinion
No. 26999-0-III.
January 6, 2009.
Appeal from a judgment of the Superior Court for Franklin County, No. 07-1-50265-2, Vic L. VanderSchoor, J., entered March 25, 2008.
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, C.J., and Korsmo, J.
UNPUBLISHED OPINION
The State appeals the trial court's decisions to grant evidence suppression and dismiss the prosecution against Gilbert Perez, Jr. We agree with the trial court that Pasco Police Officer Sourideth Thatsana lacked sufficient informant information to justify the vehicle stop under the facts of this case, and affirm.
FACTS
Most facts are unchallenged, and therefore, are verities on appeal. See State v. Veltri, 136 Wn. App. 818, 821, 150 P.3d 1178 (2007) (stating "[unchallenged findings of fact are verities on appeal"). Christian Ubay was Officer Thatsana's prime suspect in his laptop computer theft investigation. Mr. Ubay was visiting the victim's house the day the laptop was discovered missing by the victim's brother. The victim's brother and a friend of Mr. Ubay opined that Mr. Ubay was the only person at the house at the time the laptop went missing. No one witnessed the crime.
The record identifies the victim solely as "Miguel."
On December 31, 2006, Officer Thatsana assisted another officer in a traffic stop. Officer Thatsana informed Mr. Ubay, the passenger, that he was a suspect in the theft investigation. Mr. Ubay responded he knew the victim, and that he did not take the laptop, but believed Mr. Perez, his sister's boyfriend, did. Mr. Ubay surmised that on the day he visited the victim's house, Mr. Perez must have entered the house and taken the laptop while others were in another room. Mr. Ubay quoted Mr. Perez as admitting to stealing the laptop and selling it. In addition, Mr. Ubay said Mr. Perez displayed the money he received from selling the laptop.
After speaking to Mr. Ubay, Officer Thatsana called the victim. The victim told Officer Thatsana he believed he would have heard someone coming into the house the day the computer was stolen.
While detained by Officer Thatsana, Mr. Ubay offered to assist him in locating Mr. Perez, informing him Mr. Perez was at his sister's house. While Mr. Ubay and Officer Thatsana were driving toward that location in Officer Thatsana's vehicle, Mr. Ubay spotted Mr. Perez driving a car and pointed him out to Officer Thatsana. Instead of continuing to the house, Officer Thatsana stopped Mr. Perez's vehicle in order to speak to him regarding his role in the theft of the laptop.
While speaking to Mr. Perez, Officer Thatsana discovered he had a warrant for his arrest. Mr. Perez was placed under arrest. After Officer Thatsana asked if any weapons were in the vehicle, Mr. Perez, a convicted felon prohibited from possessing a firearm, responded that a rifle was present and Officer Thatsana retrieved it.
The State charged Mr. Perez with one count of second degree unlawful possession of a firearm. Mr. Perez moved to suppress the rifle found in his vehicle.
At the suppression hearing, Officer Thatsana related that he questioned Mr. Ubay about the laptop theft after advising him of his Miranda rights. Mr. Ubay stated he learned of Mr. Perez's involvement from his sister, who "said that Mr. Perez told that he did steal it and showed I guess the money that he sold the laptop to somebody else." Report of Proceedings (RP) (Feb. 26, 2008) at 6. The officer testified he did not know if Mr. Perez knew the victim, and he did not recall if he asked the victim whether he knew Mr. Perez. Mr. Ubay voluntarily agreed to take the officer to his sister's house, although he was still detained at that time. Officer Thatsana testified the victim stated on the day of the theft "he didn't hear anyone coming inside the house." RP (Feb. 26, 2008) at 7. Officer Thatsana testified that after speaking to both Mr. Ubay and the victim, Mr. Ubay remained his prime suspect in the laptop theft.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The trial court granted the suppression motion and entered written findings of fact and conclusions of law. The trial court concluded "[t]here was not sufficient reliable evidence to support a Terry[] stop and detention" of Mr. Perez. Clerk's Papers (CP) at 11. On the State's motion, the trial court then found the suppression order effectively terminated the State's case, and dismissed the case. The State appealed.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
ANALYSIS
The issue is whether the trial court erred in concluding insufficient reliable evidence supported Mr. Perez's Terry seizure and granting his suppression motion.
We review challenged findings of fact on a suppression motion for substantial evidence. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). "Unchallenged findings of fact are verities on appeal." Veltri, 136 Wn. App. at 821. We review a trial court's conclusions of law de novo, and "conclusions of law must be supported by its findings of fact." Id. Thus, because the State does not assign error to any of the findings of fact entered by the trial court, our review "is limited to a de novo determination of whether the trial court derived proper conclusions of law from those findings." State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997).
A traffic stop is a "seizure" for purposes of our constitutional analysis. State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999). "Generally, under the Fourth Amendment, a police officer's . . . seizure of a crime suspect must be supported by a judicial warrant based on probable cause." State v. Acrey, 148 Wn.2d 738, 745-46, 64 P.3d 594 (2003). Accordingly, under the Fourth Amendment, a warrantless seizure is presumptively unreasonable. Id. at 746. Nonetheless, "this presumption of unreasonableness may be rebutted by a showing that a specific exception to the Page 5 warrant requirement applies in the case under consideration." Id. The State has the burden to show a warrantless seizure falls under one of these specific exceptions. Id.
One warrant exception is for "brief investigative stops, also referred to as `stop and frisk' searches or ` Terry stops.'" Id.; see also Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Under this exception, "[a] police officer may conduct an investigative stop based upon less evidence than is needed for probable cause to make an arrest." Id. at 746-47. Such a 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." Id. at 747.
An informant's tip can provide a police officer with such suspicion if the tip "possesses sufficient `indicia of reliability.'" State v. Sieler, 95 Wn.2d 43, 47, 621 P.2d 1272 (1980). "Indicia of reliability" is present when the following two-prong test is satisfied: "(1) knowledge that the source of the information is reliable, and (2) a sufficient factual basis for the informant's tip or corroboration by independent police observation." State v. Jones, 85 Wn. App. 797, 799-800, 934 P.2d 1224 (1997) (citing Sieler, 95 Wn.2d at 47-49; Campbell v. Dep't of Licensing, 31 Wn. App. 833, 835, 644 P.2d 1219 (1982)). In addition, the reasonableness and extent of police intrusion "must be considered in light of the particular circumstances facing the law enforcement officer." State v. Lesnick, 84 Wn.2d 940, 944, 530 P.2d 243 (1975).
In Sieler, an unknown, but named, informant, after witnessing what he believed was a drug sale in a car parked in a high school parking lot, telephoned the school secretary and conveyed this conclusion. Sieler, 95 Wn.2d at 44-45. The informant also described the car and its license plate number. Id. Police officers responding to the scene had solely this information; they did not know why the informant concluded a drug sale occurred. Id. at 45. The officers nonetheless contacted the occupants of the car. Id. On review, our Supreme Court held the occupants' motion to suppress evidence found in the car should have been granted, because "the police simply could not have formed a well founded suspicion of criminal activity by the [occupants]." Id. at 50.
Analyzing the first prong of the reliability test, the court concluded the informant was not reliable, because a telephone informant "could easily fabricate an alias, and thereby remain, like an anonymous informant, unidentifiable." Id. at 48. The court found, even if the informant was known and identified, the second prong of the reliability test could not be satisfied. Id. at 48-50. Based on an insufficient factual basis, "[t]he police conducted an investigatory detention" using the "informant's bare conclusion unsupported by any factual foundation known to the police." Id. at 49. And, the police officers did not corroborate the informant's tip. Id. at 49-50. The court reasoned, "[p]rior to their approach to the car, [the officers] did not observe any conduct which tended to corroborate the informant's tip that criminal activity was present." Id. at 49.
Here, Mr. Ubay told Officer Thatsana that Mr. Perez took the laptop. While Mr. Ubay was a known, named informant, Mr. Ubay's reliability is questionable because his disclosure came after Officer Thatsana informed him he was a theft suspect. Deflecting responsibility onto another person does not establish reliability. Nothing in the record suggests Officer Thatsana had obtained reliable information from Mr. Ubay in the past or that any other indicator of reliability existed. Cf. State v. Kennedy, 107 Wn.2d 1, 8, 726 P.2d 445 (1986) (previous informant tips led to warrant and conviction).
Here, even assuming the first prong of the reliability test could be met, the State cannot establish the second prong, either "a sufficient factual basis for the informant's tip or corroboration by independent police observation." Jones, 85 Wn. App. at 799-800 (citing Sieler, 95 Wn.2d at 47-49; Campbell, 31 Wn. App. at 835).
First, Officer Thatsana did not have a factual basis for Mr. Ubay's tip. The victim told Officer Thatsana he believed he would have heard someone coming into the house the day of the theft, and "he didn't hear anyone come inside the house" that day. RP (Feb. 26, 2008) at 7. Nothing shows Mr. Perez and the victim knew each other or were in any way connected. The hearsay defects are highlighted by Officer Thatsana's testimony that Mr. Ubay stated he learned of Mr. Perez's involvement from his sister. Moreover, Mr. Ubay remained his prime theft suspect after he spoke to Mr. Ubay and the victim. Second, Officer Thatsana did not independently corroborate Mr. Ubay's tip.
Considering all, Mr. Ubay's tip did not possess sufficient indicia of reliability to give Officer Thatsana reasonable suspicion that Mr. Perez "has been or is about to be involved in a crime." Acrey, 148 Wn.2d at 747; see also Jones, 85 Wn. App. at 799-800 (two-prong test for sufficient "indicia of reliability") (citing Sieler, 95 Wn.2d at 47-49; Campbell, 31 Wn. App. at 835). Thus, Officer Thatsana's traffic stop of Mr. Perez was not justified under the Terry stop exception of the warrant requirement. See Acrey, 148 Wn.2d at 746-47. Accordingly, the fruit of the subsequent search of Mr. Perez's vehicle, namely, the rifle, is inadmissible as fruits of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).
The trial court did not err in granting Mr. Perez's suppression motion.
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 and KORSMO, JJ., concur.