Opinion
No. 65475-6-I.
Filed: May 2, 2011.
Appeal from a judgment of the Superior Court for King County, No. 09-8-04534-0, Christopher A. Washington, J., entered May 11, 2010.
Affirmed by unpublished opinion per Schindler, J., concurred in by Cox and Lau, JJ.
Police may perform a protective frisk for weapons if a reasonably prudent person in the same circumstances would be warranted in believing their safety was in danger. Because the circumstances in this case warranted such a belief, the police lawfully frisked S.S. and the juvenile court properly denied his motion to suppress. We affirm his convictions for unlawful possession of a firearm and possession of marijuana.
FACTS
Based on a firearm and marijuana discovered during a protective search of S.S., the State charged him with one count of first degree unlawful possession of a firearm and possession of marijuana. S.S. moved to suppress the evidence, arguing that the protective search was unlawful.
Testimony at the suppression hearing established that on December 27, 2009, Federal Way officers responded to a report of a fight in a parking lot involving 12 intoxicated juvenile males. A follow-up report indicated that the individuals involved in the fight were leaving the scene in a red Honda Civic.
A short time later, Federal Way Police Officer Sheldon Rodriguez stopped the Honda in a high crime area known for "violence based calls." For safety reasons, he ordered the occupants out of the car, had them stand next to a nearby fence, and waited for other officers to arrive.
There were four females and three males in the car. Although they obeyed Officer Rodriguez's requests, some of them were reluctant to leave the car. Rodriguez did not notice any furtive movements or negative behavior but admitted he did not keep an eye on all of them after other officers arrived.
Officer Robert Guillermo arrived at the scene and noticed that the three males were standing in a "fighting stance," which he described as "spread legs, arms slightly raised away from waist, chin up and glare." Guillermo also observed another officer seize a can of pepper spray and a bullet round dangling from the belt of one of the males.
Officer Aaron LuBrant arrived shortly before the juveniles were frisked. He recalled hearing from another officer that some of them were being belligerent and aggressive.
The officers decided to frisk the juveniles for weapons. According to Officer Guillermo, the decision was based on the violent nature of the dispatch report, the allegation that alcohol was involved, the males' aggressive demeanor toward the officers, and the discovery of the pepper spray and bullet round.
In a frisk of S.S. police recovered a loaded handgun. Officer LuBrant arrested him for unlawful possession of a firearm. In a search incident to arrest Officer LuBrant seized several small plastic bags of marijuana.
At the hearing on the motion to suppress, S.S. argued in part that the officers did not articulate a reasonable safety concern. The court denied the motion and, following argument, found S.S. guilty as charged.
ANALYSIS
The sole issue on appeal is whether the trial court erred in upholding the protective frisk of S.S. and denying his motion to suppress. Our review is limited to determining whether substantial evidence supports any challenged findings and whether the findings support the conclusions of law. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). We review the conclusions of law de novo. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
A nonconsensual protective frisk is warranted if a "`reasonable safety concern exists'" and there is an objectively reasonable belief, based on specific and articulable facts, that the suspect is armed and dangerous. State v. Harrington, 167 Wn.2d 656, 667, 222 P.3d 92 (2009) (quoting State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993)). An officer need not be convinced that an individual is in fact armed; it is sufficient "that a reasonably prudent person in the same circumstances would be warranted that their safety, or that of others, was in danger." Harrington, 167 Wn.2d at 668; State v. Belieu, 112 Wn.2d 587, 602, 773 P.2d 46 (1989). Our courts have emphasized that the Constitution does not require officers to wager their physical safety against the odds that a suspect is actually unarmed. Belieu, 112 Wn.2d at 602 n. 3. Courts should consider the entirety of the circumstances in determining the validity of a protective search. State v. Glossbrener, 146 Wn.2d 670, 679, 49 P.3d 128 (2002).
Applying these principles, we conclude that a reasonable person in the officers' circumstances would be warranted in believing that their safety was in danger. The report of a fight between intoxicated individuals in an area known for violence, the hesitance of some of the occupants to leave the car, Officer Rodriguez's inability to see their hands before they left the car, the aggressive fighting stance of the males immediately prior to the frisk, the pepper spray and bullet round possessed by one of the individuals, and the fact that the officers were outnumbered created a reasonable safety concern. Accordingly, the frisk was justified, and the trial court did not err in denying the motion to suppress.
See generally State v. Bailey, 109 Wn. App. 1, 34 P.3d 239 (2000) (frisk upheld where officers were outnumbered and suspects were standing next to liquor bottles, at least one of which was hidden inside a paper bag); State v. Laskowski, 88 Wn. App. 858, 859-60, 950 P.2d 950 (1997) (where suspect "was part of a group reported to be acting suspiciously," court held "the officer could reasonably consider all facts known or observed about any member of the group" in deciding whether to frisk suspect; companion's possession of shotgun shell was a fact supporting frisk); State v. Miller, 91 Wn. App. 181, 185, 955 P.2d 810 (1998) (frisk upheld where suspect attempted to flee, refused to turn around and remove hands from pockets, and encounter occurred late at night in high crime area); State v. Sweet, 44 Wn. App. 226, 234-35, 721 P.2d 560 (1986) (relying on Louisiana decision upholding frisk in part because encounter occurred in high crime area where violent crimes were common).
S.S. assigns error to Finding of Fact 17, which states, in pertinent part: "Officer LuBrant recollected that some of the occupants were acting aggressive and belligerent." He contends this finding is not supported by substantial evidence because LuBrant did not witness the aggressive and belligerent behavior but rather, merely heard about it from another officer. But the finding does not state that LuBrant witnessed the behavior. And to the extent it implies that he did, any error was harmless. S.S. does not claim that Officer LuBrant could not testify to what he heard and, in any event, LuBrant's testimony was essentially cumulative of other testimony regarding the juveniles' aggressive behavior.
Affirmed.