Opinion
No. 62734-1-I.
February 22, 2010.
Appeal from a judgment of the Superior Court for King County, No. 07-2-23856-5, Bruce Heller, J., entered November 14, 2008.
Reversed and remanded by unpublished opinion per Lau, J., concurred in by Schindler, C.J., and Appelwick, J.
While investigating a possession of drug paraphernalia complaint, City of Bothell police obtained a search warrant and recovered cocaine, heroin, methamphetamine, and electronic scales from inside Robert Wallace's car. He challenges the forfeiture of his car under RCW 69.50.505, which provides for the forfeiture of property connected to unlawful drug activities. Because the search of his car impermissibly exceeded the initial justification for the Terry stop — to investigate possession of drug paraphernalia — we reverse the forfeiture order relating to Wallace's car.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
FACTS
The essential facts are undisputed. On April 27, 2006, Bothell Police Officer Glen Chissus was dispatched to investigate a complaint about drug paraphernalia. The 911 operator told officer Chissus that a Kinko's store employee had called 911 to report that two people were inside her store and one of them had dropped a drug pipe. The employee was still on the phone with the 911 operator as Officer Chissus began driving toward the store. She provided her name and contact information. Through the operator, Officer Chissus asked her to describe the pipe and she said it was a "long, yellow [hose] with a glass tube at the end that looks like it was burnt." Officer Chissus noted that based on his training and experience, this was consistent with a pipe used to smoke or ingest methamphetamine.
Before he reached the store, the operator relayed to Officer Chissus that the suspects were leaving. The employee described them as a male, six feet tall, with a "mullet" hairstyle, wearing a jeans jacket; and a female, five foot seven, with black hair, wearing pajama bottoms. She described their car as a white Mercedes Benz and reported its license plate number. As Officer Chissus arrived in the area, he saw a white Mercedes coming towards him, made a u-turn, and began following the car. He noted that the car's license plate number matched the employee's report. Soon after this, the car pulled into a nearby retail parking lot. Officer Chissus briefly flashed his emergency lights and parked his patrol car directly behind the Mercedes.
As Officer Chissus approached, Wallace got out of the car. Noting that he matched the description given by the Kinko's employee, Officer Chissus directed him to stand with his hands placed on the roof of the car while he began questioning the female passenger, who also matched the employee's description. Officer Chissus identified her as Bobbi De-Anne Mosier and explained the 911 complaint he had received. She told him that she had been at Kinko's, but she denied dropping a drug pipe there. Wallace also denied any involvement with the drug pipe.
Around this time, Bothell Police Officer Jimmy Potts arrived at the scene. Officer Chissus asked him to contact the Kinko's employee and obtain the drug pipe. Officer Potts spoke with the employee and learned that she did not actually see anyone drop the pipe. Rather, a customer had handed her the pipe, pointed to two people, claimed they dropped the pipe, and suggested she call the police. The customer left her name and telephone number with the store employee, and Officer Potts called her from the store.
The customer told him that she had gone outside to smoke a cigarette when a Mercedes Benz pulled into the parking lot. A man and woman got out of the car and entered the store. When she re-entered the store, she immediately noticed the pipe on the floor inside the doorway. She told Officer Potts that no one else entered the store while she was outside and she was certain the pipe was not there when she walked out of the store moments earlier. She picked up the pipe and took it to the store employee. As she passed the man and woman, the woman exclaimed, "Oh my God, is that mine?" Officer Potts looked at the pipe and confirmed, based on his training and experience, that it was a drug pipe commonly used to ingest methamphetamine. He conveyed all of this information to Officer Chissus.
The undisputed record shows that Officer Chissus's investigation then turned to whether there were drugs in Wallace's car. He asked Mosier and Wallace whether they used drugs. Mosier admitted to using cocaine sometimes. Wallace admitted to using drugs in the past but denied using them any longer. Officer Chissus asked Wallace to consent to a search of his car and Wallace declined. Officer Chissus then called a narcotics canine to the scene. When the dog arrived, it alerted on the car to indicate the possible presence of drugs. Officer Chissus impounded the car and told Wallace and Mosier they were free to go. He obtained a search warrant and drugs were found inside the car. Wallace unsuccessfully contested the forfeiture of his car to the City of Bothell in Bothell Municipal Court and later in King County Superior Court. This appeal followed.
And Wallace does not contend that Officer Chissus's detention of Wallace and Mosier, which lasted less than 20 minutes, rose to the level of an arrest.
ANALYSIS
Wallace contends Officer Chissus violated his rights under the state and federal constitutions because the officer did not have enough reliable information to justify the initial stop or to expand his investigation into a general search for drugs. Consequently, he argues, the drug evidence found in his car should have been suppressed as "fruit of the poisonous tree." And illegally obtained evidence cannot be used in forfeiture proceedings. City of Walla Walla v. $401,333.44, 150 Wn. App. 360, 365, 208 P.3d 574 (2009).
Wallace also contends the stop was improper because Officer Chissus did not have lawful authority to arrest him or Mosier for the misdemeanor of drug paraphernalia possession because it was not committed in his presence. Because we resolve the case on other grounds, we do not reach this issue.
Under RCW 69.50.505(d), vehicles can be subject to seizure and forfeiture if they are used to facilitate the sale, delivery, or receipt of controlled substances. A person can contest the forfeiture and "shall be afforded a reasonable opportunity to be heard." RCW 69.50.505(5). The hearing and any appeal fall under the Washington Administrative Procedures Act (WAPA), chapter 34.05 RCW. Under WAPA, this court may reverse an order that violates a constitutional provision. RCW 34.05.570(3)(a). An order of forfeiture that relies on illegally obtained evidence is constitutionally impermissible. See City of Walla Walla, 150 Wn. App. at 365 ("The Fourth Amendment's exclusionary rule applies to forfeiture proceedings and so precludes the use of illegally obtained evidence in those proceedings."). Where, as here, the facts are not disputed, the issue of whether evidence should have been suppressed is a question of law, reviewed de novo. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002).
In general, warrantless seizures violate both state and federal constitutions. State v. Ladson, 138 Wn.2d 343, 349-50, 979 P.2d 833 (1999). But there are exceptions to this general rule, including an investigatory detention or Terry stop. State v. Lee, 147 Wn. App. 912, 916, 199 P.3d 445 (2008), review denied, 166 Wn.2d 1016 (2009). "To justify a Terry stop under the state and federal constitutions, there must be some suspicion of a particular crime connected to the particular person, rather than a mere generalized suspicion that the person detained may have been up to no good." State v. Bliss, No. 37393-9-II, 2009 WL 3823332 (Nov. 17, 2009). A police officer must have a "reasonable suspicion," based on specific and articulable facts, that the person stopped has been or is about to be involved in a crime. State v. Dorey, 145 Wn. App. 423, 429, 186 P.3d 363 (2008).
The reasonable suspicion standard is a lower standard than the probable cause standard. Lee, 147 Wn. App. at 921-22. When determining whether the officer has reasonable suspicion, the court considers the totality of the circumstances known to the officer at the inception of the stop. State v. Rowell, 144 Wn. App. 453, 457, 182 P.3d 1011 (2008). This includes consideration of the officer's training and experience. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). Reasonable suspicion may also be based on information supplied by an informant, but the informant's tip must possess sufficient "`indicia of reliability.'" Lee, 147 Wn. App. at 918 (quoting State v. Sieler, 95 Wn.2d 43, 47, 621 P.2d 1272 (1980)). The primary factors a court considers when evaluating whether indicia of reliability exist are "(1) whether the informant is reliable, (2) whether the information was obtained in a reliable fashion, and (3) whether the officers can corroborate any details of the informant's tip." Lee, 147 Wn. App. at 918.
Here, Officer Chissus had reasonable suspicion to justify the initial stop based on a report of unlawful possession of drug paraphernalia. At the time he initially detained Wallace and Mosier, he knew a Kinko's employee reported that a man and woman had just dropped a drug pipe in her store. He also knew the employee's name and contact information, as well as her employer. Such a citizen informant can be inherently reliable for purposes of a Terry stop. State v. Conner, 58 Wn. App. 90, 96, 791 P.2d 261 (1990). Officer Chissus also verified this information. He asked the employee to describe the pipe because she was still on the phone with the 911 operator and had the pipe in her possession. Her description was consistent with a methamphetamine pipe, based on his training and experience. She also gave a detailed description of the individuals and their car, including its make and license plate number, and stated that they were leaving the store as Officer Chissus approached. In addition, he corroborated part of her report when he saw a white Mercedes with the same license plate number in the immediate vicinity of the store. Under these circumstances, Officer Chissus had reasonable suspicion to believe the people in the car had committed the crime of drug paraphernalia possession.
Wallace objects that it was actually the customer who connected him and Mosier to the drug pipe rather than the employee. But Officer Chissus did not learn this until later. And in deciding whether he had reasonable suspicion to justify the initial stop, we look to the totality of the circumstances known to him at the inception of the stop. Rowell, 144 Wn. App. at 457.
Wallace relies on Sieler, but that case is distinguishable. There, police learned that a named but unknown informant claimed to have witnessed what he concluded was a drug deal in a car at a school parking lot. He gave no description of the people involved or why he believed they were involved in criminal activity, and he was not available to talk to the police. Here, the employee was available to answer Officer Chissus's questions, she gave a description of the suspects, and most critically, she reported direct evidence of a crime, not just conclusory allegations about some suspicious activity. Compare Conner, 58 Wn. App. at 96 (holding Terry stop justified under similar facts).
Wallace next argues that Officer Chissus improperly prolonged the Terry stop and elevated it into a general search for drugs. We agree. During a Terry stop, "[a]n officer may briefly detain and question a person reasonably suspected of criminal activity." State v. Rice, 59 Wn. App. 23, 26, 795 P.2d 739 (1990). But the detention must be temporary and last no longer than necessary to effectuate the stop's purpose. State v. Williams, 102 Wn.2d 733, 738, 689 P.2d 1065 (1984). An officer can expand the scope of an investigation only if there is reasonable suspicion to justify the expansion. State v. Smith, 115 Wn.2d 775, 785, 801 P.2d 975 (1990); State v. Henry, 80 Wn. App. 544, 551-53, 910 P.2d 1290 (1995) (although initial stop was justified, officer's expansion of stop's scope into a general drug investigation without an objective basis for doing so was improper).
Here, the purpose of the stop was to determine whether someone in the Mercedes had committed the crime of drug paraphernalia possession. Once Officer Potts tied the pipe to Mosier and confirmed that it was drug paraphernalia, the purpose for the stop ceased. At this point, Officer Chissus had the necessary information to support filing of a criminal complaint against Mosier for illegal possession of drug paraphernalia. But instead of terminating the stop, he extended the detention to conduct a general search for drugs. He testified on cross-examination,
Officer Chissus also testified that he was concerned the driver may have been driving under the influence of drugs, but he did not observe anything that would justify a stop on this basis. The City's argument that he had only limited opportunity to observe Wallace's driving does not change this fact. Because the officer did not have reasonable suspicion that Wallace was driving under the influence, his stop was not permissible on that basis. Moreover, he observed nothing during his investigation to suggest that either Mosier or Wallace were under the influence of drugs.
[Defense Counsel]: Any other evidence of crime that — that you haven't told us about that you observed?
. . . .
A. At the point which they were detained? No. No, no other crimes that I know of.
Q. And at the point at which the dog arrived, nothing — we haven't missed anything here[?]
A. Not — not until after the — the dog arrived, no.
Report of Proceedings (June 14, 2007) at 49. The record here reveals no specific and articulable facts to justify this expansion. The City relies on Wallace and Mosier's admission to past drug use and Mosier's recent possession of a drug pipe to justify the search of Wallace's car. But this evidence did not create a reasonable suspicion that Wallace's car contained drugs. See State v. Rangitsch, 40 Wn. App. 771, 780, 700 P.2d 382 (1985) (noting that officer's belief that habitual drug users keep drugs in their homes "was mere speculation"). Because the unwarranted expansion of the Terry stop was not reasonably related to the circumstances that justified the initial stop, the evidence should have been suppressed and the forfeiture dismissed.
We reverse the order of forfeiture and remand for further proceedings consistent with this decision.