Opinion
No. 26730-0-III.
January 27, 2009.
Appeal from a judgment of the Superior Court for Grant County, No. 07-8-00104-1, John M. Antosz, J., entered December 10, 2007.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, C.J., and Korsmo, J.
UNPUBLISHED OPINION
Lanny Cedillos challenges her convictions for obstructing a police officer and third degree assault. On appeal, Ms. Cedillos contends (1) she was unlawfully seized, (2) police officers lacked probable cause to arrest her, and (3) there was insufficient evidence to convict her of obstructing a police officer. Ms. Cedillos's arguments are unpersuasive. Thus, we affirm the convictions.
FACTS
On July 18, 2007, Officer Leonard Geer of the Ephrata Police Department (EPD) responded to a report of malicious mischief, based on a complaint that eggs had been thrown at the residence located at 1435 C Street SW in Ephrata, Washington. At the scene, the officer was contacted by a witness who lived across the street and two houses down from the complainant. The witness told Officer Geer that four females had run through the alley behind his house at the time of the egging. The witness provided the officer with a partial clothing description.
Officer Geer parked his patrol vehicle and walked down the alley, which runs between C Street and Basin Street, in an attempt to locate the suspects. There, Officer Geer encountered three young males sitting on the hood of a car. The officer asked the young men if they had seen any females run through the alley, but they had not.
Officer Geer then went to an apartment complex located at 1411 Basin Street SW. The complex was located directly behind the witness's house and one block to the east of the complainant. In the courtyard of the apartment complex, the officer contacted a man standing outside on his porch. The man also denied having seen any females, because he had just stepped outside. While Officer Geer was conversing with the man, his attention was drawn to the apartment complex. From the courtyard, Officer Geer saw a group of young females in apartment number two. They yelled something while looking in his direction and then slammed the door. Officer Geer observed a broken egg on the ground approximately 20 to 30 feet from the porch of apartment two.
At that point, four other uniformed EPD officers arrived. Officer Geer relayed to the other officers what he had just observed, and he returned to the alley to secure his patrol vehicle. In the interim, Officer Troy Froewiss and Officer Jack McLauchlan had approached apartment two. When Officer Froewiss stepped up on the stairs, the apartment door opened, and the officer asked that the occupants step out to speak with him. Four females, including Ms. Cedillos, stepped out of the apartment onto the porch.
Officer Geer returned to the apartment a few minutes later and conducted the investigation. Several people had congregated in the area. The young men Officer Geer had first encountered in the alley were now standing at the bottom of the porch. In addition, approximately six other individuals were visible inside the apartment, behind the four girls standing on the porch.
Officer Geer announced to the group that he was there to investigate a report of malicious mischief. The officer then informed Ms. Cedillos that her clothing matched the description of the girls who had egged the residence. Ms. Cedillos immediately displayed a negative attitude toward the officers. Ms. Cedillos told Officer Geer that he was lying, that there were lots of girls in Ephrata wearing similar clothing, and that she was not going to answer any of the officer's questions. However, Officer Geer had not seen other people on the street except for the young men he contacted at the car, and the man on the porch.
Officer Geer asked Ms. Cedillos for her name and a number of other questions. Ms. Cedillos became aggressive and verbally abusive to the officer. According to the officer's testimony, Ms. Cedillos refused to provide her name and stated something to the effect of "`screw you I'm not telling you nothing.'" I RP (Oct. 31, 2007) at 23. Ms. Cedillos was rude, loud, and would not allow the officers to speak to the crowd without interruption. She took over the conversation so that Officer Geer "could get very few words in over her yelling" and no one else could respond to his questions. I RP (Oct. 31, 2007) at 107. Officer Geer described Ms. Cedillos as yelling, using a loud, angry tone of voice, using profanity, and continually escalating the situation. As Ms. Cedillos drew attention to herself, the crowd reacted by encouraging her and mimicking her behavior toward the officers. In response to Ms. Cedillos's behavior, the crowd was becoming agitated.
The officers determined that it was no longer possible to investigate the malicious mischief while Ms. Cedillos was present or continue the interviews safely. Each officer who testified believed there was an officer safety issue. Officer Froewiss testified that "when someone from the get-go is verbally aggressive as she is, it doesn't take much more to escalate it past that." I RP (Oct. 31, 2007) at 111. Further, it was dark outside and the area was not well lit. The officers were also aware that the apartment, which was occupied by people with known affiliations to the 13th Street gang and marked with the number 13, could contain weapons. Sergeant Forrest Maryott had previously experienced safety concerns with that apartment complex.
In an attempt to diffuse the situation, Officer Geer asked Ms. Cedillos to come off the porch. Ms. Cedillos refused to do so, by saying "`fuck you, I ain't doing anything.'" Clerk's Papers (CP) at 76. At that point, Officer Geer made the decision to remove Ms. Cedillos from the porch to contain the situation. He thought that her removal would allow officers to speak to the rest of the crowd. Officers testified that their intent was to detain her and separate her from the crowd so that they could continue their investigation in a more secure and calm environment.
Officer Geer testified "my plan was to escort her off the porch. It was obvious it was an officers [sic] safety issue. . . . I wanted to secure her in handcuffs for our safety and remove her[,] to take her out to the alley to the patrol vehicle, away from the situation, so I could continue my investigation." I RP (Oct. 31, 2007) at 26.
Both Officer Geer and Officer Froewiss then stepped up onto the porch. As the officers approached, Ms. Cedillos turned her back to the officers and stated, "`you can't touch me, I'm a minor.'" CP at 76. Officer Geer, now positioned on Ms. Cedillos's left side, grabbed her left arm as she threw it out while she was yelling. The officer testified that he used a reverse gooseneck hold on Ms. Cedillos as a method of pain compliance while attempting to handcuff her because she was "jerking and pulling" despite his orders to her to stop resisting. CP at 77. Officer Geer was ultimately able to pull Ms. Cedillos's left hand behind her and secure it in a handcuff. In the course of handcuffing Ms. Cedillos, she continued to yell and pull away.
Next, Officer Froewiss who had Ms. Cedillos's right wrist and arm, observed Ms. Cedillos bend over slightly, twist her hips, and bring up her knee. He was able to close his legs and was, thus, able to deflect her knee strike to his groin. After she had struck the officer in his groin area, Officer Froewiss told Ms. Cedillos that she had just committed a felony. Ms. Cedillos stopped resisting for a few seconds at that time, during which the officers were able to complete handcuffing her. In all, it took the officers one to two minutes to place Ms. Cedillos in handcuffs. At that point, Officer Froewiss told Ms. Cedillos that she was under arrest.
Ms. Cedillos continued to resist as Officer Geer and Officer Froewiss began escorting her to the patrol vehicle, which was 80 to 120 feet away. Approximately halfway there, Ms. Cedillos slowed down, lifted her right leg toward her chest, and at a 45-degree angle kicked out toward the officer's left leg, striking him directly in the knee. When Ms. Cedillos kicked Officer Froewiss the second time, she left a shoe impression, including a rubber transfer from her shoe sole, embedded in the fabric of the officer's pant leg. Officer Froewiss then warned Ms. Cedillos that she had committed a second felony. Her response to Officer Froewiss was that "`she didn't care.'" CP at 78. She further resisted being placed in the patrol vehicle. It is undisputed that Ms. Cedillos was belligerent throughout her contact with police and that she generally escalated the situation. Officer Froewiss testified that Ms. Cedillos was more resistant than any other suspect that he had ever attempted to take into custody.
After Ms. Cedillos was removed, the crowd calmed down. Officer Geer returned to the scene shortly thereafter, but was unable to do any further investigation because the crowd had dispersed.
In the course of the fact-finding hearing, the court heard the testimony of EPD Officer Geer, Sergeant Maryott, and Officer Froewiss, as well as Cassandra Ramirez, a resident of apartment two, and Cesar Alvarado, a resident of apartment one. After the State rested its case, defense counsel moved to dismiss the charges against Ms. Cedillos. The defense first argued that the State failed to present a prima facie case for obstruction, claiming that the State failed to demonstrate that the officers were executing "lawful duties" when Ms. Cedillos was alleged to have obstructed them. II RP (Oct. 31, 2007) at 49. Second, defense counsel argued that both charges should be dismissed because the officers violated Ms. Cedillos's substantive due process rights. The trial court denied the motion to dismiss.
The juvenile court found Ms. Cedillos guilty of third degree assault on a law enforcement officer, a class C felony, and obstructing a law enforcement officer, a gross misdemeanor. This appeal followed.
ANALYSIS
Ms. Cedillos first contends that the EPD officers violated her rights under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution when they seized her. She argues that the seizure was unconstitutional because the officers lacked a factual basis to suspect her of criminal activity in accordance with Terry principles or probable cause.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
On appeal, we view the trial court's unchallenged findings of fact as verities. State v. Moore, 161 Wn.2d 880, 884, 169 P.3d 469 (2007). A challenged finding will be upheld if it is supported by substantial evidence. State v. Alvarez, 105 Wn. App. 215, 220, 19 P.3d 485 (2001). The determination of whether undisputed facts constitute a violation of the search-and-seizure provision of the state constitution is a question of law, which is reviewed de novo. State v. Rankin, 151 Wn.2d 689, 694, 92 P.3d 202 (2004).
The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution protect individuals from unreasonable searches and seizures by the government. State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984). Under both the state and federal constitutions, a seizure is reasonable when it is based upon probable cause. State v. Grande, 164 Wn.2d 135, 141, 187 P.3d 248 (2008). However, an investigative or Terry stop is an exception to the general rule that warrantless searches and seizures are presumed invalid. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). While an investigatory detention is less intrusive than an arrest, it is nevertheless a form of seizure and, therefore, must be reasonable under the Fourth Amendment and article I, section 7 of the Washington Constitution. State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986). Such a seizure is reasonable if the officer has "specific and articulable facts giving rise to a reasonable suspicion that the person stopped is, or is about to be, engaged in criminal activity." State v. Gleason, 70 Wn. App. 13, 17, 851 P.2d 731 (1993).
Before it is necessary to determine whether the officers possessed this requisite degree of suspicion, we must first determine at what point Ms. Cedillos was seized. "Not every encounter between an officer and an individual amounts to a seizure." State v. Aranguren, 42 Wn. App. 452, 455, 711 P.2d 1096 (1985).
"`Under article I, section 7, a person is seized `"only when, by means of physical force or a show of authority,'" his or her freedom of movement is restrained and a reasonable person would not have believed he or she is: (1) free to leave, given all the circumstances, or (2) free to otherwise decline an officer's request and terminate the encounter." State v. O'Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003) (citations omitted) (quoting State v. Young, 135 Wn.2d 498, 510, 957 P.2d 681 (1998)). Therefore, whether a seizure has occurred "depends upon whether a reasonable person would believe, in light of all the circumstances, that he or she was free to go or otherwise end the encounter." Id. at 575. A defendant alleging that he or she was seized in violation of the state or federal constitutions has the burden of proving that a seizure occurred. Young, 135 Wn.2d at 510.
The test for whether a seizure has occurred is a purely objective one, looking at the actions of the law enforcement officer. Id. at 501. "Whether a person has been restrained by a police officer must be determined based upon the interaction between the person and the officer." O'Neill, 148 Wn.2d at 575. Accordingly, an officer's suspicion or subjective intent is irrelevant to this determination. Id.
Ms. Cedillos argues that she was seized by the officers when they requested that she come off the porch. However, no seizure had occurred at that point. Ms. Cedillos has not challenged the trial court's finding of fact 13 that Officer Geer merely " asked [her] to step off of the porch to defuse the situation" and, therefore, this finding is a verity for purposes of this review. CP at 76 (emphasis added). Finding of fact 13 establishes that Ms. Cedillos was not ordered or commanded to come down from the porch.
Moreover, the unchallenged findings do not suggest any show of authority that would lead a reasonable person to believe he or she was being detained as a result of this request. There is no testimony supporting Ms. Cedillos's claim that Officer Geer spoke to her "in a manner indicating that compliance was compelled," such as by using commanding language or tone of voice. Br. of Appellant at 12. And, "as a general rule, the approach of a uniformed officer carrying a gun is not in itself a sufficient show of force to instill in one the reasonable belief that he is being detained." State v. Ellwood, 52 Wn. App. 70, 73, 757 P.2d 547 (1988); see O'Neill, 148 Wn.2d at 581.
Ms. Cedillos's subsequent behavior likewise indicates that she believed she was free to go or otherwise terminate the encounter. Ms. Cedillos continued her belligerent behavior after the request to step off the porch and she responded to the officers with an expletive-laced refusal. Only at that point did Officer Geer make the decision to remove Ms. Cedillos from the porch in order to contain the escalating situation and to allow the other officers to speak to the crowd. Even after Officer Geer and Officer Froewiss stepped up onto the porch, Ms. Cedillos turned her back to the officers. Looking objectively at these circumstances, the initial contact between Ms. Cedillos and the police did not amount to a seizure.
Nevertheless, a seizure clearly occurred when Ms. Cedillos was physically restrained and handcuffed by the officers. The officers had the right to remove Ms. Cedillos because her disruptive behavior impeded the officers' investigation of the malicious mischief incident. While Officer Geer was trying to speak to the crowd and gather information concerning the crime, Ms. Cedillos attempted to take over the conversation by repeatedly shouting over him. Officer Froewiss testified that Officer Geer attempted to explain to the group why he and the officers were there, but he "could get very few words in over her yelling." I RP (Oct. 31, 2007) at 107. The trial court's unchallenged findings of fact show that Ms. Cedillos was "rude, loud, and would not allow the officer to speak to the crowd without interruption." CP at 76. Because of her actions, no one in the crowd was able to respond to the officer's questions. Accordingly, the trial court found that "[i]t was not possible to investigate the malicious mischief while Ms. Cedillos was there." CP at 76.
A person commits the crime of obstructing a law enforcement officer if he or she willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties. RCW 9A.76.020(1). Therefore, at the time of Ms. Cedillos's seizure, there was probable cause to arrest her for obstruction. "Probable cause exists for a warrantless arrest where the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a person of reasonable caution to believe that a felony has been committed." State v. Stebbins, 47 Wn. App. 482, 484, 735 P.2d 1353 (1987). Accordingly, Ms. Cedillos's argument that her seizure was unconstitutional is without merit.
Ms. Cedillos next contends that there was insufficient evidence to support her conviction for obstruction. Ms. Cedillos argues that there was insufficient evidence that her actions in speaking to the officers and refusing to answer their questions constituted the crime of obstruction. Ms. Cedillos also argues that because the officers were engaged in arbitrary and harassing behavior when they seized her, there is insufficient evidence that the officers were engaged in the official discharge of their duties, an essential element of the crime. Ms. Cedillos's arguments are without merit.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). "When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Moreover, "[a] claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Id. In the present case, sufficient evidence supports Ms. Cedillos's conviction.
As previously noted, a person is guilty of obstructing a law enforcement officer if he or she willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties. RCW 9A.76.020(1). The essential elements of the crime are: "`(1) that the action or inaction in fact hinders, delays, or obstructs; (2) that the hindrance, delay, or obstruction be of a public servant in the midst of discharging his official powers or duties; (3) knowledge by the defendant that the public servant is discharging his duties; and (4) that the action or inaction be done knowingly by the obstructor.'" State v. Contreras, 92 Wn. App. 307, 315-16, 966 P.2d 915 (1998) (quoting State v. CLR, 40 Wn. App. 839, 841-42, 700 P.2d 1195 (1985)).
Ms. Cedillos claims that there is insufficient evidence that her actions constituted the crime of obstruction. Relying on Contreras and Hoffman, Ms. Cedillos argues that mere refusal to answer questions is not sufficient grounds to arrest for obstruction of a police officer. She asserts in order to find sufficient evidence of obstruction, courts require evidence of further disruptive behavior. While Ms. Cedillos is correct that mere refusal to answer questions is not sufficient grounds to arrest for obstruction of a police officer, Ms. Cedillos did more than simply refuse to talk to the officers and these additional actions hindered, delayed, or obstructed the officers in their investigation of the malicious mischief incident.
State v. Hoffman, 35 Wn. App. 13, 664 P.2d 1259 (1983).
Moreover, Ms. Cedillos's abusive and belligerent attitude escalated the situation. The crowd became increasingly agitated in response to Ms. Cedillos and appeared to be supportive of her behavior. When she was asked by police to come down from the porch, she refused to do so and was ultimately placed under arrest for the crime of obstruction.
Ms. Cedillos's additional action in yelling at the officers, refusing to provide her name, preventing the officers from speaking to the crowd, escalating the situation to the point where officer safety became an issue, and resisting their efforts to diffuse the situation effectively hindered and delayed the officers in the performance of their duties. Accordingly, these actions are sufficient to support her conviction for the crime of obstruction.
Ms. Cedillos argues that because the officers' actions against her were arbitrary and harassing, the officers were not engaged in their official duties when they investigated and seized her. Ms. Cedillos cites to State v. Turner, 103 Wn. App. 515, 526, 13 P.3d 234 (2000) for the proposition that an officer is performing official duties so long as that officer is acting in good faith and is not engaging in a frolic of his or her own, and so long as the detention is not arbitrary and harassing. She contends that her detention was not a part of a legitimate Terry investigation and was not based on reasonable concerns for officer safety; rather, her detention was improperly motivated by the officers' desire to silence a vocal critic who refused to answer their questions. Consequently, Ms. Cedillos claims that the officers who seized her acted in an arbitrary and harassing manner and not on the basis of lawful authority.
As the above analysis shows, Ms. Cedillos's behavior went well beyond simply refusing to answer the officers' questions and constituted the crime of obstruction. As such, there were sufficient grounds for the officers to arrest her.
We affirm the convictions.
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.
KORSMO, J. and SCHULTHEIS, C.J., concur.