Opinion
No. 22538-1-III
Filed: March 22, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Okanogan County. Docket No: 03-8-00193-1. Judgment or order under review. Date filed: 11/05/2003. Judge signing: Hon. Gretchen H. Wallace.
Counsel for Appellant(s), Dan Kevin Connolly, Attorney at Law, PO Box 769, Okanogan, WA 98840-0769.
Counsel for Respondent(s), Karl F. Sloan, Attorney at Law, PO Box 1130, Okanogan, WA 98840-1130.
C.G, a juvenile, was riding in a vehicle that was stopped for a traffic infraction. When the driver was arrested, deputies determined that the vehicle must be impounded. The passengers, all juveniles, were taken out of the vehicle and searched. During the search, officers discovered a marijuana pipe containing residue in C.G.'s pocket. C.G. appeals his juvenile adjudication of guilt for possession of drug paraphernalia. He contends the court erred by concluding the search was valid based on concerns for officer safety and the officers' decision to place C.G. in a patrol car for a courtesy ride home. Because the evidence is insufficient to establish that the search was based on objective articulable suspicions related to concerns for officer safety or the decision to place C.G. in a patrol car for a courtesy ride home, we conclude that the search was invalid and that the evidence obtained from the pat-down search was inadmissible. We reverse C.G.'s conviction.
FACTS
At 8:30 p.m. on November 27, 2002, C.G. was riding in a car as one of three juvenile passengers. When Deputy Debra Behymer stopped the car for a traffic violation, a license check revealed that the driver had a suspended license and an outstanding warrant. The officer called for backup and a tow truck.
At first, Deputy Behymer did not remove the four juveniles from the vehicle. None of the juveniles acted strangely or suspiciously, except the driver, who kept repeating everything the deputy said. At this point, Deputy Behymer asked the juveniles to place their hands in their laps. All four juveniles complied with this request. There was no evidence of intoxication and no odor of marijuana.
When the second officer arrived, the driver was removed from the car, arrested, and placed in the back of a patrol car. The three other passengers, including C.G., were then taken out of the car individually and patted down. After each passenger was searched, the deputies directed them to sit on the ground behind their vehicle. The three passengers, including C.G., complied with this request. During the search, the deputies discovered a marijuana pipe in C.G's pocket. The residue on the pipe later tested positive for marijuana.
C.G. was charged with possession of drug paraphernalia. Before trial, C.G. moved to suppress the evidence found during the search. C.G. argued that the officers had no articulable basis to believe that C.G. posed a risk to officer safety.
At the hearing, Deputy Behymer testified that the passengers were asked to get out of the car because it was going to be towed. But there was no testimony as to when the tow truck arrived. Deputy Behymer also agreed that she had no fear for officer safety, but she felt she had officer safety reasons to conduct pat-down searches of each passenger. Deputy Robert Gaines testified that the passengers were removed from the vehicle so that the vehicle could be searched pursuant to the deputies' standard procedure. He assumed that Deputy Behymer called for backup because of her concern for officer safety.
The court denied the motion, concluding that the deputies had reasonable safety concerns because `it's night, there's more people than there are officers, it's winter, the car had to be impounded, and the driver was arrested, the other three people were juveniles and arrangements had to be made one way or the other to get them home. . . .'
Report of Proceedings (RP) at 36. The court also found that the deputies' decision to remove the passengers and conduct a pat-down search of each one, was not based on anything the driver or the passengers did.
In its written conclusions of law, the court explained that:
4. There is clear law in Washington that an officer can pat down someone to whom they are giving a courtesy ride. In this case, we can analogize the situation to a courtesy ride case because one of two things was going to happen. Either 1) a deputy was going to take the juvenile passengers home; or 2) a deputy was going to make arrangements for the juveniles to get home.
5. The initial stop was legitimate. There were legitimate safety concerns to justify the frisk for weapons. The frisk was properly limited in scope to a frisk for weapons.
Clerk's Papers (CP) at 12.
After the hearing on the motion to suppress, the matter was continued for a stipulated trial. C.G. was found guilty of possession of drug paraphernalia. The court imposed a standard range disposition. C.G. appeals.
ANALYSIS
The denial of a motion to suppress is reviewed by determining whether substantial evidence exists to support the trial court's findings of fact. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). We review conclusions of issues of law de novo. Id. Here, C.G. does not assign error to any of the court's findings of fact; consequently, those findings are verities on appeal. State v. Horrace, 144 Wn.2d 386, 391, 28 P.3d 753 (2001).
Deputy Behymer had the authority to stop the vehicle for a traffic infraction and to arrest the driver based on his suspended license and outstanding warrant. The question here is whether the deputies had the authority to search C.G. The court concluded that the search was valid for two reasons. First, the court determined that the deputies had the authority to search to frisk for weapons based on safety concerns. Second, the court concluded that the search was valid because the deputies were going to provide C.G. with a courtesy ride as part of their community caretaking function. We will examine each of these conclusions in turn. Evidence as to an articulable suspicion. Police officers may control the scene to ensure their own safety, but this must be done with due regard for the rights of a passenger who is not stopped based on probable cause. Mendez, 137 Wn.2d at 220. Moreover, the officer must be able to articulate `an objective rationale predicated specifically on safety concerns.' Id. Mendez set forth several nonexclusive factors that may warrant a search of a passenger during a traffic stop. These factors include: the number of officers present, the number and behavior of the occupants of the vehicle, the time of day, the location of the stop, traffic at the scene, affected citizens, and officer knowledge of the occupants. Id. at 220-21.
Additionally, State v. Parker, 139 Wn.2d 486, 502, 987 P.2d 73 (1999), established that a traffic stop and a subsequent arrest by itself provided officers with an objective basis to ensure their safety by controlling the scene and ordering passengers in or out of the vehicle as necessary. The State contends the pat-down search was valid based on concerns for officer safety. Here, the court determined the pat-down search of C.G. was valid because:
(1) it was 8:30 p.m. and dark; (2) it was winter and cold; (3) the car was going to be impounded; (4) the passengers were all juveniles and needed rides home; and (5) there were four juveniles and two deputies at the scene. The court, however, acknowledged that: `The deputies' decision to remove the passengers and pat each for weapons was not based on anything the driver did or said or anyone else did or said.' CP at 11.
The failure of the court to consider the compliant nature of the occupants' conduct is troubling. Deputy Gaines testified that the passengers' conduct was not suspicious, but that the search was performed for officer safety. Deputy Behymer also did not mention the transportation of the juveniles as a consideration in conducting the pat-down search. She testified that the three passengers were removed from the car because the car was going to be towed. She further testified that in situations involving multiple subjects, the subjects should be removed from the car and checked for weapons. According to Deputy Behymer, there were additional concerns because it was dark and the deputies were outnumbered. However, there was no testimony of any furtive movements, and no mention of this type of activity in Deputy Behymer's report.
A generalized concern for officer safety does not justify a full search of nonarrested companions. State v. Kennedy, 107 Wn.2d 1, 12, 726 P.2d 445 (1986). In Kennedy, the officer observed a furtive gesture sufficient to give him an objective suspicion that Mr. Kennedy was hiding something under the front seat before the vehicle stopped. Specifically, the officer observed Mr. Kennedy lean over and reach under the seat, making a furtive gesture. Id. at 11. The court concluded that a search within the area of a driver's control extends to any passenger who presents a similar danger to the officers. Id. at 12. Similarly, in State v. Wilkinson, 56 Wn. App. 812, 818, 785 P.2d 1139 (1990), a search of a passenger was upheld where the officer was alone and felt threatened after recognizing two of the passengers as felons he had previously arrested. Finally, in Horrace, the court upheld a pat-down search of a passenger where the driver had made suspicious movements toward the passenger and the trooper was concerned that they were concealing a weapon. Horrace, 144 Wn.2d at 400.
Kennedy, Wilkinson, and Horrace are factually distinguishable. Here, the deputies had no previous contact with the passengers and none of them behaved in a suspicious manner. To the contrary, testimony revealed that the passengers made no furtive movements and that they complied with all of the deputies' instructions. Likewise, there was no testimony that the dark conditions prevented the deputies from seeing into the vehicle.
Additionally, after the driver was placed in the patrol car, the juveniles were removed from the vehicle — resulting in a situation where two deputies were monitoring three juveniles, not four.
In short, while we are sympathetic to the safety concerns of law enforcement officers conducting traffic stops, this record does not establish an objectively reasonable belief that the officers were in danger.
Pat-down prior to a courtesy ride. The public relies on law enforcement to perform duties other than the enforcement of criminal law. State v. Acrey, 148 Wn.2d 738, 749-50, 64 P.3d 594 (2003). This community caretaking function is one aspect of an officer's multiple responsibilities to provide emergency aid or a routine check on health and safety. Id. at 749. Significantly, the application of the community caretaking function is evaluated as an exception to the warrant requirement. Id. Whether an encounter incident to this function is reasonable does not depend on the presence of probable cause reasonable suspicion, but, instead requires the consideration of all the competing interests implicated in light of all the surrounding facts and circumstances. Id. at 748-49. The community caretaking exception is cautiously applied, balancing the individual's interest in freedom from police interference against the community's need to have law enforcement officers perform community caretaking functions. Id. at 750 (quoting State v. Kinzy, 141 Wn.2d 373, 387-88, 5 P.3d 668 (2000)).
In Acrey, police officers responded to a 911 call after midnight reporting a fight in an isolated commercial area. The officers detained a group of minor boys, but determined that no criminal activity had occurred. Instead, the officers detained the boys in order to call their parents. When Mr. Acrey's mother asked the police to bring him home, an officer conducted a pat-down search before placing Mr. Acrey in a patrol car. During this search, the officer discovered marijuana and crack cocaine. Acrey, 148 Wn.2d at 743. Acrey held that the officers were entitled to search for weapons before placing Mr. Acrey in a patrol car. Id. at 754. The court noted that Mr. Acrey did not dispute that his mother requested the officers' assistance or that the officers were justified in conducting a pat-down search. Id.
While an officer is entitled to frisk for weapons before placing an individual in a patrol car, the record before us does not show that either deputy contemplated or offered a courtesy ride home prior to making the search. Neither deputy testified that they conducted the search based on a decision to place C.G. in a patrol car. Deputy Behymer did not mention the transportation of the juveniles as a consideration in conducting the pat-down search. Deputy Gaines testified he had not offered to transport the juveniles and he was not sure whether another deputy was going to transport the passengers home.
Moreover, there is no evidence indicating that C.G.'s parents requested the deputies' assistance or that C.G. was given the opportunity to arrange for a ride. In Acrey, the officers provided a courtesy ride at the request of the juvenile's mother. Here, there is no evidence that C.G.'s parents either knew or approved of the deputies' decision to transport their son in a patrol car.
In summary, the evidence is insufficient here to support the court's conclusion that the search was valid based on objective articulable suspicions related to officer safety or the deputies' decision to place C.G. in a patrol car for a courtesy ride home.
We reverse C.G.'s conviction.
The 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.
SWEENEY, A.C.J. and BROWN, J., JJ., concur.