Opinion
No. 35225-7-II.
January 23, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-02718-5, Rosanne Buckner, J., entered August 11, 2006.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Armstrong and Van Deren, JJ.
Timothy Roy Clinton appeals his second degree identity theft and second degree possession of stolen property convictions. He argues that the trial court erred by denying his motion to suppress evidence. We affirm.
FACTS
We derive the facts from the testimony at the suppression hearing.
On June 16, 2006, Deputy Eric Jank patrolled the area of 128th Street East and Prairie Ridge Drive East in Pierce County looking for a van illegally selling ice cream. Jank saw two girls approximately 10 to 12 years old walking along the road and asked them if they had seen the van. The girls told him that they had not but that there was a white Mustang parked at the end of 128th Street East that had been there for some time and that they had seen what seemed like a lot of people coming to and from the Mustang.
Jank drove to the location and saw a white Mustang backed up to a closed gate where 128th Street East dead ended next to a community park. As Jank pulled up near the Mustang, he saw the front passenger looking at the driver and waving his hands as though motioning for the driver to leave. He observed the driver fidgeting and moving his body around while keeping his hands below the dashboard. Jank parked his patrol car diagonally across the road as close to the Mustang as he would "with any traffic stop" but testified that there was enough room for the Mustang to drive by him. Report of Proceedings (Aug. 2, 2006) (RP) at 8. He saw the driver start to leave as the front passenger continued to wave, but then the Mustang stopped.
Jank left his patrol car, approached the Mustang, and asked the driver what they were doing, to which the driver replied "hanging out." RP at 8. Jank told the driver that children in the area had informed him that they had seen the Mustang parked at the location and people coming and going from it for some time. The driver made no reply.
Jank then asked the driver why he was leaving and the driver stated that he thought that Jank had a key to the park and was going to open the gate. Jank explained that he did not carry keys to public parks, at which point the driver then said they were waiting for a friend. After a few minutes of conversation, Jank asked the Mustang's occupants for identification. The driver provided identification. The front passenger did not have identification but gave his name. The rear passenger refused to provide identification, saying that he had not done anything wrong.
Jank then called for backup from a second officer he knew to be in the area, Deputy England. In the meantime, the rear passenger stated that his name was Timothy Clinton after Jank asked him again. When England arrived, he told Jank that he recognized Clinton and that there was a warrant for his arrest.
After verifying the outstanding warrant, England arrested Clinton. The deputies then searched him and found a driver's license, social security card, a Visa card reported as stolen, a baggie of suspected methamphetamine, and a spoon. The deputies also located a jacket hanging on the fence approximately five feet behind the Mustang, which the front passenger indicated belonged to Clinton. The jacket contained five baggies of suspected methamphetamine, one baggie of marijuana, and court papers for Clinton.
By amended information, the State charged Clinton with one count of second degree identity theft, RCW 9.35.020(1) and .020(2)(b), and one count of second degree possession of stolen property, RCW 9A.56.140(1) and .160(1)(c).
Clinton moved to suppress evidence, arguing that Jank's initial seizure was unlawful. The trial court denied the motion after a CrR 3.6 hearing.
Clinton waived his right to a jury trial. Based on the stipulated evidence, the trial judge found him guilty on both counts and he appeals.
ANALYSIS
Clinton first contends that the trial court erred by concluding that Jank had reason for the investigatory stop based on his experience, the information that he had, and the suspects' actions. He argues that the trial court relied on facts not known to Jank at the time of the seizure and that the remaining facts were insufficient to support the seizure. He also contends that the trial court applied the wrong standard in determining that the detention was reasonable.,
Clinton also argues that the trial court failed to make a specific finding as to when Jank seized the Mustang. In its written findings, the trial court found that "given the officer's experience, the information that he had, and the actions of the suspects the deputy had reason for a brief stop." Clerk's Papers at 29. The State does not argue that this was other than an investigatory detention. Thus, no issue before us depends on when Jank seized the Mustang because we apply the standard for an investigatory detention. See State v. Horrace, 144 Wn.2d 386, 399, 28 P.3d 753 (2001).
Clinton also assigns error to the trial court's oral finding that he was "in a vehicle parked by a gate to a park where the deputy knew there was drug sales from vehicles." RP at 31. An oral opinion is not a finding of fact on which error may be predicated. See State v. Williamson, 72 Wn. App. 619, 623, 866 P.2d 41 (1994). Nevertheless, substantial evidence supports the trial court's finding because Jank testified that he knew from experience that the area had a high level of drug activity, that drugs are often sold from parked vehicles, and that he had responded to several reports of drug activity in the area. See State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), abrogated on other grounds, Brendlin v. California, ___ U.S. ___, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).
On a motion to suppress, we review factual findings for substantial evidence and conclusions of law de novo. State v. v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), overruled on other grounds, Brendlin v. California, ___ U.S. ___, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007). Clinton does not assign error to any written findings, and we treat these unchallenged factual findings as verities on appeal. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 132 (2003). We review de novo whether the findings support the trial court's legal conclusions. Mendez, 137 Wn.2d at 214.
An investigative or Terry stop is an exception to the general rule that warrantless searches and seizures are per se unreasonable. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). An investigative detention, as a form of seizure, 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 State can point to "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). Where the initial investigative stop is unlawful, the subsequent search and fruits of that search are inadmissible. Kennedy, 107 Wn.2d at 4.
We determine whether an officer's suspicion is reasonable based on the totality of the circumstances known to him at the inception of the stop. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). We also consider the officer's training and experience. Glover, 116 Wn.2d at 514.
An officer may lawfully enlarge or prolong the scope of a Terry stop as needed to investigate suspicions that arise or encompass events that occur during the stop. State v. Smith, 115 Wn.2d 775, 785, 801 P.2d 975 (1990). He may ?`maintain the status quo momentarily while obtaining more information'" and may ask questions to determine whether a further short intrusion is necessary to dispel his suspicions. State v. Williams, 102 Wn.2d 733, 737, 689 P.2d 1065 (1984) (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972)); State v. Santacruz, 132 Wn. App. 615, 619, 133 P.3d 484 (2006). An officer is not required to ignore arguably innocuous circumstances that arouse his suspicions. State v. Samsel, 39 Wn. App. 564, 570-71, 694 P.2d 670 (1985).
In denying Clinton's motion to suppress, the trial court entered the following findings that we treat as verities: (1) while investigating a reported suspicious ice cream truck, Jank learned from two young girls that they had seen a white Mustang parked at the end of 128th Street and that the Mustang had been there for awhile and many people were coming and going from it; (2) Jank knew from experience that the area had a high level of drug activity, as he had responded to several reports of drug activity in the area; (3) in his experience, dealers often sell drugs from parked vehicles; (4) when he drove to the area fewer than three blocks from where he contacted the girls, he saw a white Mustang backed up to a locked gate for a community park; (5) when he saw Jank, the Mustang's driver dropped his hands below the dash and started to drive away; (6) Jank parked diagonally in the road to stop and investigate, leaving room for the Mustang to pass by the patrol car and although the front passenger waved at the driver to go, the driver stopped the Mustang; and (7) Jank engaged the driver and front passenger in conversation where they gave conflicting stories about their actions and they provided identification and/or a name, but the rear passenger declined to identify himself. The trial court found that given Jank's experience, the information that he had, and the actions of the suspects, he had a reason for a brief stop detaining the Mustang's passengers.
The trial court thus set forth the "specific and articulable facts" that Jank knew at the point at which he stopped the Mustang, giving rise to a reasonable suspicion that the Mustang was or was about to be engaged in criminal activity. The trial court also appropriately relied on the fact that Jank had knowledge of and experience with drugs being sold from vehicles and with investigating reported drug activity in that area. See Glover, 116 Wn.2d at 514.
Because Jank had specific and articulable facts giving rise to a reasonable suspicion at the point at which he parked diagonally and seized the Mustang, he could prolong the stop to continue investigating that suspicion, including approaching the driver to ask questions to obtain more information and determine whether a further short intrusion was necessary. See Smith, 115 Wn.2d at 785; Williams, 102 Wn.2d at 737. The trial court thus appropriately relied on the additional facts that: (1) the driver gave inconsistent responses as to their reason for being there, (2) he gave no reply when Jank informed him of a report that people had been observed coming and going from the Mustang, and (3) Clinton was unwilling to identify himself when the officer asked for identification. See State v. White, 97 Wn.2d 92, 105, 640 P.2d 1061 (1982) ("When police officers have a `well-founded suspicion not amounting to probable cause' to arrest, they may nonetheless stop a suspected person, identify themselves, and ask that person for identification and an explanation of his or her activities.") (quoting State v. Gluck, 83 Wn.2d 424, 426, 518 P.2d 703 (1974)). In setting forth specific and articulable facts known to Jank at the time of the investigatory stop and arising during the course of that stop, the trial court applied the correct legal standard and established the reasonableness of Jank's suspicion.
Clinton further contends that the trial court erred in finding that Jank reasonably relied on information provided by the young girls. He asserts that Jank failed to verify the information or their reliability.
The Aguilar/Spinelli test for informant reliability and basis of knowledge applies to a child informant. See State v. Carver, 51 Wn. App. 347, 348, 753 P.2d 569 (1988); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). As a citizen informant, a child is also entitled to a relaxed showing of reliability, although it remains necessary to ascertain some information reasonably supporting an inference that the child is telling the truth. Carver, 51 Wn. App. at 351-52.
Sufficient indicia of reliability include circumstances suggesting the informant's reliability, corroborative observation suggesting the presence of criminal activity, information that was obtained in a reliable fashion, or some objective measure of reasonableness. See State v. Sieler, 95 Wn.2d 43, 48-49, 621 P.2d 1272 (1980); State v. Lesnick, 84 Wn.2d 940, 944, 530 P.2d 243 (1975). But the court must consider each case in light of the totality of circumstances facing an officer relying on a citizen informant's tip because "no single rule can be fashioned to meet every conceivable confrontation between the police and citizen." Lesnick, 84 Wn.2d at 944.
Here, Jank approached girls walking along the side of the road to inquire about an unrelated matter. The girls volunteered their firsthand observations of a specific vehicle parked nearby and activity taking place related to that vehicle, with no apparent motive for dishonesty. See, e.g., Carver, 51 Wn. App. at 352-53 (addressing the reliability of 8-and 10-year-old citizen informants and finding that, under the relaxed burden for citizen informants, intrinsic indicia of the informants' reliability was established by each's detailed description of the underlying circumstances of the crime observed, corroborated by the other's).
Further, the girls did not make any conclusory statements about Clinton's criminal conduct but only described activity that aroused Jank's suspicions based on his own knowledge and experience. Contra Seiler, 95 Wn.2d at 48 ("[T]he State generally should not be allowed to detain and question an individual based on a reliable informant's tip which is merely a bare conclusion unsupported by a sufficient factual basis."). Jank also independently corroborated the information by driving three blocks and observing the Mustang parked as the girls had described and then by hearing varying suspicious stories from the occupants. See State v. Young, 123 Wn.2d 173, 195, 867 P.2d 593 (1994). These circumstances established the girls' basis of knowledge and, taken as a whole, were adequate indicia of their reliability.
Because the trial court applied the correct legal standard, relied on facts known to Jank at the time of the investigatory stop, and made sufficient findings to support its legal conclusions, it did not err in denying Clinton's motion to suppress.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Armstrong, J., Van Deren, J., concur: