Opinion
No. 53713-0-I
Filed: November 22, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-07912-6. Judgment or order under review. Date filed: 01/23/2004. Judge signing: Hon. Paris K Kallas.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Cowan — Doc #288866 — Info Onl (Appearing Pro Se), Larch Corrections Center, 15314 NE Dole Valley Rd, Yacolt, WA 98675-9531.
Nancy P Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Heather M Jensen, King County Courthouse, W554, 516 3rd Ave, Seattle, WA 98104-2385.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
When Seattle police officer Tori Dotson encountered John Cowan early one Sunday morning while responding to a report of a burglary, Cowan's appearance and nearness in proximity and time to the burglary gave Officer Dotson a reasonable suspicion that Cowan committed the burglary. Officer Dotson was justified in stopping Cowan, and the scope of her investigation was reasonable. Therefore, the trial court did not err when it denied Cowan's motion to suppress the evidence that Officer Dotson found during her investigation.
Facts
Officer Dotson was in her patrol car at approximately ten minutes before six on a Sunday morning when she was dispatched to the Fremont neighborhood to investigate a report of a burglary in progress. The dispatcher indicated that a witness had seen a man break into a hair salon. The burglar was described as a white male in his twenties, wearing a baseball hat, green sweatshirt, blue sweatpants, and carrying a bag or knapsack. The description was updated to indicate that the witness saw the burglar exit the salon wearing a white glove, but as the burglar left the scene, he took off his cap. He was reported to be heading north on First Avenue Northwest.
When Officer Dotson was 15 blocks or so north of the hair salon, she began driving up and down the streets, looking for possible suspects. Approximately five blocks from the salon, she saw a man walking in a northeasterly direction on Leary Way Northwest. The man, John Cowan, was a white male who looked to be in his early twenties to late thirties, wearing blue-grey sweatpants, a white thermal shirt, and carrying a black, soft, briefcase-like bag with a flap.
Traffic was light at that hour, and Officer Dotson had not seen any pedestrians besides Cowan on her way to the scene. She parked ahead of Cowan, but did not activate her siren or overhead emergency lights and did not draw her gun. She asked Cowan where he was coming from, and he told her the Fremont Bridge.
Officer Dotson told Cowan there had been a burglary in the area and that he matched the description of the suspect. She put Cowan's bag on the trunk of her car and patted him down, but did not find any weapons. She then radioed other officers that she had a possible suspect, and another officer told her he would bring the witness to her location.
While they were waiting for the other officer and the witness to arrive, Officer Dotson asked Cowan if she could look in his bag. Cowan said she could, and when she looked inside, she saw a green sweatshirt. Officer Dotson closed the bag before the witness arrived so that the sweatshirt was not visible.
When the witness arrived, he identified Cowan as the person who broke into the salon, stating, `That's the clothing. Yes, that's him.' Officer Dotson then handcuffed Cowan, put him in the car, and advised him of his rights.
Cowan was charged by amended information with one count of second degree burglary and one count of possession of burglary tools. Before trial, he moved to suppress the evidence found in his backpack, the show-up identification, and statements he made in the police car. The trial court denied Cowan's motion to suppress the evidence, and a jury found him guilty of both charges.
The Investigative Stop Was Reasonable, So The Evidence Was Admissible On appeal, Cowan argues that the trial court erred when it denied his motion to suppress the evidence. He contends that Officer Dotson's investigative stop was unreasonable because she did not have a reasonable, articulable suspicion that he committed a crime. We disagree.
When this court reviews findings of fact on a motion to suppress, we review only the facts to which error has been assigned. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003). Unchallenged findings are treated as verities on appeal. Acrey, 148 Wn.2d at 745. Conclusions of law in an order denying a motion to suppress are reviewed de novo. Id.
Cowan assigns error to Finding of Fact 1(e), but only to the extent that it finds that he `matched' the description of the person whom the witness had seen breaking and entering into the salon. The trial court, however, did not find that Cowan `matched' the description of the burglar. Rather, the court found only that Officer Dotson told Cowan that he matched the witness's description:
Officer Dotson got out of her marked patrol vehicle and approached the defendant. She asked the defendant where he was coming from. He told her he was coming from the Fremont Bridge. She then informed him that he matched the description of a suspect in a burglary that just occurred in the area.
The challenged finding and the rest of the trial court's findings, therefore, are verities on appeal.
As a general rule, searches and seizures made without a warrant violate the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). Warrantless seizures are presumed to be unreasonable. Acrey, 148 Wn.2d 746. But the State may rebut this presumption of unreasonableness by showing that a specific exception to the warrant requirement applies. Id.
One carefully drawn exception to the warrant requirement is a brief investigative stop, known as a Terry stop. Acrey, 148 Wn.2d at 746. A Terry stop is permissible if the police officer has a reasonable suspicion, based upon specific and articulable facts, that the person stopped has been or is about to be involved in a crime. Acrey, 148 Wn.2d at 747. To determine if an investigative stop was reasonable, courts consider the totality of the circumstances, including the purpose of the stop, the amount of physical intrusion upon the suspect's liberty, the officer's training and experience, the location of the stop, the detained person's conduct, and the length of time the suspect is detained. Id. A court must determine if the initial interference with the suspect's freedom of movement was justified at its inception and was reasonably related in scope to the circumstances that justified the interference in the first place. State v. Armenta, 134 Wn.2d 1, 15, 948 P.2d 1280 (1997).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
The scope and duration of a lawful Terry stop are limited by the investigative purpose of the stop. Acrey, 148 Wn.2d at 747. Therefore, if the initial investigation dispels the officer's suspicions, the stop must end, but if it confirms or further arouses the officer's suspicions, the officer may lawfully extend the scope and duration of the stop. Id. In this case, we agree with the trial court that the evidence was admissible because Officer Dotson's search and seizure of Cowan and his bag constituted a valid investigative stop. She had a reasonable suspicion, based upon specific and articulable facts, that Cowan committed the burglary.
Before Officer Dotson reached the salon to investigate the report of a burglary in progress, she was told that the burglar left the salon on foot, heading north. Approximately 15 blocks north of the salon, Officer Dotson drove up and down the streets in search of the burglar. The only pedestrian she saw was Cowan, whom she encountered heading northeast only five blocks from the salon. Less than 15 minutes had passed between the time that Officer Dotson saw Cowan and when the burglar left the salon. The original dispatch indicated that the burglar was a white male in his twenties, wearing a green sweatshirt, blue sweatpants, and baseball cap, and was carrying a bag or knapsack, but an updated report indicated he had removed the cap. Cowan was carrying a briefcase-like bag with a flap, was wearing blue-grey sweatpants, and appeared to be in his early twenties to late thirties. The totality of these circumstances, including Cowan's physical appearance and the closeness in time and location between the burglary and Officer Dotson's encounter with him, were sufficient to allow Officer Dotson to detain him briefly.
Cowan argues that there was not enough of a similarity between him and the description of the burglar to stop him, particularly when Officer Dotson acknowledged that it was not unusual for her to see joggers in that area at that time of the morning and that nearby bakeries and cafes were open then, too. But Officer Dotson did not see any pedestrians other than Cowan on her way to the salon, and Cowan was not jogging when she spotted him. Furthermore, Cowan was carrying a bag similar to the one described, and the aspects of the burglar's description that would have been most difficult for a suspect to alter quickly his pants and his age were a close match. Under these circumstances, Officer Dotson had reason to stop him. Officer Dotson's initial interference with Cowan's freedom of movement was justified at its inception and was reasonably related in scope to the circumstances that justified it in the first place. She reasonably extended the scope and duration of the stop when she asked Cowan where he had come from and his response did not dispel her suspicions. He did not indicate that he had just left his home and was out to get coffee or exercise. Rather, he said only that he came from the Fremont Bridge, which did not explain what he was doing in the neighborhood so early on a Sunday morning. He, therefore, further aroused her suspicions. She reasonably required him to wait a few minutes until another officer arrived with the witness.
Moreover, because she was investigating a burglary, it was reasonable for her to be concerned that the suspect might have a weapon or tools that could be used as a weapon. Therefore, she acted as a reasonably prudent person would when she patted down Cowan and asked to look in his bag. Upon seeing the green sweatshirt, she had even more reason to suspect him. We conclude that the trial court did not err when it denied Cowan's motion to suppress the physical evidence. Therefore, we need not address his arguments that evidence of the show-up identification and statements that he made to Officer Dotson on the way to the station were tainted and should have been excluded or that his conviction must be reversed.
Conclusion
Officer Dotson was justified in stopping Cowan, and the scope of her investigation was reasonable. The decision of the trial court is affirmed.
AGID, J. KENNEDY, J. and SCHINDLER, J.