Opinion
No. 60958-1-I.
March 16, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-01014-5, Sharon S. Armstrong, J., entered November 26, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
The legal arrest of a driver does not ordinarily provide a basis for searching a passenger. But here, the arresting officer observed the passenger take a bag from his pocket and drop it on the floor of the car. Under the circumstances this was a furtive movement justifying the officer's concern for his safety and permitting a patdown frisk of the passenger. The frisk led to discovery of an apparently unused syringe in the passenger's pocket. This in turn justified the police in a suspicion that the bag on the floor contained evidence of criminal drug-related activity, a suspicion then confirmed when police searched the bag with the aid of a dog and found heroin. Concluding both the frisk and the search of the bag were legal, we affirm appellant's conviction for possession of heroin.
At about 1:20 a.m. in November 2006, Officer Cameron Probst and his partner were on routine patrol in south Seattle. The officers stopped a car with two people in it for a traffic violation. The car pulled over in a dimly lit and secluded area. Upon discovering that the driver had a suspended license, the officers asked her to get out of the car. While the driver was getting out of the car, Officer Probst saw Davis — the front seat passenger — put his hand into his jacket, remove a small bag, and place it on the floor. Officer Probst asked Davis to keep his hands on the dashboard while they arrested the driver and put her into the back of the patrol car. Davis complied.
A minute later, Officer Probst returned to talk with Davis. Officer Probst said that he went back to talk with Davis because he planned on searching the car incident to the driver's arrest and he could not do that with Davis in the car. Officer Probst explained that his usual practice is to tell passengers that they are free to go if they want to leave, or to have them stand at a safe distance from the car while the car is searched. In this situation, however, Officer Probst decided to patdown Davis because he was concerned that Davis might be armed.
Before patting Davis down, Officer Probst asked Davis if he had any knives, needles, or anything sharp on him. Davis replied that he had a needle. The officer asked what it was. Davis directed him to an inner pocket on his jacket. Officer Probst found and removed a capped syringe that did not appear to be used. He testified that in his experience, a syringe used for medical purposes, such as might be found upon a person who is a diabetic, is usually accompanied by a pouch of ancillary medical supplies. He did not find any such items on Davis.
Officer Probst asked Davis to wait by the front of the patrol car while he called for a narcotics detection dog to come search the car. Another officer and the drug dog arrived a few minutes later. The officer searched the car with the dog. They located a small piece of black tarry material inside the bag Officer Probst had seen Davis take from his pocket and put on the floor. A field test identified the substance as heroin. The officers then arrested Davis.
The State charged Davis with one count of possession of heroin. Davis filed a motion to suppress the heroin, claiming that the officers illegally patted him down and illegally searched the bag he had taken from his jacket pocket. At the CrR 3.6 hearing on the motion to suppress, the trial court heard testimony from Officer Probst.
The court denied the motion to suppress after concluding that the patdown of Davis and the search of the bag he took out of his pocket was justified under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968). The trial court then conducted a bench trial based on stipulated facts. Davis was convicted as charged.
Davis appeals. He contends the patdown of his person was an illegal search, prohibited by article I, section 7 of the Washington Constitution and the Fourth Amendment of the United States Constitution.
Davis first assigns error to finding of fact 12 and 13, which describe the removal of the bag as a furtive movement:
(12) As he looked in the car, Officer Probst saw the defendant furtively reach with his left hand into the left pocket on his jacket, remove a bag from the pocket and attempt to slide it between the front seat and the center console.
(13) When Officer Probst saw the defendant make this furtive movement, he immediately ordered the defendant to put his hands on the dashboard. Officer Probst did this because he was concerned that the defendant could be hiding or reaching for a weapon. He was concerned that the defendant was a safety threat. In the officer's experience, passengers did not usually make these types of movements when the driver was being arrested.
Where there is substantial evidence in the record supporting the challenged facts, those facts will be binding on appeal. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding. Hill, 123 Wn.2d at 644.
Substantial evidence supports the trial court's finding that Davis' movement was furtive. At the suppression hearing, Officer Probst explained why he considered Davis' movement suspicious:
Q: Did you see anything when you were looking inside the car as the driver passed you?
A: Yes, I did.
Q: What did you see?
A: I saw Mr. Davis place his hand into his jacket pocket and remove a bag.
Q: Can you describe what you saw at that time? Did you see it any more clearly than that?
A: I just saw him with the bag and placed it towards the center console floorboard area.
Q: Was that significant to you?
A: Yes, it was.
Q: Why?
A: Not many people that I come in contact with start reaching for things as we start pulling drivers or arresting people out of the car;. . . .
Q: What was your concern?
A: My concern was that he was either trying to place a weapon somewhere, either had it on his person and was trying to get rid of it, or something illegal, drugs, or something of that sort.
Officer Probst also explained why he decided to patdown Davis. He testified that his decision to patdown Davis was based on the suspicious movements Davis made while the driver was getting out of the car and the fact that Davis was wearing layered clothing, which made it difficult to determine visually whether Davis had a weapon on his person:
Q: If you have a passenger you ask to step aside, do you always ask that passenger to pat them down?
A: No.
Q: What do you do?
A: I decided to pat him down based on his movements and what I observed him doing in the car.
Q: Was there any other factor that led you to do that?
A: Also, when he exited the car I noticed that he was wearing a fair amount of layers of clothing; a sweatshirt underneath a jacket. I couldn't observe visually if he had anything, any kind of weapons on him.
Davis claims his movement was not furtive because of the fact that Officer Probst was able to identify the brand name of the bag Davis took out of his pocket, and according to Davis this meant that the officer saw it well enough to know it was not a weapon. During cross-examination at the suppression hearing, Officer Probst was asked to describe the bag:
Q: What did the bag look like that you had seen Mr. Davis take out of his pocket? Can you describe the size of it, whether it was clear or opaque?
A: It was maybe about 6 to 8 inches tall, about 4 or 5 inches wide. And I don't know how deep the bag was, but it — the brand name was Planters, and it was some kind of peanut or nut that you eat.
Q: Could you see into it? Could you see through it?
A: No, you could not.
Q: Okay. Could you tell if it was open or not at the time you saw it in Mr. Davis' hand?
A: No, I could not.
The fact that the brand name of the bag was visible does not make Davis' movement any less furtive. This is because it was the movement itself, and the possibility that it may have been used to conceal a weapon, that gave Officer Probst reasonable concern for his safety. The record establishes that Officer Probst did not know what was in the bag and that, in his experience, the movement itself was suspicious. Because substantial evidence supports the trial court's findings that the movement was "furtive," those findings may be used to justify the patdown.
Davis also contends that the trial court erred in concluding that there were "no facts to show that the pat-down was arbitrary or harassing." As this determination goes to the ultimate validity of the search, it will be reviewed as a challenged conclusion of law. Conclusions of law in an order pertaining to suppression of evidence are reviewed de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
Davis assigns error to the court's conclusion that "Officer Probst had a reasonable basis under an objective standard to believe that the defendant may be armed, and if armed, that he could be dangerous." He also assigns error to the court's conclusion that having two officers "did not materially reduce the safety concerns." Finally, Davis claims the court erred in concluding that the possession of the needle raised a reasonable basis to believe that there were narcotics present in the vehicle.
To justify a Terry frisk under the Fourth Amendment and article I, section 7 of the Washington Constitution, a police officer must be able to "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21; State v. Horrace, 144 Wn.2d 386, 394, 28 P.3d 753 (2001). "The Terry court held that `where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous . . . he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.'" Horrace, 144 Wn.2d at 394, quoting Terry, 392 U.S. at 30. Faced with a defendant's challenge to the permissibility of the protective search, the trial judge must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances and must apply an objective standard — the belief of a person of reasonable caution. Horrace, 144 Wn.2d at 394.
Here Davis does not dispute that there was a valid traffic stop and a valid arrest of the driver for driving with a suspended license. The privacy interests of passengers, including Davis, are protected by article I, section 7 and must be balanced against concerns for officer safety during traffic stops. Mendez, 137 Wn.2d at 219. The frisk of a passenger is justifiable "only where the officer is able to point to specific, articulable facts giving rise to an objectively reasonable belief that the passenger could be armed and dangerous." State v. Horrace, 144 Wn.2d 386, 399-400, 28 P.3d 753 (2001). A reasonable belief that the suspect is armed and presently dangerous means some basis from which the court can determine that the detention was not arbitrary or harassing. State v. Setterstrom, 163 Wn.2d 621, 626, 183 P.3d 1075 (2008). A court should evaluate the entire circumstances of the traffic stop in determining whether the search was reasonably based on officer safety concerns. State v. Glossbrener, 146 Wn.2d 670, 679, 49 P.3d 128 (2002).
Davis contends that removing a bag from the jacket pocket of layered clothing that is appropriate to the season does not give rise to a reasonable belief that he was armed and dangerous. Davis cites Glossbrener, 146 Wn.2d 670. In Glossbrener, an officer pulled the defendant over for a broken headlight. While pulling him over, the officer observed the driver — who was the only person in the car — reach down toward the passenger side of the car for several seconds. When asked about this movement, Glossbrener explained that he had been trying to hide an open alcohol container. The officer allowed Glossbrener to remain in his car while he returned to the patrol car to check for outstanding warrants. The officer then asked Glossbrener to step out of his car and, after patting him down for weapons, watched him perform field sobriety tests. Having determined that Glossbrener was neither wanted on a warrant, nor intoxicated, nor armed, the officer had completed his investigation. He nevertheless proceeded to search the passenger compartment of the car near the glove box where the earlier reaching movement had been seen. There, the officer found contraband items. The Supreme Court reversed the resulting conviction, concluding that the State had failed to show a valid officer safety concern. Although the officer may have had a reasonable concern about his own safety when he first observed the furtive movement, any such belief was no longer objectively reasonable at the time he actually conducted the search, particularly in view of the fact that he allowed Glossbrener to remain in his car while checking for warrants. Glossbrener, 146 Wn.2d at 681-82.
Here, unlike Glossbrener, there were no intervening factors that mitigated Officer Probst's concerns. Officer Probst observed a suspicious movement. Davis' layered clothing heightened that concern. Then Davis admitted to having something sharp in his jacket pocket. Taken together, these circumstances gave rise to an objective belief that Davis may have been armed and dangerous — this was sufficient because an officer need not be absolutely certain that an individual is armed. Terry, 392 U.S. at 27. The issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Terry, 392 U.S. at 27.
Davis also cites State v. Setterstrom, 163 Wn.2d 621, 183 P.3d 1075 (2008). In Setterstrom, someone called the police complaining about two young men in the lobby of a Department of Social and Health Services building. The caller alleged that one man was sleeping and the other appeared to be under the influence of drugs. When police arrived they found Setterstrom filling out an application for benefits while another man slept on a bench. When approached by the officers, Setterstrom lied about his name. The officers described Setterstrom as being nervous and fidgeting with increasingly escalated behavior. The officers believed Setterstrom was under the influence of methamphetamine. After patting Setterstrom down for weapons, the officers found methamphetamine and paraphernalia. Setterstrom moved unsuccessfully to suppress the evidence.
The Supreme Court invalidated the search because the officers did not have a reasonable concern that Setterstrom was armed and presently dangerous. Setterstrom, 163 Wn.2d at 626-27. The Court noted that officers must have some basis beyond nervousness and lying to justify an investigatory frisk. The Court held that lawful presence in a public area filling out a DSHS benefits form, absent threatening gestures or words, did not justify a patdown. This was not, according to the Court, "a situation where the officers encountered Setterstrom in a dark alley in a crime-ridden area." Setterstrom, 163 Wn.2d at 627.
Davis says that like Setterstrom, he cooperated with the officers' requests, did not appear to be under the influence of drugs, and did not make any threatening gestures. But the situation in Setterstrom is quite different from what occurred in this case.
Here, officers observed a furtive movement that gave them concern for their safety because the movement was consistent with an attempt to conceal something — possibly a weapon. The late hour, the dimly lit environment, Davis' layered clothing, and his admission that he had something sharp in his pocket made the officers' concern that Davis might have been armed and dangerous all the more reasonable. The concern that the bag might conceal a weapon was not mitigated by the fact that there were two officers present rather than just one. The trial court properly concluded that the patdown frisk was justified under Terry.
Additionally, Davis contends police were not justified in continuing to detain him while they waited for the drug dog and then searching the bag he had thrown on the floor. According to Davis, the unused and uncapped needle they found in his pocket was innocuous and did not provide a basis for a reasonable suspicion that the Planters bag would contain evidence of criminal activity.
An officer may briefly stop an individual based upon reasonable suspicion of criminal activity if necessary to maintain the status quo while obtaining more information. State v. Miller, 91 Wn. App. 181, 184, 955 P.2d 810, 961 P.2d 973 (1998). To justify a seizure on less than probable cause, Terry requires a reasonable, articulable suspicion, based on specific, objective facts, that the person seized has committed or is about to commit a crime. Terry, 392 U.S. at 21.
According to unchallenged findings of fact from the suppression hearing, Officer Probst and his partner requested the drug dog approximately 10 minutes after the initial stop occurred, at 1:20 a.m. The drug dog arrived 10 minutes later, at 1:30 a.m. Officer Probst took three to four minutes to brief the officer with the dog before the dog began searching the car. The officers arrested Davis at 1:50 a.m. Under these circumstances, the trial court did not err when it concluded that the search was conducted in a "sufficiently expeditious manner." Conclusion of Law 10.
The trial court also concluded the search of the bag by the officer and dog was based on reasonable suspicion. "Even assuming that there must be a reasonable basis to believe narcotics are present before a dog search can be conducted, in the context of everything that Officer Probst observed, including the defendant's movements, the possession of the needle raised a reasonable basis to believe there were narcotics present in the vehicle." Finding of Fact 11.
Following the legal Terry frisk, which resulted in the discovery of the unused syringe but no additional medical supplies, the police had sufficient, reasonable suspicion of criminal drug-related activity to detain Davis, wait for the dog, and then to search the bag Davis had dropped on the floor. We conclude the court did not err in denying the motion to suppress.
Affirmed.