Opinion
No. 57356-0-I.
March 12, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-8-02929-5, Philip G. Hubbard, Jr., J., entered November 9, 2005.
Counsel for Appellant(s), David L. Donnan, Washington Appellate Project, Seattle, WA.
Counsel for Respondent(s), Andrea Ruth Vitalich, King County Prosecutor's Office, Seattle, WA.
Affirmed by unpublished per curiam opinion.
An officer may conduct a Terry stop if there are specific and articulable facts that criminal activity is afoot. Terry also permits a protective frisk for weapons if the officer has reasonable grounds to believe the person is armed and dangerous. Based on the totality of the circumstances, the detention and protective frisk of D.H. were valid. D.H. and his companions matched the descriptions of three individuals in a reported shoplifting and assault, and these juveniles continued to run when the officer ordered them to stop. Moreover, the patdown was limited in scope, ending once the officer reasonably satisfied himself that D.H. was not armed. There was sufficient evidence to find D.H. used force to retain the stolen property, an element of robbery. Finally, the filing of the CrR 3.6 findings of fact and conclusions of law on the suppression matters after the filing of the opening brief was not prejudicial. We affirm.
Terry v. Ohio, 392 U.S. 1, 21, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 1968); State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994).
Hudson, 124 Wn.2d at 112.
Jesse Landry, a loss prevention officer for Fred Meyer, stopped D.H. and two female companions as they were leaving the store with stolen merchandise. Landry showed his badge to the three juveniles, identified himself as a loss prevention officer, and told them to come back to the store. D.H. turned to run and Landry grabbed his arm. D.H. resisted and began flailing his arms, trying to run away. One of the female companions began slapping Landry in the back of the head while he was trying to detain D.H. against the wall in the foyer of the store. D.H. hit Landry three times in the head with a closed fist while the female struck him in the head with an object. Realizing that the situation posed a danger to customers, Landry finally released D.H. He called 911.
D.H. and the other two juveniles fled from the store. Officer Patrick Morgan subsequently detained them based on the reported shoplifting and assault. He frisked D.H.'s outer clothing and felt several hard objects that he believed could be weapons. He then removed the objects. They were several pairs of shoes and two pairs of rolled up jeans, which were later identified as stolen from Fred Meyer.
The State charged D.H. with second degree robbery. He moved to suppress the evidence. The juvenile court denied the motion. D.H. was adjudicated guilty as charged.
D.H. appeals.
FINDINGS AND CONCLUSIONS
D.H. argues that the juvenile court's failure to enter written findings of fact and conclusions of law requires reversal. We disagree.
CrR 3.6(b) requires that at the conclusion of an evidentiary hearing, "the court shall enter written findings of fact and conclusions of law." CrR 3.6 fixes no time limit for entry of written findings, and courts have allowed them to be entered on appeal as long as it does not prejudice the defendant. This rule is distinct from JuCR 7.11(d) regarding findings and conclusions following an adjudicatory hearing.
State v. Cruz, 88 Wn. App. 905, 907 n. 1, 946 P.2d 1229 (1997).
The court shall enter written findings and conclusions in a case that is appealed. The findings shall state the ultimate facts as to each element of the rime and the evidence upon which the court relied in reaching its decision. The findings and conclusions may be entered after the notice of appeal is filed. The prosecution must submit such findings and conclusions within 21days after receiving the juvenile's notice of appeal. (Emphasis added).
Here, the written findings of fact and conclusions of law were filed by the prosecutor while this appeal was pending, and signed by defense counsel. The juvenile court concluded that based on the totality of the circumstances, Officer Morgan had reasonable suspicion to detain D.H., and to conduct a protective frisk for weapons because D.H. was wearing a bulky jacket on a warm day, Officer Morgan observed bulges in his jacket and pants, and was outnumbered three to one. The findings of fact and conclusions of law are consistent with the record and the court's oral ruling. Thus, they were not tailored to meet D.H.'s appeal. This case is consistent with the principles stated in State v. Head, on which D.H. relies, and does not require reversal. Because D.H. suffered no prejudice, there was no error.
136 Wn.2d 619, 624, 964 P.2d 1187 (1998).
See State v. McGary, 37 Wn. App. 856, 861, 683 P.2d 1125 (1984).
SEARCH AND SEIZURE
Next, D.H. argues that the trial court erred in failing to suppress the evidence found because the warrantless search violated his constitutional right to privacy. We disagree.
Warrantless searches and seizures are per se unreasonable under the Fourth Amendment to the United State Constitution and article 1, section 7 of the Washington constitution, absent an exception. The State bears the burden of showing a seizure without a warrant falls within one of these exceptions. One exception is an investigatory stop or a Terry stop. The police may briefly detain and question a person if they can point to specific and articulable facts that, in light of the officer's training and experience, suggest criminal activity is afoot. Terry also permits a protective frisk for weapons if the officer has reasonable grounds to believe the person to be armed and presently dangerous. We examine the totality of the circumstances to determine whether the stop and patdown were justified.
State v. Kinzy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000); State v. Ladson, 38 Wn.2d 343, 349, 979 P.2d 833 (1999).
State v. Acrey, 148 Wn.2d 738, 746, 64 P.3d 594 (2003).
Hudson, 124 Wn.2d at 112.
Terry, 392 U.S. at 21, 30; State v. Glover, 116 Wn.2d 509, 514, 806 .2d 760 (1991).
Hudson, 124 Wn.2d at 112.
Glover, 116 Wn.2d at 514.
Terry Stop
D.H. argues there was an insufficient basis to suspect that he was involved in criminal activity, and thus no reason to detain him. He is mistaken.
Officer Morgan received a report concerning a possible shoplifting and assault on a security guard that had just occurred at the Fred Meyer in Renton. The suspects were described as a black male about 15 wearing a heavy black coat, backpack and blue jeans; a black female around 15 to 16, with a thin build, wearing a black jacket and blue jeans; and a heavier set female wearing a white jacket. Officer Morgan was in the area when he received the report, and he observed three juveniles running that met the descriptions. He activated his lights and siren and ordered the juveniles to stop, but they continued to run. He cut them off, got out of his car and approached them, and they finally stopped. He detained them and began questioning the group. The trial court concluded that the detention was a valid Terry stop.
Based on the totality of the circumstances, Officer Morgan conducted a valid Terry stop based on specific and articulable facts that the juveniles had been involved in criminal activity. He had just received a report regarding shoplifting and assault when he observed three juveniles meeting the descriptions running in the exact location described. The juveniles continued to run after he ordered them to stop. Flight from police officers is a factor along with others that may be considered in determining whether an investigatory stop is justified. Thus, there was a sufficient basis to detain D.H.
State v. Sweet, 44 Wn. App. 226, 230-31, 721 P.2d 560 (1986).
D.H. relies on State v. Ellwood. That case is distinguishable. There, around midnight a detective noticed Steven Ellwood and a companion near an alley in an area with a history of burglaries and assaults. The detective decided to detain them to conduct a field interview, even though he witnessed no suspicious activity. The detective was not satisfied with their answers and asked for their names and dates of birth to conduct a warrant check. Because Ellwood had an outstanding warrant, the detective arrested him, searched him incident to arrest, and found drugs. The trial court suppressed the evidence and the State appealed. This court affirmed, reasoning that the detective merely stopped Ellwood because of the late hour in an area with a history of burglaries and assaults, and could not point to any articulable and objective facts that would have reasonably caused him to believe Ellwood or his companion were involved in criminal activity.
52 Wn. App. 70, 757 P.2d 547 (1988).
Ellwood, 52 Wn. App. at 71.
Id. at 72.
Id. at 71.
Id. at 74.
Unlike Ellwood, Officer Morgan had a call that a possible crime had just occurred at Fred Meyer and he observed three juveniles matching the descriptions running. They also continued to run when ordered to stop. These reasons meet the constitutional requirement of reasonable suspicion.
Terry Patdown
D.H. also argues that the officer had no basis to believe that he was presently armed and dangerous. He is again mistaken.
A Terry patdown is limited in its scope to a search of the outer clothing, which is permitted to discover weapons that might be used to assault the officer. The officer need not be absolutely certain that the individual is armed. Rather, the issue is whether a reasonably prudent person under the circumstances would be warranted in the belief that his or her safety or that of others was in danger. An officer's belief is not reasonable unless he or she can point to "particular facts" from which a reasonable inference of dangerousness may be drawn.
Hudson, 124 Wn.2d at 112.
Sweet, 44 Wn. App. at 233.
Id. at 233-34.
Id. at 234.
In State v. Sweet, the police received a call concerning a suspicious 1969 Dodge pickup truck. Later that evening, they found it parked and unoccupied in front of a closed business. They also observed a man standing in the shadows nearby. The officers drove toward the man who immediately fled. One officer yelled "Halt! Police!" and the man continued to run. After being caught, an officer frisked the man for weapons. A watch cap, a flashlight and a folding knife were found. This court held that the frisk for weapons was reasonable in light of the surrounding circumstances because the man, Patrick Sweet, was first observed in an isolated area at night, he fled at the approach of officers and ignored requests to stop, he failed to comply with the officers' requests to freeze, and he was wearing dark work gloves and had dropped a ski mask, which are articles of clothing associated with burglary and crimes of violence. Thus, the brief patdown for protection was justified.
Id. at 228.
Id.
Id. at 235.
Similarly here, when Officer Morgan approached the juveniles he was outnumbered three to one, he was investigating a possible assault, D.H. exhibited "fight or flight" behavior, continued to put his hands in his pockets despite orders to the contrary, and he was wearing a bulky winter jacket when it was 70 degrees outside. A protective frisk was reasonable under the circumstances.
D.H. further argues that the frisk exceeded its proper scope. He asserts that once Officer Morgan removed one pair of tennis shoes, his continued search was unjustified because the items discovered did not suggest he was armed and dangerous. This argument is unpersuasive. The officer was permitted to continue the patdown until he reasonably believed that the hidden objects were not weapons. It did not exceed the reasonable scope of the patdown.
The detention and protective frisk of D.H. were valid.
SUFFICIENCY OF EVIDENCE
D.H. also argues that there was insufficient evidence to prove he used force to retain the stolen property and thus, insufficient evidence to prove all of the elements of second degree robbery. We disagree.
When considering a sufficiency of the evidence challenge, we review the evidence in the light most favorable to the State. Under this standard, there must be sufficient evidence for any rational trier of fact to have found the essential elements of the crimes charged beyond a reasonable doubt. A claim of insufficient evidence admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. A trial court's credibility determinations are not subject to review.
State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
Id. at 221-22.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
A person commits robbery in the second degree when he [or she]:
unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking
RCW 9A.56.190; 9A.56.210 (emphasis added).
Here, Landry stopped D.H. as he was exiting the store with the stolen merchandise. D.H. punched Landry in the head three times and bit him on the arm in order to retain the stolen merchandise. This satisfies the force element of robbery.
D.H. relies on State v. Johnson to argue that there was insufficient evidence to prove force. That case is distinguishable. There, Richard Johnson loaded a television-video cassette recorder into a shopping cart and pushed it out the front door of Wal-Mart without paying. Two security guards followed him to the parking lot and confronted him. Johnson abandoned the cart and started to run away, but then turned back. One guard grabbed his arm and Johnson punched him in the nose and ran away. Johnson was charged and convicted of first degree robbery. On appeal, he argued that the evidence was insufficient to support his conviction because he did not use force to obtain or retain property, but rather used force while attempting to escape after abandoning the property. The court of appeals affirmed.
155 Wn.2d 609, 121 P.3d 91 (2005).
Id. at 610.
The supreme court reversed reasoning that Johnson used force while attempting to escape, not directly in the taking or retention of property. The court held that "the force must relate to the taking or retention of the property, either as force used directly in the taking or retention or as force used to prevent or overcome resistance `to the taking.'"
Id. at 611.
Id.
Unlike Johnson, D.H. had not abandoned the property when he used force. Rather, the stolen merchandise was on his person when he punched Landry in the head and bit him on the arm. D.H. used force to retain the property and escape. Thus, there was sufficient evidence to find force and sufficient evidence to prove all of the elements of second degree robbery.
We affirm the adjudication and disposition.