Opinion
No. 60571-2-I.
July 21, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-1-01011-1, Douglas D. McBroom, J., entered August 27, 2007.
Affirmed by unpublished per curiam opinion.
Police officers stopped the car in which Rasheed Echols was riding to investigate the driver in connection with a reported felony in progress. Because specific, articulable facts supported an objectively reasonable belief that the passengers could be armed and dangerous, the officers lawfully removed Echols from the car and frisked him for weapons. The pat down was therefore constitutionally valid, and the trial court did not err in denying Echols' motion to suppress. Accordingly, we affirm his conviction for three counts of possession of a controlled substance with intent to deliver and one count of second degree unlawful possession of a firearm.
FACTS
The State charged Echols with three counts of possession of a controlled substance with intent to deliver and one count of second degree unlawful possession of a firearm. Prior to trial, Echols moved to suppress the evidence seized after police officers stopped the car in which he was riding. The trial court's findings of fact, entered following the CrR 3.6 hearing, are unchallenged on appeal and establish the following sequence of events.
Around 2:30 p.m. on August 1, 2006, Seattle Police Officers Merry O'Cleary and Michael Cross responded to a reported fraud in progress at a credit union on First Avenue South. The dispatch indicated that the suspect, a white female with dyed blond hair, was driving a red Chevrolet Blazer. A teller at the credit union recognized the driver as someone who had tried to cash stolen checks at the credit union the previous day.
Officer O'Cleary arrived at the credit union in her patrol car within a few minutes and saw a car and driver matching the description in the drive-through lane. Because there were three people in the car, O'Cleary parked a short distance away and waited for Officer Cross, who arrived a few minutes later. O'Cleary and Cross then blocked the exit with their patrol cars and approached the Blazer on foot.
O'Cleary contacted the driver, Elizabeth Kellner, while Cross approached on the passenger side, where Echols was sitting in the front seat. A third person sat directly behind the driver. According to O'Cleary, the occupants of the Blazer appeared "startled" and "twitchy" when they noticed the officers approaching. She characterized the situation as "tense," in part because the credit union was busy and a lot of people were in the area. O'Cleary removed Kellner from the car and, after additional investigation, arrested her for attempting to cash a stolen check.
Officer Cross testified that Echols became "wide-eyed" and "nervous or jittery" after seeing the officer approach. Cross immediately asked the occupants if there were any weapons in the car. The only response came from the backseat passenger, who said, "none that I know of."
Cross thought the answer was suspicious and looked into the car, where he saw what appeared to be a lock box for a handgun on the floor at Echols' feet. Given the nature and location of the box, the possible felony in progress, the apparent nervousness of the car's occupants, and the suspicious answer from the backseat passenger, Cross was concerned there might be a gun in the car. He then handcuffed Echols, took him out of the car, and patted him down for weapons.
The box eventually turned out to be a case for compact discs.
During the pat down, Cross found a loaded .44 magnum handgun strapped to Echols' chest. When Echols admitted that he did not have a permit, Cross arrested him for carrying a gun without a concealed weapons permit. During a further search incident to the arrest, Cross found methamphetamine, ecstacy, and cocaine in Echols' pockets.
The trial court denied the motion to suppress, concluding that officers lawfully detained the car and its occupants to investigate the reported fraud in progress and that the circumstances supported a reasonable belief that Echols might be armed, justifying the pat down for weapons.
Following a bench trial based on agreed evidence, the court found Echols guilty as charged and sentenced him to concurrent terms of 50 months for the drug charges and 20 months for the weapons charge.
DECISION
On appeal, Echols contends that the trial court's findings do not support its conclusion that police officers lawfully detained and frisked him for weapons. He argues that his mere presence as a passenger in a car driven by a fraud suspect does not support an inference that he was a participant in the suspected offense or that he posed any safety risk to the investigating officers. We review de novo the conclusions of law entered after a suppression hearing. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
Under the Fourth Amendment and article I, section 7 of the Washington Constitution, warrantless searches and seizures are per se unreasonable, and the State bears the burden of demonstrating that a challenged search falls within one of the few narrow exceptions to the general rule. State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984). Under one exception, police officers may briefly detain a person reasonably suspected of criminal activity and frisk that person for weapons if there are reasonable grounds to believe the person is armed and presently dangerous. See State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991); Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
The application of Terry principles raises special concerns where, as here, police officers lawfully stop a car to investigate the driver for a traffic violation or possible criminal activity, but the car contains passengers who may or may not be connected to the investigation. In general, the arrest or detention of one or more of a vehicle's occupants, without more, does not provide the "authority of law" under the Washington Constitution to search the nonarrested individuals. See State v. Horrace, 144 Wn.2d 386, 392, 28 P.3d 753 (2001) (quoting State v. Parker, 139 Wn.2d 486, 502-03, 987 P.2d 73 (1999)); see also State v. Adams, ___ Wn. App. ___, ___ 181 P.3d 37 (2008) (mere presence in stolen car does not permit Terry search of passenger).
Officers may order nonsuspected passengers to stay in or get out of the car only if there is an articulable "objective rationale predicated specifically on safety concerns." State v. Mendez, 137 Wn.2d 208, 220, 970 P.2d 722 (1999) (overruled in part on other grounds Brendlin v. California, ___ U.S. ___, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007)). The validity of such actions depends on a number of nonexclusive factors, including the number of officers, the number and behavior of occupants, the time of day, the location of the stop, the traffic at the scene, any affected citizens, and the officer's knowledge of the occupants. Horrace, 144 Wn.2d at 393 (citing Mendez, 137 Wn.2d at 221). A vehicle stop and arrest in and of itself provides an objective basis for officers to ensure their safety by securing the scene, including ordering passengers in and out of the car as necessary. Parker, 139 Wn.2d at 502.
But if the purpose of the officer's interaction with a passenger is investigatory, "the officer must meet the higher Terry standard." Horrace, 144 Wn.2d at 393. Under Terry, a protective pat down of a nonsuspected passenger is valid only if "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." Horrace, 144 Wn.2d at 399-400. A generalized concern for officer safety does not justify a pat down for weapons. State v. Jones, 146 Wn.2d 328, 338, 45 P.3d 1062 (2002).
In State v. Horrace, 144 Wn.2d 386, 28 P.3d 753 (2001), our Supreme Court examined the privacy rights of a vehicle passenger when a state trooper stopped the car for speeding. While ascertaining that the driver had a suspended license, the trooper saw the driver make movements in Horrace's direction. Concerned that the driver may have been retrieving or concealing a weapon, the trooper directed Horrace out of the car for a pat-down search.
In considering the lawfulness of the pat-down search, the Supreme Court first noted that the trooper had ordered the passenger out of the car not merely to control the scene, but because of a belief that Horrace posed an independent threat to his safety. The trooper's "interaction with Horrace" was therefore investigatory and subject to the Terry stop-and-frisk standards. Horrace, 144 Wn.2d at 394. The court concluded that the driver's extended, unexplained movements, coupled with Horrace's proximity to those movements, Horrace's bulky coat, which could have concealed a weapon, the early morning hour of the encounter, and the relative isolation of the scene, constituted specific, articulable facts supporting an objectively reasonable belief that Horrace could be armed and dangerous. The pat-down search was therefore valid under article I, section 7 of the Washington Constitution. Horrace, 144 Wn.2d at 400.
The facts here are analogous to those in Horrace. There is no dispute that police officers lawfully stopped the car and driver for investigation of a possible felony in progress, an investigation that resulted in the arrest of the driver. As officers approached the car, they noticed that all of the occupants were nervous and "jittery." When asked whether there were weapons in the car, only one of the occupants responded with a limited, arguably equivocal response. Almost immediately, Officer Cross saw what appeared to be lock box for a handgun on the floor directly next to Echols' feet. Although Officer's Cross's interaction with Echols became investigatory at this point, see Horrace, 144 Wn.2d at 394, the foregoing circumstances, along with the presence of numerous citizens nearby and the need for two officers to deal with the three occupants, constituted specific, objective facts supporting a reasonable belief that Echols could be armed and dangerous. See Horrace, 144 Wn.2d at 399-400.
The Terry standard does not require absolute certainty that an individual is armed. "`[T]he 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.'" Horrace, 144 Wn.2d at 396 (internal quotation marks omitted) (quoting State v. Belieu, 112 Wn.2d 587, 602, 773 P.2d 46 (1989)). Because that standard was satisfied here, the officer's pat-down search was constitutionally valid, and the trial court did not err in denying Echols' motion to suppress.
Echols' reliance on State v. Galbert, 70 Wn. App. 721, 855 P.2d 310 (1993), is misplaced. In Galbert, officers executing a search warrant at a house conducted a second frisk of a handcuffed man immediately after finding marijuana nearby. On appeal, we reversed, concluding that the second frisk was not based on a reasonable suspicion that the man was armed and dangerous. Here, unlike Galbert, Officer Cross conducted the pat down based on specific circumstances suggesting the presence of a weapon.
Affirmed.