Opinion
No. 56218-5-I.
June 19, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-06876-9, Bruce W. Hilyer, J., entered May 11, 2005.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
David L. Donnan, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Chidi Fletcher Doc #774762 (Appearing Pro Se), Washington State Penitentiary, 1313 N. 13th Avenue, Walla Walla, WA 99362-1065.
Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
David M. Seaver, King Co Pros Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.
Reversed by unpublished per curiam opinion.
Chidi Fletcher appeals his conviction for unlawful possession with intent to deliver cocaine, arguing that the evidence found on him when he was arrested should have been suppressed because he was seized without a warrant. We agree. Police officers did not have a reasonable suspicion that he was engaged in criminal activity to justify his detention. The trial court, therefore, erred when it denied his motion to suppress the evidence.
Fletcher was sitting with two companions on a cement wall outside a coffee shop at Westlake Mall shortly before the shop closed for the night. A `No Loitering' sign was posted inside the store, above where Fletcher was sitting.
A Seattle police officer, Michael Lanz, noticed people approach, then walk away from Fletcher. After observing the group, Officer Lanz and his partner, Officer Kerry Zieger, rode their bikes around the mall property. When the officers returned a few minutes later, Fletcher and his companions were still sitting on the wall. The officers again saw people approach Fletcher, then move away, but the people were different from the ones who had approached him before.
Officer Lanz did not recognize Fletcher, but thought he might be someone who had `been trespassed' from the mall property. The officers approached Fletcher and, as they did so, the group around him dispersed. Fletcher did not try to leave, but he seemed nervous and made furtive movements with his hands to his pockets.
The officers stood in front of Fletcher and Officer Lanz asked him and his two companions for identification. Fletcher did not provide physical proof of his identity, but he said his name was Chidi Frazier and his date of birth was June 9, 1980. When officers entered that name and date of birth into a police computer to see if `Frazier' had been `trespassed,' the officers discovered a warrant for Chidi Frazier's arrest.
Officer Lanz arrested Fletcher (aka Frazier) and searched him incident to arrest. A baggie containing a large chunk of cocaine dropped out of Fletcher's pant leg when the officer patted him down. In addition to the cocaine, which had a street value of $13,000, Fletcher was carrying nearly $2,000 in cash and a razor blade.
The State charged Fletcher by amended information with one count of unlawful possession with intent to deliver cocaine. Before trial, he moved to suppress the evidence found when he was arrested. Officer Lanz testified at the suppression hearing; Fletcher did not.
After hearing the officer's testimony, the trial court concluded: the officers had a reasonable, articulable suspicion to ask Fletcher for identification based upon their agreement with mall security to enforce its no loitering policy; the level of intrusion was minimal; Fletcher did not give officers physical proof of his identity; and when a computer check showed a warrant under the name and date of birth Fletcher gave the officers, they had probable cause to arrest him. The court, therefore, denied Fletcher's motion to suppress the evidence.
The evidence was admitted, and a jury found Fletcher guilty as charged. This appeal followed.
Fletcher argues the trial court erred in denying his request to suppress the evidence. He contends the officers detained him without a reasonable, articulable suspicion he committed or was about to commit a crime and, therefore, he was seized in violation of Washington's Constitution. Article $b/b$, section 7 of the Washington Constitution provides: `No person shall be disturbed in his private affairs, or his home invaded, without authority of law.' This provision protects citizens' privacy interests from governmental trespasses absent a warrant.
Article $b/b$, section 7 of the Washington Constitution provides greater protection to individual privacy rights than the Fourth Amendment to the United States Constitution. State v. Rankin, 151 Wn.2d 689, 694-95, 92 P.3d 202 (2004).
A search or seizure without a warrant is constitutional only if it falls within one of the exceptions to the warrant requirement.
Rankin, 151 Wn.2d at 695.
One exception to the warrant requirement is a brief investigative stop, known as a Terry stop. A police officer may conduct a brief investigative stop whenever the officer has a reasonable suspicion, grounded in specific and articulable facts, that the person stopped has been or is about to be involved in a crime. An investigatory detention is a seizure.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
State v. Acrey, 148 Wn.2d 738, 746-47, 64 P.3d 594 (2003).
Acrey, 148 Wn.2d at 744-47.
Rankin, 151 Wn.2d at 695.
The trial court essentially held that the officers conducted a Terry stop, and that they had a reasonable, articulable suspicion of criminal activity, which justified the brief detention. We disagree.
Before determining whether the officers had the requisite degree of suspicion, we must first determine at what point Fletcher was `seized.' A seizure occurs if, considering all the circumstances, a reasonable person would have believed he was not free to leave. Although the determination of whether a seizure has occurred is a mixed question of law and fact, the ultimate determination of whether the facts constitute a seizure is one of law and is reviewed de novo.
See State v. Armenta, 134 Wn.2d 1, 10, 948 P.2d 1280 (1997) (not every encounter between an officer and an individual amounts to a seizure).
Armenta, 134 Wn.2d at 10.
State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108 (1996).
Officer Lanz testified that when he first approached Fletcher, Fletcher was not free to leave. Although a police officer's unexpressed subjective intent is immaterial on the issue of whether a reasonable person would feel free to leave, the officers' actions were consistent with Officer Lanz's belief. Three armed officers walked straight through the crowd to stand directly in front of Fletcher and his companions, ignoring the other people gathered around. The officers informed Fletcher he was sitting under a `No Loitering' sign, thus indicating they believed he was doing something wrong. A reasonable person in these circumstances would not believe he was free to leave. We conclude that Fletcher was seized from the moment the officers confronted him.
State v. Ellwood, 52 Wn. App. 70, 73, 757 P.2d 547 (1988).
Officer Lanz testified that a third officer was with he and Officer Zieger when they confronted Fletcher.
Next, we consider whether the officers had a reasonable suspicion that Fletcher was engaged in criminal activity at that point. To support an investigative detention, the circumstances must show there is a substantial possibility that criminal conduct has occurred or is about to occur. The circumstances must be more consistent with criminal conduct than with innocent behavior.
State v. Mendez, 137 Wn.2d 208, 223, 970 P.2d 722 (1999).
State v. Pressley, 64 Wn. App. 591, 596, 825 P.2d 749 (1992).
In this case, the officers were in a high crime area where businesses had ongoing problems with narcotics activity. Fletcher was sitting on the wall under a `No Loitering' sign outside Starbucks, but he did not have any Starbucks merchandise or parcels indicating he had been shopping at the mall. The officers saw different people contacting Fletcher, whom they did not recognize. These circumstances were not sufficient to justify the stop. Although Fletcher's behavior was consistent with selling drugs, it was equally consistent with entirely innocent explanations.
The trial court concluded that the officers had a reasonable suspicion of criminal activity based upon the police department's agreement with the mall security to enforce the mall's no loitering policy. That agreement, however, does not give officers the authority to detain anyone in order to ask for identification.
The trial court cited State v. Glover and State v. Little as support for its conclusion that the officers had a reasonable, articulable suspicion to contact Fletcher based upon their agreement with the mall. Those cases are distinguishable.
116 Wn.2d 509, 806 P.2d 760 (1991).
116 Wn.2d 488, 806 P.2d 749 (1991).
Both Glover and Little involved incidents at the Lakeshore Village Apartments. The management of that apartment complex had experienced ongoing problems with drug and gang activity. The complex was surrounded by a fence topped with concertina wire and had signs prohibiting trespassing or loitering posted throughout the complex to discourage crowds from gathering and trespassing on the grounds. Only residents and their guests were allowed at the apartment complex, and guests could remain on the property only if accompanied by a resident. Four different defendants were involved in Glover and Little, and in all but defendant Little's case, the arresting officers testified they generally were familiar with the residents of the complex. In each case, upon seeing police officers, the defendants ran away, or otherwise began acting suspiciously.
In contrast to the defendants in Glover and Little, Fletcher did nothing inherently suspicious before he was seized. Moreover, when the officers confronted him, he was sitting on property that was open to the public. Furthermore, the officers did not recognize him and therefore had no reason to suspect he had been told to stay away from the property. The officers did not have a reasonable, individualized suspicion that Fletcher was engaging in criminal conduct. The investigative Terry stop, therefore, was not justified, and the evidence against Fletcher should have been suppressed.
The trial court improperly denied Fletcher's motion to suppress the evidence. The decision of the trial court is reversed and remanded for further proceedings consistent with this opinion.
BAKER, GROSSE and BECKER, JJ.