Opinion
No. 25255-8-III.
October 25, 2007.
Appeal from a judgment of the Superior Court for Yakima County, No. 05-1-02429-7, Blaine G. Gibson and Susan L. Hahn, JJ., entered May 26 and June 14, 2006.
Affirmed by unpublished opinion per Stephens, J., concurred in by Sweeney, C.J., and Schultheis, J.
Anthony Gaylord Garvin appeals his conviction for one count of possession of a controlled substance — methamphetamine. He contends the court erred by denying his motion to suppress evidence seized by a patdown search. We affirm.
FACTS
On October 21, 2005, Officer Gregory Cobb stopped Mr. Garvin for driving with defective brake lights and a shattered front windshield. Upon approaching the car, the officer noticed that the ignition had been "punched" out and there was a knife on the seat next to Mr. Garvin. Clerk's Papers (CP) at 14. Officer Cobb asked Officer Henning to have Mr. Garvin get out of the car. Officer Cobb then asked Mr. Garvin if he had any additional weapons. Mr. Garvin responded by saying that he had another knife in his pants pocket.
Officer Cobb removed the knife from Mr. Garvin's pocket and placed it on the trunk of the car. He then began a patdown of Mr. Garvin using a squeezing method. Officer Cobb testified that he uses this method because he is concerned about needles and other sharp objects, and a slow, squeezing method allows him to avoid being poked. Officer Cobb squeezed the coin pocket of Mr. Garvin's jeans and felt a small "dime baggy" with a granule substance inside the pocket. Report of Proceedings (RP) (March 28, 2006) at 8-9, 17. Believing that the substance was a narcotic, the officer placed Mr. Garvin in handcuffs and removed the bag from the coin pocket. The bag contained methamphetamine.
Mr. Garvin was charged with one count of possession of a controlled substance — methamphetamine. The information was later amended to charge Mr. Garvin with one count of possession of a controlled substance — methamphetamine and one count of bail jumping.
On November 30, Mr. Garvin moved to suppress the methamphetamine evidence. He argued that the officer exceeded the permissible scope of a Terry stop when he squeezed Mr. Garvin's pocket contents and removed the plastic bag from the pocket.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
The court denied Mr. Garvin's motion. It determined that the officer's discovery of the methamphetamine-filled bag resulted from "a single squeezing motion as opposed to squeezing, sliding or manipulating the contents of [the] pockets." CP at 33. The court concluded that, under the "plain touch" doctrine, there was no invasion of Mr. Garvin's privacy beyond the patdown for weapons, and discovery of the baggy provided probable cause to arrest Mr. Garvin, thus allowing the removal of the plastic bag from his pocket. CP at 33-34.
Following a bench trial, the court found Mr. Garvin guilty of possession of a controlled substance — methamphetamine, but dismissed the bail jumping charge. This appeal follows.
ANALYSIS
Mr. Garvin contends the court erred by denying his motion to suppress. He argues that Officer Cobb exceeded the scope of a lawful Terry search when he squeezed the contents of his pocket despite ascertaining that the pocket did not contain a weapon.
When reviewing the denial of a suppression motion, we determine whether substantial evidence supports the findings of fact and whether the findings support the conclusions of law. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). We give great deference to a trial court's resolution of differing accounts of the circumstances surrounding the encounter set forth in its factual findings. Id. at 646. When challenged, findings entered in a CrR 3.6 suppression hearing are reviewed for substantial evidence. Id. at 644. "Evidence is substantial when it is sufficient to persuade a fair-minded person of the truth of the stated premise." State v. Reid, 98 Wn. App. 152, 156, 988 P.2d 1038 (1999).
"`As a general rule, warrantless searches and seizures are per se unreasonable.'" State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996) (quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980)). There are, however, "a few `jealously and carefully drawn' exceptions." State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999) (internal quotation marks omitted) (quoting Hendrickson, 129 Wn.2d at 70). A Terry stop for investigatory purposes is a very limited exception to the requirement of probable cause to support governmental searches and seizures. Such a stop is permitted when the law enforcement officer has an "articulable suspicion" the individual is involved in criminal activity. Terry, 392 U.S. at 21; State v. White, 97 Wn.2d 92, 105, 640 P.2d 1061 (1982). An officer may conduct a brief, non-invasive search of the person stopped when he has reason to believe the person is armed. State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994). The scope of the weapons search is limited to a patdown of the outer clothing. Id.
At the point the officer ascertains a weapon is not involved, any continuing search becomes unreasonable. Id. at 113. On the other hand, if that information coincides with the officer's recognition that an object is contraband, there is no invasion of privacy beyond that already necessitated by the search for weapons. Id. at 114. These circumstances have been referred to as the "plain touch" or "plain feel" exception to the warrant requirement. Id. at 113-14. The officer may not slide, squeeze or in any other manner manipulate the object to ascertain its incriminating nature. Id. at 119. Such manipulation of the object will exceed the scope of a Terry frisk. Id. When reviewing the merits of a Terry investigatory stop and search, we must evaluate the totality of the circumstances presented to the investigating officer, taking into account an officer's training and experience. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991); State v. Mercer, 45 Wn. App. 769, 774, 727 P.2d 676 (1986).
Mr. Garvin argues that Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993) is dispositive here. In Dickerson, the United States Supreme Court held that where an officer conducts a weapons frisk of a suspect's pockets during the course of a valid Terry stop and finds no object whose contour or mass makes it immediately apparent to be a weapon, the continued manipulation of the suspect's pocket constitutes an impermissible search. Id. at 368-78. Under Dickerson, a weapons frisk can become an impermissible search when the officer goes beyond feeling for weapons and engages in further squeezing, sliding or manipulation of objects in a suspect's pockets. Id. at 377-78. Dickerson does not, however, indicate whether the scope of a Terry frisk is exceeded when the identification of contraband coincides with an officer's determination that the object is not a weapon, as is the case here.
In Hudson, 124 Wn.2d at 114, our Supreme Court noted, "[i]f an officer lawfully pats down a suspect and feels an object possessing characteristics that make its identify as contraband immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the search for weapons." Probable cause is required, however, to satisfy the requirement of immediate recognition. Id. at 118. An officer must have probable cause to believe the object he has touched is contraband, without conducting some further search. Id. The incriminating character must be immediately apparent. Id.
Here, Officer Cobb testified at the suppression hearing that he utilized a squeezing motion as opposed to a patdown based on his concern for needles and sharp objects. He said that "patting" does not give him time to respond to a sharp object before being poked. RP (March 28, 2006) at 6. He said that he squeezed the coin pocket on Mr. Garvin's jeans, because such pockets can extend quite far depending on the style of the pants, but that he squeezed the coin pocket only once. He said that he did not feel any weapons or hard objects, but felt a small bag with something granule inside of the pocket. He said that as he squeezed the item, the granules separated. He testified that through his training and experience, he knew that he was dealing with some sort of narcotic.
Based on this testimony, we conclude that the trial court did not err by denying the motion to suppress. Hudson, 124 Wn.2d at 114-17. Officer Cobb had reasonable concern for officer safety because of the knives found in Mr. Garvin's car and in his pocket. Thus, the patdown search for weapons was justified. Moreover, in a single squeezing motion to feel for weapons, Officer Cobb immediately recognized the contents of Mr. Garvin's pocket as contraband. He knew he was touching some sort of narcotic without the need for any continuing manipulation of the pocket. Dickerson, 508 U.S. at 368. Officer Cobb's knowledge that the item in Mr. Garvin's pocket was a narcotic gave rise to probable cause justifying the seizure of the item. Some circumstances fall squarely within the narrow confines of the "plain touch" doctrine. Hudson, 124 Wn.2d at 114-17.
CONCLUSION
We hold Officer Cobb immediately recognized narcotics in Mr. Garvin's pocket during the weapons frisk without any further manipulation of the pocket. Under the plain touch doctrine of Hudson, the officer's actions did not exceed the scope of Terry.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J., SCHULTHEIS, J., Concur.