Opinion
No. 53902-7-I
Filed: March 14, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-8-05004-2. Judgment or order under review. Date filed: 03/03/2004. Judge signing: Hon. Harry J. McCarthy.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Corey Marika Endo, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Adrian Greenhalgh/Info Only (Appearing Pro Se), 33222-26th Ave. S.W., Federal Way, WA 98023.
Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Alice Degen, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Adrian Greenhalgh appeals the juvenile court's adjudication and disposition order on the charge of possession of a controlled substance. He challenges the juvenile court's denial of his motion to suppress evidence that the police obtained when they stopped him. First, he claims that the police did not have a reasonable suspicion that he was engaging in criminal activity to support a Terry stop. Second, he argues that the police did not have sufficient justification to initiate a Terry stop pat-down. Third, he argues that the juvenile court abused its discretion in admitting the cocaine evidence because of an allegedly defective chain of custody. Finally, Greenhalgh argues that he was prejudiced by the delayed entry of written findings of fact and conclusions of law and that the written findings were not supported by substantial evidence.
Terry v. Ohio, 392 U.S. 1, 16-19, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Parker, 139 Wn.2d 486, 527, 987 P.2d 73 (1999).
We hold that the initial stop was legitimate, the officers had a reasonable concern for their safety to justify a frisk, and the alleged defects in the chain of custody go to the weight, not the admissibility, of the evidence. We also hold that Greenhalgh was not prejudiced by the court's delayed findings and conclusions. Accordingly, we affirm.
At about 2:55 a.m. on February 25, 2003, Federal Way Police Officers James Nelson and John Demarest responded to a 911 report that someone was trying to remove a screen from a bedroom window in a multi-building apartment complex. The 911 caller described the suspect as a dark figure.
After the officers arrived at the complex and began to patrol, at about 3:04 a.m., a second 911 caller from a different apartment reported that a person had been seen running toward S. 312th Street. The suspect was described as possibly a black male who was wearing a black leather jacket and black pants. The caller did not know if the suspect was carrying anything.
The officers then headed to S. 312th Street and observed two figures walking away. One was dressed in a dark nylon jacket of an insulated or down variety and light gray pants. The other was wearing a dark jersey and dark pants. There were no other persons around.
At the intersection of S. 312th Street and 28th Avenue, the officers got out of their patrol car and hailed the two subjects. The two subjects turned around. When they turned around, Officer Demarest recognized the man dressed in dark clothing as John Pellum, a person he knew from previous street contacts. Pellum had told Officer Demarest that he was associated with a gang and that the officer should watch out because of that fact. The officers asked the men to come over. Both men expressed reluctance to approach and anger at what they believed was harassment, but responded and walked toward the officers.
Officer Demarest began a pat-down search because Pellum was wearing a baggy clothing style that was suited for concealing a weapon. Officer Nelson began to pat down Greenhalgh who was similarly dressed in a dark, down-style jacket that could have concealed a weapon. During the pat-down, Pellum attempted to pull away from Officer Demarest. Officer Demarest then used an arm-bar take down to bring him to the ground and handcuff him. Seeing what was occurring with Pellum, Officer Nelson took Greenhalgh to the ground in order to maintain control of the situation for officer safety.
After Officer Nelson helped Greenhalgh to his feet, he continued his frisk. As he patted down Greenhalgh's lower leg, he saw a small zip-lock bag drop to the ground. Officer Nelson he believed the bag contained cocaine. The officers arrested Greenhalgh, and the State charged him with one count of violating the Uniform Controlled Substance Act (VUCSA (RCW 69.50.401(d)). Officer Nelson weighed and tested the suspected crack cocaine and logged it into evidence at the Federal Way police station.
Greenhalgh moved to suppress the admission of the cocaine evidence, challenging the scope of the investigatory stop and the chain of custody involving the cocaine evidence. The court denied the motion and a bench trial followed. The court found him guilty as charged and entered an order of disposition.
Greenhalgh appeals. TERRY STOP
For the first time on appeal, Greenhalgh argues that the arresting officers were not justified in making the initial investigatory stop. We disagree.
The State argues that this theory was not argued at trial and may not be raised for the first time on appeal. But a warrantless seizure violates a constitutional right. Under RAP 2.5(a) (3), we may consider a manifest error affecting a constitutional right raised for the first time on appeal.
The Fourth Amendment and article I, section 7 of the Washington Constitution prohibit unreasonable searches and seizures. Warrantless searches and seizures are per se unreasonable and violate constitutional protections. But the State may rebut this presumption by establishing a recognized exception to the warrant requirement. One of those exceptions is an investigatory stop, or Terry stop.
Terry, 392 U.S. at 16-19.
State v. Ladson, 138 Wn.2d 343, 350-51, 979 P.2d 833 (1999).
State v. Kinzy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000), cert. denied, 531 U.S. 1104 (2001).
State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994) (citing State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986)).
'[A] court must make several inquiries in evaluating investigative stops:
(1) was the initial interference with the suspect's freedom of movement justified at its inception? and, (2) was it reasonably related in scope to the circumstances which justified the interference in the first place?' We examine the reasonableness of an officer's suspicion under the totality of the circumstances known to the officer at the time of the initial detention.
State v. Belieu, 112 Wn.2d 587, 595, 773 P.2d 46 (1989).
State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991).
When a party challenges denial of a motion to suppress evidence, we review the trial court's findings of fact for substantial evidence. Substantial evidence exists if the evidence in the record is sufficient to persuade a fair-minded, rational person of the truth of the court's finding. We review the conclusions of law de novo.
State v. Maxfield, 125 Wn.2d 378, 385, 886 P.2d 123 (1994).
State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
Here, officers responded to a 911 call at 2:55 in the morning. The first call indicated a dark figure was trying to pry off a window screen. Nine minutes later, a second 911 call came in indicating that a suspicious man, possibly black, was running away from the complex and toward S. 312th Street.
Responding to the attempted burglary and related call within ten minutes, the officers observed two males walking down S. 312th Street. Both men were dressed in dark clothing. It was late at night. There was no one else around. Greenhalgh wore clothing that made him a reasonable match for the suspect described by one of the 911 callers. Greenhalgh could also have been the 'dark figure' reported by the other 911 caller because he was wearing a dark nylon jacket. Also, the jacket could have appeared to be the leather jacket as described in the second 911 call.
Under the totality of the circumstances, it was reasonable for the officers to stop Pellum and Greenhalgh for investigatory purposes.
THE FRISK
Greenhalgh argues that even if the initial stop was justified, the police had no reasonable suspicion that he was armed and therefore the Terry frisk for weapons violated his constitutional rights. Specifically, he argues that the cocaine evidence discovered in the search should have been suppressed. We disagree.
In addition to questioning, Terry permits the officer to frisk the person for weapons if the officer has reasonable grounds to believe the person to be armed and presently dangerous. The standard is not whether the officer is absolutely certain that the individual is armed, but rather whether it is reasonable to believe under the circumstances that the officer's safety or that of others was in danger. Among the factors that justify a protective frisk are whether a person's clothing could conceal a weapon, any furtive gestures or movements a person makes in response to an officer's presence, and the time of day. Further, a well-founded suspicion may be based on the premise that, '[i]t is well known that burglars often carry weapons.'
Terry, 392 U.S. at 29; State v. Hobart, 94 Wn.2d 437, 441, 617 P.2d 429 (1980).
Belieu, 112 Wn.2d at 602 (citing Terry, 392 U.S. at 27).
State v. Walker, 66 Wn. App. 622, 630-31, 834 P.2d 41 (1992) (citing State v. Sweet, 44 Wn. App. 226, 235, 721 P.2d 560 (1986)).
State v. Harvey, 41 Wn. App. 870, 875, 707 P.2d 146 (1985); but see Belieu, 112 Wn.2d at 604. (Generally, a suspicion of burglary by itself would not support an inference that a suspect was armed.).
Here, specific and articulable facts warranted the frisk of Greenhalgh. When asked to come toward the officers, Pellum and Greenhalgh expressed reluctance to approach and anger at being allegedly harassed. Greenhalgh wore baggy clothes that were suited for concealing a weapon. It was late at night and dark. Further, Pellum and Greenhalgh were the only persons on the street where suspects had been reported fleeing. Both men fit the descriptions given by the 911 reports. Both men could have been armed with the weapons or tools used to commit burglary and used them against the officers. Furthermore, Pellum pulled away from Officer Demarest while he was being patted down. This movement further bolstered the reasonable belief that either suspect could have hidden weapons or tools in his bulky clothing to use against the officers. A reasonably prudent person in the circumstances would have been warranted in the belief that his or her safety or that of others was in danger.
See Terry, 392 U.S. at 27.
The facts of this case are analogous to those presented in State v. Harvey. In that case, we upheld a pat-down search of a suspect because (1) the officer had been told of a burglary in process 11/2; blocks away, (2) Harvey fit the description and had been pointed out as the suspect, and (3) burglars often carry weapons. Under the similar facts of this case, Officer Nelson was justified in performing a limited protective search in order to ascertain whether Greenhalgh had any weapons. Accordingly, Officer Nelson's frisk of Greenhalgh did not violate the Fourth Amendment or state law, and the trial court properly admitted the cocaine evidence.
41 Wn. App. 870, 875, 707 P.2d 146 (1985).
ADMISSION OF EVIDENCE
Greenhalgh argues that the court abused its discretion when it admitted the suspected cocaine evidence. Specifically, he asserts that the State failed to establish the proper chain of custody for the drugs and that they were not in substantially the same condition as when the crime was committed.
'A sufficient foundation for the admission of evidence may be established even without proof of an unbroken chain of custody . . . 'A failure to present evidence of an unbroken chain of custody does not render an exhibit inadmissible if it is properly identified as being the same object and in the same condition as it was when it was initially acquired by the party.' '[M]inor discrepancies or uncertainty on the part of the witness will affect only the weight of evidence, not its admissibility.' There is no minimum amount of narcotic drug which must be possessed in order to sustain a conviction for possession of controlled substances.
State v. Picard, 90 Wn. App. 890, 897, 954 P.2d 336, review denied, 136 Wn.2d 1021 (1998) (citation omitted) (quoting State v. DeCuir, 19 Wn. App. 130, 135, 574 P.2d 397 (1978)).
State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985) (citing 5 Karl Tegland, Washington Practice sec. 90, at 203 (2d ed. 1982)).
State v. Williams, 62 Wn. App. 748, 815 P.2d 825 (1991), review denied 118 Wn.2d 1019 (1992).
Greenhalgh first challenges the evidence based on a perceived discrepancy in the weight of the evidence between the time it was first acquired and when it was tested at the Washington State Patrol Crime Laboratory (WSPCL). Here, the crack cocaine evidence weighed 0.9 grams when measured by Officer Nelson at the police station and .47 grams when measured by Dr. Edward Suzuki at the WSPCL. But the weight difference does not affect the admissibility of the evidence admitted. Further, any amount of cocaine possessed by the defendant is sufficient to sustain a conviction for VUCSA.
Williams, 62 Wn. App. 748.
Further, Greenhalgh argues that the chain of custody was defective because none of the State's witnesses could say who transported the evidence from the police station to the laboratory. The person who delivered the evidence to the lab did not testify. But Officer Nelson testified that the evidence envelope was in substantially the same condition at trial as when he tested the cocaine and placed it into evidence. And Dr. Suzuki testified he received the envelope with the seals intact from the Federal Way Department of Public Safety. Dr. Suzuki also testified at trial that the sample was in substantially the same condition as when he last saw it. There was no evidence of tampering or alteration during transport from the police station to the WSPCL. Nothing indicates that the evidence had been out of the State's routine chain of control.
The trial court did not abuse its discretion in admitting the cocaine.
DELAYED ENTRY OF FINDINGS AND CONCLUSIONS
Further, Greenhalgh claims he was prejudiced by the juvenile court's untimely filing of written findings and conclusions following the suppression hearing and trial as required by CrR 3.6(b) and JuCR 7.11(d).
We disagree.
Entry of findings of fact and conclusions of law during the pendency of a criminal appeal does not require reversal unless the delayed entry was prejudicial to the defendant and the findings and conclusions have been altered to address issues and arguments raised by the appeal. Here, a comparison of the findings and conclusions with the trial court's oral ruling shows that the State did not tailor or alter the findings and conclusions to meet arguments raised by Greenhalgh in his brief. Accordingly, Greenhalgh was not prejudiced because of the delayed filing of findings and conclusions.
State v. Cannon, 130 Wn.2d 313, 329-30, 922 P.2d 1293 (1996) (citing State v. McGary, 37 Wn. App. 856, 861, 683 P.2d 1125 (1984)).
SUBSTANTIAL EVIDENCE
Greenhalgh also assigns error to the sufficiency of the evidence in the court's findings and conclusions 2, 3, 4 and 6. But Greenhalgh fails to argue these assignments of error. Without argument or authority to support it, an appellant waives the assignment of error. We therefore do not further consider Greenhalgh's sufficiency of evidence claim.
Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986).
We affirm the order of disposition.
COX, APPELWICK and BECKER, JJ.