Opinion
No. 64474-2-I.
Filed: September 27, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 09-1-01923-8, Gregory P. Canova, J., entered October 9, 2009.
Affirmed by unpublished opinion per Grosse, J., concurred in by Leach, A.C.J., and Ellington, J
A limited search of a motor vehicle during an investigatory stop for a traffic violation does not violate the Fourth Amendment or article I, section 7 of the Washington Constitution if justified by an objectively reasonable concern for officer safety. Here, given the officers' objectively reasonable concern for their safety raised by the driver's suspicious movements, the limited search for a weapon in the area of the car into which the driver appeared to be reaching was reasonable and we affirm the trial court's decision to deny the motion to suppress.
I
While on patrol in an area of South Seattle known for a high rate of violent crimes involving firearms, Seattle Police Officers Michael Freese and Thomas Horning observed a black Tahoe speed past a stop sign. Officer Freese pulled his patrol car behind the Tahoe and signaled it to stop. The driver of the Tahoe pulled over and put his hands out of the driver side window. The officers thought this action was unusual and it heightened their safety concerns. Although the driver was cooperative and answered questions, the officers noticed that he appeared unusually nervous, with a trembling voice and shaking hands.
After determining from a records check that the driver, Christopher Harris, was a convicted felon and that his license was suspended in the second degree, the officers stood near the rear of the driver side of the Tahoe while discussing the circumstances. Officer Freese observed Harris turn to the right and move his right hand between the front seats and into the back seat area of the Tahoe. Fearing that Harris was reaching for a weapon, Officer Freese ordered Harris to put his hands on the steering wheel. When Harris hesitated, Officer Freese repeated his command. Then Harris complied. Officer Freese moved to the driver's side window, reached in, and grabbed Harris's wrist.
Meanwhile, Officer Horning, who had also observed Harris reaching into the back seat area of the Tahoe, opened the rear driver's side door and shined a flashlight under the back seat. Officer Horning saw what appeared to be a black semi-automatic handgun. Officer Freese then took Harris out of the car, handcuffed him, and put him into the patrol car. The officers had the Tahoe impounded. During an interview at the police station, Harris admitted that he had purchased the gun while in the Tahoe earlier that day. The officers obtained a search warrant and later recovered a semi-automatic handgun from under the back seat of the Tahoe.
The State charged Harris with unlawful possession of a firearm in the first degree. Harris filed a CrR 3.6 motion to suppress the gun, arguing that concern for officer safety did not justify Officer Horning's warrantless search under the back seat of the Tahoe.
Officer Freese, Officer Horning, and Harris testified at the CrR 3.6 hearing. Harris testified that after he pulled over, he took his keys out of the ignition, put the keys in his lap, and put his hands out the window as he had seen on the television show, "Cops." When Officer Freese walked to the back of the Tahoe, the keys fell off Harris's lap and he leaned forward and reached down toward the gas pedal to pick them up. Harris testified that as he was grabbing the keys, Officer Freese told him not to move. Harris looked up to see Officer Freese back at the window directing him to put his hands back on the steering wheel. According to Harris, Officer Freese told Officer Horning to "see what I was reaching for." Officer Horning opened the back door and "looked under the seat with his flashlight and said, we have a gun." Harris testified, "After that, Officer Freese grabbed my arm and he told me to step out of the car."
After the hearing, the trial court identified the following disputed fact in its written findings of fact and conclusions of law:
1. Officer Freese testified that he saw the defendant's right arm go back toward the back seat of the car. Officer Horning also testified that he saw the defendant's arm in the back seat area of the car. However, the defendant testified that he was reaching forward toward the gas pedal to retrieve his keys which he testified had fallen off his lap.
The trial court made the following finding as to disputed fact 1:
The defendant's explanation as to why his hands left the steering wheel is not credible since it would require the keys to have been taken out of the ignition and placed in his lap and then to have fallen on the floor while the defendant was seated. Even if true, this movement could have been seen differently by the officers. What is clear is that the officers saw a movement by the defendant that caused them concern. The important point is how the officers saw the action and whether it raised reasonable safety concerns.
The trial court did not find it necessary to resolve a dispute as to whether Officer Freese crouched down at the open front door to see the gun under the back seat, because "Officer Horning clearly saw a firearm under the back seat at a time when the defendant was still in the car and had access to it."
The trial court made the following conclusions of law:
3. In this case, the officers did articulate specific facts which, taken together with rational inferences from those facts, led to a reasonable belief that the defendant was dangerous and could gain immediate control of a weapon. These facts included the defendant's unusual action of putting his hands out of the window at the initial stop without being instructed, the defendant's heightened nervousness at the initial stop, the area of the stop having been recently beset with violent crime including crimes involving firearms, and the defendant's apparently furtive movement with his arm into the back seat area of the car.
4. Since it was limited to a quick "sweep" for weapons of the back seat area where the officers saw the defendant reaching, the search in this case did not exceed the scope necessary to address the officers' legitimate safety concerns.
5. The search warrant having been applied for based upon the officers' legitimate actions and observations, the fruits of that warrant, including the seized handgun, are admissible in the State's case-in-chief.
After a nonjury trial on stipulated facts, the trial court found Harris guilty as charged. Harris appeals.
II
We review findings of fact after a suppression hearing to determine whether they are supported by substantial evidence in the record. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). Unchallenged findings are verities on appeal. O'Neill, 148 Wn.2d at 571. We review conclusions of law de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
Harris argues that the trial court erred in denying his motion to suppress because the officers did not have an objectively reasonable fear for their safety at the time Officer Horning searched under the back seat of the car.
Although Harris assigns error to the finding as to disputed fact 1, the assignment of error is limited "to the extent that it incorporates an imprecise or erroneous statement of the law."
Generally, warrantless searches and seizures are unreasonable and violate the Fourth Amendment and article I, section 7 of the Washington State Constitution. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). One of the few carefully drawn exceptions to the warrant requirement involves investigatory stops pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Duncan, 146 Wn.2d at 171-72.
In Terry, the Supreme Court held that if an initial traffic stop is justified, a police officer may make a reasonable search for weapons without violating the Fourth Amendment, if the circumstances lead the officer to reasonably believe that his safety is endangered. Terry, 392 U.S. at 20-27; see Duncan, 146 Wn.2d at 172. Officers may make a protective search of a car based on officer safety concerns if there is reasonable suspicion that the suspect is dangerous and may gain access to a weapon in the vehicle. State v. Glossbrener, 146 Wn.2d 670, 680-81, 49 P.3d 128 (2002). "A protective search for weapons must be objectively reasonable, though based on the officer's subjective perception of events." State v. Larson, 88 Wn. App. 849, 853-54, 946 P.2d 1212 (1997) (citing State v. Henry, 80 Wn. App. 544, 552, 910 P.2d 1290 (1995)). The existence of an objectively reasonable concern for officer safety is determined on the basis of the entire circumstances of the stop. Glossbrener, 146 Wn.2d at 679. If an officer's professed belief that the suspect was dangerous was not objectively reasonable, then the fruits of the search may not be admitted in court. State v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999).
Relying on State v. Glossbrener, Harris claims that the circumstances here do not support an objectively reasonable belief that he posed any danger to the officers at the time of the search because 1) Harris was cooperative and provided truthful and accurate information; 2) Officer Horning switched off the patrol car's video camera after checking Harris's record because the traffic stop appeared to be routine; 3) Officer Freese did not pull out his gun; and 4) Officer Freese was holding Harris's wrist, limiting his movements. 146 Wn.2d at 680-81.
In Glossbrener, an officer pulled Glossbrener over for a defective headlight and noticed him reaching down toward the passenger side of the car for several seconds before coming to a complete stop. 146 Wn.2d at 673. The officer then asked Glossbrener to explain his movements, allowed Glossbrener to stay in the car while returning to his patrol car to check for warrants, patted Glossbrener down for weapons when he got out of the car to perform field sobriety tests, and allowed Glossbrener to stand at the right front side of his car while calling for backup. Glossbrener, 146 Wn.2d at 673-74. Under these circumstances, our Supreme Court concluded, "[A]lthough [the officer] may have had a reasonable belief that Glossbrener was armed and dangerous when he first observed the furtive movement, any such belief was no longer objectively reasonable at the time he actually conducted the search because of the intervening actions of both [the officer] and Glossbrener." Glossbrener, 146 Wn.2d at 681.
In contrast, Officers Freese and Horning described their immediate response to Harris's suspicious movements and testified that they were concerned that Harris may have been reaching for a weapon in the back seat area of the Tahoe. As the trial court aptly summarized in its oral ruling:
What is really, what is clear, is that the officers saw a movement that caused them concern, a disturbing movement by the defendant in the car and that is, I find that credible. It is shown by the immediate response, the calling out, the don't do that, hands on the wheel, those directions to the defendant. And it is their reasonable interpretation of what those acts involved. Their reasonable interpretation of what those acts involved that would warrant the search of the back seat.
The written findings and conclusions state: "In addition to the above written findings and conclusions, the court incorporates by reference its oral findings and conclusions."
Moreover, the record does not support Harris's claim that any potential threat from an object in the back seat was obviated by the time of the search because Officer Freese held Harris by the wrist and Officer Horning stood by the back door. As the State points out, Harris still had his right arm free and the officers had observed him reaching into the back seat area with his right arm. And the trial court found that when Officer Horning looked under the back seat with his flashlight, "the defendant was . . . still . . . in the car and had access to whatever it was that he was reaching for." Given the officers' reasonable concerns for their safety, Officer Horning's limited search of the back seat area for a weapon was reasonable. As noted in State v. Kennedy, 107 Wn.2d 1, 12, 726 P.2d 445 (1986), "It would be unreasonable to limit an officer's ability to assure his own safety." Because the search was lawful, the trial court's denial of the motion to suppress is affirmed.
Affirmed.
We concur: