Opinion
No. 25437-2-III.
August 9, 2007.
Appeal from judgments of the Superior Court for Stevens County, No. 06-1-00007-7, Allen Nielson, J., entered June 14 and August 2, 2006.
Affirmed by unpublished opinion per Brown, J., concurred in by Sweeney, C.J., and Stephens, J.
Jonathan S. Lagoy appeals his second degree burglary conviction, contending he was improperly seized while walking near a burglarized service station late at night. He argues a subsequent pat-down search leading to the discovery of items missing from the service station was unjustified. Because the arresting officer acted within the scope of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), we affirm Mr. Lagoy's conviction.
FACTS
The facts are drawn from the unchallenged suppression hearing findings of fact that are verities here. State v. Cheatam, 150 Wn.2d 626, 633, 81 P.3d 830 (2003).
Deputy David W. Manning was patrolling Highway 231 near Valley, Washington at approximately 2:00 A.M. He noticed a car parked on the side of the road. A little ways up the highway from where the car was parked, he observed Mr. Lagoy and two of his friends walking near the intersection of Highway 231 and Watts Lake Road. Deputy Manning asked if the vehicle was theirs; they said no. Deputy Manning then traveled about 20 yards further to the J P Service Station and saw the front door open and glass shattered on the ground. He returned to the three men.
Because Deputy Manning was concerned about his safety, he asked the men to put their hands on the hood of his car. He called for backup, but learned it would take several minutes for someone to arrive. Deputy Manning then handcuffed the men and frisked them for weapons. During the pat-down, Deputy Manning felt two hard objects in Mr. Lagoy's jacket pocket. The deputy retrieved a flashlight and a pill bottle. The bottle had the name "John A. Franks" on it; Deputy Manning knew Mr. Franks was the owner of J P Service Station. Clerk's Papers at 38.
Mr. Lagoy was charged with second degree burglary. He requested a CrR 3.6 suppression of the evidence seized from his pocket, arguing the initial encounter was not permissive, the detention was not based on reasonable suspicion, and there were no reasonable grounds to believe Mr. Lagoy was dangerous to justify a pat-down search. The court disagreed and denied his motion. Based on stipulated facts, the court convicted Mr. Lagoy as charged. He appealed.
ANALYSIS
The issue is whether the trial court erred in denying Mr. Lagoy's CrR 3.6 motion to suppress the evidence seized from his pocket following a pat-down search. While Mr. Lagoy does not assign error to any finding of fact, he contends the court erred by concluding his detention was based on reasonable suspicion of criminal activity and nothing showed he was armed and dangerous.
We review CrR 3.6 suppression orders by independently evaluating the evidence to determine if substantial evidence supports the findings and the findings support the conclusions. State v. Hill, 123 Wn.2d 641, 644-45, 870 P.2d 313 (1994). We review conclusions of law de novo. State v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004).
A police officer may conduct a brief investigative stop whenever he or she 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. State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003). A Terry stop and frisk is justified when (1) the initial stop is legitimate, (2) there is a reasonable safety concern justifying a protective frisk for weapons, and (3) the scope of the frisk is limited to the protective purpose. State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993). A search for weapons must be objectively reasonable, based on the officer's subjective perception of the event. The test is whether a reasonable person in the same circumstances would believe "`his safety or that of others was in danger.'" State v. Belieu, 112 Wn.2d 587, 602, 773 P.2d 46 (1989) (quoting Terry, 392 U.S. at 27)).
Terry uses the term "armed and presently dangerous." Terry, 392 U.S. at 30. The officer, however, need not be convinced the person is in fact armed and dangerous; it is sufficient that he or she can "`articulate an objective rationale'" to support a frisk. State v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73 (1999) (quoting State v. Mendez, 137 Wn.2d 208, 220, 970 P.2d 722 (1999), overruled on other grounds by Brendlin v. California, ___ U.S. ___, 127 S. Ct. 2400 (June 18, 2007)). The officer must be able to point to particular facts from which this court can reasonably infer legitimate safety concerns. State v. Broadnax, 98 Wn.2d 289, 294, 654 P.2d 96 (1982).
Here, Deputy Manning saw a broken glass door to a service station about 20 yards from where he first encountered Mr. Lagoy. Given the late hour and Mr. Lagoy's proximity to a possible crime, Deputy Manning reasonably suspected he was involved in a crime. Thus, Deputy Manning was justified in reinitiating contact with Mr. Lagoy.
Combining the above circumstances with the fact that backup would take several minutes, Deputy Manning was justified in handcuffing and frisking Mr. Lagoy based on officer safety. Courts recognize the "immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him." Terry, 392 U.S. at 23. "Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties." Id.
Since the frisk was proper, the hard objects seized from Mr. Lagoy's jacket were properly admitted. See State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994) (if the pat-down is inconclusive, "reaching into the clothing is the only reasonable course of action for the police officer to follow."). The trial court did not err in denying Mr. Lagoy's CrR 3.6 motion to suppress.
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. and Stephens, J., CONCUR.