Opinion
No. 58033-7-I.
May 7, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-8-05745-1, Carol A Schapira, J., entered March 15, 2006.
Affirmed by unpublished per curiam opinion.
Michael S. challenges the trial court's denial of his motion to suppress evidence as the fruit of an unlawful search. Because the detention and subsequent search of the defendant were proper, we affirm.
I.
On November 22, 2005, at approximately 10:25 p.m., King County Sheriff Deputy Todd Miller stopped a white Toyota Camry because it had a burnt-out headlight. Deputy Miller approached the car from the passenger side window, questioned the driver, and learned that he had no valid license, no identification on his person, and a title for the vehicle that was not in his name. Deputy Miller returned to his car and ran a check on the driver's name. After being advised that the driver did not have a license, Deputy Miller arrested the driver, who appeared to be very nervous. Deputy Miller never spoke to the passenger, who was later identified as Michael S.
While Deputy Miller was dealing with the driver, Deputy Kevin Davis arrived to assist with the traffic stop. Deputy Davis watched Michael S. during the driver's arrest from a cover position at the right rear corner of the car. Davis observed that the vehicle's ignition appeared damaged and that Michael S. was "trying to reach down into [his] groin area." He also detected the odor of marijuana emanating from the interior of the vehicle. Deputy Miller advised Deputy Davis that he planned to arrest the driver and search the car. Because Deputy Miller would have to impound the car if it could not be released to the passenger, and Deputy Davis suspected that the car was stolen and may have contained marijuana, Deputy Davis asked Michael S. for his identification. Michael S. did not provide a valid form of identification, but gave a false first name with his true last name and said he was from Oregon, but was unable to give an address. Deputy Davis asked Michael S. if he had anything in the car that the deputy should know about, and then requested that Michael S. step out of the car. As Michael S. got out of the car, Deputy Davis noticed a weighted object causing the front of his sweatshirt to sag. Deputy Davis then frisked Michael S. and discovered a .38 caliber revolver in the front pocket of his sweatshirt. Once the gun was discovered, Deputy Davis handcuffed Michael S., continued the search, and found six additional bullets in a clear plastic baggie.
Report of Proceedings (March 15, 2006) at 34.
The trial court denied Michael S.'s motion to suppress the discovery of the gun. The court concluded that the initial stop was valid because of the burned-out headlight. The driver was arrested because he did not have a license, identification, or proof of ownership of the car. Once the driver was arrested, it was reasonable for Deputy Davis to ask the passenger for identification because they could have released the car to Michael S. if he had valid identification. Deputy Davis's request that Michael S. get out of the car was further justified by the deputy's concern about the combined factors of baggy clothing that could easily conceal a weapon, an apparently damaged ignition, the smell of marijuana, and movements Michael S. had made in his groin area; and the impending search of the car incident to the arrest of the driver. Therefore, the pat down of Michael S. was justified for officer safety reasons and to preserve any evidence. The court ruled that, although Michael S. was at no point free to leave, there was no violation of due process, the Fourth Amendment of the U.S. Constitution, or article I section 7 of the Washington State Constitution. Once the gun was recovered, there was probable cause to arrest Michael S. and continue the search, which resulted in the discovery of the bullets. The court convicted Michael S. of unlawful possession of a firearm, and he now appeals.
II.
Conclusions of law following a suppression hearing are reviewed de novo.
State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
Michael S. argues that the trial court erred in failing to suppress the fruits of an unlawful search. He contends that the deputies lacked any suspicion to initiate his seizure, and that there was no evidence to justify the ensuing detention and frisk.
When an officer has probable cause to stop a car for a traffic violation, the officer may, incident to the stop, take steps to control the scene, including ordering the driver to stay in or exit the vehicle. However, passengers are afforded greater protection under article I, section 7 of the Washington State Constitution. A police officer may order passengers out of a vehicle only if the officer is "`able to articulate an objective rationale predicated specifically on safety concerns.'" The passenger's privacy interests must be balanced against concerns for the safety of officers and the public. The officer may consider a number of factors, "none of which, standing alone, would automatically meet the objective rationale standard: `the number of officers, the number of vehicle occupants, the behavior of the occupants, the time of day, the location of the stop, traffic at the scene, affected citizens, or officer knowledge of the occupants.'" Here, several of these factors were present: it was dark, the driver was being arrested, and the deputy observed furtive movements by Michael S. These circumstances gave rise to objectively reasonable safety concerns; therefore the initial detention was proper.
State v. Mendez, 137 Wn.2d 208, 220, 970 P.2d 722 (1999).
City of Spokane v. Hays, 99 Wn. App. 653, 658-59, 995 P.2d 88 (2000).
State v. Reynolds, 144 Wn.2d 282, 288, 27 P.3d 200 (2001) (quoting Mendez, 137 Wn.2d at 220) (emphasis added).
Hays, 99 Wn. App. at 659.
Reynolds, 144 Wn. 2d at 288 (quoting Mendez, 137 Wn.2d at 221).
Nor was Michael S. unlawfully seized by the officer's request for identification; by that time, in addition to the furtive movements, he had observed that the vehicle appeared to have a damaged ignition and that the car smelled of marijuana. Moreover, after determining that the driver had no valid license, identification, or proof of owning the vehicle, the deputies wanted to determine whether they could release the car to Michael S. Law enforcement officers may ask a passenger for identification for investigatory purposes if there is "an independent basis to support the request."
State v. Rankin, 151 Wn.2d 689, 699, 92 P.3d 202 (2004).
Michael S. also argues that his detention and subsequent frisk were not justified. Because an investigative detention constitutes a seizure, it must be reasonable under the Fourth Amendment. The State must establish that the officer possessed specific and articulable facts giving rise to a reasonable suspicion that the person stopped is, or is about to be, engaged in criminal activity. "Articulable suspicion" for an investigative stop means "a substantial possibility that criminal conduct has occurred or is about to occur." "When the activity is consistent with criminal activity, although also consistent with noncriminal activity, it may justify a brief detention."
State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986).
Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Kennedy, 107 Wn.2d at 6.
Kennedy, 107 Wn.2d at 6.
Here, Deputy Davis provided several legitimate reasons for the investigative detention of Michael S.: the car's apparently damaged ignition, the odor of marijuana, and the imminent search of the car incident to the driver's arrest. Deputy Miller also had valid safety concerns based on Michael S.'s furtive movements, baggy clothing, and the sag in his front sweatshirt pocket. An officer need not be absolutely certain that someone is armed; observations of an individual's movements may be sufficient to give rise to an objective suspicion of a concealed weapon. An investigative stop is reasonable if the initial interference with the suspect's freedom of movement was justified at its inception and it was reasonably related in scope to the circumstances that justified the interference. These circumstances justified a limited pat-down search for safety and to look for contraband. Once the gun was discovered, Deputy Davis had probable cause to arrest Michael S. and continue the search.
State v. Horrace, 144 Wn.2d 386, 395-96, 28 P.3d 753 (2001).
State v. Watkins, 76 Wn. App. 726, 729, 887 P.2d 492 (1995).
AFFIRMED.