Opinion
No. 56872-8-I.
June 19, 2006.
Appeal from a judgment of the Superior Court for King County, No. 05-1-06946-1, Bruce W. Hilyer, J., entered August 22, 2005.
Counsel for Appellant(s), David M. Seaver, King Co Pros Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.
Counsel for Respondent(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Alice Mary Zaleski, Attorney at Law, 4744 9th Ave NE, Seattle, WA 98105-4729.
Affirmed by unpublished per curiam opinion.
The State appeals the trial court's suppression of cocaine found in Ngo's car as the fruit of an illegal search and seizure. The trial court found that the police officers lacked reasonable suspicion to order Ngo and his passenger out of the car, and lacked grounds to search the passenger. We affirm.
FACTS
On April 18, 2005, at approximately 7:30 p.m., Mario Armas was waiting at a red light when a car pulled alongside his car. The driver of the car fired shots into Armas's car, hitting and killing Armas's brother, a passenger. Armas told the police that the occupants of the car were two Hispanic males in their twenties. Armas described the car as `a red, 2-door, Nissan or other Japanese brand car modified for racing and with a muffler modified to be loud.'
We take these facts from the trial court's findings of fact, which are unchallenged.
At about ten the next evening, Seattle police officers Michael Renner and N. Larkin saw a red, two-door Acura sedan driving in West Seattle, about four miles from the location of the shooting. The Acura was modified for racing and had a loud, modified muffler. Officers Renner and Larkin followed the Acura in their separate patrol cars. Although the officers did not activate their emergency lights, the Acura abruptly pulled into a dead end street and stopped.
The officers pulled in behind the Acura, and Officer Renner shone his spotlight into the car. He saw that there was a passenger in the car. As the officers approached the Acura, the driver, Man Ngo, spontaneously put his hands out of the driver's side window. This is a typical response to a felony traffic stop.
Officer Renner told Ngo about the shooting the previous day. Ngo appeared nervous and fidgety. Officer Renner later stated that Ngo's hands were `not where I wanted them.' The officers then ordered Ngo and his passenger, 14-year-old Tai Hua, out of the car. It is undisputed that both Ngo and Hua were Asian and not Hispanic. Officer Renner described Ngo as Vietnamese.
Hua was wearing a bulky jacket, and Officer Larkin asked Hua if he had any weapons on him. Hua said no, but Officer Larkin did a pat-down search of Hua and found a handgun. The officers then handcuffed both Ngo and Hua. Because they arrested Hua for a violation of the Uniform Firearm Act, the officers searched the Acura. They found cocaine in the car. Ngo later admitted that the drugs were his.
The State charged Ngo with one count of possession of cocaine with intent to deliver, a violation of the Uniform Controlled Substances Act. Before trial, Ngo moved to suppress the cocaine as the fruit of an illegal search and seizure. Based on the pleadings alone, the trial court suppressed the evidence, ruling that both the seizure of Ngo and Hua and the frisk of Hua were unconstitutional. The court dismissed the case with prejudice.
ANALYSIS
The State contends that the trial court erred in holding that the seizure of Ngo and Tua was unconstitutional. The State argues that the facts in the officers' knowledge amply met the threshold required for a warrantless investigative stop.
To justify an investigative stop, `the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' State v. Armenta, 134 Wn.2d 1, 20, 948 P.2d 1280 (1997) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Under the totality of the circumstances, there must be a substantial possibility that criminal conduct has occurred or is about to occur. State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986). We review de novo conclusions of law in an order suppressing evidence. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
The trial court did not err. The totality of the circumstances did not indicate a substantial possibility that criminal conduct had occurred or was about to occur. The State lists the following factors as supporting the officers' seizure: the similarity between Ngo's car and the suspects' car; the proximity of the car (four miles) to the scene of the shooting; and Ngo's `alarming' behavior of abruptly stopping the car, putting his hands out of the window, and appearing nervous and fidgety. However, an analysis of these factors, combined with other facts within the officers' knowledge, shows that the seizure was unconstitutional.
First, the similarity between Ngo's car and the suspects' car as a basis for a Terry stop was negated as soon as the officers realized that Ngo and Hua were Vietnamese, not Hispanic, and thus could not have been the men who shot Armas's brother. The State tries to explain away this distinction by claiming that Ngo's and Hua's ethnicity and ages were not so wildly inconsistent with Armas's description as to dispel the officers' concerns. However, Armas specifically described the shooters as two Hispanic men in their twenties. Ngo and Hua do not meet this description. Thus, the fact that they were driving a car similar to the one used in the shooting ceases to be significant.
The State argues, in the alternative, that the officers could reasonably have concluded that Ngo's car was the suspect vehicle, even if Ngo and Hua were not the occupants at the time of the shooting. However, the car was spotted over 24 hours after the shooting and four miles away. Further, the description of the suspects' car was not so specific, nor the features of the car so distinguishing, as to justify a seizure of individuals who did not match the description but were driving a similar car.
Second, although the State notes that the officers spotted Ngo's car `only' four miles from the scene of the shooting, four miles within the city of Seattle is a significant distance. Ngo was in a completely different neighborhood than where the shooting had occurred. Further, more than 24 hours had passed since the shooting. This is not a case in which Ngo's car was seen in close physical and temporal proximity to the shooting. See, e.g., State v. Thornton, 41 Wn. App. 506, 510-12, 705 P.2d 271 (1985) (fact that officers observed suspect car enter the freeway on-ramp shortly after the robbery occurred and fact that on-ramp was eleven blocks from site of robbery supported a temporary detention). Ngo's location was not a fact from which an inference of possible involvement in criminal conduct could be drawn.
Third, Ngo's behavior does not support a conclusion that criminal conduct had occurred or was about to occur. He pulled over into a dead end street after the officers had been following him in their patrol cars. Even though the officers had not turned on their emergency lights and sirens, this is not an unreasonable response when being followed by two patrol cars. In addition, Ngo put his hands outside the window after Officer Renner shone a spotlight into his car. All this shows is that Ngo had familiarity with felony traffic stop procedures, and implemented these procedures in the wake of being followed by two patrol cars and having a spotlight shone into his car. Finally, the fact that Ngo seemed nervous and fidgety does not contribute to a substantial possibility of criminal activity. Indeed, "most persons stopped by law enforcement officers display some signs of nervousness." State v. Henry, 80 Wn. App. 544, 552, 910 P.2d 1290 (1995) (quoting State v. Barwick, 66 Wn. App. 706, 710, 833 P.2d 421 (1992)). Ngo's actions while still in the car thus did not justify a Terry stop.
In conclusion, these factors, even when taken together, do not create a substantial possibility that criminal activity had occurred or was about to occur. The seizure of Ngo and Hua was unconstitutional. The trial court properly suppressed the fruit of that seizure. We affirm.
APPELWICK, AGID and BAKER, JJ.