Opinion
No. 28309-7-III.
March 17, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Yakima County, No. 09-1-00302-1, C. James Lust, J., entered August 7, 2009.
Affirmed by unpublished opinion per Kulik, C.J., concurred in by Korsmo and Siddoway, JJ.
We review findings of fact on a motion to suppress for substantial evidence. Here, despite striking portions of the findings because they are not supported by the evidence, we conclude that the trial court properly denied the suppression motion. Accordingly, we affirm the conviction for unlawful possession of a firearm.
FACTS
In February 2009, Officer Eric Walls drove his patrol car near a white sedan that was parked legally in an alley. Three to six people, who were wearing red, were standing around the sedan. These people ran away when they saw Officer Walls. Two men remained in the sedan. Officer Walls observed the passenger in the backseat, Marlowe Claude Olney, make furtive movements as if to conceal something. Officer Walls also observed that the sedan's trunk was open. Based on Officer Walls's knowledge and experience with crime and gangs in that area, he suspected that the sedan was stolen and that the people who ran away were gang members. Officer Walls became concerned for his safety and called for backup. Officer Walls approached the sedan and asked the two men to place their hands where they could be seen. Officer Claudia Kingman arrived to assist Officer Walls. When she shined her flashlight into the sedan, she saw a firearm on the floor of the backseat. The officers took the two men into custody.
Mr. Olney was charged with second degree unlawful possession of a firearm. He moved to suppress the evidence obtained from the search of the sedan. Officer Kingman testified at the suppression hearing, but Officer Walls did not. The trial court denied the motion to suppress. The court's written findings stated that its decision was based on Officer Kingman's testimony and defense counsel's affidavit. Mr. Olney appeals, contending the evidence was insufficient to justify the warrantless stop of Mr. Olney. The State points out that the trial court stated orally that it considered other evidence in addition to the two items listed in the written findings and conclusions.
Officer Walls. The night of February 6, 2009, Yakima Police Officer Eric Walls was on patrol in his district in his marked police vehicle. When he turned southbound into an alley behind an apartment, he saw three to six people dressed in red clothing standing around a legally parked white sedan. As Officer Walls approached the white sedan, the people standing around the sedan ran away.
Officer Walls was familiar with this area, which was known for high gang activity. The dominant gang was La Raza, a Norteno gang. Members were identified by the color red. Officer Walls had recovered stolen vehicles in this particular alley, and he thought the white sedan might be stolen.
Officer Walls noticed one man sitting in the driver's seat and another man sitting directly behind him in the rear passenger area of the sedan. The second man was later identified as Mr. Olney. The driver did not make any unusual movements, but Mr. Olney moved from side to side and looked down as if he had something in his hands. Although Officer Walls could not see the passenger's hands, he saw Mr. Olney move forward and to the right as if to conceal something. Mr. Olney then sat in an upright position.
Officer Walls illuminated the sedan with the patrol car's headlights and spotlights. Officer Walls ran the sedan's license plate to see if the sedan had been reported stolen. At trial, Officer Walls testified that he left his patrol car before receiving the report that the white sedan had not been stolen.
Officer Walls got out of his patrol car and stood behind the door for cover. He drew his firearm because of his experience that La Raza gang members frequently carried weapons. Officer Walls noticed that the trunk of the sedan was partially open and suspected that this car was stolen. The passenger's movements, along with the location, the hour, and the people wearing red who had fled, but could still be heard nearby, made Officer Walls concerned for his personal safety. Officer Walls called for a backup patrol unit.
Officer Walls asked the car's occupants to put their hands where he could see them. They complied.
Officer Kingman. Officer Claudia Kingman arrived a few minutes after Officer Walls. As she ran a warrant check on Mr. Olney, she walked around to the passenger side of the sedan to look for weapons or contraband. Officer Kingman shined her flashlight into the sedan and saw a gun on the floorboard behind the front passenger seat. The officers took Mr. Olney and the driver into custody and secured them in their patrol cars.
Dispatch advised Officer Kingman that Mr. Olney had a felony conviction, so he was arrested. During the search of the sedan, the officers observed a red sweatshirt on the rear floorboard, and a purse and makeup case on the rear passenger seat. Mr. Olney also had an open beer between his feet. The officers were not able to see the gun or the other items without their flashlights.
Motion to Suppress. The State charged Mr. Olney with second degree unlawful possession of a firearm. Before trial, Mr. Olney moved to suppress the firearm, arguing that the stop, detention, and search were unjustified.
The court denied Mr. Olney's motion to suppress, concluding that:
A belief that criminal activity was afoot was justified by the time and location of the contact, the actions of other persons in fleeing contact with the police, the furtive movements of the backseat passenger and the clothing of the suspects, which clearly identified them as members of a criminal enterprise.
Clerk's Papers (CP) at 37.
At a hearing on July 1, 2009, the court did not make an oral ruling but, instead, signed the proposed findings and conclusions presented by the State. During the hearing, the court stated orally that the court's decision was based on Officer Kingman's testimony and the pleadings of the parties. However, the written findings and conclusions state that the trial court considered only Officer Kingman's testimony and defense counsel's affidavit when determining that the motion to suppress should be denied.
Conviction/Appeal. A jury convicted Mr. Olney as charged. The court imposed a standard range sentence of 16 months. This appeal follows.
ANALYSIS
When reviewing the denial of a motion to suppress, we first determine whether substantial evidence supports the findings of fact and then whether the findings of fact support the conclusions of law. Finally, we must decide whether the conclusions of law support the court's ruling. State v. Macon, 128 Wn.2d 784, 799, 911 P.2d 1004 (1996). Unchallenged findings of fact are verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Findings 1, 2, and 3. Mr. Olney challenges three of the court's findings. The facts challenged in these findings were contained in the State's trial court memorandum in response to Mr. Olney's motion to suppress (State's memorandum).
Officer Walls was unable to testify at the suppression hearing. In its written findings, the trial court stated that it considered Officer Kingman's testimony and an affidavit submitted by defense counsel. However, at the suppression hearing, and in its opinion letter, the trial court stated that it reviewed the pleadings of both parties when considering Mr. Olney's motion to suppress. When the findings and conclusions were entered, the court stated that the proposed version of the facts presented by the State was accurately based on its review of Officer Kingman's testimony and the pleadings.
The findings of fact and conclusions of law state:
The court considered the evidence: Officer Kingman's testimony; and defense counsel's supporting affidavit, which recited facts from the police reports and defense interviews of Officers Claudia Kingman and Eric Walls, who testified later at trial.
CP at 6 (emphasis added).
Mr. Olney challenges the following findings for lack of sufficient evidence:
I.
On February 6, 2009 at 11:35 p.m. Officer Eric Walls of the Yakima Police Department was on duty in uniform, patrolling his district in a marked police car. Officer Walls was very familiar with this area of his district, which was known for high gang activity. The dominant gang in that area was La Raza, a Norteno gang, the members of which identified with the color red. Officer Walls knew from experience that members of this gang often carried weapons.
Officer Walls turned south down an alley between North 6th Street and North 7th Street. He saw three to six people dressed in red clothing standing around a white, 4-door Lincoln car, which was legally parked at an apartment complex. Officer Walls spotlighted the car. The people ran in different directions when they saw Officer Walls' patrol car. Officer Walls did not activate his light bar but kept his spotlight and headlights pointed at the white car.
II.
Officer Walls saw two men inside the white car, one in the driver's seat and another sitting directly behind him in the back passenger seat. . . . Officer Walls saw the backseat passenger (later identified as Mr. Olney) move around in his seat from side to side, and look down as if at something in his hands. He also saw the backseat passenger lean forward to his right toward the front passenger seat as if concealing something, although [Officer] Walls could not see his hands, and then return to an upright seated position. The backseat passenger's movements, combined with the location, the late hour, the red clothing worn by the people who had fled, but could still be heard nearby, caused Officer Walls to be concerned for his own personal safety.
III.
Officer Walls got out of his patrol car, standing behind his door for cover. He drew his firearm, because in his experience members of the La Raza gang frequently carried weapons. . . . Officer Walls had recovered stolen cars in that alley before. . . . He called in the license plate number for checking. Officer Walls approached the white car.
CP at 6-7 (emphasis added).
Officer Walls did not testify at the hearing. As a result, the italicized portions are not supported by sufficient evidence because they are not found in defense counsel's affidavit or Officer Kingman's testimony. According to the court's written findings and conclusions, Officer Kingman's testimony and defense counsel's affidavit were the only sources considered by the court in making its ruling. Because there is no evidence to support these portions of the findings, they must be stricken.
While Mr. Olney makes a sufficiency of the evidence argument, the State argues a slightly different theory. The State suggests that the written findings may be supplemented by the other submissions considered by the court. The State points to the following oral statements by the court: (1) "there does not appear to be a material difference between the narratives offered by the defendant and the plaintiff, [and] the officer's testimony," and (2) "I will review the balance of the submissions and make a determination as to whether . . . a further evidentiary hearing is warranted."
CP at 37.
Report of Proceedings (May 5, 2009) at 8.
Essentially, the State asks this court to ignore the substantial evidence test and accept the supplemented findings because the trial court made references to other submissions, which included the State's memorandum. Although this court can look to a trial court's oral ruling to interpret its written findings to the extent that the written findings and the oral ruling are consistent, this court cannot rely on the oral ruling if it is inconsistent with the written findings. State v. Moon, 48 Wn. App. 647, 653, 739 P.2d 1157 (1987). The written findings state that the court considered only Officer Kingman's testimony and defense counsel's affidavit.
Assuming the court made an oral ruling, this court cannot supplement written findings with material that conflicts with the trial court's written statement as to what evidence was considered. Moreover, once the unsupported portions of the findings are stricken, there is no need to interpret the remaining findings by considering supplemental material.
In short, the written findings state that the court considered Officer Kingman's testimony and defense counsel's affidavit. The portions of the written findings challenged by Mr. Olney are stricken for lack of evidence. We then look to what remains in the findings to determine whether they support the court's conclusions.
The standard of review for a court's conclusions of law regarding the suppression of evidence is de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution permit an officer to briefly stop an individual without a warrant if the officer has a reasonable suspicion that criminal activity has happened, is in progress, or will occur. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Kinzy, 141 Wn.2d 373, 384-85, 5 P.3d 668 (2000). To establish a reasonable suspicion, an officer must be able to point to "specific and articulable facts, which, taken together with rational inferences from those facts" justify the detainment. Terry, 392 U.S. at 21. A court must look at the totality of the circumstances from an objective standard to determine if a stop was lawful. See id. at 21-22. The totality of the circumstances includes an officer's training and experience, the location of the stop, and the behavior of the person detained. State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003).
Innocuous facts do not justify a stop. State v. Armenta, 134 Wn.2d 1, 13, 948 P.2d 1280 (1997). The officer may, however, rely on experience in evaluating arguably innocuous facts. State v. Samsel, 39 Wn. App. 564, 570-71, 694 P.2d 670 (1985). Standing alone, presence in a high crime area at night is not enough; instead, the circumstances must suggest a substantial possibility that the particular person has committed a specific crime or is about to do so. State v. Garcia, 125 Wn.2d 239, 242, 883 P.2d 1369 (1994).
The remaining evidence in findings of fact numbers 1 through 3 are: Officer Walls saw people congregated around a legally parked white car in a dark alley and those people ran when Officer Walls spotlighted the white car with his patrol car. The backseat passenger, Mr. Olney, remained in the car. He made movements from side to side and then forward to the right as if he was "concealing something." Officer Walls got out of his patrol car and stood behind the door for cover. He drew his firearm, reported his location, and asked for backup. Officer Walls called in the license plate. The white sedan's trunk was partially open and the officer suspected that it had been stolen. He then approached the sedan and asked the occupants to put their hands where he could see them.
CP at 7.
Finding of fact 4 states that Officer Kingman arrived within five minutes and saw Officer Walls standing by the passenger side of the white car with his flashlight. She shined her flashlight in the sedan and saw a firearm on the floor of the backseat.
Even with the information stricken from findings 1, 2, and 3, Officer Walls had specific and articulable facts to justify his detainment of the occupants of the white car. Officer Walls saw the car in an alley on a dark night; the people standing around the car ran away when they saw the police car. Officer Walls saw that the trunk of the car was partly open. He also observed that the backseat passenger was making motions as if to conceal something. Under these circumstances, the court properly admitted the evidence as the result of a valid detention and investigation under Terry. Terry, 382 U.S. at 21.
We affirm the trial court's denial of the motion to suppress and affirm the conviction.
A majority of the panel has determined that 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.
SIDDOWAY, J. and KORSMO, J., concur.