Opinion
No. 28689-4-III.
August 11, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Yakima County, No. 09-8-01352-8, Susan L. Hahn, J., entered December 16, 2009.
Affirmed by unpublished opinion per Kulik, C.J., concurred in by Brown and Korsmo, JJ.
Ethel Quiroz, a minor, appeals from her Yakima County Juvenile Court disposition order finding her guilty on stipulated facts of possession of methamphetamine. Ms. Quiroz contends she was unlawfully seized after police — responding to a reported assault with a deadly weapon — found her sitting in a car parked in front of the house that was the source of the report. We conclude the facts support a lawful Terry stop and seizure and, therefore, affirm the trial court's denial of the motion to suppress.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
FACTS
Around midnight in late November 2009, the Yakima police department received a call from a father who said his children had been in a violent dispute. The father stated that his son had punched his daughter and then shot at her with a gun. Both siblings were reported to be adults.
Officer Callie Saldana and four other officers were dispatched to the father's address, although they had no information whether they were arriving at the site of the assault or who might be there. In fact, the dispatch officer reported that some events related to the assault occurred at a different location. Officer Saldana found a running car parked in front of the father's house. No one was in the driver's seat, but a young woman who looked to be about 16 years old sat in the front passenger seat. A man about 30 years old was lying across the back seat. Officer Saldana tapped on the window and the man sat up, clutching a methamphetamine pipe.
While another officer questioned the man in the back seat, Officer Saldana told the female passenger, Ms. Quiroz, to step out of the car. Officer Saldana patted down Ms. Quiroz for weapons, found none, and then asked for her name and birth date. While waiting for dispatch to check Ms. Quiroz's information, the officer placed her in handcuffs. Ms. Quiroz denied knowing anything about an assault or a weapon. Dispatch reported that Ms. Quiroz had a warrant, so Officer Saldana arrested her and placed her in the patrol car. Later, the police discovered a baggie of methamphetamine in Ms. Quiroz's shirt pocket.
The outstanding warrant was for earlier charges that Ms. Quiroz possessed dangerous weapons (a switchblade and brass knuckles).
The State charged Ms. Quiroz, 17 years old, with possession of a controlled substance, methamphetamine. She moved to suppress the evidence, arguing that the warrantless seizure was not based on probable cause and did not fall under any exceptions to the warrant requirement. At the hearing on the motion, Officer Saldana testified that she patted down Ms. Quiroz due to the possibility that Ms. Quiroz possessed a weapon and that she asked for Ms. Quiroz's identification because she needed to know Ms. Quiroz's relationship to the reported assault. Officer Saldana stated that she secured Ms. Quiroz and put her in handcuffs for officer safety.
In its oral ruling on the suppression motion, the trial court found that Officer Saldana initially seized Ms. Quiroz by making her get out of the car. The court found that this seizure was based on an articulable suspicion that Ms. Quiroz was involved in the reported assault and, thus, was justified as a Terry stop. Additionally, the court found that handcuffing Ms. Quiroz was justified for officer safety. The motion to suppress was denied.
Ms. Quiroz stipulated to the facts and was found guilty of possessing methamphetamine on December 16, 2009, in the juvenile division of the Yakima County Superior Court. She filed a notice of appeal the next day. The trial court had not entered findings of fact and conclusions of law for the order on the motion to suppress when Ms. Quiroz filed her amended appellant's brief on May 20, 2010. The findings and conclusions were filed on June 3, 2010.
Failure to Timely Enter Written Findings of Fact and Conclusions of Law. In her brief filed before the trial court entered the findings of fact and conclusions of law from the suppression hearing, Ms. Quiroz requested a remand for entry of the findings or, alternatively, reversal and dismissal of her conviction. CrR 3.6(b) requires the trial court to enter findings and conclusions after a CrR 3.6 hearing on a motion to suppress the evidence. Delay in the entry of the findings and conclusions until after the appellant files his or her brief is reversible only if the delay prejudices the appellant or if the findings and conclusions are tailored to meet the appellant's issues. State v. Brockob, 159 Wn.2d 311, 343, 150 P.3d 59 (2006).
We review the trial court's challenged findings of fact for substantial evidence and the conclusions of law de novo in light of those facts. Brockob, 159 Wn.2d at 343; State v. Chang, 147 Wn. App. 490, 495, 195 P.3d 1008 (2008). Unchallenged findings are verities on appeal. Brockob, 159 Wn.2d at 343.
When entry of the findings of fact and conclusions of law from a suppression hearing is delayed until after the appellant has filed his or her brief, the opportunity to assign error to a finding is foreclosed. Chang, 147 Wn. App. at 495. "But there is no error if the trial court's oral findings are sufficient to permit appellate review and the defendant does not demonstrate any prejudice arising from the belated finding." State v. Glenn, 140 Wn. App. 627, 639-40, 166 P.3d 1235 (2007). The trial court's oral findings and conclusions indicated that the report of an assault created an "articulable suspicion" that supported Officer Saldana's Terry seizure of Ms. Quiroz. Report of Proceedings (RP) at 45. The facts in the oral findings are generally reflected in the written findings, but the written conclusions do not mention that Officer Saldana's seizure of Ms. Quiroz satisfied the Terry requirements. Instead, the written conclusion is that seizure was justified under the community caretaking exception to the warrant requirement.
Ms. Quiroz did not assign error to the trial court's oral findings, so they are verities on appeal. Brockob, 159 Wn.2d at 343. Because the written findings do not vary appreciably from the oral findings, it does not appear that the written findings were tailored to meet the arguments in the appellant's amended brief. The variance in the written conclusions of law is not prejudicial because this court reviews the conclusions de novo. Chang, 147 Wn. App. at 495. Thus, the delay in entering the written findings of fact and conclusions of law did not prejudice Ms. Quiroz's appeal.
Seizure. Ms. Quiroz contends she was unlawfully seized, leading to discovery of the warrant and the methamphetamine. She seeks dismissal of her conviction with prejudice because the incriminatory evidence was the fruit of the poisonous tree.
Warrantless searches and seizures are per se unreasonable and violate the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). The State carries a heavy burden to show that a warrantless seizure falls within one of the narrowly drawn exceptions to the warrant requirement, including Terry investigative stops and community caretaking stops. Id. at 249-50; State v. Kinzy, 141 Wn.2d 373, 384-85, 5 P.3d 668 (2000).
Terry Stop and Frisk. A Terry stop, also called a "stop and frisk," is a brief investigative seizure based on an officer's reasonable suspicion, grounded in articulable facts, that the person stopped has been or is about to be involved in a crime. State v. Acrey, 148 Wn.2d 738, 746-47, 64 P.3d 594 (2003); see also State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008). "To determine whether the officer had an articulable suspicion of criminal wrongdoing we must examine the reasonableness of the officer's actions in view of the facts he knew." State v. Brown, 154 Wn.2d 787, 798, 117 P.3d 336 (2005). "The State must show by clear and convincing evidence that the Terry stop was justified." State v. Doughty, 170 Wn.2d 57, 62, 239 P.3d 573 (2010).
As the trial court found, Ms. Quiroz was seized at the moment Officer Saldana told her to get out of the car. See State v. O'Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003) (under article I, section 7, a person is seized when, by show of authority, his or her freedom of movement is restrained and a reasonable person would not believe he or she is free to decline the officer's request). To justify this seizure as a Terry stop, the officer needed to point to information she had at the time of the seizure that indicated Ms. Quiroz was involved in an illegality. Brown, 154 Wn.2d at 798.
Officer Saldana testified that when she responded to the dispatch, she knew that a father had called police around midnight to report that his adult son had punched and shot at his adult daughter sometime that night. Dispatch also mentioned another address related to the assault. As Officer Saldana approached the father's house, she saw a juvenile female sitting in the front passenger seat of a running car parked in front of the house. Officer Saldana ordered Ms. Quiroz to step out of the car so she could be frisked for weapons and secured for officer safety while the police determined her involvement in the reported assault. The officer needed to determine Ms. Quiroz's relationship to the home, whether Ms. Quiroz was connected to the assault or possessed a gun, and why Ms. Quiroz was sitting in a running car in front of the house from which the 911 call was made. This was a valid Terry stop.
After a valid Terry stop, the stopped person may be frisked if the officer can point to specific articulable facts that create an objectively reasonable belief that the person is a safety risk. State v. Cormier, 100 Wn. App. 457, 461, 997 P.2d 950 (2000). We look to the totality of the circumstances of the stop, including the officer's training and experience, the location of the stop, the time of day, and the suspect's conduct. Id. Here, the stop occurred in the middle of the night, and Ms. Quiroz was sitting in a car temporarily parked on a public street, outside a house where a violent assault may or may not have occurred.
Conclusion. In summary, the seizure of Ms. Quiroz was a lawful Terry stop. Ms. Quiroz's identifying information was requested after her lawful seizure, leading to the discovery that she had an outstanding warrant and that she possessed methamphetamine. Because the seizure was lawful, the evidence of methamphetamine possession was admissible.
We affirm the juvenile court disposition.
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.
BROWN, J. and KORSMO, J., concur.