Opinion
No. 63179-9-I.
Filed: September 27, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 08-1-03497-2, Charles W. Mertel, J. Pro Tem., entered March 11, 2009.
Reversed and remanded by unpublished opinion per Leach, A.C.J., concurred in by Grosse and Spearman, JJ.
Ramal S. Richardson challenges his conviction for possession of MDMA in violation of the Uniform Controlled Substances Act, RCW 69.50.4013. Richardson contends that the court improperly denied his motion to suppress physical evidence of the pills as a seizure incident to an unlawful investigative stop. Because the deputy conducting this stop lacked a reasonable, articulable suspicion based on specific, objective facts that Richardson had or was about to commit a crime, the trial court erred in denying his suppression motion. We reverse and remand.
3, 4 — Methylenedioxymethamphetamine, commonly known as "ecstasy."
FACTS
At 5:40 p.m. on July 5, 2007, dispatch directed Deputy Richard Ehlers to Creston Point Apartments in response to a manager's report that a male at the complex resembled a person caught on video surveillance committing a burglary the day before. The informer described the suspect as "a black male in his twenties, with a white t-shirt and khaki shorts."
Before Ehlers arrived, dispatch advised him that the suspect had moved to the L building, had engaged the burglary victim in a verbal argument, and that possible associates of the victim had just arrived. Ehlers, driving a marked patrol car with his siren off, passed the manager's office and continued directly to L building. There, he observed five black males congregating in front of the L building. All appeared to be in their twenties, and four of the five were wearing white shirts.
According to Ehlers, the group of men noticed his car approach, "appeared alarmed," and started to walk away. Ehlers then exited his car and "yelled at the group, telling them to stop." The men kept walking, and Ehlers "ran towards them closing the gap. Again, [he] yelled to the group, `You guys in the white shirts, stop where you are." Ehlers observed some of the young men turn their heads toward him but continued to walk away. Ehlers then drew his firearm and again commanded the men to stop. The group complied, and, at gunpoint, Ehlers ordered the men to their knees and to place their hands behind their heads.
A few minutes later, Deputies Elliott and King arrived to assist in the investigation. Ehlers continued to hold the men at gunpoint while Elliott patted them down for weapons. Elliott noticed a .32 caliber automatic handgun lying in the adjacent stairwell nearest to Richardson. When asked if anyone in the group owned the gun, one man replied, "That ain't our gun. This is Creston Point. There are probably guns all over in the bushes here." Elliott then handcuffed all five men and led each to a separate patrol car. In the process, he asked each suspect if he had "anything they shouldn't have on them." Richardson answered that he had a bag of marijuana in his front right pocket. Elliott retrieved the bag of marijuana along with a second bag containing MDMA pills. Elliott read Richardson his Miranda rights, and Richardson refused to answer any additional questions.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Richardson with one count of possessing MDMA in violation of RCW 69.50.4013. Richardson moved to suppress physical evidence of the pills. At his CrR 3.6 hearing, the State called Ehlers as its only witness. He testified consistently with the events described above except that he recalled that the dispatch advised him that one of the victim's friends had arrived in a maroon Chevy pickup, that there was no indication of a physical assault or other crime related to a verbal confrontation, and that he believed Richardson wore a white shirt.
Richardson's attorney argued that the State failed to prove that Ehlers had sufficient information to justify a warrantless detention. The court denied the motion, noting in its oral ruling that the totality of the circumstances provided a valid basis for this stop.
First, they get a call from a manager, someone in management out there, that they have known over the years to be reliable and it's to a site which is a troubled area in addition. And they're told that there's a suspect here from a burglary from the day before. . . . And so they go to the site and in the process of driving there they're told. . . . [t]hat it was a black male. He was in his 20s, he was in a white shirt, tee shirts I believe it was, and had khaki shorts on.
Then as they're driving out there, they're told that the suspect, this black male in his 20s in a white tee shirt and khaki shorts, was now in a confrontation with the victim of the burglary. So that's what they know as they drive to the site.
When they get there, lo and behold, they don't see a black male in his 20s in a white tee shirt, they see four of them, so that does complicate their situation, that is, the police situation.
So the officer now pulls up and orders them to stop and they don't, and I think therein turns the tide in this case from one where we may have argued there wasn't a basis for a stop and a questioning under Terry, but now these four males, this group, disobeys the officer's order to stop and then proceeds a series of stop orders, at least two of them in which the group continues to walk away from the officer. I think that it is in the setting of this situation tantamount to fleeing the scene. . . .
Eventually, they do stop, and I believe at that point there's a basis for now question and searching.
The next day, Richardson's attorney moved to reopen the CrR 3.6 hearing to allow Richardson and another witness, Anthony Baker, an opportunity to testify. The court granted the motion, and Baker testified that on the day of their arrest, Richardson wore a black North Face jacket, jeans, and a baseball cap and that nobody in the group wore khaki shorts. Baker also testified that he and Richardson arrived at the complex in a burgundy Expedition to help a man named Latrez Mitchell move out of his apartment. He also testified that another friend had arrived at the same time and that all three approached Mitchell, who was speaking to a person unknown to Baker. All five men greeted each other, turned, and began walking toward Mitchell's apartment. According to Baker, the group first noticed Ehlers when he ordered the men to their knees at gunpoint.
Mitchell was the victim of the burglary alleged to have occurred the day before.
Richardson similarly testified that on the day of his arrest, he wore a black coat, black and white baseball cap, blue jeans, and black and white shoes. He drove a maroon Ford Expedition to the apartment complex and, like Baker, did not notice Ehlers until ordered to the ground at gunpoint. Though he did not recall everyone's attire, he also testified that none of the men wore khaki shorts.
The court again denied the suppression motion and entered the following findings of fact:
5. Deputy Ehlers arrived at Creston Point a few minutes after the call from dispatch. Deputy Ehlers then entered the Creston Point property and drove around behind the management building to the L building. . . . [H]e was able to see a group of five individuals outside the L building. Four members of that group were wearing clothing that matched the description of the suspected burglar.
6. Upon reaching the L building, Deputy Ehlers again saw the group of individuals matching the description given by dispatch. In total, five people were in front of the L building and appeared to be interacting with each other. There was no disturbance or fight in progress observed. Of the five individuals, four of them were wearing white shirts. The emergency equipment on Deputy Ehlers' patrol car was not activated.
7. Deputy Ehlers exited his patrol car and ultimately ordered the group of individuals to their knees at gunpoint. [He] testified that he handled the stop in this manner do [sic] [to] the fact that Creston Point had a reputation for illegal activity, he was the only officer present, he was interacting with five unknown individuals who were walking away from him, he believed one of the individuals was a suspected burglar, and he believed the group might be engaged in a verbal confrontation.
8. . . . One of the individuals stopped by Deputy Ehlers and later subjected to a Terry frisk was the defendant, who Deputy Ehlers identified in court.
The court also entered disputed facts:
1. Deputy Ehlers testified that when he pulled up to the L building, the group of individuals immediately began walking away from him. Wishing to interact with the group, Deputy Ehlers ordered them to stop. When the group continued walking, Deputy Ehlers began walking after them, and again ordered the group to stop walking. After this second request, a couple of the individuals looked back at Deputy Ehlers but the group continued walking. As the group neared one of the apartment buildings, Deputy Ehlers drew his firearm and ordered them to stop in a loud voice. The group complied with the third and final request.
2. The defendant testified that he did not see where Deputy Ehlers had come from when he stopped the group. The defendant also testified that Deputy Ehlers only told the group to stop one time, that Deputy Ehlers had his firearm drawn the entire time, and that they complied with this single request.
3. Anthony Baker testified that at the time of the detention, Ramal Richardson was wearing a black and white Northface jacket, a black and white baseball cap, he did not wear a white shirt, and he did not wear khaki shorts.
4. Ramal Richardson testified that at the time of the detention he was wearing a black coat and black and white shoes.
5. Deputy Ehlers could not remember what clothing Ramal Richardson was wearing at the time of the detention.
In its conclusions of law, the court determined that "[u]nder the totality of the circumstances in this matter, Deputy Ehlers acted lawfully" since
[t]he facts known to Deputy Ehlers from dispatch, [his] own personal observations of the group outside of the L building . . ., and the behavior of the defendant when Deputy Ehlers' [sic] attempted to contact him and his associates are specific and articulable facts that warranted the intrusion. The facts of this matter, and the rational inferences that stem from them, indicated that there was a substantial possibility that criminal conduct had occurred or was about to occur.
On stipulated facts, the court convicted Richardson as charged. He appeals.
STANDARD OF REVIEW
This court reviews findings of fact entered after a suppression hearing under the substantial evidence standard. If the trial court fails to enter a finding on a material factual issue, this court presumes that the party with the burden of proof failed to sustain his or her burden on that issue. Whether a warrantless stop is constitutional presents a question of law we review de novo.
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
State v. Armenta, 134 Wn.2d 1, 14, 948 P.2d 1280 (1997).
State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008).
ANALYSIS
Richardson argues that Officer Ehlers did not possess sufficient information to establish the degree of individualized suspicion necessary to detain him. We agree.
The parties also dispute whether the reliability of the apartment manager's tip in the investigative stop context is evaluated under the Aguilar/Spinelli test, Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), or under the "totality of circumstances" test espoused in State v. Sieler, 95 Wn.2d 43, 50, 621 P.2d 1272 (1980). We do not reach this issue. Even with the apartment manager's tip, Officer Ehlers did not possess the necessary degree of individualized suspicion.
Generally, warrantless seizures are per se unreasonable under the Fourth Amendment to the United States Constitution and article 1, section 7 of the Washington Constitution. "There are, however, `a few jealously and carefully drawn exceptions . . . which provide for those cases where the societal costs of obtaining a warrant . . . outweigh the reasons for prior recourse to a neutral magistrate.'" One such narrowly drawn exception is a Terry stop, a brief investigative stop of limited scope and duration. Though less intrusive than an arrest, "a stop . . . is nevertheless a seizure and therefore must be reasonable under the Fourth Amendment and article 1, section 7 of the Washington Constitution."
State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984) (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971)). U.S. Const. amend. IV , made applicable to the states through amend. XIV, provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Wash. Const. art. I, § 7 states, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Wash. Const. art. I, § 7 places a greater emphasis on the right to privacy than U.S. Const. amend. IV. State v. Young, 123 Wn.2d 173, 179, 867 P.2d 593 (1994).
Gatewood, 163 Wn.2d at 539 (alterations in original) (internal quotation marks omitted) (quoting State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999)).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Ladson, 138 Wn.2d at 349.
State v. Garvin, 166 Wn.2d 242, 250, 207 P.3d 1266 (2009).
State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986).
To justify an investigative stop, the State bears the burden of proving that the officer had "`a reasonable, articulable suspicion, based on specific, objective facts, that the person seized has committed or is about to commit a crime.'" This individualized suspicion must be justified at its inception, and the court looks to the totality of the circumstances presented to the officer when reviewing the merits of an investigative stop. These circumstances must give rise to "a substantial possibility that the particular person has committed a specific crime or is about to do so."
Gatewood, 163 Wn.2d at 539 (quoting State v. Duncan, 146 Wn.2d 166, 172, 43 P.3d 513 (2002)).
Gatewood, 163 Wn.2d at 539.
State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991).
State v. Martinez, 135 Wn. App. 174, 180, 143 P.3d 855 (2006) (citing State v. Garcia, 125 Wn.2d 239, 242, 883 P.2d 1369 (1994)).
First we must determine when the investigative stop occurred. Richardson maintains that it occurred the moment Ehlers exited his car and ordered the group to stop. He relies on State v. Gatewood, where the State conceded that a seizure occurred when the officer commanded a person to stop.
163 Wn.2d 534, 540, 182 P.3d 426 (2008).
The State disagrees, claiming that the seizure occurred the moment Richardson became aware that Ehlers had drawn his firearm and ordered the group of men to their knees. The State distinguishes Gatewood on the basis that the defendant in that case actually heard the officer's commands whereas Richardson, by his own admission, did not.
At the close of the CrR 3.6 hearing, the court made no express findings as to when Richardson was seized for purposes of evaluating the reasonableness for Ehlers's suspicion.
Under the Washington Constitution, a seizure occurs when, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave due to the law enforcement officer's use of force or display of authority. This purely objective standard requires an inquiry only into the actions of the law enforcement officer. Thus, Richardson's awareness of Ehlers's initial commands is irrelevant.
State v. O'Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003).
O'Neill, 148 Wn.2d at 574 (quoting State v. Young, 135 Wn.2d 498, 501, 957 P.2d 681 (1998)).
Here, a reasonable person confronted with Ehlers's first order to stop would likely have understood that he or she was not free to leave. Washington courts acknowledge that a command to stop walking conveys more coercive force than an officer's casual invitation to converse. Therefore, Ehlers detained Richardson the moment Ehlers exited his car and commanded the group to stop.
See O'Neill, 148 Wn.2d at 577-78 (an officer's commands to halt or demands for information constitute a seizure while requests to engage in conversation or for identification do not).
Next, we must decide whether Ehlers possessed the objective criteria required for an investigative stop at the time of the detention.
In State v. Thompson, a state patrol trooper received reports that an occupant in a northbound Cadillac was waiving a handgun. The trooper identified a car fitting the description and followed it around a shopping center parking lot. When the Cadillac stopped next to a Chrysler, the trooper parked in front of the Cadillac and ordered the occupants out of the vehicle. Thompson, the driver of the Chrysler, got out and started walking rapidly away. The trooper ordered him not to leave and eventually arrested Thompson on an outstanding traffic warrant. Incident to that arrest, the officer searched Thompson's car and discovered heroin. The superior court subsequently denied Thompson's motion to suppress the heroin.
93 Wn.2d 838, 839, 613 P.2d 525 (1980).
Thompson, 93 Wn.2d at 839.
Thompson, 93 Wn.2d at 839.
Thompson, 93 Wn.2d at 839-40.
Thompson, 93 Wn.2d at 840.
Thompson, 93 Wn.2d at 840.
Thompson, 93 Wn.2d at 840.
The Washington Supreme Court held Thompson's initial stop violated the Fourth Amendment because the officers "lacked a reasonable suspicion, based on objective criteria, to believe that appellant [Thompson] was involved in criminal conduct." The occupants of the Cadillac brandished the pistol; Thompson occupied the Chrysler. The waving of a handgun in the air by occupants of the Cadillac was not relevant to any suspicion of criminal misconduct by Thompson. And since the Fourth Amendment requires that the suspicion be individualized, Thompson's proximity to persons independently suspected of criminal activity did not justify the stop. Thompson's rapid walking, by itself, did not make "him a proper subject for criminal investigation." Finally, the trooper's testimony that he instinctively knew that he should keep Thompson long enough to identify him amounted to an "inarticulate hunch," "precisely the type of subjective basis which is constitutionally insufficient, because it creates a risk that a person may be detained `solely at the unfettered discretion of officers in the field.'"
Thompson, 93 Wn.2d at 843.
Thompson, 93 Wn.2d at 841.
Thompson, 93 Wn.2d at 841 (citing Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979)).
Thompson, 93 Wn.2d at 841-42; see also Gatewood, 163 Wn.2d at 540.
Thompson, 93 Wn.2d at 842 (quoting Terry, 392 U.S. at 22).
Thompson, 93 Wn.2d at 842 (quoting Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979)).
Here, the State makes arguments similar to those rejected in Thompson. First, the court failed to find that Richardson matched the description of the suspected burglar. Absent a finding on this fact, we presume that the State failed to meet its burden on this material issue. Ehlers therefore had no reason to suspect Richardson of the burglary. Second, Richardson's mere proximity to a group of men suspected of criminal activity does not provide the individualized suspicion necessary for a Terry stop. Third, walking away from a police officer, without more, is an inadequate basis for an investigative stop. Thus, even if we agreed with the State that the seizure occurred after Richardson and his associates walked away from Ehlers, Richardson's seizure was unlawful.
Armenta, 134 Wn.2d at 14.
The State also asserts officer safety as a proper basis for stopping Richardson. Ehlers testified that, as he approached the group alone, in an apartment complex known for criminal activity,
[T]hey were kind of in a big group and they were moving their hands around. I couldn't tell what they were doing, and based on this I believed that they might possibly have a weapon or be dangerous, so that's why I pulled my department firearm. . . . [I] couldn't see their hands, didn't know what they were doing, so it definitely raised my red flag.
To support this argument, the State cites Terry and State v. Horace. In Terry, the United States Supreme Court held that
144 Wn.2d 386, 395-97, 28 P.3d 753 (2001).
where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous . . ., he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
Terry, 392 U.S. at 30 (emphasis added).
Terry, 392 U.S. at 30 (emphasis added).
And in Horace, our Supreme Court held a Washington state trooper's investigative stop and pat down of an auto passenger was lawful where the trooper observed (1) the driver make unexplained movements in the passenger's direction, who was in close proximity to those movements and was wearing a bulky zippered jacket; (2) the driver leaned to his right, dropped his right shoulder down, and gestured in the console area between the bucket seats; and (3) the movements were consistent with an attempt to conceal a weapon.
Horace, 144 Wn.2d at 395-97.
The State's reliance on these cases is misplaced. Richardson's presence in a high crime area is an insufficient basis for an investigative detention. Also, Ehlers had observed no unusual conduct that would allow him to reasonably conclude that Richardson and his associates were armed, presently dangerous, or engaged in criminal activity. To the contrary, Ehlers testified that although he could see that the men were "moving their hands around," he "couldn't see their hands." Ehlers's testimony, therefore, contrasts dramatically with the trooper's particularized testimony in Horace. In addition, "[t]here was no disturbance or fight in progress" and the State presented no evidence of ongoing criminal conduct. Ehlers's testimony fails to establish the specific, objective facts needed to support the reasonable suspicion required for an investigative stop.
Martinez, 135 Wn. App. at 180; see also State v. Crane, 105 Wn. App. 301, 312, 19 P.3d 1100 (2001) (presence in high crime area alone does not support a reasonable articulable suspicion).
Officer Ehlers testified that "it's usually best to try to detain the individual and then work on your investigative steps." Police investigations must comport with the privacy protections of the Fourth Amendment and article 1, section 7 of our state constitution. "Otherwise, when a stop is not based on specifically articulated facts, `the risk of arbitrary and abusive police practices exceeds tolerable limits.'"
Thompson, 93 Wn.2d at 843 (quoting Brown, 443 U.S. at 52).
CONCLUSION
Officer Ehlers lacked a reasonable, articulable suspicion, based on specific, objective facts, that Richardson had or was about to commit a crime. Therefore, the initial detention of Richardson was unconstitutional. Since the only evidence of Richardson's possession should have been suppressed, the conviction is reversed and the case remanded to the trial court.
State v. O'Bremski, 70 Wn.2d 425, 428, 423 P.2d 530 (1967) (Washington has embraced the exclusionary rule and the "fruit of the poison tree" doctrine).
WE CONCUR: