Opinion
No. 59191-6-I.
June 23, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-06090-0, Laura C. Inveen, J., entered November 20, 2006.
Affirmed by unpublished per curiam opinion.
Robinson appeals the trial court's denial of his motion to suppress evidence of cocaine found during a search of his person incident to his arrest, claiming that the investigative detention that led to his arrest was not legally justified. Because the initial detention was based upon the arresting officer's reasonable, articulable suspicion of criminal activity, we affirm.
Background
Officer Greg Neubert, a veteran of the Seattle Police Department, was on bicycle patrol in the Belltown area of Seattle late one night. He and his partner rode out of an alleyway into a private parking lot on the corner of 4th Avenue and Battery Street. Neubert spotted a man peering into the driver's window of a car, his face mere inches from the glass. Given the lateness of the hour and the high incidence of theft in the area, Neubert's suspicions were immediately aroused. He had witnessed many car prowls in his career and thought that the man was either the owner of the car or a car prowler.
When the man made no effort to open the car with a key, Neubert rode quietly in his direction. The man continued to peer into the car as Neubert approached and only looked up when the officer drew close. When the man spotted Neubert, he immediately began walking out of the parking lot to the street corner. Thoroughly suspicious by now, Neubert told the man to stop. He asked the man if the car was his. When the man answered that it was not, Neubert asked him why he was looking into the car. The man denied doing so.
The man's denial only served to confirm Neubert's suspicions. Convinced that he had interrupted a car prowl, he asked the man for identification. The man told Neubert he had no identification and gave what proved to be a false name. He eventually provided his real name, Theophyllis Robinson. When the officers ran a check on the name, they discovered that Robinson had several outstanding felony warrants.
Robinson was placed under arrest and searched. The officers found a small bag of what proved to be cocaine tucked into Robinson's waistband. Robinson was charged with possession of cocaine. Prior to trial he filed a CrR 3.6 motion to suppress evidence of the cocaine, arguing that the police did not have a reasonable, articulable suspicion justifying his detention. After a suppression hearing, the court denied the motion. Robinson subsequently stipulated to the facts in the information and police report and was convicted as charged. The trial court entered findings of fact and conclusions of law for both the CrR 3.6 hearing and the stipulated bench trial on October 3, 2007, after Robinson filed his appeal.
Standard of Review
We review a trial court's findings of fact for substantial evidence. We review conclusions of law de novo.
State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997).
Discussion
Article I, section 7 of the Washington Constitution provides that no person shall be disturbed in his private affairs, or his home invaded, without authority of law. It is well established that the Washington State Constitution affords individuals greater protections against warrantless searches than does the Fourth Amendment.
State v. Stroud, 106 Wn.2d 144, 148, 720 P.2d 436 (1986).
Generally, warrantless searches and seizures are unconstitutional. A Terry investigative stop is an exception to the general rule. Under Terry v. Ohio, a police officer may conduct an investigative stop based upon less evidence than is needed for probable cause to make an arrest. A brief investigative stop is permissible whenever the police officer has a reasonable suspicion, grounded in specific and articulable facts, that the person stopped has been or is about to be involved in a crime.
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. Glover, 116 Wn.2d 509, 513, 806 P.2d 760 (1991).
State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003).
When reviewing the merits of an investigatory stop, a court must evaluate the totality of circumstances presented to the investigating officer. The court takes into account an officer's training and experience when determining the reasonableness of a Terry stop. Other factors that may be considered in determining whether a stop was reasonable include the purpose of the stop, the amount of physical intrusion upon the suspect's liberty, and the length of time the suspect is detained. The reasonableness of an investigative stop is measured not by exactitudes, but by probabilities.
United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981).
State v. Mercer, 45 Wn. App. 769, 774, 727 P.2d 676 (1986); State v. Samsel, 39 Wn. App. 564, 570-71, 694 P.2d 670 (1985).
State v. Williams, 102 Wn.2d 733, 740, 689 P.2d 1065 (1984).
Mercer, 45 Wn. App. at 774.
Robinson argues that Officer Neubert lacked the reasonable, articulable suspicion necessary for an investigative stop and that the cocaine should consequently have been excluded from evidence. We disagree.
Officer Neubert was an experienced police officer. He had completed the Field Training Program and received undercover narcotics training. He was also trained as a horse patrol officer, as well as a bicycle patrol officer, and had served as a detective for a short time. Prior to joining the Seattle Police Department, he had served as a military police officer for the Air Force. He testified that he had witnessed "dozens and dozens" of car prowls, sometimes as many as two or three in a single night.
Neubert encountered Robinson between 3:00 and 3:30 in the morning in a street level parking lot in a part of Belltown he knew to be a high theft area. He spotted Robinson peering closely into an automobile window but making no effort to use a key to gain entry to the car. Neubert testified that in "car prowling, people often will walk up to a vehicle . . . and they will look into the vehicle to see if there's any items of value that they may want to take prior to actually breaking a window or entering the vehicle. . . ." Robinson was not simply passing by the vehicle, but was noticeably stopped, peering through the window.
As soon as Robinson spotted Neubert, he started walking away from the car. Flight from police officers may be a factor considered in determining whether officers had a reasonable suspicion of criminal activity.
State v. Little, 116 Wn.2d 488, 496, 806 P.2d 749 (1991).
If the results of an initial stop dispel an officer's suspicions, then the officer must end the investigative stop. If, however, the officer's initial suspicions are confirmed or are further aroused, the scope of the stop may be extended and its duration may be prolonged. Robinson's denials and his proffering of a fake name reinforced Neubert's reasonable, articulable suspicion that Robinson had been about to commit a criminal act.
Acrey, 148 Wn.2d at 747.
Acrey, 148 Wn.2d at 747.
A Terry stop requires something more than a generalized suspicion. There must be some suspicion of a particular crime connected to a particular person, rather than a mere generalized suspicion that the person detained may have been up to no good.
State v. Martinez, 135 Wn. App. 174, 182, 143 P.3d 855 (2006).
Martinez, 135 Wn. App. at 181-82.
From the outset of the encounter, Neubert had a reasonable suspicion, grounded in specific and articulable facts, that Robinson had been or was about to be involved in a crime. Neubert had extensive experience with car prowlers. The encounter occurred in a high crime area at a very late hour; Robinson's behavior at the car indicated a possible car prowl. He did not attempt to open the car with a key as an owner might, and he left the parking lot immediately upon spotting the police. Robinson's subsequent denials and use of a false identity increased Neubert's already reasonable and specific suspicions. The trial court did not err in denying Robinson's motion to suppress.
Robinson and the State disagree as to when Robinson was seized. Robinson contends he was seized when Neubert initiated contact and told him to stop. The State argues that Robinson was not seized until Neubert demanded to see Robinson's identification. As we hold Neubert had a reasonable, articulable suspicion that Robinson was about to engage in criminal activity at the outset of the encounter, we do not address this issue.
Robinson asks this court to remand for entry of the findings of fact and conclusions of law. At the time Robinson filed his appeal, the trial court had not yet entered written findings and conclusions regarding his suppression hearing or the judgment and sentence. The court has since entered its findings and conclusions.
CrR 6.1 and CrR 3.6 require that the court enter written findings of fact and conclusions of law in a case tried without a jury. While the primary purpose of requiring findings is to allow the appellate court to fully review the questions raised on appeal, the requirement also enables an appealing defendant to focus on issues arguably supported by the record and avoid pursuing issues obviously lacking merit.
State v. McGary, 37 Wn. App. 856, 861, 683 P.2d 1125 (1984).
State v. Head, 136 Wn.2d 619, 623, 964 P.2d 1187 (1998).
A trial court's failure to enter written findings of fact and conclusions of law requires a remand for entry of written findings and conclusions. Findings and conclusions may, however, be submitted and entered while an appeal is pending if, under the facts of the case, there is no appearance of unfairness and the defendant is not prejudiced.
Head, 136 Wn.2d at 623-24.
State v. Hillman, 66 Wn. App. 770, 773-74, 832 P.2d 1369 (1992).
The burden of proving any prejudice is on the defendant. This Robinson has not done. He has not challenged the trial court's determination of his guilt. He appeals only the lack of written findings of fact and conclusions of law. The trial court delivered detailed oral rulings when it found Robinson guilty, providing this court with sufficient record for review. The State's trial counsel drafted written findings of facts and conclusions of law in accordance with the court's rulings and forwarded them to Robinson's defense counsel. Robinson has filed neither an amended brief nor a reply addressing the findings and conclusions as entered. There is no appearance of unfairness. Remand is not necessary because findings and conclusions have been entered.
Head, 136 Wn.2d at 625.
Affirmed.