Opinion
No. 60464-3-I.
July 21, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-10528-8, Dean Scott Lum, J., entered July 23, 2007.
Reversed and remanded by unpublished per curiam opinion.
Joshua Thelen appeals his convictions for possession of cocaine and marijuana. He contends that evidence of his drug possession should have been suppressed as the fruit of an unlawful seizure. He first argues that the police officer who detained him did not have reasonable suspicion to believe he was engaged in criminal activity. Alternatively, he argues the police officer exceeded the scope of a lawful stop by demanding that he reveal what was in his closed hand. We hold that the stop was proper, but that under the facts present here, the officer exceeded the permissible scope of the stop. Accordingly, we vacate the conviction and remand for entry of an order of dismissal.
FACTS
Seattle Police Officer James Lee was on bike patrol on November 21, 2006. Sometime after 9 p.m., he entered Victor Steinbrueck Park, an area known for drug and alcohol-related activities. Officer Lee saw Thelen standing in front of a park bench surrounded by people he recognized as drug users. Officer Lee saw that Thelen was facing an individual seated on the bench, that his left hand was extended away from his body, and that he appeared to be showing something to the person on the bench. Based on his training and experience, Officer Lee believed he was witnessing a drug deal. He testified that he had extensive experience in narcotics investigations and had made hundreds of narcotics arrests since 2002.
Officer Lee rode toward the group, and when he got within five feet, everyone except Thelen quickly scattered. When Thelen turned and saw Officer Lee, he looked startled and immediately cupped his left hand behind his left thigh as if secreting something. Thelen began walking backwards, away from the officer. Officer Lee ordered Thelen to stop and reveal what was in his hand. Thelen continued walking backward and repeated Officer Lee's commands back to him in the form of questions. When Officer Lee told him to stop, Thelen said, "You want me to stop?" and when Officer Lee told him to show his left hand, Thelen replied, "Do you want me to show you my left hand?" Report of Proceedings, (June 12, 2007) at 21. Officer Lee believed that Thelen was stalling and was also concerned that Thelen might destroy evidence by throwing it onto the viaduct below the park. Officer Lee placed his hand on Thelen's shoulder and guided him back to the bench. As Thelen sat down, he dropped a plastic baggie and stated, "See, I don't have anything in my hand." Id. at 23. Officer Lee could see that the contents of the baggie resembled marijuana and crack cocaine, and he arrested Thelen.
The trial court's findings described Officer Lee's statements both as "requests" and as "commands." However, it is clear from Officer Lee's testimony that they were imperative directives rather than investigatory questions. See, e.g., Report of Proceedings (RP) at 20-21 ("I gave him a verbal command to stop and to show me his left hand.").
The State charged Thelen with possession of cocaine and marijuana. Thelen moved to suppress all evidence of the drugs and argued that Officer Lee did not have a basis to conduct a Terry stop and that the officer's order to reveal the contents of his closed hand exceeded the scope of any permissible stop. The trial court ruled that Officer Lee had reasonable suspicion to stop and question Thelen and rejected his motion to suppress. A jury found Thelen guilty on both charges, and the court imposed a standard range sentence. Thelen filed a timely notice of appeal.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)
ANALYSIS
Thelen challenges the trial court's conclusions regarding the propriety of the stop and the admissibility of the drug evidence. He does not challenge the trial court's factual findings, so they are verities on appeal. See State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). Whether the trial court derived the correct legal conclusions from these facts is a question of law that we review de novo. See State v. Solomon, 114 Wn. App. 781, 789, 60 P.3d 1215 (2002).
Warrantless searches and seizures are generally unconstitutional. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). One exception to this general rule is an investigatory or Terry stop. A police officer may conduct a Terry stop based on a reasonable suspicion, grounded in specific and articulable facts, that criminal activity is afoot. State v. Kinzy, 141 Wn.2d 373, 384-85, 5 P.3d 668 (2000). During a Terry stop, an officer may "`briefly detain and question a person reasonably suspected of criminal activity.'" State v. Watkins, 76 Wn. App. 726, 729, 887 P.2d 492 (1995) (quoting State v. Rice, 59 Wn. App. 23, 26, 795 P.2d 739 (1990)). An officer may also conduct a limited search designed to discover potential weapons. State v. Alcantara, 79 Wn. App. 362, 365, 901 P.2d 1087 (1995).
Thelen contends that Officer Lee stopped him without reasonable suspicion that he was involved in criminal activity. When reviewing the justification for a Terry stop, we evaluate the totality of the circumstances presented to the officer, taking into account the officer's training and experience and considering the location of the stop and the conduct of the person detained. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). Here, Officer Lee was an experienced narcotics investigator, having made hundreds of drug arrests since 2002. He knew Victor Steinbrueck Park as a high-narcotics area. He recognized the people surrounding Thelen to be drug users. He saw Thelen's left hand extended to show something to an individual seated on the park bench in front of him. When Officer Lee approached, the group quickly scattered. Thelen immediately hid his left hand behind his leg and began walking backwards toward the viaduct, where he could discard drug evidence. Considering the totality of the circumstances, Officer Lee's suspicion that Thelen possessed drugs was reasonable.
This conclusion is supported by our decision in State v. Pressley, 64 Wn. App. 591, 825 P.2d 749 (1992). In Pressley, an officer saw two girls huddling together examining something on a street corner in an area known for narcotics transactions and gang activity. Id. at 593. The girls' hands were chest high, and Pressley appeared to be pointing to objects in her hand while the other girl was looking intently at them. Id. at 593-94. As the officer drove toward them, Pressley exclaimed, "Oh Shit" and immediately closed her hand as she walked off in separate direction from the other girl. Id. at 594. The court held that the girls' reaction to the officer's presence, combined with the officer's experience and knowledge of crime in the area, provided an adequate basis for him to stop Pressley and investigate further.
There is no meaningful distinction between this case and Pressley with respect to the justification for the stop. The reaction of Thelen and the group to Officer Lee's presence was analogous to the girls' reaction in Pressley. Thelen attempts to distinguish Pressley, noting that he did not walk away when the officer approached and that he did not say anything. But the uncontested facts are that Thelen was initially facing toward the bench when Officer Lee approached and that when he turned and saw Officer Lee, he looked startled and immediately hid his left hand behind him. At that point, he began walking backwards, away from the officer. That Thelen did not verbalize his alarm is not significant because his actions betrayed the same sentiment.
Moreover, unlike in Pressley, Officer Lee recognized the people surrounding Thelen to be drug users. Under these circumstances, it was reasonable for him to stop Thelen and investigate further.
Thelen next argues that even if the Terry stop was justified, Officer Lee's demand that Thelen reveal the contents of his closed hand exceeded the permissible scope of the stop. A Terry stop must be justified not only in its inception, but also in its scope. State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994). An officer conducting a Terry stop may carry out a limited search of the person stopped in order to discover potential weapons. State v. Serrano, 14 Wn. App. 462, 468, 544 P.2d 101 (1975). For example, if the officer has reasonable safety concerns, he may pat down the outer clothing for suspicious objects to allay his concerns. Id. "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993) (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972)). Once the officer has ascertained that the suspect has no weapons, the government's limited authority is spent and any further search will be deemed unreasonable unless it is supported by probable cause or another sufficient justification such as the "plain view" doctrine. Hudson, 124 Wn. 2d at 113; Alcantara, 79 Wn. App. at 366.
Here, Officer Lee exceeded the permissible scope of his investigative stop by commanding Thelen to reveal the contents of his closed hand. The State argues that Officer Lee had "general safety concerns because he had not done a pat-down search," but such a search is permitted only when the officer reasonably believes the suspect is armed and dangerous. State v. Lennon, 94 Wn. App. 573, 580, 976 P.2d 121 (1999). Here, Officer Lee did not testify that he thought Thelen might have a weapon in his hand, and the court did not find that Officer Lee was concerned that Thelen might be armed. Instead, the record is clear that the officer believed that Thelen was holding drugs and that the demand to open his hand was made to obtain incriminating evidence, not to allay safety concerns.
Br. of Respondent at 14.
Given that this contact occurred in a high crime area and Thelen's suspicious behavior, Officer Lee could have reasonably feared that Thelen was armed. However, at the CrR 3.6 hearing, Officer Lee did not testify that he was concerned that Thelen had a weapon in his hand.
Citing Pressley, the State argues that the officer's actions were justified because he feared that Thelen might attempt to destroy evidence by discarding it onto the viaduct. However, in Pressley, the search was justified because the officer saw something incriminating sticking out of the suspect's hand and the officer had concerns that there was a weapon in her coat pocket. Pressley, 64 Wn. App. at 594, 598. We have expressly rejected the argument "that under Pressley an officer may seize evidence . . . which is in danger of being lost or destroyed." Alcantara, 79 Wn. App. at 365. Instead, we have repeatedly held that where there is no police safety concern, a search made pursuant to Terry must be justified by more than a fear that incriminating evidence might be lost or destroyed. See State v. Rodriguez-Torres, 77 Wn. App. 687, 691-92, 893 P.2d 650 (1995); Alcantara, 79 Wn. App. at 366.
The State also cites Glover for the proposition that an officer's demand to see a suspect's hand falls within the scope of a Terry stop, but a majority of the Glover court concluded that probable cause was required to justify that level of intrusion. Glover, 116 Wn. 2d at 516, 521 (concurring and dissenting opinions). Here, the State does not argue that the plain view doctrine applied or that the officer had probable cause to conduct a search. Because the officer exceeded the scope of the Terry stop and there was no justification for a more intrusive search, the trial court erred in denying the suppression motion.
Without the cocaine and marijuana evidence, there is no adequate basis to sustain Thelen's convictions. Accordingly, we vacate the conviction and remand for entry of an order of dismissal.