Opinion
No. 32583-7-II.
Filed: April 11, 2006.
Appeal from Superior Court of Cowlitz County. Docket No. 04-1-01126-1. Judgment or order under review. Date filed: 11/17/2004. Judge signing: Hon. Stephen M. Warning.
Counsel for Appellant(s), Heiko Philipp Coppola, Attorney at Law, Cowlitz Co Pros Aty Offc, 312 SW 1st Ave, Kelso, WA 98626-1799.
Counsel for Respondent(s), Anne Mowry Cruser, Law Office of Anne Cruser, PO Box 1670, 124 N 1st Ste 4, Kalama, WA 98625-1501.
UNPUBLISHED OPINION
The State appeals the trial court's ruling in favor of Michael Wayne Truitt on his motion to suppress certain evidence. The trial court ruled that the frisking officer had no reasonable, articulable suspicion that Truitt had committed a crime; thus, the officer could not legally stop Truitt under Terry v. Ohio. We agree and, therefore, affirm.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
FACTS
The State charged Michael Wayne Truitt with possessing methamphetamine and obstructing a police officer. The trial court granted Truitt's motion to suppress evidence of the drugs an officer found on Truitt during a weapons frisk.
In August 2004, Kelso police dispatched two officers to an address on South 9th to investigate a reported fight between three men. Dispatch advised the officers that one of the men may have been armed with a baseball bat.
When Kelso police officers Cowan and Blaine arrived at the residence, they found no one fighting. The officers contacted Brian Roseberry who was living in a plywood shack on the property. He told the officers that he had been in `a verbal argument' with Michael Truitt. Report of Proceedings (RP) at 5. When the officers asked him if anyone was armed with a weapon like a baseball bat, Roseberry said that he had armed himself with a metal pipe to defend himself. Officer Blaine later testified that the pipe was about as large as a baseball bat. The officers did not cite, arrest, or detain Roseberry. Instead, they arrested him and took him into custody for an unrelated probation violation. Neighbors told police that they believed Roseberry was dealing drugs out of the plywood shack.
After arresting Roseberry, Officer Blaine started looking for Truitt; he found him approximately 12 minutes later riding his bicycle back towards Roseberry's residence alongside a motorcycle. Officer Blaine believed he had probable cause to arrest the motorcycle driver for an unrelated incident; he pursued the motorcycle but was unable to catch it.
Officer Blaine then returned to the South 9th address because a neighbor had reported that Truitt had returned to the plywood shack. When Blaine arrived, Truitt was standing in the doorway of the shack. The officers had already removed Roseberry, and there was no report of further fighting or drug dealing; nor had the police received any further information that Truitt was engaged in criminal activity.
Officer Blaine told Truitt he wanted to talk to him about the earlier argument and asked if he would be willing to come outside and talk. Truitt agreed and exited the shack. Officer Blaine asked if he had any weapons on him, explaining that `I know that people that are involved in the drug trade often use weapons — knives and guns. I believed he might be armed with one of those items.' RP at 8-9.
Truitt said that he had a knife in his back pocket; and according to Officer Blaine, he started to reach behind his back. Officer Blaine instructed him to keep his hands where Blaine could see them and not put them in his pockets. Then Officer Blaine asked Truitt to put his hands out to his sides and told him he was going to pat him down for his knife.
While patting down Truitt, Officer Blaine felt two items similar in size to a knife. Later, he discovered that they were actually lighters. He attempted to remove the items from Truitt's pocket, but Truitt began reaching back toward his back left pocket.
Officer Blaine `grabbed ahold of his left hand and told him to keep his hands out of his pockets.' RP at 10. Truitt began struggling and pulling away stating, `I thought you just wanted to talk to me.' RP at 11. Officer Blaine `ordered him to place his hands behind his back.' RP at 11. According to Officer Blaine, Truitt did not comply; instead, he kept pushing himself away.
Officer Blaine called for a cover unit to help him arrest Truitt. He also unholstered his taser and ordered Truitt to lay prone on the ground. When Truitt refused, Officer Blaine used his taser on him. After that, Truitt complied, and Blaine and another officer arrested him for obstructing and resisting arrest. In a search of Truitt incident to the arrest, Officer Blaine found a small amount of methamphetamine and a four-inch lock blade knife.
In suppressing the evidence, the court found that the officers had no reasonable suspicion that a crime had occurred and, therefore, had no reason for a Terry contact.
ANALYSIS I. Standard of Review
The parties do not dispute the facts. The only issue is whether the information known to Officer Blaine supports the legal conclusion that he had a reasonable, articulable suspicion that Truitt was engaged in criminal activity. We review conclusions of law from an order pertaining to the suppression of evidence de novo. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002) (citing State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999)).
II. Stop and Frisk
The State argues that Officer Blaine had a valid basis to briefly detain Truitt and perform a safety frisk. The lower court concluded that `[w]hen Mr. Truitt told the officer that he had a knife, that was a sufficient basis for a safety frisk, but only if there was initially a basis for a valid investigative stop.' Clerk's Papers (CP) at 3. The court also held that `Officer [Blaine] did not have an articulable and well founded suspicion, based on objective facts, that Mr. Truitt had committed or was committing a crime.' CP at 3. We agree.
Warrantless searches are per se unreasonable unless they fall within an established and well-delineated exception to the warrant requirement. State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1998) (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)); Jacobsen v. City of Seattle, 98 Wn.2d 668, 672, 658 P.2d 653 (1983). Among these exceptions are consent, exigent circumstances, searches incident to a valid arrest, inventory searches, plain view searches, and Terry investigative stops. Duncan, 146 Wn.2d at 171-72 (citing State v. Rife, 133 Wn.2d 140, 150-51, 943 P.2d 266 (1997)). The State carries the burden of showing that the particular search or seizure in question falls within one of these exceptions. Duncan, 146 Wn.2d at 172 (citing State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984)).
In Terry v. Ohio, the United States Supreme Court held that if an initial stop is justified, a police officer may make a reasonable search for weapons without violating the Fourth Amendment, regardless of whether he has probable cause to arrest the individual, if the circumstances lead the officer to reasonably believe that his safety or the safety of others is at risk. See Terry, 392 U.S. at 20-27. `The Washington constitution affords greater privacy protection than the Fourth Amendment.' Duncan, 146 Wn.2d at 177. And the Washington Supreme Court has clarified that to justify a Terry stop, the State must show that `(1) the initial stop is legitimate; (2) a reasonable safety concern exists to justify the protective frisk for weapons; and (3) the scope of the frisk is limited to the protective purposes.' Duncan, 146 Wn.2d at 172 (citing State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993)). `To justify a seizure on less than probable cause, Terry requires a reasonable, articulable suspicion, based on specific, objective facts, that the person seized has committed or is about to commit a crime.' Duncan, 146 Wn.2d at 172 (citing Terry, 392 U.S. at 21).
Article I, section 7 states, `No person shall be disturbed in [that person's] private affairs, or [the person's] home invaded, without authority of law.' Duncan, 146 Wn.2d at 177. Privacy interests protected include, "those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant." Duncan, 146 Wn.2d at 177 (quoting State v. Johnson, 128 Wn.2d 431, 446, 909 P.2d 293 (1996)).
A. Harassment
The trial court concluded that `the mere claim from Mr. Roseberry that Mr. Truitt had made a threat, standing alone . . . could not have created a well-founded suspicion of [the crime of harassment], as there are several additional elements that were not supported by the known objective facts.' CP at 4. Again, we agree.
A person is guilty of harassment when:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or
(ii) To cause physical damage to the property of a person other than the actor; or
(iii) To subject the person threatened or any other person to physical confinement or restraint; or
(iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. "Words or conduct" includes, in addition to any other form of communication or conduct, the sending of an electronic communication.
When he contacted Truitt, Officer Blaine knew only that Truitt had argued with Roseberry and that only Roseberry was armed with a pipe. Office Blaine had no information about what the two men said to each other, whether Truitt had threatened Roseberry or, if so, whether Roseberry had a reasonable fear the threat would be carried out. Thus, Officer Blaine had no information that would support a finding that he reasonably suspected Truitt of committing the crime of harassment.
2. Disorderly Conduct
The lower court also concluded, `[N]ot every argument is a crime, and that there were not enough objective facts to create a well founded suspicion of disorderly conduct.' CP at 3-4. Again, we agree.
A person is guilty of disorderly conduct if he or she:
(a) Uses abusive language and thereby intentionally creates a risk of assault; or
(b) Intentionally disrupts any lawful assembly or meeting of persons without lawful authority; or
(c) Intentionally obstructs vehicular or pedestrian traffic without lawful authority.
The State presented no evidence that Truitt expressed `abusive language.' In fact, Officer Blaine was apparently unaware of any specific language Truitt used in his argument with Roseberry. Thus, Officer Blaine had no reasonable suspicion of disorderly conduct.
The trial court did not err when it concluded that the initial stop of Truitt was unjustified. Officer Blaine lacked any reasonable suspicion that Truitt had committed or was about to commit a crime. Accordingly, the officer was not justified in frisking Truitt under Terry and Duncan.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and PENOYAR, J., concur.