Opinion
No. 62176-9-I.
September 21, 2009.
Appeal from the Superior Court, Snohomish County, No. 08-1-00119-3, Gerald L. Knight, J., entered July 24, 2008.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Cox and Lau, JJ.
During a valid investigatory stop, Donny Winbush identified himself as Donald Bender. A routine warrant check revealed that the name was a known alias for Winbush who had an outstanding warrant. Upon arrest and booking, a routine search revealed cocaine and resulted in a charge for possession of a controlled substance while on community placement. Winbush moved to suppress the evidence, claiming that the radio inquiry concerning the name "Donald Bender" exceeded the scope of the initial investigatory stop. The trial court denied the motion and convicted Winbush at a stipulated facts bench trial. We affirm.
FACTS
At approximately 11:23 p.m. on January 7, 2008, Snohomish County Deputy Sheriff Matthew Calnon responded to a 911 call alleging a domestic assault in progress. Dispatch informed him that the alleged assault involved two individuals outside of a white car. Upon arriving at the scene, Calnon observed two women and a man yelling at each other and removing items from the inside of the vehicle. When Calnon approached, the man began to walk away. Calnon told the man to return to the car, which he did. During Calnon's investigation into the alleged assault, the man gave his name as Donald Bender. One of the women was his girlfriend. The other was his girlfriend's sister, who had called 911 to report the domestic assault in progress. Upon questioning, the parties denied the assault. Given the lack of evidence, Calnon ultimately concluded that no assault had occurred.
At some point during the stop, Calnon requested a radio check on Bender and his girlfriend. He asked dispatch for a "[f]ull check," including warrants, protective orders, and driving status. Dispatch responded that "Donald Bender" was a known alias for Winbush who had an outstanding arrest warrant. Calnon eventually concluded that Bender was indeed Winbush, based on tattoos and other identifying characteristics. Calnon arrested Winbush and transported him to jail for booking on the warrant. A routine search at the jail revealed cocaine in Winbush's sock.
The State charged Winbush with one count of possession of a controlled substance while on community placement. Winbush moved to suppress the evidence obtained as a result of the warrant check, arguing that the warrant check exceeded the permissible scope of the stop. At the hearing, Calnon testified that he did not suspect that the name "Donald Bender" was an alias, but that he requested a warrant check as a matter of routine. According to Calnon, he checks names for warrants, driving status, and protection orders in about 99 percent of his investigations. In this case, he used his portable radio to request the check and received an answer in about 20 seconds. Calnon remembered that he waited for an additional unit to arrive on scene before conducting the warrant check, but he did not recall "exactly when the names were run as opposed to when [he] was talking to them." According to the deputy, the entire stop lasted a maximum of 20 minutes.
The trial court admitted the evidence, finding that Calnon conducted the warrant check "during the investigation" and concluding that "the officer, as part of his investigation, was permitted to inquire as to the identity of the Defendant and gather information about the Defendant which resulted in the discovery of a warrant and a valid arrest." The court subsequently convicted Winbush after a stipulated facts trial. Winbush appeals.
DISCUSSION
"As a general rule, warrantless searches and seizures are per se unreasonable in violation of the Fourth Amendment and article 1, section 7 of the Washington State Constitution." State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). The State bears the burden of proving that a warrantless search or seizure falls within a recognized exception to this rule. State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980). An investigative — or Terry — stop is just such an exception and must be reasonable under both the federal and state constitutions. State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986). When evaluating investigative stops, the court must make two separate inquiries. State v. Williams, 102 Wn.2d 733, 739, 689 P.2d 1065 (1984). "First, was the initial interference with the suspect's freedom of movement justified at its inception? Second, was it reasonably related in scope to the circumstances which justified the interference in the first place?" Id. To justify seizure, the officer must have reasonable suspicion based on specific and articulable facts that the person stopped has been or is about to be involved in a crime. State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003). Furthermore, "an investigative detention must be temporary, lasting no longer than is necessary to effectuate the purpose of the stop." Williams, 102 Wn.2d at 738.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
In this case, neither party disputes that a seizure occurred when Calnon called Winbush back to the vehicle for investigation. Calnon acknowledged that although Winbush was not in custody, he was not free to walk away and leave the scene. This amounts to a seizure. See, State v. Young, 135 Wn.2d 498, 510, 957 P.2d 681 (1998). Winbush does not challenge the justification for the initial stop and seizure. Calnon arrived at the scene in order to investigate a reported assault in progress involving people and a white car. He saw Winbush and the women arguing before Winbush began to walk away. Based on the 911 call and his observations of the scene, Calnon clearly had articulable facts warranting the seizure. Instead, Winbush challenges the warrant check as an impermissible extension of the seizure beyond the scope of the initial stop.
"A lawful Terry stop is limited in scope and duration to fulfilling the investigative purpose of the stop. If the results of the initial stop dispel the officer's suspicions, then the officer must end the investigative stop." Acrey, 148 Wn.2d at 747. Winbush contends that Calnon completed the investigation and concluded that no assault occurred before conducting the warrant check. According to Winbush, because Calnon had concluded the investigation, the reason for the investigative stop ended and any further search exceeded the scope of the initial stop. When reviewing a denial of a motion to suppress, we determine whether substantial evidence supports the trial court's findings of fact, and whether those findings support the conclusions of law. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001).
Despite Winbush's arguments to the contrary, Washington courts have determined that warrant checks during a valid criminal investigative stop are reasonable routine police procedures. State v. Madrigal, 65 Wn. App. 279, 283, 827 P.2d 1105 (1992). "An officer, following a lawful investigatory stop and detention based on `a well-founded suspicion not amounting to probable cause' to arrest, may reasonably wish to check the suspect's answers to investigatory questions. He may be able to do this by questioning other persons present, or by police headquarters radio check." State v. Sinclair, 11 Wn. App. 523, 529, 523 P.2d 1209 (1974). After a lawful investigatory stop, an officer may temporarily detain a suspect pending the results of such a radio check, as long as the officer has reasonable cause to believe that the check is necessary. Id.
Here, the trial court determined that Calnon ran the warrant check during the investigation into the 911 call for a domestic assault in progress. The record supports this finding. Calnon testified that he conducted the radio check "during the process" of investigating the alleged assault. According to Calnon, the parties took about 10 minutes to tell their stories and convince him that no assault had occurred. Although he did not remember the specific order of events, Calnon did recall that he waited for backup to arrive on scene before requesting the check. The other unit arrived within a couple of minutes of Calnon's contact with Winbush and his girlfriend. This timing suggests that the radio check took place well within the investigative time frame of the stop and before Calnon reached any conclusions about the incident.
Furthermore, the allegation of assault being investigated was between boyfriend and girlfriend. In the context of a domestic dispute, Calnon had reasonable cause to believe the check was necessary in order to verify whether the contact between the parties violated a protective order, even if he was satisfied that a physical assault did not occur.
Substantial evidence supports the trial court's findings that Calnon conducted his warrant check during the investigation. Since routine warrant checks are permissible, Calnon did not exceed the scope of his investigative stop. The trial court did not err by admitting the evidence discovered as a result of this seizure and the subsequent search.
We affirm.
WE CONCUR.