Opinion
No. 36930-3-II.
May 5, 2009.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 07-1-00648-3, James J. Stonier, J., entered October 25, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton and Hunt, JJ.
UNPUBLISHED OPINION
After a trial on stipulated facts, the trial court found Kenneth Nichols guilty of unlawful possession of methamphetamine. He appeals, arguing that the trial court erred in denying his motion to suppress evidence because (1) officers illegally seized him and (2) their conduct exceeded the scope of an investigative stop. A commissioner of this court originally considered Nichols's appeal as a motion on the merits under RAP 18.14 but transferred it to a panel of judges for consideration.
Because the officer who initially contacted Nichols had a reasonable, articulable suspicion that Nichols was trespassing on city property, the trial court did not err when it denied Nichols's suppression motion and we affirm.
FACTS
On May 10, 2007, Michael Rooney contacted police to alert them to possible dumping at the dredge spoils in Kelso. "[N]o trespassing" signs are posted on the north end of the dredge spoils, but not to the south, because people repeatedly removed them.
Sergeant Khembar Yund was dispatched to the dredge spoils area and spoke with Rooney. Rooney told Yund that he had seen a man and a woman in a small "Chevy type" pickup truck full of trash. Report of Proceedings (RP) at 7. The man was driving and the two truck occupants "were acting very suspicious, like they were waiting for [Rooney] to leave the area so they could dump" items out of the truck. RP at 7. Yund was aware that people frequently dumped items illegally at the dredge spoils.
Sergeant Yund investigated Rooney's report and found a man and woman standing near a Chevrolet S10 pickup truck at the north end of the dredge spoils. Yund did not use either his siren or emergency lights as he approached the truck. Yund saw Nichols standing by the truck's driver's side door. He appeared to be working on the truck. Yund noticed that the truck's bed "had a bunch of items in it and the interior of it was just full of . . . trash." RP at 7. Yund did not observe any items being dumped on the ground.
Standing about 12 to 15 feet away, Sergeant Yund questioned Nichols about why he was there with "a truckload of junk." RP at 11. Nichols responded that he was "like the white Fred Sanford." RP at 12. But Yund did not see anything indicating that material had been moved from the ground into the truck.
As Sergeant Yund spoke with Nichols, he saw a "standard folding type knife" hanging from Nichols's right front pocket. RP at 13. Officer Craig Christianson, who was Yund's "cover officer," told Nichols to keep his hands away from the knife. RP at 32. The officers were standing three to five feet from Nichols at this point. Despite these warnings, Nichols moved his hand towards the knife. Yund reached over, grabbed the knife, and quickly patted down Nichols's pocket to ensure he did not have any other knives or guns. Yund told Nichols that he would hold onto the knife for safety reasons and would give it back as soon as they were done.
Sergeant Yund asked Nichols for identification to ensure that he could contact Nichols again if he later discovered any illegal dumping. Nichols complied with Yund's request. Yund ran a check on Nichols's identification and discovered that Nichols had a suspended driver's license. Because Rooney had told Yund that a man had driven the truck, the sergeant questioned the woman to determine who had been driving the truck. She confirmed that Nichols had driven the truck. Based on this information, Yund arrested Nichols for driving while license suspended or revoked. During a search of Nichols's person incident to this arrest, Yund discovered a small plastic baggie containing a white crystalline substance that later tested positive for methamphetamine.
At the suppression hearing, Sergeant Yund stated that he could not remember if Nichols provided him with his name or his driver's license.
The State charged Nichols with unlawful possession of methamphetamine. He moved to suppress the evidence found in the search incident to his driving with a suspended license arrest and argued that Sergeant Yund had unlawfully seized him when he initially approached the truck and began asking questions about Rooney's report of unlawful dumping. Nichols also argued that Yund illegally seized his knife. The trial court denied Nichols's motion to suppress, finding that he was free to leave until Sergeant Yund seized his knife. The trial court found that Yund seized the knife for officer safety and concluded that Yund's initial contact was lawful because he had a reasonable suspicion that criminal acts were occurring "at a minimum trespass on city property." Clerk's Papers (CP) at 62. After it denied Nichols's suppression motion, the parties stipulated to facts and the trial court found Nichols guilty of unlawful possession of a controlled substance, methamphetamine. Nichols appeals.
ANALYSIS
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Nichols contends that the trial court erred when it denied his motion to suppress evidence that he claims officers seized during an illegal Terry stop.
Under article I, section 7 of the Washington State Constitution, warrantless searches are unreasonable. State v. Morse, 156 Wn.2d 1, 7, 123 P.3d 832 (2005) (citing State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996)). Exceptions to the warrant requirement are "'jealously and carefully drawn.'" State v. Reichenbach, 153 Wn.2d 126, 131, 101 P.3d 80 (2004) (quoting Hendrickson, 129 Wn.2d at 72). The State bears the burden of showing that a challenged search falls within an exception. State v. Acrey, 148 Wn.2d 738, 746, 64 P.3d 594 (2003). Findings of Fact
We review the trial court's decision after a CrR 3.6 hearing to determine whether substantial evidence supports the trial court's findings of fact and whether those findings support the conclusions of law. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994); State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001), review denied, 145 Wn.2d 1016 (2002). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 123 Wn.2d at 644 (citing State v. Halstien, 122 Wn.2d 109, 129, 857 P.2d 270 (1993)). We review the trial court's written conclusions of law de novo to determine whether the findings are supported by substantial evidence in the record and, if so, whether the conclusions of law are supported by those findings of fact. Scott v. Trans-System, Inc., 148 Wn.2d 701, 707-08, 64 P.3d 1 (2003). Unchallenged findings are verities on appeal. Hill, 123 Wn.2d at 644.
Here, the trial court found the following relevant facts:
1. On May 10, 2007, Kelso Police Sergeant Yund received information from an identified citizen that an individual appeared to be engaged in the illegal dumping of materials at a certain location.
2. After receiving this information, Sgt. Yund drove to the identified area in the City of Kelso, next to the river, known as the dredge spoils.
3. At the dredge spoils Sgt. Yund observed [Nichols] and a female standing next to a truck parked on City of Kelso property, and the truck matched the description provided by the citizen.
4. [Nichols's] truck was loaded with what appeared to be trash, estimated to exceed one cubic foot in volume and possibly as much as one cubic yard.
5. To Sgt. Yund, it appeared that [Nichols] and the female were waiting for him to leave the area.
6. The property in question was marked with "no trespassing" signs on two sides of the property.
7. Sgt. Yund was personally aware that the dredge spoils area had previously been the site of illegal dumping of trash.
8. Sgt. Yund, believing that the two persons were trespassing on City of Kelso property and concerned that they might be about to dump trash at that site, approached [Nichols] and inquired about his purpose for parking on city property.
9. Sgt. Yund asked [Nichols] to identify himself, in the event that it later turned out that the items in the truck were dumped at the site.
10. While talking to [Nichols], Sgt. Yund observed that [Nichols] had a large fixed-blade knife in his right pants pocket.
11. Sgt. Yund also observed that [Nichols] repeatedly put his hand near and in the pocket containing the knife.
12. This movement by [Nichols] was also observed by Kelso Police Officer Christianson who had arrived at the scene. Officer Christianson told [Nichols] to keep his hand away from the pocket. When [Nichols] again reached his hand toward the pocket, Sgt. Yund seized the knife.
13. While speaking with [Nichols's] female companion, Sgt. Yund was told by her that [Nichols] had driven the truck to the location. The citizen informant had also described the driver as a male.
14. After obtaining [Nichols's] name, Sgt. Yund ran a records check and learned that [Nichols's] driving privileges were suspended.
15. [Nichols] was arrested by Sgt. Yund for driving a motor vehicle with a suspended license.
16. Up to the point that the knife was seized, Sgt. Yund believed that [Nichols] was free to leave.
17. After seizure of the knife, [Nichols] was no longer free to leave.
CP at 60-61. Nichols assigns error to findings of fact 5, 6, 8, 10, 16, and 17. In his brief, Nichols presents no cogent argument supporting the assignments regarding findings of fact 5 and 8 and we do not address these assignments of error. See State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (without argument or authority to support it, an assignment of error is waived).
If the court did address Nichols's assignment of error, finding of fact 5 is not supported by substantial evidence. Sergeant Yund did not testify that he believed Nichols and his female companion were waiting for him to leave. Instead, the citizen informer made that statement to Yund.
Substantial evidence does support finding of fact 8. Sergeant Yund testified that he believed Nichols was trespassing. Yund's testimony also shows that he investigated Nichols based on the informant's tip about illegal dumping and Yund's prior experience with illegal dumping in the area.
Sergeant Yund testified that the dredge spoils had "no trespassing" signs posted on two of the property's three sides. Yund also testified that once he seized the knife from Nichols, Nichols was not free to leave. Substantial evidence supports findings of fact 6, 16, and 17. Conclusions of Law Nichols also assigns error to conclusions of law 1 and 2, arguing that the trial court erred in concluding that the officers made a lawful Terry stop. He asserts that officers seized him when they approached him and began to ask questions.
It is likely that finding of fact 17 is actually a conclusion of law. We treat it as a conclusion and finding of fact 16 supports it.
The relevant conclusions of law state:
1. Sgt. Yund's initial contact was lawful, as he justifiably had a reasonable suspicion based on articulable facts that criminal activity was occurring, at a minimum trespass on city property.
2. In asking for his identity and running a records check, Sgt. Yund did not unlawfully or unreasonably detain or arrest [Nichols].
CP at 62.
Without a warrant, a police officer may conduct an investigatory stop of an individual for the limited purpose of verifying or dispelling a reasonable suspicion that criminal activity is occurring or is about to occur. Acrey, 148 Wn.2d at 747. To justify this stop, police must have a reasonable and articulable suspicion that the individual is involved in criminal activity. Acrey, 148 Wn.2d at 747 (citing United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985)). A reasonable suspicion is the "substantial possibility that criminal conduct has occurred or is about to occur." State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986). An officer's reasonable suspicion may be based on information supplied by an informant. Kennedy, 107 Wn.2d at 7-8. But the informant's tip must possess "'sufficient indicia of reliability.'" State v. Lee, 147 Wn. App. 912, 918, 199 P.3d 445 (2008) (quoting State v. Sieler, 95 Wn.2d 43, 47, 621 P.2d 1272 (1980)). A citizen informant's credibility is enhanced when he or she purports to be an eyewitness to the events described. State v. Vandover, 63 Wn. App. 754, 759, 822 P.2d 784, review denied, 120 Wn.2d 1018 (1992).
A person is guilty of second degree criminal trespassing if he (1) knowingly enters or remains (2) unlawfully in or upon the premises of another (3) under circumstances not amounting to first degree criminal trespassing. RCW 9A.52.080(1).
The trial court's conclusion that Sergeant Yund had a reasonable suspicion that Nichols was trespassing is supported by the findings that are verities on appeal. In unchallenged finding of fact 1, the trial court found that an identified citizen informant had informed Yund that a man and woman were at the dredge spoils possibly to illegally dump items. In unchallenged finding of fact 3, the trial court found that Nichols had "parked on City of Kelso property." CP at 60. The trial court also found that "no trespassing" signs had been posted on the property.
Nichols contends that substantial evidence does not support the finding that he knew he was trespassing because the "no trespassing" signs were not on all sides of the dredge spoils. But the trial court did not find that he knew about the signs. Further, to make a valid investigatory stop, a police officer only needs reasonable suspicion that a crime has been or will be committed. Kennedy, 107 Wn.2d at 6. The State need not be able to prove all elements of an offense before an officer can detain a suspect to investigate a suspected crime. State v. Duncan, 146 Wn.2d 166, 179, 43 P.3d 513 (2002). Sergeant Yund did not have to know whether Nichols had seen the signs before initiating contact. But he had to reasonably suspect that Nichols was trespassing to investigate whether he knew he was trespassing and the findings of fact support the reasonableness of such a suspicion. The trial court's conclusion of law is therefore supported by the findings.
Nichols assigns error to conclusion of law 2, concluding that Sergeant Yund did not unlawfully seize him when he ran a records check, but he does not cite any authority or argue this assignment.
Nichols asserts that his conduct at the dredge spoils is more consistent with innocent acts than criminal ones because he told Sergeant Yund he was a junk collector. While Nichols's explanation may have provided a potentially innocent explanation for his presence, he did not offer the explanation until after Yund initiated contact. Thus, his explanation does not affect the justification surrounding Yund's initial contact.
Next, Nichols argues that the officers exceeded the scope of the Terry stop when they continued to question him and then removed his knife and patted down his pocket.
A Terry stop must be limited in scope and duration to fulfilling the investigative purpose of the stop. If the results of the initial stop dispel an officer's suspicions, the officer must end the investigation without further intrusion. Acrey, 148 Wn.2d at 747. If 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. Acrey, 148 Wn.2d at 747 (citing State v. Williams, 102 Wn.2d 733, 739-40, 689 P.2d 1065 (1984)).
Nothing in Sergeant Yund's interaction with Nichols dispelled any suspicion that Nichols was trespassing and might be dumping items illegally. While Nichols's statements and Yund's observations may have dispelled suspicion that he had already littered, the presence of trash in Nichols's truck provided suspicion that he might still intend to illegally dump items in the immediate future. Therefore, Yund's questioning did not exceed the scope of a lawful investigative Terry stop. Objectively Reasonable Concern for Officer Safety In addition, the trial court's conclusion that Sergeant Yund seized the knife to ensure officer safety is supported by the findings of fact.
Conclusion of law 3 states: "The seizure of the knife was lawful in order to insure officer safety." CP at 62.
A warrantless, protective frisk does not violate the Fourth Amendment if (1) the initial stop is legitimate, (2) an objectively reasonable safety concern exists to justify the frisk, and (3) the scope of the frisk is limited to the protective purpose. State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993). As stated above, the officers questioned Nichols lawfully pursuant to a valid investigatory stop.
Nichols correctly assigns error to finding of fact 10, that he possessed a fixed-blade knife. Sergeant Yund testified that Nichols carried a "standard folding type knife," and clarified later in his testimony that Nichols did not carry a fixed-blade knife. RP at 13. Substantial evidence does not support finding of fact 10. But this does not undermine the other findings related to officer safety because the finding still shows that he possessed a knife. As Yund stated, whether the knife is fixed-blade or a folding knife, it would not change his concerns for officer safety.
The trial court's remaining unchallenged findings of fact indicate that (1) Sergeant Yund observed Nichols repeatedly place his hand near the knife, (2) Officer Christianson ordered Nichols to keep his hand away from the knife, and (3) when Nichols again placed his hand near the knife, Yund seized it. The officers were only three to five feet from Nichols and, despite being asked to stop, he continued to reach for the knife. Yund patted down only Nichols's right pocket for weapons. The trial court's conclusion that Yund seized the knife for officer safety reasons is supported by the unchallenged findings of fact and the record. See also State v. Harrington, 144 Wn. App. 558, 563, 183 P.3d 352 (holding that a suspect's repeated placing of his hands in object-laden pockets after repeated requests not to do so justified a pat down), review granted, 164 Wn.2d 1034 (2008).
Finally, Nichols assigns error to conclusion of law 5, arguing that under the exclusionary rule, the trial court should have suppressed the evidence seized as a result of an illegal Terry stop. When an unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed. State v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999) (citing Kennedy, 107 Wn.2d at 4). As stated above, the Terry stop was lawful, Sergeant Yund did not illegally seize Nichols, and the search incident to Nichols's arrest for a suspended driver's license was proper. Therefore, the trial court did not err in refusing to suppress the evidence.
Conclusion of law 5 states: "[Nichols] was lawfully arrested and lawfully searched." CP at 62. The trial court then concluded in an unnumbered sentence, "[Nichols's] motion to suppress is denied, and the evidence is admissible." CP at 62. Nichols includes this sentence in conclusion of law 5.
In summary, the trial court's conclusion that Sergeant Yund had a reasonable, articulable suspicion that Nichols was trespassing is supported by its findings that there were signs prohibiting trespassing posted at the dredge spoils and that he was on the city's restricted access property. These findings are supported by substantial evidence. The trial court's conclusion that Yund seized Nichols's knife lawfully to ensure officer safety is similarly supported by its findings and the record. The trial court did not err in denying Nichols's motion to suppress the evidence seized during this lawful stop. Accordingly, we affirm Nichols's unlawful possession of methamphetamine conviction.
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 HUNT, J., concur.