Opinion
No. 58691-2-I.
March 3, 2008.
Appeal from a judgment of the Superior Court for Whatcom County, No. 05-1-01774-3, Steven J. Mura, J., entered July 28, 2006.
Affirmed by unpublished per curiam opinion.
Chad Rustad appeals his conviction for possession of methamphetamine, a controlled substance, alleging his constitutional rights under the Fourth Amendment and article I, section 7 of the Washington State Constitution were violated. Finding that Rustad was lawfully seized under the temporary investigatory detention exception to the warrant requirement, we affirm Rustad's conviction, holding that his suppression motion was properly denied.
FACTS
Around 10:30 p.m. on November 12, 2005, deputy patrol officers from Whatcom County Sheriff's office, Ryan Bonsen and Frank Taddonio, responded in separate marked patrol vehicles to a 911 hang-up call from a residence in the Glenhaven Estates area, south of Bellingham. Though apparently a "known drug house," the officers found no evidence of a crime to investigate and were leaving when a gray Mitsubishi Eclipse started to turn into the residence's driveway. The officers shined their flashlights at the vehicle so as to prevent it from hitting them and the Eclipse stopped turning into the driveway and continued down the street, out of the officers' view.
Shortly thereafter, the officers spotted the same Eclipse in a parking area, sitting with its lights off and pulled back as far from the road as possible. Suspicious, officers Bonsen and Taddonia parked their vehicles 30 to 40 feet away from the Eclipse, near the only road providing entry or exit to the parking area, partially blocking the Eclipse's exit. The officers did not activate their emergency lights or sirens but did train their patrol spotlights on the Eclipse.
Bonsen and Taddonia approached the Eclipse and its three occupants. Chad Rustad was sitting in the backseat on the passenger side. Bonsen went to the front passenger side window to speak with the vehicle's occupants, while Taddonia stood guard at the rear of the vehicle. Bonsen was unable to see clearly into the car because the front passenger window was broken and covered by plastic.
Upon request, Sharon Cook, the front seat passenger, opened her door and Bonsen contends that he then immediately saw a pipe on Rustad's person (protruding from his pocket) that appeared to have white colored burned residue in it. Suspecting the pipe was drug paraphernalia used for smoking methamphetamine or cocaine, Bonsen asked Rustad to step out of the vehicle. As Rustad exited, Bonsen saw a digital scale fall from Rustad's lap and a small, folding knife clipped to Rustad's belt. Bonsen removed the knife and began a pat down for other weapons. Finding no other weapons, Bonsen arrested Rustad for possession of the knife as it had an automatic spring and was therefore an illegal dangerous weapon. In a custodial search incident to arrest, Taddonia found methamphetamine hidden in Rustad's sock. After being read his Miranda rights, Rustad made several self-incriminating statements to the police.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Rustad was charged with one count of possession of a controlled substance, methamphetamine. After a CrR 3.6 hearing, the trial court denied Rustad's motion to suppress any evidence of drugs and drug paraphernalia or statements made to the sheriff's deputies, holding that Cook's actions in opening the car door were voluntary and consensual and that Rustad was not seized until he was asked to exit the vehicle. Following a bench trial, Rustad was found guilty as charged and sentenced to 18 months' confinement. Rustad appeals.
ANALYSIS
The sole issue before the court is whether the trial court properly denied Rustad's suppression motion. We review de novo a trial court's conclusions of law in a motion to suppress evidence. The trial court entered the following conclusions:
State v. Chamberlin, 161 Wn.2d 30, 40, 162 P.3d 389 (2007); State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003).
1. Cook had authority to consensually open the passenger door of the vehicle.
2. Cook's actions in opening the door were voluntary and consensual.
3. Bonsen's request that Cook open the door was reasonable in light of his articulated safety concerns.
4. No seizure occurred until Bonsen asked Rustad to exit the car.
5. Rustad was validly arrested after Bonsen discovered the spring loaded knife in his pocket.
6. The methamphetamine in Rustad's sock was discovered during a lawful search incident to arrest.
7. Rustad's post- Miranda incriminating statements are admissible.
8. Rustad's motion to suppress is denied.
The court's findings of fact must, in turn, support its conclusions of law.
State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002).
Rustad alleges he was illegally seized when police officers Bonsen and Taddonia partially blocked the exit to the parking area, spotlighted the Eclipse with their patrol cars' headlights, and stationed themselves at either end the vehicle. In Washington, a person is seized when their freedom of movement is restrained or when under the circumstances due to an officer's show of authority, a person does not feel free to leave or to decline an officer's request or otherwise end the encounter. This is an objective inquiry determined by looking at the police action.
We must first determine whether a warrantless search or seizure has taken place. If so, we must determine whether it was justified as falling under one of the limited exceptions to the warrant requirement. State v. O'Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003). Rustad bears the burden of first demonstrating that a warrantless seizure has taken place. State v. Young, 135 Wn.2d 498, 509-10, 957, 957 P.2d 681 (1998) (citing State v. Thorn, 129 Wn.2d 347, 354, 917 P.2d 108 (1996), overruled on other grounds by O'Neill, 148 Wn.2d 564).
O'Neill, 148 Wn.2d at 574; Wash. Const. art. I, § 7 (provides greater privacy protection than the Fourth Amendment); see also City of Seattle v. Mesiani, 110 Wn.2d 454, 755 P.2d 775 (1988).
Young, 135 Wn.2d at 501; State v. Armenta, 134 Wn.2d 1, 11-12, 948 P.2d 1280 (1997); see also State v. Rankin, 151 Wn.2d 689, 709-11, 92 P.3d 202 (2004) (noting whether a seizure has occurred is a mixed question of law and fact).
We agree with Rustad that the officers' actions constituted a seizure. Here, under the circumstances, while not physically detained, the police action was such that a reasonable person would not feel free to leave or otherwise terminate the encounter. Officers Bonsen and Taddonia largely, though not fully, blocked any exit the Eclipse may have had from the parking area and back onto the road with their patrol cars. Their patrol cars' spotlights were left trained on and illuminating the Eclipse and its occupants. The two uniformed and armed officers (though their firearms remained holstered) approached and positioned themselves at the side and back of the Eclipse, suggesting the vehicle and its occupants were not free to leave.
This does not, however, end the inquiry. The question remains whether or not the warrantless seizure was justified as falling under one of the exceptions to the warrant requirement. One such exception is the Terry stop, or, an investigatory detention, where an officer may temporarily detain, or seize, a person in circumstances where they have a reasonable and articulable suspicion of criminal activity even though not rising to the level of probable cause. A Terry investigative stop is one of the recognized exceptions under article I, section 7 of the Washington State Consitution.
A warrantless seizure is considered per se unreasonable unless it falls within one of the few exceptions to the warrant requirement. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999).
Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Ladson, 138 Wn.2d at 348-50.
Whether the police officers were reasonably suspicious of criminal activity is a mixed inquiry and it is appropriate to consider the subjective intentions of the officers as well as the objective circumstances. Here, the Eclipse in which Rustad was a passenger had just pulled off the road, as far back into a parking area (containing at least two no parking signs) as was physically possible, close to midnight, in a residential area that received little late night traffic, and the officers were aware of recent vehicle prowling nearby. Taddonia was the first officer to notice the Eclipse and pulled into the lot first and Bonsen followed after him. At the CrR 3.6 hearing, when asked what drew his attention to the Eclipse, Taddonia testified:
Terry, 292 U.S. at 21-22; see also Armenta, 123 Wn.2d at 12-16.
[I]t's rare you see a vehicle there during the night. It's tucked back in. All the lights are off. It was, you know, very dark outside. So without, you know, looking directly into the parking lot, you wouldn't have noticed it, and like I say, I just barely got a glimpse of it. It's not typically a place that a vehicle would be, you know, at this time, at midnight on whatever day it was. It's just not a normal place for a car to be.
And when asked why he pulled into the lot:
To contact it. I, you know, I would have contacted any vehicle in that lot, any person in that lot, just because of the time of day, the location of it. Glen Haven isn't a place where there's a lot of activity at night. There aren't any businesses. It's just a residential area. Actually, the parking lot is pretty secluded.
Taddonia found the Eclipse suspicious in part because he had just seen that same vehicle potentially trying to avoid them (the police) when it stopped pulling into the driveway of the house where they had been investigating a 911 hang-up call only a few minutes earlier. Bonsen offered similar testimony.
Here, under the totality of the circumstances and reasonable inferences drawn therefrom, the government intrusion was warranted. The officers offered articulable (non-pretextual) reasons as to why they were suspicious that the Eclipse's occupants may be involved in criminal activity. Moreover, crime prevention and detention, generally considered legitimate for purposes of investigative stops or detentions, need not necessarily involve a suspected felony or serious offence. In any case, less than probable cause is required.
State v. Kennedy, 107 Wn.2d 1, 5-6, 726 P.2d 445 (1986).
Kennedy, 107 Wn.2d at 6.
The length and scope of an investigatory detention must be reasonable under the circumstances. Here, seeking to speak with the passengers was not an unreasonable investigatory practice when their suspicions were aroused and the officers, according to Bonsen, wished to speak with the Eclipse's occupants to see what they were doing seemingly hidden back in the parking area, having just pulled off the road, late at night, after possibly having just avoided making contact with the police officers a few minutes before. The totality of the circumstances gave the officers reason to be suspicious that criminal conduct was afoot, warranting the temporary seizure of the vehicle's occupants for the purpose of performing a mildly intrusive investigation by asking a few questions. As a policy matter, Washington law encourages law enforcement officers to investigate suspicious situations.
Ladson, 138 Wn.2d at 350; Terry, 292 U.S. at 20.
See State v. Garcia, 125 Wn.2d 239, 242, 883 P.2d 1369 (1994); Terry, 392 U.S. at 21.
See State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982); State v. Mercer, 45 Wn. App. 769, 775, 727 P.2d 676 (1986).
Rustad's status as a passenger is irrelevant to a court's inquiry whether or not a seizure has taken place, and if it has, whether its length and scope is reasonable. In State v. Rankin, on which Rustad relies heavily, the Supreme Court held that passengers were illegally seized when asked by police for identification absent some independent reason giving rise to the request in circumstances where police lawfully temporarily seized vehicles based on moving traffic violations. Rankin is inapplicable as Bonsen and Taddonia were justified in temporarily seizing all of the Eclipse's occupants for this sort of investigatory detention, rather than just the vehicle's driver.
151 Wn.2d 689; see also State v. Mote, 129 Wn. App. 276, 284-91, 120 P.3d 596 (2005) (distinguishing between situations where police officers questioned passengers during detentions for traffic violations from those where police ask for identification from occupants of already stationary vehicles).
Moreover, under these circumstances, it was reasonably within the scope of the officers' investigation to ask any or all of the Eclipse's occupants for identification. Thus, the trial court's failure to make a factual finding resolving the contradictory testimony offered by Rustad and Bonsen regarding when Rustad was asked for identification and whether it was before or after the pipe was spotted by Bonsen, is immaterial.
State v. Tijerina, 61 Wn. App. 626, 629, 811 P.2d 241 (1991) (citing Terry, 392 U.S. at 19-20) (noting a court must determine if the government intrusion reasonably related in scope to the circumstances which justified the interference in the first place).
Rustad's contention that Bonsen conducted an illegal search, incident to an illegal seizure, when he asked the Eclipse's front seat passenger, Cook, to open her door, is also without merit. Police officers may take reasonable steps to ensure their safety. Bonsen testified he approached the passenger side of the vehicle because it was the side best illuminated by the officers' parked patrol cars' spotlights. Photographs admitted into evidence support this contention. Given the unique circumstance presented by the plastic covered window, Bonsen had a reasonable and clearly articulable concern for his safety as he was unable to see the Eclipse's occupants' hands.
City of Seattle v. Hall, 60 Wn. App. 645, 806 P.2d 1246 (1991); see also Terry, 392 U.S. at 23.
Moreover, Cook was not only a passenger but averred herself to be the owner of the vehicle. Cook consented to any limited visual search that followed her opening her door upon Bonsen's request.
The Eclipse was not registered in Cook's name though she purportedly stated to the officers that she owned the vehicle though it was registered in her nephew's name.
It is uncontroverted that the police action leading to discovery of the drug evidence and Rustad's making self-incriminating statements subsequent to Bonsen's finding the automatic springing knife was lawful, if the police action before that point was indeed lawful. We disagree with the trial court's legal conclusion that Rustad was not seized until he was asked to exit the vehicle, but we nonetheless agree with the trial court's conclusion that Rustad's suppression motion should be denied, finding the initial seizure was a lawful Terry investigatory detention.
The trial court's judgment is affirmed.
FOR THE COURT: