No. 25926-5-II.The Court of Appeals of Washington, Division Two.
Filed: October 12, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 99-1-03820-9, Hon. Stephanie A. Arend, April 7, 2000, Judgment or order under review.
Counsel for Appellant(s), Gregory S. Wilson, Attorney At Law, Ste 103, 1720 S 72nd, Tacoma, WA 98408.
Counsel for Respondent(s), Barbara L. Corey-Boulet, Pierce County Deputy Pros Atty, County City Bldg, 930 Tacoma Ave S, Tacoma, WA 98402-2177.
J. ROBIN HUNT, A.C.J.
Miguel Chipres appeals his conviction for second degree unlawful possession of a firearm. He argues that the trial court erred in denying his motion to suppress evidence seized incident to arrest. Holding that the officer had reasonable suspicion justifying a Terry[1] stop, we affirm.
FACTS
A citizen called and identified herself to a 911-dispatch operator and reported a possible drunk driver. The citizen described a Hispanic male, wearing a white cowboy hat, in a maroon 1990’s Pontiac, `being all over the roadway.’ The citizen further reported that the vehicle, with license plate number 699 SRQ, was now parked at a 7-11/BP gas station at 17410 Pacific Avenue South in Tacoma, where the driver was using the pay phone.
Officer Brian Coburn responded to the citizen’s tip, arrived a few minutes later, and found an unoccupied vehicle fitting the description; the license plate number was 699 FRQ, varying by one letter from the reported 699 SRQ. Coburn drove to a nearby parking lot to observe the vehicle and to await the driver.
Approximately ten minutes later, Chipres left the store, entered the vehicle, and drove away. Coburn pulled out directly behind Chipres and followed him. Immediately, Chipres turned back into the same convenience store parking lot that he had just exited. Finding it odd that Chipres returned to the same parking lot upon seeing the police car behind him, Coburn turned on his overhead lights and approached Chipres, who parked some distance from the pay phones.
Coburn informed Chipres that he was following up on a citizen’s report of drunk driving. Chipres produced his driver’s license and registration, but he was unable to locate proof of insurance. Chipres explained that he had pulled back into the parking lot to make a telephone call in response to a page from his wife. Coburn smelled a strong odor of coffee and a faint odor of alcohol coming from Chipres. Chipres denied drinking any alcohol, but the portable Breathalyzer test registered .06. When Coburn questioned Chipres about his alcohol consumption, Chipres ignored the officer and placed his right hand between the two front seats of the car. Coburn instructed Chipres to remove his hand from between the seats, but Chipres shoved his hand down further between the seats.
It seemed to Coburn that Chipres was reaching for something between the seats and that he was seconds away from a gunfight. After requesting priority backup, Coburn drew his weapon and told Chipres he would shoot if Chipres pulled out a gun. Chipres eventually complied and raised his hands in the air. Coburn removed Chipres from the vehicle and handcuffed him. Coburn recovered a loaded gun from between the front seats, where Chipres had thrust his right hand. Coburn arrested Chipres for DUI, attempted assault, and a concealed weapon violation.
Chipres had a domestic violence conviction from 1994, resulting in the loss of his right to possess a firearm. The State charged Chipres only with second degree unlawful possession of a firearm.
The trial court denied Chipres’ motion to suppress evidence of the handgun and the results of the field sobriety and Breathalyzer tests. The court, sitting without a jury, found Chipres guilty as charged.
ANALYSIS I. Investigative Stop
The Fourth Amendment and Const. art. 1, § 7 require that investigatory stops be reasonable. Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-1879, 20 L.Ed.2d 889 (1968); State v. Lesnick, 84 Wn.2d 940, 530 P.2d 243 (1975). A police officer may conduct an investigative stop if the officer has a reasonable suspicion that there is a substantial possibility that criminal activity has occurred or is about to occur based on `specific and articulable facts’ and the rational inferences from those facts. State v. Kennedy, 107 Wn.2d 1, 5-6, 726 P.2d 445 (1986); see Terry, 392 U.S. at 20-21.
An officer’s reasonable suspicion may be based on information supplied by an informant.[2] The information must, however, carry some `indicia of reliability.’ State v. Sieler, 95 Wn.2d 43, 47, 621 P.2d 1272 (1980) (quoting Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972)). Generally, citizen-informants are deemed presumptively reliable, and police are justified in concluding that a tip from such informant comes from a reliable source. State v. Garcia, 125 Wn.2d 239, 242, 883 P.2d 1369 (1994);[3] State v. Wakeley, 29 Wn. App. 238, 241, 628 P.2d 835 (1981).[4]
In this case, as in Wakeley, the citizen informant identified herself and gave the 911 dispatcher her telephone number and address.[5] She also provided the dispatcher with a description of the vehicle, the license plate number of the vehicle, the location of the vehicle, and a description of the driver. This information established the reliability of the citizen-informant for purposes of Coburn’s stop of Chipres. In addition, Coburn independently corroborated this tip by locating the vehicle and driver matching the citizen’s description at the place she named, and by witnessing the driver evasively turn back into the parking lot immediately after Coburn’s police car began to follow.
Furthermore, potential danger to the public also bears on the reasonableness of a police officer’s temporary investigatory detention of the suspect. In State v. Franklin, 41 Wn. App. 409, 413, 704 P.2d 666
(1985), Division One held an investigatory stop justified when an anonymous informant observed a person displaying a gun in a public restroom and a police officer verified the informant’s report of the person’s attire and location. Similarly, a potential drunk driver poses a grave danger to the public. Here, as in Franklin, this danger justified the relatively minimal intrusion of stopping Chipres to investigate the concerned citizen’s tip.
II. Seizure of Firearm Between Front Seats
Officers may search and temporarily seize persons and property when necessary to protect officer safety. State v. King, 89 Wn. App. 612, 618-19, 949 P.2d 856 (1998); State v. Cotten, 75 Wn. App. 669, 683, 879 P.2d 971 (1994). A valid Terry stop may include a search of the interior of a suspect’s car when necessary to guarantee officer safety. State v. Larson, 88 Wn. App. 849, 855, 946 P.2d 1212 (1997); Kennedy, 107 Wn.2d at 12. Furthermore, an officer who properly stops a car may conduct a search for weapons within the immediate control of the driver if he moves as if to hide a weapon. State v. Wilkinson, 56 Wn. App. 812, 815, 785 P.2d 1139 (1990).
Here, Coburn’s safety would have been endangered if he had allowed Chipres to return to his (Chipres’) car without first conducting a weapons search. Chipres had earlier ignored Coburn’s instruction to remove his hand from between the seats; instead, Chipres continued to shove his hand further down, causing Coburn to fear that Chipres was reaching for a gun. Given our holding that the investigatory stop was reasonable, Coburn’s search of Chipres’ vehicle was justified by officer safety concerns; it did not exceed the scope of a Terry stop. Accordingly, the trial court properly denied Chipres’ motion to suppress evidence of the loaded gun found between the front seats of his car.
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.
WE CONCUR: SEINFELD, J., HOUGHTON, J.