No. 52840-8-I.The Court of Appeals of Washington, Division One.
Filed: July 6, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-04477-2. Judgment or order under review. Date filed: 07/23/2003. Judge signing: Hon. Richard a Jones.
Counsel for Appellant(s), Sharon Jean Blackford, Attorney at Law, 1218 3rd Ave Ste 1800, Seattle, WA 98101.
Oliver Ross Davis, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Amy R Holt, King Co Pros Aty Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
PER CURIAM.
Prior to LaTonya Frazier’s bench trial for possession of cocaine, Frazier unsuccessfully moved to suppress the State’s physical evidence as the product of an unlawful seizure. On reconsideration, Frazier argued for the first time that the seizure occurred at an earlier point in the events leading up to her arrest. On appeal, she reasserts her original argument at the suppression hearing and asserts new versions of the argument she made on reconsideration. Because her arguments are either not preserved, unreviewable, or without merit, we affirm.
FACTS
At 10 p.m. on February 2, 2003, Seattle Police Officer Larry Longley pulled his patrol car into a bowling alley parking lot on Rainier Avenue. The bowling alley was in a high crime area that had recently experienced a murder and several weapons calls. Longley described the area as being `known for a lot of weapons’ and having `great amounts of drug activity, gang activity, prostitution, [and] loitering.’
As Longley entered the parking lot, he noticed a car with two occupants parked in a dark area of the lot. He drove around the lot and then pulled up behind the car, keeping `some distance’ away from it. Longley then shined his spotlight into the back window of the car and saw two women inside. The woman in the passenger seat, later identified as Frazier, `literally dove [down] and was moving furtively.’ Longley could see `jerky head movements and shoulder movements.’ The movements continued as Longley got out of his patrol car and approached the suspect vehicle with a flashlight. Because of the women’s movements, the darkness, and the fact that he was outnumbered, Longley called for back-up. In his police report, he indicated that the women’s movements suggested drug activity. At the suppression hearing, he testified that in his experience, the movements were consistent with an attempt to hide something, possibly a weapon. As Longley approached the rear passenger door, both women suddenly attempted to leave the car. Longley immediately ordered them back into the car because the situation was `very dangerous’ and he could control them in the car. He noted that `several officers have been shot approaching vehicles when people have jumped out and shot them [.]’
Longley then spoke with the driver. She could not remember her date of birth and `things you would commonly know.’ Frazier, the sole passenger, identified herself as Renita Dilworth but had problems spelling her name and recalling her date of birth. At that point, other officers arrived and removed both women from the car. Frazier had blood coming out of her nose. Longley shined his flashlight on her and saw white flakes in and around her nose. He subsequently discovered cocaine on the floorboard of the car. Police arrested Frazier and charged her with possession of cocaine.
Prior to trial, Frazier argued that she was seized unlawfully when Officer Longley ordered her back into the car. The trial court rejected that argument, ruling that Longley had an articulable suspicion of criminal activity at that point. The court cited the recent criminal activity in the area, the suspects’ furtive gestures, their sudden exit from the vehicle, the officer’s legitimate concern for his safety, the officer’s experience, and Frazier’s provision of incorrect information as grounds for the seizure.
Prior to entry of the judgment and sentence and the court’s written findings and conclusions, Frazier moved for reconsideration, arguing for the first time that she was seized when Longley `parked his patrol vehicle behind the vehicle she occupied.’ Without ruling specifically on the motion for reconsideration, the court subsequently entered written findings and conclusions denying the motion to suppress.
DECISION
The sole issue on appeal is whether the trial court erred in denying Frazier’s motion to suppress. Frazier bears the burden of establishing that a seizure occurred.[1] We review the trial court’s conclusions of law de novo.[2]
Frazier asserts three distinct arguments regarding the motion to suppress. First, she contends she was unlawfully seized when Officer Longley parked behind the suspect car, thereby blocking its egress, and shined his spotlight inside it. This argument was not preserved since it was not raised at the suppression hearing and was only partially raised on reconsideration.[3] And even assuming it was preserved, the record is not sufficiently developed to address it.[4] Because the argument was not raised at the suppression hearing, the record is factually insufficient to determine the precise position of Officer Longley’s car and whether it blocked the suspect vehicle’s path. While the record does clearly establish that Longley shined a light into the suspect car, that act did not, by itself, constitute a seizure.[5] Accordingly, Frazier’s first argument fails.
Frazier argues in the alternative that even if Longley’s car did not block the suspect car’s egress, she was unlawfully seized by the combination of Officer Longley parking behind her and shining the light into the suspect car. This argument was also not preserved and, like Frazier’s first argument, cannot be resolved on this record. Absent evidence indicating how close Longley parked to the suspect vehicle, it is impossible to determine whether the position of his patrol car has any bearing on when Frazier was seized.
Last, Frazier contends, as she did at the suppression hearing, that she was unlawfully seized because Officer Langley had no reasonable suspicion of criminal activity when he ordered her back in the car. We disagree. Police may detain an individual for questioning if they have a reasonable suspicion that the person is engaged in criminal activity.[6] A reasonable suspicion exists if an officer can `point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’[7] In evaluating the reasonableness of an investigative stop, courts consider the totality of the circumstances,[8] including the officer’s training and experience, the location of the stop, the degree of intrusion, and the conduct of the person detained.[9] While `the circumstances must be more consistent with criminal than innocent conduct,’[10] an officer need not rule out all innocent explanations before initiating a stop.[11] An officer’s inability to articulate the exact crime being committed does `not make his suspicion a mere hunch.’[12]
Frazier contends, and the State concedes, that she was seized when Officer Longley ordered her back in the car.[13] At that point, the facts known to Longley supported a reasonable suspicion of criminal activity. The area was known for drug and gang activity and incidents involving weapons. The suspects were inside a parked vehicle when Officer Longley entered the bowling alley parking lot, and were still in the car after he circled the lot. When Longley illuminated them with his spotlight, the suspects immediately began a series of furtive movements that were, in Longley’s experience, consistent with an attempt to conceal something under the seat. Then, just as Longley reached the rear passenger door, the suspects suddenly opened their doors and attempted to get out of the car. Under these circumstances, and considering the limited nature of the intrusion (i.e., ordering the suspects back into their own car), we conclude that the seizure was justified and reasonable.[14]
Frazier’s reliance on State v. Larson[15] is misplaced. In Larson, officers stopped a car and questioned a passenger because the car was illegally parked in a high crime area and began to pull away when the officers approached.[16] The court concluded that stopping the car and questioning the passenger was not reasonable. The Larson court expressly noted that the passengers in that case had not acted suspiciously.[17]
There is ample evidence of suspicious behavior in this case.
Affirmed.
SCHINDLER and BECKER J., concur.
(1999) our State Supreme Court ruled that an officer conducting a traffic stop may order a passenger to get out of or back into a car in order to ensure the officer’s safety. Here, the trial court ruled that Mendez did not apply to the facts of this case. The State does not argue otherwise on appeal. The parties also overlook City of Seattle v. Hall, 60 Wn. App. 645, 651-653, 806 P.2d 1246 (1991). There, we held that an officer may frisk a person for weapons prior to an investigative detention if the person voluntarily approaches the officer and there are reasonable grounds to believe the person is armed. See also State v. Johnson, 11 Wn. App. 311, 314, 522 P.2d 1179 (1974) (police are permitted all reasonable and necessary steps to assure their safety when performing official duties). We express no opinion as to whether Mendez or Hall apply in this setting.