No. 19798-1-III.The Court of Appeals of Washington, Division Two. Panel Seven.
Filed: January 10, 2002. UNPUBLISHED OPINION.
Appeal from Superior Court of Benton County, No. 001009562, Hon. Philip M. Raekes, December 20, 2000, Judgment or order under review.
Counsel for Appellant(s), Daniel M. Arnold, Attorney At Law, 421 Nicklaus Ct, Richland, WA 99352-9246.
Counsel for Respondent(s), Andrew K. Miller, Benton County Prosecutor, #E, 7320 W Quinault, Kennewick, WA 99336.
Terry J. Bloor, Benton Co Pros Office, 7320 W Quinault, Kennewick, WA 98336.
SCHULTHEIS, J.
Jose Garcia was walking with a woman down a Kennewick street very early one morning carrying a large plastic bag. Police dispatch sent officers to investigate Mr. Garcia and his companion as “suspicious persons.” Clerk’s Papers (CP) at 2. In the subsequent encounter, officers arrested Mr. Garcia on an outstanding warrant and found methamphetamine on him during the search incident to the arrest. Mr. Garcia challenged the admission of the evidence in a CrR 3.6 hearing. The trial court concluded that walking in a high crime area early in the morning with a garbage bag was sufficiently suspicious to support an investigatory detention and denied Mr. Garcia’s motion to suppress. On appeal, Mr. Garcia contends he was illegally detained without reasonable suspicion of criminal conduct. We agree, and reverse and dismiss.
Facts
In November 2000, police officers were dispatched to investigate a suspicious persons call at 4:10 a.m. in a high crime area. The suspicious persons were reported to be a Hispanic man and a woman “walking around carrying a large dark colored bag.” CP at 2. Uniformed officer Stanton Howard arrived near the scene first and saw a Hispanic man walking along the street with a large dark bag carried over his back. After Officer Howard stopped his car and got out, he noticed a woman accompanying the man. The man would not make eye contact until Officer Howard stopped him and asked for his identification. Explaining that he did not have identification, the man gave his name as Alberto Morain-Torrez. Officer Howard called in an identification check and found no records of that name in Washington. Although the man claimed he had once had a Washington identification card, a second check of the records was also negative.
Officer Barry Duty then arrived and recognized the man as a high school classmate. Although Officer Duty could not remember the man’s name, he was almost certain it was not the name given. Officer Duty walked behind the man and saw he was holding his wallet behind his back, an identification card jutting partway out of the wallet. When asked to hand over the identification, the man gave Officer Duty the wallet. The card identified the man as Mr. Garcia, and a subsequent warrants check revealed an outstanding felony warrant. Mr. Garcia was arrested and during the search incident to the arrest, Officer Howard found a bindle on his person that field-tested positive for methamphetamine. Meanwhile, the woman told Officer Duty the large dark bag belonged to her. Officer Duty asked her if he could search the bag, and she said she did not mind. Inside, he found a spoon with residue and a bindle that the woman admitted contained methamphetamine.
Mr. Garcia was charged by information with one count of unlawful possession of a controlled substance, RCW 69.50.401(d). In a CrR 3.6 hearing before trial, he moved to suppress the evidence as the fruits of an unlawful seizure. Based on the testimony of Officers Howard and Duty, the trial court concluded as follows: “I would be suspicious if someone was walking in a high crime area at four in the morning carrying a bag. Motion denied.” Report of Proceedings at 26. Mr. Garcia was tried on stipulated facts and the court found him guilty as charged.
Evidence to Support Suspicion
On appeal, Mr. Garcia contends the trial court erred in concluding that the police officers had sufficient reasonable suspicion to stop him and request identification. Because he does not assign error to specific findings entered following the CrR 3.6 suppression hearing, we accept the findings as verities on appeal. State v. Hill, 123 Wn.2d 641, 644-47, 870 P.2d 313 (1994). We limit our review to a de novo determination of whether the findings support the trial court’s conclusions of law. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
Although an investigative stop is less intrusive than an arrest, it is nevertheless a seizure and must be reasonable under the Fourth Amendment and article I, section 7 of the Washington Constitution. State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Absent probable cause to arrest, police may briefly detain and question a person if they have a well founded suspicion based on objective facts that the person is connected to actual or potential criminal activity. State v. Pressley, 64 Wn. App. 591, 595, 825 P.2d 749 (1992); see also State v. Sieler, 95 Wn.2d 43, 46, 621 P.2d 1272 (1980). Suspicion is reasonable if the officer can point to specific facts and rational inferences from those facts that justify the intrusion. Terry, 392 U.S. at 21. The totality of the circumstances must indicate a “substantial possibility that criminal conduct has occurred or is about to occur.” State v. Garcia, 125 Wn.2d 239, 242, 883 P.2d 1369 (1994) (quoting Kennedy, 107 Wn.2d at 6). If the initial stop is not based on a reasonable suspicion of criminal activity, the evidence obtained in the course of a subsequent search is inadmissible. Kennedy, 107 Wn.2d at 4.
Here, the trial court made no finding or conclusion regarding whether Mr. Garcia was seized when he was stopped and questioned by Officer Howard.
A seizure does not automatically occur when a uniformed officer approaches a person in a public place and requests identification. State v. Crane, 105 Wn. App. 301, 309, 19 P.3d 1100 (2001). The pivotal question is whether a reasonable person would feel free to leave or terminate contact with the police. Id. This is an objective determination, based on the circumstances surrounding the contact. Id. Even if the initial contact is not intrusive, it may mature into a seizure if the person eventually does not feel free to leave. Id. at 309-10. Seizures are generally found whenever an officer retains a suspect’s identification or tells a suspect to wait while the officer conducts a records or warrants check. Id. at 310.
In this case, although Officer Howard did not tell Mr. Garcia to wait while he ran a records check, we may reasonably conclude that Mr. Garcia did not feel he was free to leave during the records check. Officer Howard testified at the hearing that Mr. Garcia was not free to leave until he had answered all the officer’s questions. The fact that the officer ran a check once, asked Mr. Garcia more questions, and then ran a second check indicates that Mr. Garcia was being detained until all attempts to identify him had been exhausted.
Having determined that Mr. Garcia was seized when Officer Howard began running the records check, we next ask whether the seizure was reasonable. Relevant considerations include the officers’ training and experience, the location of the stop, the conduct of the suspect (such as flight from the officers), and any other circumstances known to the officers before the stop. State v. Villarreal, 97 Wn. App. 636, 640, 984 P.2d 1064 (1999), review denied, 140 Wn.2d 1008 (2000); see also United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621
(1981). However, neither presence in a high crime area, close proximity to others suspected of criminal activities, nor obvious attempts to avoid an officer, without more, will justify an investigatory detention. Crane, 105 Wn. App. at 312 (citing Ybarra v. Illinois, 444 U.S. 85, 90-91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)); State v. Walker, 66 Wn. App. 622, 629, 834 P.2d 41 (1992).
Officer Howard responded to a report of suspicious persons, described as a Hispanic man carrying a large bag and accompanied by a woman. Although he guessed the suspicion was based on the man’s presence in a high crime neighborhood at 4:00 in the morning, he testified he really did not know why Mr. Garcia had been labeled suspicious. Further, Officer Howard added nothing to explain his suspicions, neither training nor experience that would lead him to believe Mr. Garcia was involved in or about to be involved in criminal activity. No crime had been reported in the area recently. Although Officer Howard may have had a hunch that Mr. Garcia was involved in criminal activity, especially when Mr. Garcia averted his eyes as the officer walked toward him, that hunch does not rise to the level of reasonable suspicion required by the Fourth Amendment.
“The requirement that an officer have a reasonable articulable suspicion before seizing a suspect helps achieve an overall balance between the needs of the police to conduct investigations and the constitutional protections of important liberties[.]” Crane, 105 Wn. App. at 308.
Because Officer Howard did not have a reasonable articulable suspicion that Mr. Garcia had committed or was about to commit a crime, the investigatory stop violated Mr. Garcia’s Fourth Amendment rights. Id. at 313. Consequently, all evidence discovered after the seizure should have been suppressed. Kennedy, 107 Wn.2d at 4. And with no evidence to support the charge, the case should have been dismissed.
The State’s additional argument that the police would have inevitably discovered the evidence is not persuasive. Under the “inevitable discovery rule,” the State must show that (1) the police did not act unreasonably or accelerate discovery of the evidence; (2) the police would have used proper and predictable investigatory procedures; and (3) those procedures would have inevitably resulted in discovery of the evidence. State v. Reyes, 98 Wn. App. 923, 927, 993 P.2d 921 (2000) (citing State v. Broadnax, 98 Wn.2d 289, 309, 654 P.2d 96 (1982) (Dolliver, J., dissenting)); State v. Richman, 85 Wn. App. 568, 577, 933 P.2d 1088 (1997). In this case, the officers acted unreasonably under the circumstances, and their unlawful actions accelerated discovery of the evidence. Further, because the seizure of Mr. Garcia and the woman was unlawful, asking the woman for consent to search the bag was an exploitation of the illegality. See State v. Armenta, 134 Wn.2d 1, 17, 948 P.2d 1280 (1997) (factors to determine whether consent to search is tainted by a prior illegality).
Reversed and dismissed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: KURTZ, C.J. and KATO, J.