No. 24169-6-III.The Court of Appeals of Washington, Division Three.
November 21, 2006.
Appeal from a judgment of the Superior Court for Benton County, No. 05-1-00230-5, Cameron Mitchell, J., entered April 6, 2005.
Reversed by unpublished opinion per Schultheis, J., concurred in by Sweeney, C.J., and Kulik, J.
Counsel for Appellant(s), James Edward Egan, James E Egan PS, Kennewick, WA.
Counsel for Respondent(s), Heather Dawn Czebotar, Attorney at Law, Kennewick, WA.
SCHULTHEIS, J.
Absent probable cause to arrest, police may detain and question a person if they have a well-founded suspicion that the person is involved in criminal activity. State v. Pressley, 64 Wn. App. 591, 595, 825 P.2d 749 (1992). A Kennewick police officer stopped Timothy Grady because the officer saw Mr. Grady run across an intersection late at night, carrying a bundle of sticks. Eventually the officer arrested Mr. Grady for suspected violation of the Kennewick Municipal Code (KMC) criminalizing public drug intoxication. In the search incident to the arrest, evidence of methamphetamine manufacture was discovered in his backpack. The question before this court is whether the initial investigative stop was based on a reasonable suspicion of criminal activity. Finding insufficient facts to support a reasonable suspicion of criminal conduct, we reverse and dismiss.
Facts
Around 2:30 a.m. on a February morning in 2005, patrol officer Glenn Ball was driving down a four-lane street in a Kennewick business district. From about a block away, Officer Ball saw a man sprint across the next intersection. Traffic was nonexistent at that time of the morning. Curious why the man chose to run across the street, and wondering why he was carrying a bundle of sticks and wearing a backpack, the officer turned at the intersection and followed the man, who was now walking.
Officer Ball called for backup, turned on his spotlights, got out of his car, and ordered the man to stop. When the man did not immediately comply, the officer again ordered him to stop. The man finally stopped. Officer Ball then ordered the man to walk over and stand in front of the patrol car. In response to the officer’s request for identification, the man said he did not have identification. Officer Ball said he could see a wallet in the man’s pocket, and again asked for identification. When the man pulled out his wallet, the officer saw a green document that looked like a traffic ticket, and asked to see it. The document was Mr. Grady’s birth certificate.
During this encounter, Officer Ball noticed that Mr. Grady was making erratic, jerky movements. Later, he compared Mr. Grady’s movements to a child’s “pee pee dance”: hopping foot to foot. Report of Proceedings (Apr. 6, 2005) (RP) at 21. Due to this observation, and further noticing that Mr. Grady stammered and had difficulty focusing, the officer suspected that Mr. Grady was under the influence of a controlled substance.
After calling for another unit to check for signs of break-ins in the area, Officer Ball told Mr. Grady to sit on the patrol car while the officer checked for outstanding warrants. Two more patrol cars arrived. While Officer Ball was calling dispatch, Mr. Grady suddenly screamed and took off running. The officers chased him down and arrested him. A search of Mr. Grady’s backpack revealed numerous tablets of pseudoephedrine, other methamphetamine precursors, and traces of methamphetamine.
The State charged Mr. Grady with one count of possessing ephedrine, pseudoephedrine, or anhydrous ammonia with intent to manufacture methamphetamine (RCW 69.50.440). He moved to suppress the evidence under CrR 3.6. At the hearing on the motion, Officer Ball testified he first stopped Mr. Grady because he suspected the sticks Mr. Grady carried were stolen property. The officer admitted, however, that he had received no report of a theft. The sticks turned out to be pieces of an antique picture frame Mr. Grady said he was restoring. Officer Ball explained that when he noticed Mr. Grady’s “hyperflexia” (RP at 20) — the jerky movements — he reasonably believed Mr. Grady was violating KMC 9.32.020, which prohibits being under the influence of a drug in public. On the basis of that belief, the officer decided to detain Mr. Grady while he checked for outstanding warrants.
Mr. Grady challenged the initial stop as not based on a reasonable suspicion of criminal activity. He also argued that he had been under full custodial arrest from the beginning, that the officer had no basis for demanding his identification, and that the order to hand over the birth certificate was an unlawful search. In its oral decision, the trial court concluded that Officer Ball’s initial subjective belief that Mr. Grady was involved in criminal activity was supported by the facts that he was running across an empty intersection in a retail area early in the morning, carrying an unusual bundle. Although the trial court admitted that these circumstances were not sufficient to support a reasonable suspicion crime was afoot, the court found that the officer had enough information to “assume” Mr. Grady was involved in criminal activity. RP at 36. Accordingly, the trial court concluded that the initial investigative stop was appropriate and ripened into a custodial detention based on indications that Mr. Grady was under the influence of a drug. The trial court denied the motion to suppress and found Mr. Grady guilty on stipulated facts as charged.
Basis for the Investigative Stop
On appeal, Mr. Grady contends the trial court erred in denying his motion to suppress the evidence. He argues that Officer Ball detained him without a reasonable suspicion he committed or was about to commit a crime. Because the parties do not dispute the facts, this court reviews the conclusions of law from the order on the suppression of evidence de novo. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002).
Unfortunately, the record does not contain findings of fact or conclusions of law, as required by CrR 3.6(b). When the trial court fails to enter CrR 3.6 findings and conclusions until after the appellant’s brief is filed, this court will reverse only if the appellant establishes prejudice due to the delay. State v. Byrd, 83 Wn. App. 509, 512, 922 P.2d 168 (1996). Where, as here, findings and conclusions are never filed, remand may be necessary for entry of the trial court’s findings of fact and conclusions of law, unless the delay is prejudicial to the defendant. State v. Head, 136 Wn.2d 619, 622-23, 964 P.2d 1187 (1998). If, however, the court’s oral ruling is given with enough specificity to permit review, remand may not be required. Cf. State v. Thompson, 73 Wn. App. 122, 130, 867 P.2d 691 (1994) (oral ruling not sufficiently comprehensive). Mr. Grady’s appellate counsel stipulated to the facts and did not assign error to the failure to file findings and conclusions. Because review is de novo, and the error appears to be harmless, we analyze the lawfulness of the police encounter on the record as it stands.
Warrantless searches and seizures are per se unreasonable unless they qualify as one of the carefully drawn exceptions to the warrant requirement. State v. Kinzy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000). One of those exceptions is a Terry[1]
stop: a brief investigative detention when an officer has a reasonable suspicion, grounded in specific and articulable facts, that the person stopped has been or is about to be involved in a crime. State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003); Pressley, 64 Wn. App. at 595. Suspicion is reasonable if the officer can point to specific facts and reasonable inferences that justify the intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The totality of the circumstances must objectively indicate that there is a substantial possibility the suspect has been or will be engaged in criminal conduct. State v. Garcia, 125 Wn.2d 239, 242, 883 P.2d 1369 (1994). If the initial stop is not based on a reasonable suspicion of criminal activity, all evidence subsequently obtained is inadmissible. State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986).
We first address whether Mr. Grady was seized when he was stopped and questioned by the officer. At the suppression hearing, Officer Ball testified that he intended to put Mr. Grady in a “custodial situation” (RP at 10) and to effect a Terry investigative stop. But the officer’s subjective belief and intentions are irrelevant; the threshold question is whether a reasonable person would feel free to leave or to terminate contact with the officer. State v. Crane, 105 Wn. App. 301, 309, 19 P.3d 1100 (2001); State v. Ellwood, 52 Wn. App. 70, 73, 757 P.2d 547 (1988). This is an objective determination, based on the circumstances surrounding the contact. Ellwood, 52 Wn. App. at 73. In this case, Officer Ball testified that he used his “command voice” to order Mr. Grady to stop. RP at 9. This command was made twice. Officer Ball then had Mr. Grady stand at the front of the patrol car, and ordered him to stay there when he attempted to walk around the car. A reasonable person under these circumstances would not believe he was free to leave. Accordingly, we find that Mr. Grady was seized when he was first contacted by Officer Ball.
Next, we ask whether the seizure was based on a reasonable suspicion. Relevant considerations include the officer’s training and experience, the location of the stop, the conduct of the suspect (such as attempted flight), and any other information known to the officers before the stop (such as prior contact with the suspect). State v. Villarreal, 97 Wn. App. 636, 640, 984 P.2d 1064 (1999). However, neither presence in a high crime area nor obvious attempts to avoid an officer, without more, will justify an investigative detention. Crane, 105 Wn. App. at 312.
Officer Ball testified that his suspicions were aroused because he saw a man running across an empty intersection in a business district, late at night, in an area with a high burglary rate, carrying a bundle of sticks. Although the officer had received no report of theft, he suspected Mr. Grady was running with stolen property. He also testified that pedestrians were rare at that time of night, and Mr. Grady was not dressed as though he were running for exercise.
Although these circumstances and observations may have supported a hunch that Mr. Grady possessed stolen property, they are also equally consistent with entirely innocent activity. Running across an intersection with a bundle does not, in itself, foster a substantial possibility of criminal conduct. Here, in fact, Mr. Grady stopped running after he crossed the intersection, and was merely walking briskly when Officer Ball stopped him. The officer did not recognize Mr. Grady and did not think he was attempting to run from the patrol car (which Mr. Grady apparently had not yet seen).
Under these circumstances, Officer Ball’s hunch did not rise to the level of reasonable suspicion required for an investigative detention. Neither Mr. Grady’s location in a retail area nor his conduct suggested criminal activity. And the officer admitted he had no basis to believe that any businesses in the area had been burgled recently. Consequently, the stop was not justified, and the evidence subsequently seized should have been suppressed. Kennedy, 107 Wn.2d at 4. Without this evidence, the case should have been dismissed.
In light of our resolution of the appeal on the basis of the investigative stop, we decline to address Mr. Grady’s remaining issues.
Reversed and dismissed with prejudice.
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.
SWEENEY, C.J. and KULIK, J., concur.
(1968).
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