No. 23751-6-III.The Court of Appeals of Washington, Division Three.
Filed: April 13, 2006.
UNPUBLISHED OPINION
[EDITORS’ NOTE: This case is unpublished as indicated by the issuing court.]
Appeal from Superior Court of Benton County. Docket No: 04-1-01372-4. Judgment or order under review. Date filed: 01/14/2005. Judge signing: Hon. Vic L. VanderSchoor.
Counsel for Appellant(s), Richard F Johnston, Attorney at Law, 2020 W Sylvester St, Pasco, WA 99301-4540.
Counsel for Respondent(s), Terry Jay Bloor, Benton County Prosecutors Office, M/S G, 7122 W Okanogan Ave, Kennewick, WA 99336-2341.
SWEENEY, C.J.
Police must have articulable facts supporting a substantial possibility that criminal activity is about to occur in order to justify `the investigatory stop’ exception to the warrant requirement of article I, section 7 of our state constitution. Here, an officer on foot patrol in a high crime area in an apartment complex where vehicle prowling had been reported saw Jeremiah Martinez in the shadows. Mr. Martinez walked away briskly and looked nervously over his shoulder. The officer asked whether he lived there, and Mr. Martinez said that he did not. We agree with the trial judge that those circumstances justified a brief stop and search. And we therefore affirm Mr. Martinez’s conviction for possession of methamphetamine.
FACTS
The State and Mr. Martinez stipulated to the facts in the police report. And the court based its findings following the suppression hearing on that report.
Richland Police Officer B. Henry patrolled the grounds of an apartment complex. He was on foot. The apartments were in a high crime neighborhood. And several vehicle prowls had recently been reported in the apartment complex. The parking lot was unlit. And Officer Henry was working alone.
At 12:46 a.m., Officer Henry spotted a man walking in the shadows from an area where several cars were parked in front of one of the apartment buildings. The man was walking briskly and kept looking around nervously. Officer Henry followed the man. He intended to talk to him because it was late and the area had been the site of several recent vehicle prowls. Officer Henry called out from about 25 yards away. He identified himself as a police officer and asked the man whether he lived in the apartments. The man responded that he did not. Officer Henry suspected the man was prowling vehicles. He ordered the man to sit down on a utility box and radioed his dispatch to identify the man. The suspect was Jeremiah Martinez.
Officer Henry decided to pat Mr. Martinez down for weapons because he was alone, it was late at night, the area was a high crime area, and he had found Mr. Martinez lurking in the dark. He felt a hard, rectangular object he thought was large enough to conceal a weapon. He removed the object. It turned out to be a container holding methamphetamine. Officer Henry read Mr. Martinez his Miranda[1] rights. Officer Henry then arrested Mr. Martinez for possession and searched him incident to the arrest. He found methamphetamine and a glass meth pipe in Mr. Martinez’s pocket.
The State charged Mr. Martinez with possession of methamphetamine.
Mr. Martinez moved to suppress the evidence of drugs. He argued that the facts did not support a reasonable suspicion that Mr. Martinez was engaged in criminal activity, and that the officer had acted on a constitutionally impermissible hunch. The State responded that the stop and search were reasonable because, under the totality of the circumstances, it was reasonable to suspect that Mr. Martinez was prowling cars. The court agreed and denied the motion to suppress. On stipulated facts, the court convicted Mr. Martinez of possession of methamphetamine.
DISCUSSION Lawful Stop
Mr. Martinez argues that the facts here were entirely innocuous and do not, therefore, provide the articulable suspicion necessary to justify the officer’s stopping him. He was simply walking in public after dark. The State responds that the circumstances justified this brief investigative stop. It was late at night. The neighborhood was rated `high crime.’ Vehicle prowls at this apartment complex were a known problem. The parking area was dark. Mr. Martinez was on private property where he did not belong. He looked nervous as he walked quickly away from the officer. Taken together with the officer’s experience, these facts established a `substantial possibility’ that Mr. Martinez was prowling vehicles.
Standard of Review
We review a trial court’s findings of fact for substantial evidence. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). But the facts are not the concern here. We review conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). The challenge here is to the court’s conclusion that the stop and search were reasonable.
Warrant Requirement
`No person shall be disturbed in his private affairs, or his home invaded, without authority of law.’ Const. art. I, sec. 7. The privacy protection provided by article I, section 7 is greater than that of the Fourth Amendment to the United States Constitution. State v. O’Neill, 148 Wn.2d 564, 584, 62 P.3d 489 (2003). We presume warrantless searches and seizures are unreasonable unless one of the narrow, `jealously-guarded’ exceptions applies. State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996). Whether a warrantless stop violates article I, section 7 is a question of law that we review de novo. State v. Rankin, 151 Wn.2d 689, 694, 92 P.3d 202 (2004).
Officer Henry seized Mr. Martinez when he ordered him to sit on the utility box and wait. See State v. Ellwood, 52 Wn. App. 70, 74, 757 P.2d 547 (1988). The issue is whether the officer acted under `authority of law’ when he seized Mr. Martinez briefly to investigate. The State claims authority by the investigatory stop exception to the warrant requirement of article I, section 7. And the question whether this officer acted under `authority of law’ turns on whether the circumstances here justified the stop.
Terry[2] Exception
Article I, section 7 permits police to conduct brief investigatory stops of limited scope and duration. State v. Kennedy, 107 Wn.2d 1, 5-6, 726 P.2d 445 (1986); Mendez, 137 Wn.2d at 223. To justify such a stop under either the Fourth Amendment of the United States Constitution or article I, section 7, of our state constitution, the officer must be able to “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Mendez, 137 Wn.2d at 223 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). The intrusion requires “a substantial possibility that criminal conduct has occurred or is about to occur.” Id. (quoting Kennedy, 107 Wn.2d at 6).
We evaluate the totality of the circumstances known to the officer at the time when passing on the propriety of a warrantless stop and search. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). Standing or walking in a high crime area at night is not enough. The circumstances must suggest a substantial possibility that a particular person has committed a specific crime or is about to do so. State v. Garcia, 125 Wn.2d 239, 242, 883 P.2d 1369 (1994). Innocuous facts do not justify a warrantless seizure. State v. Armenta, 134 Wn.2d 1, 13, 948 P.2d 1280
(1997). An officer may, however, rely on his or her experience in evaluating arguably innocuous facts. State v. Samsel, 39 Wn. App. 564, 570-71, 694 P.2d 670 (1985).
No previous Washington case is directly on point.
In State v. Laskowski, a possible vehicle prowl was reported. State v. Laskowski, 88 Wn. App. 858, 950 P.2d 950 (1997). The defendant and his companions matched the dispatcher’s description of the suspects. Id. at 859. The court upheld the stop and subsequent search, concluding that `Laskowski was part of a group reported to be acting suspiciously, and the officer could reasonably consider all facts known or observed about any member of the group.’ Id. at 860.
In State v. Ozuna, a vehicle prowl had been reported. State v. Ozuna, 80 Wn. App. 684, 911 P.2d 395 (1996). But the officers had no information tying the defendants to the crime. No person was stopped. The officer instead searched an unoccupied car. Id. at 686. No one claimed any concern for officer safety. Id. There, the court concluded that the search was not justified. Id. at 688.
State v. O’Neill is not a vehicle prowl case, but the same principles applied. There, the court held that it was both reasonable and lawful for an officer to approach a car parked in the lot of a business at 1:15 a.m., an hour after the business closed. O’Neill, 148 Wn.2d at 577 n. 1. The business had been burglarized twice in the previous month. And the car’s windows were fogged. This suggested that the car was occupied and had been there a while. Id. The occupant of the car was not `seized,’ the court held, until the officer ordered him out of the car. And at that point the circumstances supported a Terry stop. Id.
Here, Officer Henry was patrolling this parking lot because it had been the site of ongoing vehicle prowls. He was, therefore, on the lookout specifically for someone prowling those vehicles and in that place. He had no specific information linking Mr. Martinez to the prowling activity. But there was nothing suggesting otherwise. Mr. Martinez’s response to the officer’s presence only added to the officer’s grounds for suspicion. This apartment complex was private property. Mr. Martinez was not on a public street. Officer Henry established that Mr. Martinez did not live there.
In sum, Officer Henry was investigating known vehicle prowling in a specific location. He was on the lookout for a person doing precisely what Mr. Martinez was doing — lurking in the dark around parked cars in a place where he had no legitimate reason to be. We agree with the trial court’s conclusion that the totality of the circumstances here gave rise to articulable grounds for a reasonable suspicion sufficient to warrant a minimally intrusive stop.
Search for Weapons
Mr. Martinez next contends that, even if the stop was lawful, Officer Henry had no reason to believe that Mr. Martinez was armed or dangerous and, therefore, no reason to search him for weapons.
Mr. Martinez is correct that an officer may not touch a citizen to search for anything without constitutionally adequate, reasonable grounds for doing so. State v. Broadnax, 98 Wn.2d 289, 294, 654 P.2d 96 (1982), overruled on other grounds by Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). Even in the context of a lawful stop, the officer must have a reasonable safety concern to justify searching the person for weapons. State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993). The officer must be able to point to particular facts from which legitimate safety concerns can reasonably be inferred. Broadnax, 98 Wn.2d at 294 (citing Sibron v. New York, 392 U.S. 40, 64, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968)).
Here, Officer Henry was by himself and therefore particularly vulnerable. He suspected that Mr. Martinez was prowling the streets of a high crime neighborhood alone at night — committing crimes against people’s property. He could reasonably infer from these facts that this suspect might be armed. This was a sufficient reason to pat down for officer safety reasons. Compare Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979), discussed in Broadnax, 98 Wn.2d at 294-95. In Ybarra, police raided a tavern and detained the patrons. People were searched for no reason other than that they were there. This was unlawful. Broadnax, 98 Wn.2d at 294-95. The facts here are distinguishable.
We conclude that the frisk for weapons here was justified by the same circumstances that justified the stop in the first place.
Affirmed.
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.
KATO, J. and BROWN, J., concur.
(1966).
(1968).
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