No. 58050-7-I.The Court of Appeals of Washington, Division One.
May 7, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-12257-5, William L. Downing, J., entered March 20, 2006.
Affirmed by unpublished per curiam opinion.
PER CURIAM.
At approximately 4:20 in the morning of November 6, 2005, Officer Robin Peacey of the Bellevue Police Department received a radio dispatch about a burglar alarm that had been triggered at a heavy equipment business near downtown Bellevue on Bell-Red Road. Peacey drove to the business, which was in a mixed commercial/residential neighborhood, turned off her lights, and parked a short distance from the building. Not wishing to reveal her presence, she approached the building on foot. As she drew near, she saw two men running south on 134th Street. Both men were dressed in dark clothes, and one wore a knit cap. One of the men was carrying what appeared to be a cylindrical metal object, some 18 inches long and 2 to 3 inches in diameter. The men vanished into a wooded area. The surroundings were fairly dark, and there were no other automobiles or pedestrians to be seen.
Peacey radioed that she had seen two men fleeing the scene and requested backup.
Bellevue Officer Andrew Smith heard the original dispatch call. It had been a busy night for the Bellevue police, and the department was shorthanded. Smith drove towards the location of the business and set himself up as a perimeter officer. He noted that traffic was very light. He parked his police car with the flashers on in the middle of an intersection several blocks away from the business. The department’s customary procedure in such situations is for officers to cordon off a crime scene by positioning as many cars as possible with their lights on around a central area.
Smith got out of his car, and stood some distance away from it in order to reduce the glare in his eyes from the car’s lights. He was roughly 350 to 400 yards from Bell-Red Road.
A few minutes later, he noted headlights moving through the trees south of him on 132nd Avenue. He could also clearly hear the sound of a defective muffler. The car was coming directly from the area where Officer Peacey said the two men had vanished into the trees. He watched as the car turned west on NE 8th Street. It appeared to be a red compact sedan. The area was not well lit, with only about one street light per block, and he was not able to make out the license number. There was no other traffic in the area. He broadcast what information he had to other officers. The car vanished from his sight as it crested a hill.
Smith remained at his perimeter position.
Officer Craig Teschlog of the Clyde Hill Police Department had also heard the original radio dispatch about the burglary. Though he was the only officer on duty on the small town force, he knew the Bellevue force was over-stretched that night, so he radioed in and offered his assistance. The Bellevue supervisor readily accepted his offer, and asked him to join the perimeter. Teschlog sped toward the location with his flashers on, but without using his siren. He felt no need for the siren, as there were no other cars on the road.
Before he reached the perimeter, Teschlog heard Officer Smith’s radio broadcast about the red car traveling westbound on NE 8th Street. He turned off his flashing lights and made his way swiftly towards NE 8th.
As he reached NE 8th, he saw a red car coming toward him, westbound. He let the car pass and noted that it was a red Plymouth Voyager minivan. He began following the car down NE 8th. Given the timing, the location, direction and speed of travel, color of the car, and the fact that there were no other cars around, he was confident that this was the car Officer Smith had reported.
He radioed Smith, told him he was following a red minivan, and asked if it could be the car Smith had seen. Smith replied that the car could have been a minivan. He told Teschlog that if he heard the sound of a loud muffler, it would definitely be the same car. Teschlog later testified that he did not recall Smith’s comment about the muffler.
Since Teschlog was in Bellevue territory, as a courtesy he asked if Smith wanted him to stop the van. Smith said yes, and Teschlog turned on his flashing lights. The van slowed down, but did not stop for several blocks. At last, it stopped on an overpass over Interstate 405.
When Teschlog approached the van, he noticed the windows behind the driver were steamed over. The driver was drenched with sweat, and breathing heavily, as if, Teschlog noted, he had been running a marathon. When Teschlog shone his flashlight into the car, he discovered Perez, curled up in a fetal position on the back bench. Perez too, appeared to be soaked with sweat. Teschlog radioed for back up, and two Bellevue police officers arrived moments later. Both occupants of the vehicle were taken into custody. Officer Smith arrived on the scene, and had one of the other officers start the van so that he could determine if it had a noisy muffler. It did.
The van was searched incident to arrest. Inside the van, officers discovered numerous tools, including a flashlight, bolt cutters, a crowbar, a hacksaw, and a length of copper-colored pole. They also found two brand-new Honda generators with their tags still on them.
Perez was charged with burglary in the second degree, and possession of burglary tools. Perez moved pretrial to suppress the evidence found inside the van, contending that it was discovered as a result of unlawful police action. The court heard testimony regarding the stop and the discovery of the tools inside the van, and denied Perez’s motion. After a jury trial, Perez was found guilty. He now appeals.
I.
We review conclusions of law in an order pertaining to suppression of evidence de novo.[1] We review findings of fact on a motion to suppress under the substantial evidence standard.[2] Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding.[3] A trial court’s decision on the admissibility of evidence is reviewed for abuse of discretion.[4] A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds.[5]
II.
Perez argues that Officer Teschlog lacked reasonable, individualized suspicion to stop the minivan, as required unde Terry v. Ohio.[6]
Under Terry, a police officer may briefly detain an individual for investigative purposes, provide he has a reasonable, articulable suspicion of criminal activity, based on objective facts.[7] A reasonable or well-founded suspicion exists if the officer can point to specific and articulable facts which, if taken together with rational inferences from those facts, reasonably warrant that intrusion.[8]
When reviewing the merits of an investigatory stop, a court must evaluate the totality of circumstances presented to the investigating officer.[9] The court takes into account an officer’s training and experience when determining the reasonableness of a Terry stop.[10] The reasonableness of an investigative stop is measured not by exactitudes, but by probabilities.[11]
The specific facts relied upon in detaining an individual need not be observed solely by the officer making the stop. Where police officers are acting together as a unit, cumulative knowledge of all the officers involved in the arrest may be considered in deciding whether there was a proper basis to detain a suspect.[12] The collective knowledge of the arresting officers should be considered even though the substance of the information obtained by other officers had not been communicated to the arresting officer.[13]
Perez concedes most of the facts surrounding th Terry stop. He concedes that Officer Peacey saw two men running from the scene of the burglary, Officer Smith saw a red passenger car leaving the area, Officer Teschlog saw the red minivan traveling westbound on NE 8th street, and Officer Teschlog asked Officer Smith whether he should stop the minivan.
Perez focuses on two discrepancies: the conflicting descriptions of the car, and the issue of the noisy muffler.
Officer Smith initially described the vehicle as a “compact car, a sedan style car.”[14] Later, when Officer Teschlog inquired whether the suspect car might be a Plymouth Voyager minivan, Smith said it could possibly be one.
During the suppression hearing, Smith explained why he told Teschlag it could have been a minivan, noting that early 1990s Dodge minivans appear compact — unlike full-sized vans or commercial trucks. He said he knew it was not a motorcycle or a pickup truck, but was a mid-sized car, a passenger vehicle.
Smith also told Teschlag the car could be identified by its noisy muffler. Teschlog did not testify that he did not hear the noisy muffler; he testified that he did not recall Smith telling him about it.
Ultimately, the discrepancies in the description of the car and the issue of the noisy muffler are less relevant than the overall series of events and the facts available to the officers at the time. A court must evaluate the totality of circumstances presented to the investigating officer.[15]
The relevant information available to the officers collectively at the time of the stop included: It was after 4:30 in the morning.
• Officer Peacey reported two men running from the scene of the burglary.
• The two men vanished into a wooded area.
• Officer Smith observed a red passenger car emerging from the wooded area just minutes later.
• The car then traveled westbound on NE 8th Street.
• All the officers reported that there was no other traffic in the area at the time.
• Officer Teschlog arrived at NE 8th Street at the time when the red car would reasonably have been expected to arrive at the same destination, based on its speed of travel.
• He observed that there were no other cars on NE 8th Street.
All of these circumstances, along with the rational inferences that can be drawn from them, provided a reasonable, articulable suspicion of criminal activity. This was not a random stop of one vehicle among many. Nor was it based on a generalized suspicion. It was a reasonable inference drawn from the totality of the circumstances and the facts available to the officers as a collective unit.
We review a trial judge’s ruling on the admissibility of evidence for abuse of discretion.[16] We do not find the trial court’s decision to dismiss Perez’s motion to suppress to be manifestly unreasonable or based on untenable grounds.[17]
Appellant Perez also submitted a statement of additional grounds for review. Perez makes two claims for insufficiency of evidence. The issues are raised without argument, but he does attach the original CrR 7.4 motion to arrest judgment to the superior court.
An appellate court’s function is to determine whether the evidence is legally sufficient to support the jury’s finding. In ruling on such a motion, we and the trial court must assume the truth of the State’s evidence and view it most strongly against the defendant in a light most favorable to the State.[18]
We hold there was sufficient evidence presented at trial to support his conviction.
AFFIRMED.
(1968).