No. 51731-7-IThe Court of Appeals of Washington, Division One.
Filed: October 13, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County Docket No: 02-1-02348-1 Judgment or order under review Date filed: 12/24/2002
Counsel for Appellant(s), Sharon Jean Blackford, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
David L. Donnan, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Thomas G. Stipcich (Appearing Pro Se), 605 NW 90th Street, Seattle, WA 98107.
Counsel for Respondent(s), Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.
COLEMAN, J.
Thomas Stipcich appeals his conviction for cocaine possession, arguing that the trial court should have suppressed cocaine evidence that was seized during an illegal frisk. He claims that the police officer did not have reason to suspect that he was armed and dangerous, and thus, the search for weapons was constitutionally impermissible.
Based upon evidence that Stipcich was possibly tampering with a stolen car and that he repeatedly disobeyed directives to keep his hands out of his pockets and on a car trunk, we agree with the trial court’s conclusion that the search was justified. We affirm.
FACTS
In October 2002, Snohomish County Sheriff Deputy Korhonen saw a car on the side of the road with Stipcich’s legs extending out the driver’s side door. He stopped for a closer look, and Stipcich exited the car. As Korhonen moved closer to the car, he saw a screwdriver wedged in the ignition and became suspicious that the car was stolen. He then asked Stipcich for identification and information regarding the ownership of the car. Stipcich provided identification and claimed he was using the car with the permission of `Mark,’ its owner. Korhonen used his police radio to check if the car had been reported stolen, but it had not. He called for additional units and asked another officer to verify the ownership with Mark.
While they were waiting for the backup officers to arrive, Stipcich angled his left side away from Korhonen and put his hands in his pockets. Korhonen asked him to keep his hands in plain view, and Stipcich complied.
When the officers arrived, Stipcich put his hands back in his pockets and Korhonen again asked him to keep his hands out. Korhonen noticed a bulge in one pocket of Stipcich’s jacket.
At this point, Korhonen started to perform a pat-down search and told Stipcich to keep his hands on the trunk of the police car. Korhonen felt the jacket pocket, but the bulge was soft and Stipcich claimed it was candy; Korhonen did not remove it. During the pat down, Stipcich moved his hands off the car, but he complied when Korhonen again told him to keep his hands on the trunk. When Korhonen got to the pants pockets, he felt a hard L-shaped object. He went to remove the object, but had difficulty because he had leather gloves on. As he pulled the object from the pocket, a small baggy of white powder fell out of Stipcich’s pocket. Korhonen seized the baggy. Its contents field-tested positive for cocaine. Stipcich was charged with possession of cocaine. The trial court denied Stipcich’s motion to suppress the evidence of cocaine possession. Stipcich was convicted after a stipulated trial and now appeals his conviction and the denial of his motion to suppress.
DISCUSSION
A police officer has the right to frisk a person who has been properly detained if the officer reasonably believes the person is armed and dangerous.[1] State v. Smith, 102 Wn.2d 449, 452, 688 P.2d 146 (1984). The police officer’s belief must be justified by specific and articulable factors. State v. Williams, 102 Wn.2d 733, 739, 689 P.2d 1065 (1984) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968)). The standard is not whether the officer is absolutely certain that the individual is armed, but rather whether it is reasonable to believe under the circumstances that the officer’s safety or that of others was in danger. State v. Belieu, 112 Wn.2d 587, 602, 773 P.2d 46
(1989) (citing Terry, 392 U.S. at 27).
Williams lists examples of articulable justifications that could lead to an officer’s belief that a suspect is armed and dangerous, and these examples include making `furtive gestures or violent responses.’ Williams, 102 Wn.2d at 740. This court has interpreted furtive gestures to include concealing hands in pockets. City of Seattle v. Hall, 60 Wn. App. 645, 806 P.2d 1246 (1991); State v. Harper, 33 Wn. App. 507, 655 P.2d 1199 (1982).
In Hall, the court noted that the defendant kept his hands hidden from the officer and behaved in ways the officer described as `antsy’ and `nervous.’ Hall, 60 Wn. App. at 653. The Harper court cited evidence that the defendant `repeatedly thrust his hands into his coat pockets,’ and the officer feared the defendant was concealing a weapon. Harper, 33 Wn. App. at 509. In both cases, the officers’ searches were justified.
Stipcich’s behavior resembles that of the defendants in Hall and Harper. Korhonen stated that Stipcich’s behavior led him to suspect Stipcich was attempting to hide what could have been a weapon. While Stipcich points to his compliance with Korhonen’s requests as evidence that his actions were not suspicious, his repeated violations of officer instructions regarding the placement of his hands, together with his attempt to angle his body away from the officer, could lead to a reasonable suspicion that he was armed and dangerous. Stipcich also claims that Korhonen was not justified in searching him because the car was not listed as stolen, so Korhonen had no reason to suspect him of any criminal activity. Korhonen did, however, testify that it is common for stolen cars to go unreported for some time. And because Korhonen observed a screwdriver in the ignition and Stipcich could not provide a verifiable explanation for his possession of a car not registered to him, the trial court correctly found that Korhonen was justified in continuing to investigate Stipcich. Stipcich’s behavior during this investigation was suspicious to Korhonen, and it was reasonable to believe he could be armed and dangerous. Thus, the trial court’s conclusion that Korhonen was justified in performing a search and seizing the controlled substance is supported by the record, and we therefore affirm.
SCHINDLER and GROSSE, JJ., concur.