No. 26264-9-II.The Court of Appeals of Washington, Division Two.
Filed: November 30, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Cowlitz County, No. 001003380, Hon. Stephen M. Warning, August 3, 2000, Judgment or order under review.
Counsel for Appellant(s), Leonard W. Copeland, Attorney At Law, 1402 Broadway, Longview, WA 98632.
Counsel for Respondent(s), Edwin N. Norton, Cowlitz Co Dep Pros Atty, 312 S.W. 1st Ave, Kelso, WA 98626-1739.
J. DEAN MORGAN, J.
Curtis Lee Stone appeals a conviction for possession of methamphetamine. He argues that the police unlawfully discovered and seized the methamphetamine while checking on a report to 911 that his girlfriend was suicidal. The trial court ruled that the police acted lawfully, and we affirm.
About noon on April 10, 2000, Gabriella Mendez, age 8, called 911. She gave her address and asked for help because her mother, Gloria Mendez, was suicidal. Officers Wiper and Graves responded in separate patrol cars. While Graves was driving to Gabriella’s house, he passed a distraught woman who was on foot. A little farther on, he passed a blue Cadillac driven by a lone male. Wiper arrived at Gabriella’s house first. He asked Gabriella for a description of her mother, and he relayed that description to Graves. Graves noted that the description matched the distraught woman he had seen on the street. He also learned from a neighbor that the mother’s boyfriend normally drove a blue Cadillac. Graves started back to where he had seen the distraught woman. A few moments later, he again saw the blue Cadillac, now occupied by a male driver and the woman he had seen on the street. He opened his window and used his arm to motion the Cadillac into a nearby church parking lot.
The Cadillac pulled into the parking lot and stopped. Graves approached it and asked the woman if she was okay. She nodded `yes’ without speaking. He asked her `a few other questions,’[1] and she answered so softly he `could barely hear her.’ She would not look at him, and she seemed to be `having some sort of emotional problem at that time.’[2]
At some point, she identified herself as Mendez.
As Graves was speaking with Mendez, Wiper arrived and parked. He had Gabriella with him. By now, Gabriella had said that her mother was Mendez; that her mother’s boyfriend was Curtis Stone; that her mother and Stone had argued; and that her mother had left the house after threatening to kill herself.
Graves asked Mendez to step out of the Cadillac. She complied and began speaking with Wiper. Graves turned to the driver, who was still in the Cadillac, and identified him as Curtis Stone. Graves asked to see Stone’s driver’s license, and after Stone produced it, he copied Stone’s address and other basic information. Stone `said he didn’t believe that [Mendez] was suicidal, but that they did have an argument.’[3] The conversation took `just a couple of minutes,’[4] according to Stone, although Graves kept his drivers license for what `seemed like ten minutes.’[5]
While Graves was speaking with Stone, Wiper was speaking with Mendez and Gabriella. Gabriella told him, apparently for the first time, that Stone `had a gun under the front seat of the car.’[6] A moment or two later, Graves came `back to Officer Wiper’s location to . . . find out what the little girl had told him and what Gloria might have been telling us.’[7] Wiper relayed what Gabriella had said about a gun `underneath the driver’s seat of Curtis Stone’s car[.]’[8] Although Wiper had not finished with Mendez, both officers thought that they needed to `get that gun out of there.’[9] Thus, they returned to Stone’s location and asked him to step out of the car.[10] Stone complied, leaving the car door open.
The officers were asking him whether they could look in his car for a gun[11] when he suddenly reached back into the car and grabbed for a jacket.[12] Graves later characterized Stone as having `lunged’ for the jacket.[13] Thinking that Stone was reaching for a weapon, Graves `grabbed his hands over the top of the jacket’ and `told him several times to let go.’[14] He ultimately did let go, and Graves took control of the jacket. Graves patted the jacket for weapons. In one of its pockets, he felt a `distinct object’ and `realized it was probably a knife.’[15] He looked in the pocket before putting his hand in it, because he did not want his skin to be penetrated by a knife, needle, or other sharp object. He saw that `sure enough [the object he had felt] was a knife.’[16] He also saw `a small, clear, plastic zip-lock-type baggy’[17] with powdery contents that he recognized as methamphetamine or cocaine. He seized the baggy and arrested Stone.
On April 12, 2000, the State charged Stone with violating the Uniform Controlled Substances Act. Stone moved to suppress the methamphetamine, claiming it was the product of an illegal search. The trial court denied his motion and later convicted following a bench trial on stipulated facts. Stone now appeals, claiming the trial court erred by denying his motion to suppress. We note or discuss the propriety of (1) stopping the car, (2) detaining Stone, (3) ordering Stone out of the car, (4) patting down Stone’s jacket, and (5) looking into the pocket of Stone’s jacket.
I.
Stone does not challenge the initial stop of his Cadillac. He acknowledges that the police, as part of their community caretaking function, were entitled to check on Mendez’ health and welfare.
II.
Stone claims that he was detained for an unreasonably long time after the stop.[18] He argues that `although police were justified in initially stopping [his] vehicle to check on Mendez’s welfare,’[19]
they `were justified in detaining [him] only long enough to determine that Mendez was in no immediate danger to herself.’[20]
The Supreme Court recently stated that the police may reasonably inquire of a citizen as part of their community-caretaking function, even though they have no suspicion of criminal activity.[21] A plurality of four justices also commented:
Once the [community caretaking] exception does apply, police may conduct a noncriminal investigation so long as it is necessary and strictly relevant to performance of the community caretaking function. The noncriminal investigation must end when reasons for initiating an encounter have been fully dispelled.[22]
Here, the trial court found that `at the time the Officers decided that they wanted to secure the possible gun, they were still speaking with Gloria Mendez about the reason for the call, the possible suicide and the possible domestic dispute.’[23] This finding rests on substantial evidence,[24] for Graves expressly testified that the officers were still determining whether Mendez was a danger to herself when Gabriella told Wiper, and Wiper told Graves, that Stone had a gun in his car.[25]
The officers did not detain Stone longer than was reasonable and necessary to determine whether Mendez was an immediate danger to herself, and they were not detaining him unlawfully when they asked him if they could look in the car for a gun.
III.
Stone does not challenge the officers’ order that he exit the car. Nor could he, in light of State v. Mendez.[26]
IV.
Stone claims that even if he was not detained unlawfully, the officers could not lawfully pat down his jacket because `there was no reasonable basis to believe [he] was `armed and presently dangerous.”[27]
To support this claim, he advances two assertions.
A.
Stone first asserts that the `police made no effort to corroborate or confirm the girl’s assertion’ that he had a gun; and that `although the child had apparently provided otherwise reliable information, that information concerned the obvious emotional state of her mother and the family relationships.’[28] As a result, Stone says, the police lacked the reasonable suspicion they needed to justify the pat-down of his jacket.
We disagree. Gabriella was an eight-year-old who was obviously concerned for her mother. She had no apparent bias against Stone, and no apparent motive to lie to the officers. She had said her mother was suicidal following an argument with Stone; the officers had observed the mother was distraught, and Stone himself had acknowledged the argument. The police had ample reason to believe Gabriella’s statement that Stone had a gun in the car, and hence reasonable suspicion that Stone had a gun in the car.
B.
Stone also asserts that even if the police had reason to suspect he was `armed,’ they had no reason to suspect he was `presently dangerous.’[29]
His necessary premise is that the police may not frisk for a weapon merely because they reasonably suspect a detainee has one on his person; they must wait until the detainee manifests a present inclination to use his weapon.[30]
In our view, however, a reasonable suspicion that a detainee is presently in possession of a weapon is also a reasonable suspicion that a detainee is presently dangerous; it is not necessary for the police to wait until the detainee manifests an inclination to use the weapon that he or she possesses. We conclude that if the police reasonably suspect that a person whom they have lawfully detained presently has a weapon on or about his person, they also reasonably suspect that the person is presently dangerous, and they are entitled to frisk the person’s outer clothing in an effort to discover and secure the weapon.
In this case, the officers had reasonable suspicion, based on Gabriella’s statement, that Stone had a gun in the car. That suspicion encompassed the jacket when Stone lunged back into the car and grabbed the jacket.[31] We conclude that Graves acted lawfully when he took control of the jacket, patted it down, and felt a `distinct object’ in one of its pockets.
V.
Stone contends that `once [Graves] felt the pocket of the coat and realized the `distinct’ object was a knife and not a handgun, it was unreasonable for [him] to look in the . . . pocket to see what was there.’[32]
We disagree. It was eminently reasonable for Graves to secure the knife once he knew it was there; he and Wiper were still in the process of insuring Mendez’ welfare, and they were not required to put themselves in danger as they did that. Moreover, it was eminently reasonable for Graves to look in the jacket’s pocket before inserting his hand into it; he was not required to risk cuts or pricks and the consequences that might result therefrom. We hold that Graves discovered the methamphetamine lawfully, and that the trial court did not err by denying the motion to suppress.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Affirmed.
WE CONCUR: BRIDGEWATER, J., QUINN-BRITNALL, J.
(1) `Search the car for what?’ and
(2) `Can I get my coat?’
RP at 31. He then `reached in and grabbed’ his coat, but `both officers kind of attacked me and knocked the coat to the ground.’ RP at 31. The trial court did not accept his testimony.
Q: Officer, at the time that [Stone] was asked to exit the vehicle, had you completed your investigation into the possible suicide and possible domestic violence?
A: No, once we learned that there might be a handgun in this car, we wanted to get Mr. Stone away from that area and then continue our investigation.
RP at 16.