STATE v. WITWICKI, 46778-6-I (Wash.App. 5-29-2001)

No. 46778-6-I.The Court of Appeals of Washington, Division One.
Filed: May 29, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of King County, Docket No: 008003058, Judgment or order under review, Date filed: 05/04/2000.

Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.

James R. Dixon, Nielsen Broman Assoc. Pllc, 810 3rd Ave Ste 320, 320 Central Building, Seattle, WA 98104.

Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

Daniel J. Clark, King County Courthouse, 516 3rd Ave Rm W554, Seattle, WA 98104.

WALTER E. WEBSTER, J.

A high school principal called the police after parents and students reported Maciej Witwicki’s alleged involvement with drugs. After an officer arrived at the school in response, the officer learned from a dispatcher that an outstanding warrant existed for Witwicki’s arrest. With the principal’s assistance in pointing out Witwicki at school, the officer stopped him, citing the arrest warrant and allegations of drug activity. When the officer asked him if he had any weapons, Witwicki revealed his knife and later (after arrest) a taser gun.

A trial court commissioner found Witwicki guilty of carrying dangerous weapons at school. Witwicki appeals arguing that the officer seized the knife and taser gun illegally. We affirm because the officer had the requisite reasonable suspicion to conduct an investigatory stop.

FACTS
Edward John Marcoe, principal of Tiger Mountain High School, received a phone call from a parent who said that Maciej (Matt) Witwicki had approached her daughter, a student, to sell liquid ecstasy. On two or three previous occasions, students had told Principal Marcoe that Witwicki had access to or possessed drugs. A couple of days after the parent’s phone call, Principal Marcoe called the police to relay the complaint that Witwicki had asked a student to sell drugs.

In response, Officer Scott Trial arrived at the school. Upon arrival, Officer Trial checked with the records department over his radio for prior contacts with Witwicki. The department indicated that there was an outstanding arrest warrant for truancy. After a short discussion, Principal Marcoe attempted to retrieve Witwicki from his first-period class that morning but Witwicki was not in class. Shortly after Principal Marcoe came back to his office, he noticed Witwicki’s mother drop him off in the parking lot and pointed out Witwicki to Officer Trial.

Officer Trial left the principal’s office and stopped Witwicki, stating that there was a warrant for his arrest for truancy. According to Officer Trial, Witwicki looked surprised about the warrant. Officer Trial also said that he needed to talk with him about some allegations of drug activity. He then asked Witwicki to remove his hands from his pockets and inquired as to whether he had any weapons in his possession.[1]
Witwicki replied that he had a knife in his pocket. Officer Trial took the knife, a butterfly knife consisting of a five-inch blade, and placed Witwicki under arrest for carrying a dangerous weapon on school property. After arresting Witwicki, Officer Trial asked him if he had any other weapons. Witwicki stated that he also had a taser gun. Officer Trial confiscated the taser gun, advised Witwicki of his Miranda[2]
rights and obtained a written statement. At some point, Officer Trial also discovered some black plastic garbage bags and rubber gloves on Witwicki. Both parties acknowledge that the arrest warrant for truancy was cleared long before that day. The Department of Youth Service Detention Center, however, failed to notify the police that Witwicki turned himself in on the warrant. Consequently, the police still had the warrant marked as outstanding in its computer records.

The State charged Witwicki with one count of carrying dangerous weapons on school property. Witwicki brought a motion to suppress the knife and taser gun. The trial court denied the motion and found Witwicki guilty as charged. The court imposed a sentence of 15 days electronic home monitoring. Witwicki appeals.

DISCUSSION
I. Findings of Fact Witwicki first argues that substantial evidence does not support Finding of Fact 1.1.1:

That Ed Marko [sic], Principal of Tiger Mountain School did receive reports on three or more occasions between October and November of 1999 from Tiger Mountain School students known to him that Maciej Witwicki, a Tiger Mountain student known to Ed Marko, was involved with either selling or possessing drugs on campus.

Clerk’s Papers at 20-21 (emphasis added).

The State concedes that Principal Marcoe received reports from students only two or three times. If substantial evidence does not support the trial court’s determination of facts, those facts will not be binding on appeal. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Indeed, according to the trial testimony of Principal Marcoe, he received reports from students on only two or three occasions. These students shared information that Witwicki possessed marijuana or drugs, in general, and had access to drugs. Although he used the words `interactions were happening on campus with other students,’ that does not necessarily mean that Witwicki was selling drugs on campus. Substantial evidence does not support the findings that Principal Marcoe received student reports `on three or more occasions’ or that he sold drugs on campus.

Next, Witwicki contends that Findings of Facts 1.1.17 and 1.1.19 are conclusions of law that an appellate court reviews de novo. The State has no response. An appellate court will review de novo any conclusions of law incorrectly labeled as findings of fact. State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981).

Finding of Fact 1.1.17 essentially states that Officer Trial had legal authority to conduct a frisk for weapons: `That at the time that Officer Trial requested whether Maciej Witwicki possessed any weapons, Officer Trial would have been justified in frisking Maciej Witwicki.’ CP at 22.

Finding of Fact 1.1.19 expresses a related statement: `That the inquiry as to whether Maciej Witwicki had any weapons on his person was less intrusive than a frisk.’ CP at 22.

Because the above findings determined that the officer had legal authority to frisk or ask Witwicki whether he had weapons, we find that they are actually conclusions of law treated de novo on appeal. We discuss the propriety of the question below.

II. Seizure
Witwicki argues that Officer Trial did not have grounds to seize him as he walked onto the school campus. The State maintains that the initial encounter between Officer Trial and Witwicki did not constitute a seizure. According to Finding of Fact 1.1.13, Witwicki was not free to go when asked whether he had any weapons. Witwicki contends that the State invited this finding in admitting at trial there was a Terry[3] stop and that this finding supports the trial court’s conclusion that a seizure occurred. On the contrary, no conclusion of law specifies exactly when a seizure took place. Whether a police encounter is a seizure is a mixed question of law and fact. State v. Barnes, 96 Wn. App. 217, 222, 978 P.2d 1131 (1999). Although we accord deference to the trial court’s findings of facts, whether those facts constitute a seizure is a legal determination that we review de novo. Barnes, 96 Wn. App. at 222. We determine when a seizure first occurred. State v. Armenta, 134 Wn.2d 1, 10, 948 P.2d 1280 (1997). An encounter between a police officer and a person constitutes a seizure when, under the particular objective facts and circumstances surrounding the incident, a reasonable person would not have felt free to leave or otherwise terminate the encounter. Armenta, 134 Wn.2d at 10-11. A simple request for identification, without more, does not constitute a seizure. Armenta, 134 Wn.2d at 12. This Court has found that an officer’s request that a person remove his hands from his pockets while he voluntarily answered questions was not a seizure. State v. Nettles, 70 Wn. App. 706, 712, 855 P.2d 699 (1993). On the other hand, a command by an officer to `[w]ait right here’ while he conducts a warrant check is a seizure. State v. Ellwood, 52 Wn. App. 70, 73-74, 757 P.2d 547 (1988).

In Barnes, an officer approached Barnes (whom he had arrested 10 to 20 times before) and told him that he believed there was an outstanding warrant for his arrest. Barnes, 96 Wn. App. at 219. When Barnes replied that the warrant had been cleared, the officer asked Barnes to wait while he checked on the warrant. Barnes, 96 Wn. App. at 219. The Court of Appeals stated that once the officer communicated his belief that lawful grounds existed to detain Barnes, the encounter was no longer consensual. Barnes, 96 Wn. App. at 223. Because the officer had arrested Barnes many times before, informed Barnes that he believed an arrest warrant existed, and asked him to wait while he checked, a reasonable person under those circumstances would not have felt free to leave. Barnes, 96 Wn. App. at 223-24. Here, as soon as Officer Trial stopped Witwicki he told him there was a warrant for his arrest for truancy in addition to allegations of drug activity. As in Barnes, the encounter was not consensual from the beginning. Under these circumstances, a reasonable person would not feel free to leave or otherwise terminate the encounter upon hearing about an arrest warrant. We find that the encounter constituted a seizure once Officer Trial announced that there was an outstanding warrant for Witwicki’s arrest.

III. Predicate for Investigatory Stop
As Officer Trial and Witwicki later learned, there was no outstanding arrest warrant. The Department of Youth Services Detention Center failed to notify the police that Witwicki turned himself in on the warrant. In seizing Witwicki, Officer Trial relied in part on an invalid warrant. The trial court, however, concluded that Officer Trial made a valid Terry stop to question him about drug use and transactions on campus. A police officer may conduct an investigative Terry stop if he has a reasonable suspicion, based on `specific and articulable facts’ and rational inferences from those facts, that there is a substantial possibility that criminal activity has occurred or is about to occur. State v. Hart, 66 Wn. App. 1, 5, 830 P.2d 696 (1992).

Reasonableness depends on the totality of the circumstances known to the officer. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). Witwicki argues that Officer Trial did not have the reasonable suspicion necessary to make such a Terry stop. The State contends that the reports of drug activity and the record of the arrest warrant created reasonable suspicion. Reports from an informant may provide the necessary reasonable suspicion for police to conduct a Terry stop only if there is sufficient `indicia of reliability’ in the informant’s tip. State v. Sieler, 95 Wn.2d 43, 47, 621 P.2d 1272 (1980). To possess sufficient indicia of reliability, (1) the informant must be reliable and (2) the informant’s tip must contain enough objective facts to justify detention of the suspect. Hart, 66 Wn. App. at 6-7. If the informant’s tip fails either prong, the police must independently corroborate the noninnocuous details of the tip to establish its reliability. State v. Jackson, 102 Wn.2d 432, 437-38, 688 P.2d 136 (1984); Hart, 66 Wn. App. at 6-7.

In Sieler, a parent who believed that he observed a drug sale in another car while waiting for his son in a school parking lot informed the school secretary by telephone of his conclusion. Sieler, 95 Wn.2d at 44-45. He described the car to the secretary as a black-over-gold Dodge and gave her a license plate number in addition to his own telephone number and last name. Sieler, 95 Wn.2d at 45. The secretary called the police and relayed the information given to her by the parent. Sieler, 95 Wn.2d at 45. The Washington Supreme Court noted how the investigating officer radioed for more information before arriving at the school but was unable to obtain anything beyond what the secretary had said. Sieler, 95 Wn.2d at 45. When he and another officer arrived, the school vice-principal told them that he had talked to the four occupants in the car, two being students, and had not observed any contraband or any suspicious activity. Sieler, 95 Wn.2d at 45.[4]

According to the Washington Supreme Court, the facts given to the officers by the secretary were not sufficient to establish the reliability of the informant parent because a named but unknown telephone informant is not much different from an anonymous telephone informant. Sieler, 95 Wn.2d at 48. The Court did not discuss whether the telephone number given by the parent to the secretary could have cured this deficiency. In any case, the Court decided that even if the facts established the reliability of the informant, the informant’s tip itself did not contain sufficient objective facts to justify detention. Sieler, 95 Wn.2d at 49. Furthermore, the police did not observe any conduct that corroborated the tip before approaching the car. Sieler, 95 Wn.2d at 49-50.

A. Reliability of the Parent
Distinguishing Sieler, this Court has held that an unnamed informant is inherently reliable when she reports a specific crime, not just suspicious activity. State v. Conner, 58 Wn. App. 90, 791 P.2d 261
(1990). The problem with this distinction is that the informant in Sieler actually reported a specific crime — a drug sale. Sieler, 95 Wn.2d at 44. Nonetheless, Washington courts have consistently presumed that citizen informants — as opposed to professional informants — are inherently reliable when police have some information about the informant beyond that given in Sieler. See, e.g., State v. Garcia, 125 Wn.2d 239, 242, 883 P.2d 1369 (1994) (per curium) (citizen informant had previously given police reliable information leading to an arrest); State v. Wakeley, 29 Wn. App. 238, 241, 628 P.2d 835 (1981) (citizen informants were reliable because they gave police their names, address, phone number and other background information, such as occupation). See generally 2 Wayne R. LaFave, Search Seizure § 3.4 at 204-224 (3d ed., 1996). In Sieler, the officers essentially knew nothing about the informant except his name and that he witnessed a possible drug sale. Sieler, 95 Wn.2d at 45. Here, Officer Trial gathered from Principal Marcoe that a parent had called alleging that Witwicki had asked her daughter to sell liquid ecstasy. He understood that Principal Marcoe knew the parent and that her daughter attended Tiger Mountain High School. We find that this information is sufficient to establish the reliability of a citizen informant.

B. Reliability of the Parent’s Tip
An informant’s tip that contains specific details about the commission of a crime, even if hearsay, may establish the basis of the informant’s knowledge as reliable. Conner, 58 Wn. App. at 96-97; Justice Charles W. Johnson, Survey of Washington Search and Seizure Law: 1998 Update, 22 Seattle U. L. Rev. 337, 389 (1998) (citing State v. Huft, 106 Wn.2d 206, 211, 720 P.2d 838 (1986); Jackson, 102 Wn.2d at 437-38). In Conner, this Court found a sufficient factual basis when the informant was able to relay a detailed description of the suspect, the time of the crime, along with the victim’s identity and location. Conner, 58 Wn. App. at 97. Conversely, this Court has held that it was not sufficient when police talked to an informant looking to purchase marijuana who said that someone told him that a drug dealer was riding a motorcycle in the area. Hart, 66 Wn. App. at 8-9. And, in Sieler, where the parent claimed to have witnessed a drug sale himself, the Washington Supreme Court decided that it was merely a bare conclusion with no underlying factual basis. Sieler, 95 Wn.2d at 48-49.

Here, the parent told Principal Marcoe that Witwicki asked her daughter to sell liquid ecstasy. She named the suspect, named a witness who she knows very well, and named the specific drug involved. There is a reasonable inference from these facts that the daughter told the parent about the incident. We find a sufficient factual basis to distinguish this case from Sieler and Hart, thereby ensuring reliability in the basis of the parent’s knowledge. Having found the informant and the basis of her knowledge reliable, we conclude that the Officer had a reasonable suspicion of drug activity to conduct a Terry stop.

C. Corroboration
Even assuming there was an insufficient factual basis upon which to rely on the parent’s tip, we conclude that the students’ reports to Principal Marcoe of Witwicki’s drug activity reasonably cured any deficiency. Generally, if an informant’s tip fails to satisfy either prong for ensuring an indicia of reliability, an independent police investigation must corroborate the tip sufficiently to cure the missing element. Jackson, 102 Wn.2d at 445. The State sets forth the student reports to Principal Marcoe as sufficient corroboration that Witwicki had access to drugs. Although this information does not technically qualify as independent police corroboration, we find that the reports from two or three students to Principal Marcoe constituted reasonable corroboration, considering he also received the parent’s tip. Officer Trial knew that these students attended Tiger Mountain High School and reported to Principal Marcoe that Witwicki either possessed drugs or had access to drugs. This is enough information to meet the relaxed standard for citizen informants. If the parent’s tip alone was insufficient, we conclude that the parent’s tip combined with the students’ reports created sufficient reasonable suspicion to justify the Terry stop. We do not consider whether the record of an arrest warrant established reasonable suspicion.

IV. Weapons Inquiry
Finally, Witwicki argues that Officer Trial did not have a reasonable suspicion that he was armed and dangerous to justify asking him whether he had any weapons. According to the State, asking the question did not constitute a pat-down search and therefore was within the scope of the Terry stop. Generally, to conduct a protective search for weapons, an officer must establish specific and articulable facts that create an objectively reasonable belief that the suspect is armed and dangerous. State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993). The situation here is distinguishable because the officer did not physically frisk Witwicki by placing his hands on him or otherwise control him in a coercive manner.

We determine whether an officer exceeded the scope of investigatory stop by considering (1) the purpose of the stop, (2) the length of time of the seizure and (3) the amount of physical intrusion on the suspect’s liberty. State v. Cole, 73 Wn. App. 844, 850, 871 P.2d 656 (1994). Here, the purpose of the stop was to question Witwicki about allegations of drug activity. Upon explaining the purpose of the stop to Witwicki, Officer Trial immediately asked him whether he had any weapons. The question itself imposed no physical intrusion upon liberty. Granted, this Court has held that a demand by a school official to a student to empty his pockets constitutes a search. State v. B.A.S., 103 Wn. App. 549, 13 P.3d 244 (2000). Yet, we hold under these facts that a mere inquiry by an officer as to whether a student has any weapons does not constitute a search unless other factors establish a coercive manner. Cf. State v. Thorn, 129 Wn.2d 347, 353-54, 917 P.2d 108 (1996) (inquiry as to drug paraphernalia did not constitute a seizure). Here, there were no such coercive factors present. Officer Trial did not place his hands on Witwicki when he asked the question the first time. Moreover, no facts establish an overbearing tone of voice. We conclude that the question was reasonable for safety purposes and did not intrude illegally upon Witwicki’s Fourth Amendment rights.[5]

CONCLUSION
We find that Officer Trial’s initial encounter with Witwicki constituted a seizure when he asserted that there was an outstanding warrant for Witwicki’s arrest. Although no such warrant existed, Officer Trial had a reasonable suspicion of drug activity to conduct an investigatory stop. Officer Trial reasonably relied on the parent’s tip because she was a citizen informant and there were sufficient underlying facts to justify her basis of knowledge. Finally, the inquiry into whether Witwicki possessed any weapons was not an illegal search because Officer Trial did not place his hands on Witwicki or otherwise act in a coercive manner.

We affirm.

WE CONCUR: COLEMAN, J., COX, J.