State v. Larson , 93 Wash. 2d 638 ( 1980 )

Williams, J.

Petitioner Louanne Larson was charged in three counts with forgery, possession of a controlled substance, and possession of marijuana. At a pretrial hearing the trial court granted her motion to suppress the evidence and entered an order dismissing the case. The State appealed, and the Court of Appeals reversed holding that the investigative stop and questioning by the police were proper and the evidence obtained thereby was admissible at the trial. We reverse the Court of Appeals.

The facts giving rise to this appeal are as follows:

In the early morning hours of March 2, 1977, police officers Roberts and Johnson were on routine patrol on "G" Street, which borders Wright Park in the city of Tacoma. It was approximately 3 a.m., a time when use of the park was prohibited. As they proceeded in a southerly direction, they noticed a Volkswagen (VW) stopped on the west side of the street next to the park. Their attention was directed to the car because it was more than 1 foot from the curb in violation of a city parking ordinance, and it was the only car on that side of the street. The officers were aware that in the past several burglaries had been committed in the neighborhood, the most recent being 3 weeks previously, and they considered it a high crime area. They thought it unusual that the car would be parked on that side if its occupants intended to visit someone in the apartments located across the street. Accordingly, they decided to question the persons in the car to find out who they were and why they were sitting in an illegally parked car next to a closed park at 3 o'clock in the morning.

As the police officers drove up behind the VW, the driver started the car and began to pull away, but stopped when the officers flashed the blue emergency light.

Officer Johnson approached the car on the driver's side while Officer Roberts approached on the passenger's side. Petitioner was a passenger in the front seat. Officer Roberts asked her for identification while Officer Johnson asked the two male occupants in the car for their identification. In order to comply with the officer's request, petitioner opened her purse and reached into it to get her wallet. As she did so, Officer Roberts shone his flashlight into the purse. He testified this was done in order to make sure she was not reaching for a weapon. The light revealed a small plastic bag containing what appeared to be marijuana in her purse. After she produced her identification, the officer ordered her out of the car, visually checked her outer clothing for weapons, required her to give him the marijuana, and placed her under arrest for possession of marijuana.

Meanwhile, the two male occupants of the car produced their identification, and Officer Johnson radioed for a check on them. Officer Roberts then searched the car, including the trunk, for narcotics, but discovered none. The officers learned from the radio check that the two male occupants of the car were not wanted by the police, so they were released. A search of petitioner's purse yielded evidence of the crimes of forgery, possession of phendimetrazine, a controlled substance, and possession of marijuana. Petitioner was subsequently charged by information with each of these crimes.

Petitioner moved to suppress all the evidence seized from her purse and certain incriminating statements on the ground that the investigative stop, the request for identification, and the seizure of marijuana, which was the basis for the arrest and search of her purse, violated her Fourth Amendment right to protection against unreasonable search and seizure.

The trial judge granted petitioner's motion to suppress, and in doing so concluded:

[T]he search of [petitioner] was unlawful because there was no well-founded suspicion for the officers to stop the vehicle in question, and there was no well-founded suspicion for the officers to search the contents of [petitioner's] purse or to require her to produce her identification.

The State appealed, and the Court of Appeals unanimously reversed. State v. Larson, 21 Wn. App. 506, 587 P.2d 171 (1978).

The State contends that the automobile stop was proper for two reasons: (1) because it was parked illegally late at night in a high crime area next to a closed park; and (2) because the driver began to pull away as the officers approached. It then concludes that since the stop was lawful, the officers properly asked the petitioner, a passenger in the vehicle, to provide identification. We disagree.

The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U. S. 721 [22 L. Ed. 2d 676, 89 S. Ct. 1394] (1969); Terry v. Ohio, 392 U. S. 1, 16-19 [20 L. Ed. 2d 889, 88 S. Ct. 1868] (1968). "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person," id., at 16, and the Fourth Amendment requires that the seizure be "reasonable."

United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975). See Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979). This rule applies to the stopping of an automobile and the detention of its occupants. Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). The present case poses the question of whether it was reasonable under the circumstances for police to stop the vehicle in which petitioner was a passenger and to demand that she provide identification.

Where the driver of an automobile commits a traffic offense, the stopping of the automobile and detention of the driver in order to check his driver's license and automobile registration are not unreasonable under the Fourth Amendment. Delaware v. Prouse, 440 U.S. at 663, 99 S. Ct. at 1401. The record indicates that the police believed the automobile in this case was improperly parked when they first noticed it. Assuming arguendo that a parking violation can be characterized as a traffic offense, as contemplated in Prouse, then the police officers would have acted properly in stopping the car and questioning the driver on the ground that it had been illegally parked.¹ However, a stop based on a parking violation committed by the driver does not reasonably provide an officer with grounds to require identification of individuals in the car other than the driver, unless other circumstances give the policé independent cause to question passengers. To hold otherwise would restrict the Fourth Amendment rights of passengers beyond the perimeters of existing case law.

Since in our opinion the parking violation served as a basis for stopping and questioning the driver only, the court must examine the grounds for the stop independently of the ground that the car was illegally parked and determine whether those grounds provide a sufficient basis for stopping the car and asking passengers for identification. Apart from the parking violation, the remaining grounds asserted for the stop were that the car was parked in a high crime area near a closed park late at night and that it started to pull away as the police car approached. Nothing in the record indicates that the persons in the car acted in a suspicious manner; indeed, the officers apparently neither asked what they were doing nor gave them a chance to say what they were doing before identification was demanded. Moreover, the officers had received no report of criminal activity in the area that night. In fact, according to the testimony of one of the officers, the last such report had been some 3 weeks earlier. They likewise had no indication the occupants had been cruising the area in contemplation of a criminal act or that the car had been stopped in the street other than momentarily.² Thus, as far as the officers knew, the car could have been stopped there only long enough to discharge a passenger or for any other of many legitimate reasons.

By the officers' own testimony, the decision to stop the car was made when it was first observed and before the officers approached it and flashed the blue light. Thus, the fact that thereafter the driver started the car and began to drive away had no part in the decision to stop it. In any event, the driver did not attempt to elude the police but stopped immediately when the light was flashed.

When considered in totality, therefore, the circumstances known to the officers at the time they decided to stop the car did not give rise to a reasonable and articulable suspicion that the occupants were engaged or had engaged in criminal conduct, Brown v. Texas, supra, but at best amounted to nothing more substantial than an inarticulate hunch. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). This does not meet the constitutional criteria of reasonableness for stopping a vehicle and questioning its occupants.

In Brown v. Texas, supra, the United States Supreme Court sheds light on the limits of "reasonableness" in the context of the situation where a police officer stops an individual and requires that the individual provide identification on the ground that the officer suspects the individual is engaged in criminal activity. In Brown, the court set aside a conviction for refusing to comply with a policeman's demand that defendant identify himself pursuant to a Texas statute making it a crime to refuse such identification on request. Texas Penal Code Ann. § 38.02 (Vernon 1974). Two officers observed Brown and another individual walk away from each other in an alley in an area of El Paso noted for a high incidence of drug traffic. Both officers believed the two men had been together or were about to meet until the patrol car appeared. An officer stopped Brown because the situation "'looked suspicious and we had never seen that subject in that area before.'" Brown v. Texas, 443 U.S. at 49, 99 S. Ct. at 2639. However, the officers did not claim to suspect Brown of any specific misconduct.

The court in Brown recognized that

in some circumstances an officer may detain a suspect briefly for questioning although he does not have "probable cause" to believe that the suspect is involved in criminal activity, as is required for a traditional arrest. United States v. Brignoni-Ponce, supra, at 880-881; See Terry v. Ohio, supra at 25-26. However, we have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. Delaware v. Prouse, supra, at 663; United States v. Brignoni-Ponce, supra, at 882-883; see also Lanzetta v. New Jersey, 306 U.S. 451 [83 L. Ed. 888, 59 S. Ct. 618] (1939).

Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 99 S. Ct. 2637, 2641 (1979).

Viewing the facts leading up to the stopping of Brown, the court held that the application of the statute to detain Brown violated the Fourth Amendment "because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct." (Footnote omitted.) Brown v. Texas, 443 U.S. at 53, 99 S. Ct. at 2641. See Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979).

Although Brown does not tell us what constitutes a reasonable suspicion sufficient to justify stopping an individual, it does indicate a set of facts that do not meet the constitutional test for detaining an individual.

The facts of the present case fall within the pattern of Brown. Like the suspect in that case, a major cause for suspecting the present petitioner of criminal conduct lay in the fact that petitioner was located in what the police described as a high crime area. It is beyond dispute that many members of our society live, work, and spend their waking hours in high crime areas, a description that can be applied to parts of many of our cities. That does not automatically make those individuals proper subjects for criminal investigation. Further, as in Brown, the officers in this case did not claim to suspect the individuals in the car of any specific misconduct, excluding a possible parking violation on the part of the driver. Finally, as the decision in Brown indicates, a suspect's leaving at the time that a police cruiser arrives does not necessarily lead to the conclusion that it is reasonable to suspect that person of a crime.

Accordingly, we believe that the police officer who detained the petitioner for the purpose of requiring her to identify herself did so in violation of the fourth amendment to the United States Constitution and Const. art. 1, § 7, because none of the circumstances preceding the officer's detention of petitioner justified a reasonable suspicion that she was involved in criminal conduct. Brown v. Texas, supra. Indeed, it appears that she was detained because of her presence in a particular location, even though she had a lawful right to be there, rather than because of any suspicious conduct. We agree with the trial judge that police officers should be encouraged to investigate suspicious situations, but they must not do so without proper legal foundation.

Since we hold that the initial stop was improper, all evidence seized as a result of that stop must be suppressed. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); State v. Woods, 3 Wn. App. 420, 475 P.2d 573 (1970).

The Court of Appeals is reversed, and the judgment of the trial court is reinstated.

Rosellini, Wright, Brachtenbach, Dolliver, and Hicks, JJ., concur.

1 In actuality, neither of the officers questioned the driver of the vehicle about the parking violation. Although an officer stated at the suppression hearing that the vehicle in which petitioner sat was unlawfully parked, i.e., "over a foot away from the curb," the officer indicated that it was not his purpose to issue the drivér or passengers a citation for this infraction. One would question whether this "traffic violation" played any role at all in the officers' decision to stop and question the passengers in the car.

There are other similar inconsistencies in the record which lead one to question the officers' motives at the time of the stop. Undisputed testimony at the suppression hearing indicates that the officer who demanded identification from the petitioner treated her rudely and made comments to the effect that she was a prostitute or a streetwalker. It is curious that the officer who conceded that he looked into petitioner's handbag to search for weapons did not remember making any further search of her person for weapons after her arrest or searching the two male suspects for weapons. Finally, one wonders what proper motive the officer had for searching the entire car, including the trunk, when the driver of the vehicle was neither searched nor considered a suspect in any crime other than improper parking.

2 The record does not indicate whether the VW lights were on or off.