State v. Knighten , 109 Wash. 2d 896 ( 1988 )

Pearson, C.J.

(dissenting) — I dissent. Deputy Evans did not have probable cause to arrest Mr. Knighten at the time he stopped the vehicle. The stop was clearly beyond the scope of a Terry stop. Admission of the tainted evidence was not harmless error.

Deputy Evans did not believe he had probable cause to arrest the defendant when he ordered the two passengers from the truck. The prosecution still concedes at the time of this appeal that probable cause did not exist to arrest Mr. Knighten upon his initial detention. The trial judge concluded that the stop was an investigatory stop. The Court of Appeals held the officers lacked probable cause to arrest when the stop was made. This court for the first time concludes that probable cause existed. In an unpublished opinion, the Court of Appeals held, "When Mr. Fehr and Mr. Knighten were stopped, Deputy Evans knew only that Mr. Knighten's vehicle had been ditched, and that he had been operating the vehicle the previous evening. There was no indication he had been driving the vehicle when the accident occurred." (Italics mine.) State v. Knighten, noted at 44 Wn. App. 1017 (1986). The majority now finds Deputy Evans had knowledge that Mr. Knighten was driving at the time of the accident. The record simply does not support this finding of fact. The prosecution proffered a finding (based on testimony at the suppression hearing) which read, "Deputy Evans was advised that Leslie Scott Knigh-ten had been driving the car at the time of the fatal accident." However, the trial court struck the portion of the finding that read, "at the time of the fatal accident." Clerk's Papers, at 24 (finding of fact 2). This court should not ignore the trial court's unchallenged findings of fact to make its own factual determinations. Credibility is within the discretion of the trial judge. State v. Alferez, 37 Wn. App. 508, 510, 681 P.2d 859 (1984). Therefore, the Court of Appeals was correct that just prior to the initial stop the officer did not have knowledge that defendant was driving at the time of the accident. It is not the province of this court to evaluate the record to make factual determinations in the face of unchallenged findings by the trial court. The State made no assignment of error in regard to this finding. An unchallenged finding of fact is accepted as a verity on appeal. Metropolitan Park Dist. v. Griffith, 106 Wn.2d 425, 433, 723 P.2d 1093 (1986). In light of the trial court's findings of fact, the majority is wrong when it finds probable cause based on the officer's knowledge that defendant was driving the car at the time of the accident. The majority's statement of facts also states, "There were indications that Knighten had tried to get the car out of the ditch before the tow truck came, that when he was unsuccessful he had borrowed a 4-wheel drive vehicle to do this, and that when he returned to the scene the car had been removed." Majority opinion, at 897. However, the arresting officer did not have this information prior to stopping Mr. Knighten. Report of Proceedings, at 8-11; Clerk's Papers, at 24 (finding of fact 2). Of course, only the facts known to the officer at the time of the detention are relevant to the Fourth Amendment issues of the lawfulness of an arrest or a Terry stop.

The arresting officer, the prosecutor, the trial court and the Court of Appeals were correct that there was no probable cause to arrest at the time the vehicle was stopped.

The majority recognizes that the State conceded no probable cause to arrest existed at the time Mr. Knighten was detained. The State's brief in this court still concedes that fact. The majority, however, relying on dubious precedent, concludes that this court may ignore that concession. Certainly a criminal defendant should have the opportunity to argue what is the determinative constitutional issue in his case. Here, the prosecution's concession that there was no probable cause to arrest may have led the defendant into believing he would not have to persuade the court on this issue. A defendant faced with such a concession may focus his arguments on other questions. Here, defendant focused his arguments on the fact that his detention exceeded the scope of a Terry stop. If a prosecutor concedes one constitutional issue, the defendant is led to believe he needn't investigate nor fully argue that point. If later this court ignores such a concession and without even requesting additional briefing determines the entire case on that issue, then the defendant has not received a fair opportunity to present his arguments to this court. RAP 12.1 sets forth a procedure for this court to request additional briefing:

(a) . . . Except as provided in section (b), the appellate court will decide a case only on the basis of issues set forth by the parties in their briefs.

(b) ... If the appellate court concludes that an issue which is not set forth in the briefs should be considered to properly decide a case, the court may notify the parties and give them an opportunity to present written argument on the issue raised by the court.

Because the briefs do not sufficiently address the issue of probable cause to arrest at the time of the initial stop, and because the State's brief concedes that probable cause to arrest defendant did not exist upon his initial detention, I would at least give the parties the opportunity to brief the issue.

The State argues that although the officers lacked probable cause when they stopped Mr. Fehr's vehicle, at some time during that stop probable cause was established. The flaw in this argument is that the stop had already exceeded the proper scope of a Terry stop when the officers obtained enough information to constitute probable cause. Mr. Knighten was handcuffed and locked in a police vehicle before the officers obtained information from Mr. Fehr which the State argues established probable cause to arrest. This court answered this very argument in State v. Williams, 102 Wn.2d 733, 742, 689 P.2d 1065 (1984) when it stated:

The Court of Appeals also recognized that at some point the police actions constituted an arrest, but concluded that this took place after the police acquired sufficient evidence for probable cause to make an arrest. We disagree. As evident from the facts recited above, from the outset of this police/citizen encounter, the police actions exceeded those permitted under Terry. Since, as respondent admits, no probable cause existed when petitioner was first detained, the detention was illegal. As the evidence admitted in petitioner's trial was a fruit of this illegal detention, it must be suppressed. See State v. White, 97 Wn.2d 92, 101, 640 P.2d 1061 (1982).

The Court of Appeals correctly held that defendant's detention exceeded the permissible scope of a Terry stop and defendant's confessions should have been suppressed. In upholding the conviction based on a finding of probable cause, the majority also impliedly recognizes that the stop of Mr. Knighten was beyond the proper scope of a Terry stop. Although the officers were justified in stopping Mr. Knighten, based on a reasonable suspicion he had left the scene of a fatal accident, see RCW 46.52.020, they were not justified in the intrusive measures employed. The scope of a Terry stop, or the extent of the intrusion, must be reasonable in light of the particular facts known to the police at the time of the stop. See State v. Williams, supra; see also State v. Wheeler, 108 Wn.2d 230, 235, 737 P.2d 1005 (1987). The investigative methods used by the police must be the least intrusive means reasonably available to verify or dispel the officers' suspicions in a short period of time. Williams, at 738 (citing Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983)). The degree of this intrusion must be appropriate to the type of crime under investigation and to the probable dangerousness of the suspect. Wheeler, at 235 (citing Williams, at 740). In this case police had no reason to believe defendant might be armed. Although a death was involved, there was no basis for believing the death was caused by an intentional act or that any intentional violent crime was involved. Cf. United States v. Hensley, 469 U.S. 221, 83 L. Ed. 2d 604, 105 S. Ct. 675 (1985) (officers drawing guns when stopping armed robbery suspect). The officers believed they were investigating a traffic fatality. In addition, they were aware of defendant's identity, and they knew he was a local resident. They had no reason to believe he would immediately flee the jurisdiction. In the absence of any exigencies which might justify their response, the police acted improperly first in ordering defendant to kneel on the pavement and then in handcuffing and secluding him in the police vehicle. Cf. State v. Wheeler, supra (officers handcuffing unknown suspect believed to be involved in burglary).

The Court of Appeals correctly concluded defendant's confessions should have been suppressed as fruits of the unlawful stop. See Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979); Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975). The fact that Miranda warnings were administered prior to the confessions did not immunize the confessions from the taint of the Fourth Amendment violation; the warnings primarily served to protect only against a Fifth Amendment violation. See Brown, at 601-03. Courts admittedly may take Miranda warnings into account in deciding whether confessions are '"sufficiently an act of free will to purge the primary taint" of an illegal seizure. Brown, at 602 (quoting Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963)). But a court must find more than mere voluntariness to rid a confession of the taint of illegality. Factors to be considered in determining whether a sufficient break has occurred between a Fourth Amendment injury and a confession include the "temporal proximity of the arrest and the confession, the presence of intervening circumstances . . . and . . . the purpose and flagrancy of the official misconduct". (Footnotes omitted.) Brown, at 603-04. In this case, defendant's first confession occurred within a few minutes of his detention, while he remained handcuffed and secluded in the patrol car; the confession was a direct and immediate consequence of the constitutional violation. The second confession, though a number of hours later, resulted from no significant intervening event. Defendant remained in custody throughout the entire interval, including during his trip to the hospital. This was not a situation where a suspect is released from custody and voluntarily returns to give a statement, or where a suspect speaks with his attorney prior to giving the statement.

After the Court of Appeals concluded there was no probable cause to arrest, and that the detention exceeded the permissible scope of a Terry stop, it examined whether the trial court's failure to suppress defendant's confessions was prejudicial. The court concluded that the independent evidence of defendant's guilt was overwhelming, and as a consequence the trial court's error was harmless. It is this portion of the Court of Appeals ruling that defendant challenges.

A constitutional error is harmless only when "the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error." (Italics mine.) State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). The court must weigh only untainted evidence, and it may find the error harmless only when the untainted evidence "is so overwhelming that it necessarily leads to a finding of guilt." (Italics mine.) Guloy, at 426.

Assuming for the moment that defendant's confessions comprised the only tainted evidence, we cannot agree that the remaining evidence would have necessitated a finding of guilt of vehicular homicide.

Defendant's confessions indicated he had made too wide a turn at the intersection where the collision occurred. This fact went to the issue of proximate cause. The defense's theory of the case was that the victim's negligence, and not any act of Mr. Knighten, proximately caused the accident. In support of this theory, two defense witnesses testified that shortly before the accident they had seen the victim riding his bicycle and wearing dark clothing with a fur-fringed coat hood drawn tightly around his face and that the victim's bicycle had no lights or reflectors. The defense also produced an engineering consultant who testified that in his opinion the collision could have occurred in the middle of the road. There was testimony the speed limit on that road was 50 m.p.h. The State's evidence of proximate cause consisted only of the expert testimony of Deputy Evans, who stated that in his opinion the collision had to have occurred in the gravel turnout.

In the absence of defendant's admission that he took the turn too wide, we cannot characterize the State's evidence of proximate cause as overwhelming. The jury was entitled to believe Deputy Evans, and it had sufficient evidence to decide defendant proximately caused the collision. However, although there was sufficient evidence from which a jury could conclude defendant was guilty beyond a reasonable doubt, we cannot say a jury necessarily would so conclude. See Guloy, at 426. "Constitutional error is presumed to be prejudicial and the State bears the burden of proving that the error was harmless." Guloy, at 425. Defendant's conviction therefore should be reversed.

Even if Mr. Knighten's confession was believed not to be prejudicial, any decision the error was harmless would have been premature. Mr. Knighten contends the taint of the unlawful stop extended past his confessions and encompassed other evidence. According to defendant, information in his confessions led the police to question several persons who later testified for the State. Defendant argues this testimony, which was relevant to his intoxication, also should have been suppressed.

The issue of the exclusion of witness testimony deriving from a Fourth Amendment violation of a defendant's rights has been examined by other courts. See, e.g., United States v. Ceccolini, 435 U.S. 268, 55 L. Ed. 2d 268, 98 S. Ct. 1054 (1978). Arguably, witness testimony, like confessions, must manifest a sufficient break from the Fourth Amendment violation to be admissible. However, this issue was not considered below, and any review must await consideration and findings of fact by a trial court.

Because there was no probable cause to arrest and the stop exceeded the permissible scope of a Terry stop, and because there was not overwhelming evidence of defendant's guilt of vehicular homicide, the erroneous admission of his confessions was prejudicial error.

Utter, Dolliver, and Dore, JJ., concur with Pearson, C.J.

Reconsideration denied March 31, 1988.