State v. Russell ( 2014 )

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IN CLERKS OFFICE
IUPREME COURT, STATE OF WASIII«m)N This opinion was filed for record
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, ) No. 89253-9
)
v. ) EnBanc
)
TANNER ZACHARY ROY RUSSELL, )
) Filed JUL 1 0 2014
--~==------------
Petitioner. )
_____________________________)
OWENS, J. -- In certain situations, a police officer may briefly frisk a person
to search for weapons that might pose a risk to officer and bystander safety. When
justified, these protective frisks do not violate the constitutional prohibition against
unreasonable invasions of individual privacy. In this case, we are asked to further
define the permissible scope of these protective frisks. An officer stopped Tanner
Zachary Roy Russell for violating several minor traffic laws. The officer recognized
Russell from a previous encounter where Russell had told officers he was not armed,
when in fact he had a small gun in his pocket. Fearing for his safety, the officer
frisked Russell for weapons and felt a small box in Russell's pants pocket. The
State v. Russell
No. 89253-9
officer removed the box, opened it, and found a syringe filled with methamphetamine.
We hold that the initial protective frisk was justified to protect officer safety, but the
warrantless search of the container was not because it exceeded the permissible scope
of a protective frisk.
FACTS
At 11:00 p.m. on September 5, 2011, Officer Derrick Makein was on patrol in
Centralia when he observed a person riding a bicycle without a headlight, in violation
of traffic laws. See RCW 46.61.780. Officer Makein saw the cyclist change into the
left lane and travel for several blocks in the direction of oncoming traffic, another
traffic violation. Officer Makein pulled the cyclist over at a nearby gas station.
After pulling the cyclist over, Officer Makein recognized him as Russell, a
passenger in a traffic stop that the officer made a week earlier. During the prior stop,
Officer Make in asked Russell if he had any weapons on him of any kind and Russell
said no. But during the course of the stop, another officer found a loaded .22 caliber,
derringer-style handgun in Russell's pocket. The gun was a very small and easily
concealable weapon meant for close-range shooting. The officers confiscated the gun
and issued Russell a citation.
Because of that previous encounter, Officer Makein feared that Russell might
have a weapon and decided to frisk him. He was especially suspicious because
Russell had lied about the gun during the previous stop and because the gun was so
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State v. Russell
No. 89253-9
concealable. During the frisk Officer Makein felt a small, hard container in Russell's
pants pocket. He testified that the container was approximately six inches long, four
inches wide, and "an inch or two" deep. Verbatim Report of Proceedings (VRP) at
18.
Officer Makein testified to what happened next:
A. . .. I know that box was not a gun, but based on how big the
box or that container was and the fact that he hid a very small caliber
weapon in his front pocket the previous contact, I still felt that I needed
to check what's in that box for my safety.
Q. Okay. So how did you go about doing that?
A. Once I felt that to make sure everything matches as far as how
big and remember how big the other weapon was, I asked him, What's
this. He says, It's a box. Do you mind if I take it out? He says, Okay.
Q. So you did ask him for consent to search the box?
A. (Witness nods head.)
Q. Did he appear to have any problem with that?
A. No.
Id. at 18-19. Based on that testimony, the trial court made a finding of fact that
Russell consented to the search of the container. Officer Makein opened the container
and found one syringe containing methamphetamine. Though he testified that he
performed the search to ensure that the box did not contain a gun, Officer Makein
admitted "that the syringe weighed only a fraction of what the pistol weighed."
Clerk's Papers at 75.
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No. 89253-9
The State charged Russell with possession of a controlled substance; the
syringe was the only evidence against him. Russell moved to suppress the evidence,
arguing that the search was unlawful, and the trial court granted his motion and
dismissed the case. The trial court found that although the initial stop was justified,
the frisk was not because the stop occurred in a well-lit area and Russell did not
verbally threaten the officer, nor did he make any threatening gestures or movements.
The court also found that even if the frisk was justified, the search of the container
was not because it posed no threat once it was in the control of the officer.
In a split, unpublished opinion, the Court of Appeals reversed the suppression
order and remanded the case for trial. State v. Russell, noted at 175 Wash. App. 1064,
2013 WL 3967169, at *7-9. The majority held that the initial protective frisk and the
subsequent removal and search of the container were reasonable. 2013 WL 3967169,
at *7-9. The dissent agreed that the initial frisk was reasonable but concluded that the
officer exceeded his authority when he searched the container. !d. at *11 (Quinn-
Brintnall, J., dissenting in part). We granted review. State v. Russell, 179 Wash. 2d
1001, 315 P.3d 530 (2013).
ISSUES
1. Was the officer's initial protective frisk justified by concerns of officer
safety?
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State v. Russell
No. 89253-9
2. Was the officer's warrantless search of the container discovered during the
search also justified by concerns of officer safety?
3. Was the search otherwise permissible because the petitioner validly
consented to it?
STANDARD OF REVIEW
When reviewing a trial court's ruling on a motion to suppress, we determine
whether substantial evidence supports the trial court's findings of fact and whether the
findings of fact support the trial court's conclusions of law. State v. Garvin, 166
Wash. 2d 242, 249, 207 P.3d 1266 (2009). "Evidence is substantial when it is enough
'to persuade a fair-minded person ofthe truth ofthe stated premise."' !d. (quoting
State v. Reid, 98 Wash. App. 152, 156, 988 P.2d 1038 (1999)). We review conclusions
oflaw de novo. !d.
ANALYSIS
1. The Initial Protective Frisk Was Justified
"As a general rule, warrantless searches and seizures are per se unreasonable, in
violation of the Fourth Amendment to the United States Constitution and article I,
section 7 of the Washington Constitution." 1 Id. There are several narrowly drawn
exceptions to that rule, and the State bears a heavy burden to prove by clear and
1
We analyze the issues presented in this case under the Washington Constitution because
article I, section 7 "grants greater protection to individual privacy rights than the Fourth
Amendment." State v. Harrington, 167 Wash. 2d 656, 663, 222 P.3d 92 (2009).
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No. 89253-9
convincing evidence that a warrantless search falls within one of those exceptions. !d.
at 249-50.
One exception to the warrant requirement is the so-called Terry stop and frisk
that was first articulated by the Supreme Court of the United States in Terry v. Ohio,
392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). It allows an officer to
conduct a limited pat-down of the outer clothing of a person in an attempt to discover
weapons that could cause harm. !d. at 30-31. A protective frisk is justified "when an
officer can point to 'specific and articulable facts' which create an objectively
reasonable belief that a suspect is 'armed and presently dangerous."' State v. Collins,
121 Wash. 2d 168, 173, 847 P.2d 919 (1993) (quoting Terry, 392 U.S. at 21-24). For
example, if an officer has information that an individual could have a gun, that
information, "when combined with other circumstances that contribute to a reasonable
safety concern, ... could lead a reasonably careful officer to believe that a protective
frisk should be conducted to protect his or her own safety and the safety of others."
!d. at 177. "[C]ourts are reluctant to substitute their judgment for that of police
officers in the field. 'A founded suspicion is all that is necessary, some basis from
which the court can determine that the detention was not arbitrary or harassing."'
State v. Belieu, 112 Wash. 2d 587, 601-02, 773 P.2d 46 (1989) (emphasis omitted)
(quoting Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966)).
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No. 89253-9
In this case, the stop and frisk was justified because Officer Makein could point
to specific and articulable facts that supported a belief that Russell could be armed and
dangerous. After legitimately stopping Russell for traffic violations, Officer Makein
immediately recognized him from a stop one week prior. At that prior encounter,
Russell denied having a weapon when he in fact possessed a small derringer-style
gun. Officer Makein testified that this specific and articulable fact made him fear for
his safety. In addition, the encounter was late at night and Officer Make in was the
only officer making the stop. These circumstances contribute to a reasonable safety
concern. Nothing about the initial stop and frisk was arbitrary or harassing. We hold
that the officer was justified in performing the initial protective frisk.
This case is similar to Collins, where this court upheld the warrantless stop and
frisk of a suspect whom the officer recognized from an encounter two months prior.
121 Wash. 2d at 177. During the previous encounter, the officer found "'a large amount
of either .38 or .357' ammunition, a holster, and a set of handcuffs" in the suspect's
truck. !d. at 171. That fact, along with the timing of the latter stop (it was at 4:00
a.m.) and the officer's knowledge that the suspect had a prior felony arrest, led the
court to conclude that the frisk was reasonable. !d. at 176-77.
The justification for the initial frisk is stronger in this case than in Collins.
First, the prior encounter occurred just one week before the stop in question rather
than two months. Second, the officer actually found a gun in the prior encounter
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No. 89253-9
rather than ammunition and a holster. Third, Russell lied about the gun in the prior
encounter while the suspect in Collins voluntarily revealed the ammunition. !d. at
171. Finally, Officer Make in was alone during the stop in question and therefore
more at risk than the officer in Collins, who made the stop with a partner. !d. at 170-
71. Thus, Collins supports our holding that the initial protective frisk did not violate
Russell's constitutional rights.
Russell argues that if the officer used the prior encounter to justify the frisk in
this case, then the State must prove the validity of the prior encounter or the frisk
would be unconstitutional as "fruit of the poisonous tree." 2 Pet'r's Suppl. Br. at 12.
We disagree. Russell cites no case holding that the "fruit of the poisonous tree"
doctrine applies to Terry frisks, and it would be absurd to hold that it does. The
purpose of Terry frisks is to protect officer and bystander safety. An officer need only
identify specific and articulable facts that create an objectively reasonable belief of
danger. We would undermine the purposes of Terry and create unjustifiable risks if
we hold that an officer in the field must ignore specific facts that indicate potential
danger. We reject Russell's "fruit of the poisonous tree" argument.
2Simply put, the "fruit of the poisonous tree" doctrine requires courts to exclude any
evidence obtained as a direct result of an unconstitutional search. State v. Eisfeldt, 163
Wash. 2d 628, 640, 185 P.3d 580 (2008) (citing Wong Sun v. United States, 371 U.S. 471,
487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)).
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No. 89253-9
2. The Warrantless Search of the Container Discovered during the Protective
Frisk Was Not Justified
The scope of a valid Terry frisk is limited to protective purposes. Garvin, 166
Wash. 2d at 250. The frisk must be brief and nonintrusive. Id. at 254. "If the officer
feels an item of questionable identity that has the size and density such that it might or
might not be a weapon, the officer may only take such action as is necessary to
examine such object." State v. Hudson, 124 Wash. 2d 107, 113, 874 P.2d 160 (1994).
"[O]nce it is ascertained that no weapon is involved, the goverrunent's limited
authority to invade the individual's right to be free of police intrusion is spent." State
v. Allen, 93 Wash. 2d 170, 173, 606 P.2d 1235 (1980).
The search of the container in this case violated Russell's constitutional right to
be free from police intrusion. The officer felt a small container, removed it, and then
opened it without a warrant. He admitted that the contents of the container weighed
only a fraction of what the pistol weighed. Therefore, we conclude that no reasonable
person could believe that the container housed a gun. At the point at which he
discovered that the container did not house a weapon, his authority to invade Russell's
privacy and search the container any further ended.
This case is similar to Allen, where this court held that the warrantless search of
a wallet found during a stop and frisk was unconstitutional. Id. The court determined
that once the officer discovered that the wallet was not a weapon, the permissible
scope of the frisk ended. !d. The Court of Appeals applied similar logic and held that
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State v. Russell
No. 89253-9
the warrantless search of a cigarette pack found during a Terry frisk was
unconstitutional in State v. Horton, 136 Wash. App. 29, 38-39, 146 P.3d 1227 (2006).
The court in Horton rejected the State's argument that the cigarette pack could have
contained a small weapon like a razor blade or another small, sharp object. Id. at 37-
3 8. The court feared that if it accepted the State's argument, the scope of the Terry
frisk would be "essentially unlimited, since the tiniest object can conceivably be used
offensively." Id. at 38.
These cases show that in Washington, warrantless searches of small containers
found during protective frisks are generally unconstitutional. The container itself was
not a weapon, and the officer had no authority to search through it after realizing that
it posed no threat. Furthermore, once the officer took control of the container the risk
of danger ended. He could have completed the encounter while holding onto the
container, thus eliminating any perceived danger.
The State argues that the search was justified because the officer had to return
the container at the end of the encounter. While it is true that the officer had to return
the container, it does not follow that the officer may always search it first. See State v.
Glossbrener, 146 Wash. 2d 670, 682, 49 P.3d 128 (2002) (holding that an officer
violated a detainee's rights when he performed a protective search of the passenger
compartment of the detainee's car after completing his investigation and "the only
thing left was for [the detainee] to leave"). Terry frisks are limited, external pat-
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State v. Russell
No. 89253-9
downs to ensure safety. Any further intrusion must end as soon as an officer
discovers that the suspect does not have a weapon. An officer may not search through
a detainee's personal effects under the unreasonable belief that they may contain a
weapon. We hold that the search of the container violated Russell's constitutional
rights.
3. The State Did Not Show That Russell Voluntarily Consented to the Search, and
Therefore His Supposed Consent Does Not Otherwise JustifY the Search
As mentioned above, the trial court found that Russell consented to the search
of the container in its findings of fact, and the State argues that therefore the search
was permissible. We disagree. The trial court's finding of consent is not supported
by the evidence and therefore cannot justify the search.
Police do not need a warrant for searches if they have valid consent. State v.
Ferrier, 136 Wash. 2d 103, 111, 960 P.2d 927 (1998). The State has the burden to show
that the consent was voluntarily given. State v. Bustamante-Davila, 138 Wash. 2d 964,
981, 983 P .2d 590 (1999). "Whether consent is freely given is a question of fact
dependent upon the totality of the circumstances." !d. A court considers several
factors, including "(1) whether Mirandd 31 warnings had been given prior to obtaining
consent; (2) the degree of education and intelligence of the consenting person; and (3)
whether the consenting person had been advised of his right not to consent." State v.
3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
11
State v. Russell
No. 89253-9
Shoemaker, 85 Wash. 2d 207, 212, 533 P.2d 123 (1975). No one factor is dispositive.
!d.
The State has not met its burden to prove that Russell voluntarily consented to
the search. In fact, the record does not show that Russell consented at all. The officer
testified only that Russell did not "appear to have any problem" with the search. VRP
at 19. The State offered no additional evidence of consent. Even the Court of
Appeals noted that the evidence supporting the finding of consent is "sketchy."
Russell, 2013 WL 3967169, at *5 n.3. We review findings of fact for substantial
evidence, and here, we do not find substantial evidence supporting the court's finding
that Russell consented to the search. Additionally, the record contains no evidence
that Russell's supposed consent was voluntary. The officer did not give Russell
Miranda warnings nor did he advise him of the right to refuse consent. Nor did the
State establish Russell's education or intelligence level. The search cannot be
otherwise justified on the basis of Russell's consent.
CONCLUSION
We hold that while the initial protective frisk was permissible, the officer
violated Russell's constitutional rights when he removed a small container from his
pocket and searched it without a warrant. The officer admitted that the container's
contents weighed only a fraction of what a pistol weighs. Because the officer did not
have a reasonable belief that the container housed a gun, the warrantless search was
12
State v. Russell
No. 89253-9
not justified. Additionally, any threat to the officer's safety ended when he took
control of the container and he did not have authority to search it while investigating
traffic infractions. Finally, we hold that the search was not justified on the basis of
consent because the State did not show that Russell consented to the search. For these
reasons, we reverse the Court of Appeals and remand to the trial court for proceedings
consistent with this opinion.
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No. 89253-9
WE CONCUR:
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State v. Russell (Tanner), No. 89253··9
No. 89253-9
GONZALEZ, J. (concurring)-! generally concur with the majority both in
principle and in outcome. I write separately, however, for two reasons. First, I
stress that we have not held, and do not hold today, that the "fruit of the poisonous
tree" doctrine cannot apply to a Terry 1 frisk as a matter of course. See majority at
8. Not only do we not need to consider this issue given that Officer Makein's
search went beyond the permissible scope of a Terry frisk and therefore there are
other grounds for exclusion, but also I am unwilling to foreclose the applicability
of the doctrine to Terry frisks on the facts before us. Second, the majority
concludes that "while the initial protective frisk was permissible, the officer
violated Russell's constitutional rights when he removed a small container from his
pocket and searched it without a warrant." Majority at 12. I partially disagree.
Russell's constitutional rights were not violated when the small container was
removed from his pocket. His rights were violated immediately after, when the
officer realized that it did not contain a weapon and searched the container
1
Terry v. Ohio, 392 U.S.· I, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)
1
State v. Russell (Tanner), No. 89253-9
anyway. Removing a container from a jacket that could potentially contain a
weapon does not require a warrant as part of an otherwise lawful Terry stop.
However, searching one once it has been removed, when the officer no longer has
any reason to believe that a weapon is contained thereil! or that a weapon could be
used against him, does not comport with article I, section 7.
With these observations, I respectfully concur.
2
State v. Russell (Tanner), No. 89253-9
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3