State v. Fuentes ( 2015 )


Menu:
  •         Fl LE
    IN CLERICS O,JCE                                               This opinion wu ftled for record
    IUPREME' COURT, STATE OF 'IMIIJNITON                                   at 8:00itQ:\     on Maef·1.2Q6.
    MAY 0 7 2015
    &---~
    DATE
    ``9                                                                       .&u;:,Ronald R:CarPirlfar
    Supreme Court Clark
    IN THE SUPREME COURT OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON,                                  )
    )       No. 90039-6
    Respondent,               )       (consolidated with No. 90270-4)
    )
    v.                                           )
    )
    MARISA MAY FUENTES,                                   )
    )
    Petitioner.               )       EnBanc
    STATE OF WASHINGTON,                                  )
    )
    Respondent,               )
    )
    v.                                           )
    )
    STEVEN PAUL SANDOZ,                                   )       Filed:      MAY 0 7 2015
    )
    Petitioner.               )
    MADSEN, C.J.-These consolidated cases require the court to resolve whether
    the totality of circumstances in each case provided law enforcement with reasonable
    suspicion of criminal activity to conduct a Terry stop. 1 Both cases involve the stop of a
    defendant after the defendant entered a high-crime apartment complex and visited an
    1
    Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
    (1968).
    No. 90039-6 (consol. wiNo. 90270-4)
    apartment occupied by a suspected drug dealer. However, other circumstances
    distinguish the cases and lead to different results. Because the circumstances include a
    particularized suspicion of criminal activity in State v. Fuentes, noted at 179 Wn. App.
    1030,
    2014 WL 546587
    , at *4, we affirm the court of appeals in that case, but we reverse
    the appellate court in State v. Sandoz, noted at 
    180 Wash. App. 1032
    , 
    2014 WL 1600596
    , at
    *4, because, in contrast to Fuentes, there are insufficient facts to give rise to
    individualized suspicion.
    FACTS
    State v. Sandoz
    Around 11:30 p.m., Officer Chris Pryzgocld drove his patrol car past a six-unit
    apartment building in SeaTac. A high number of documented criminal incidents
    occurred in the area of this apartment building, including drug-related activity. Because
    of the high incidence of crime, the owner of the complex gave the King County Sherriff s
    Office signed, written permission to investigate people who loiter on the property. The
    officer testified, however, that a person did not commit a violation merely by visiting an
    apartment. The officer knew the apartment building and its tenants well because the
    building was deemed part of a "Problem Solver project," 2 which resulted in the officer
    regularly patrolling the complex. Verbatim Report of Proceedings (VRP) (Jan. 3, 2013)
    at 14-15. The officer patrolled the complex for four months, and consequently, he knew
    the tenants and knew the vehicles that they owned. He also knew that four of the tenants
    2
    After an area receives this designation, law enforcement then focuses on that area, attempting
    to reduce crime.
    2
    No. 90039-6 (consol. wiNo. 90270-4)
    had convictions for drug-related crimes-either possession or possession with intent to
    distribute.
    While on patrol, Officer Pryzgocki saw a white Jeep-a vehicle the officer knew
    did not belong to any of the tenants-parked illegally. 3 The driver of the Jeep slumped
    down, as ifto hide from the officer's view, as the officer drove by. The officer parked
    his marked patrol car about 20 yards away and observed the Jeep for about 15 minutes.
    Nobody left the vehicle, which contained three people, so the officer got out of his
    car and walked up to the driver. The officer asked the driver what he was doing there.
    The driver said he was there because his friend called him for a ride. The driver,
    however, did not explain why he slumped down as the officer drove by. The officer then
    waited on the passenger side of the vehicle. He observed Steven Sandoz leaving the
    apartment of Jennifer Meadows, who the officer knew had a conviction for possession of
    narcotics with intent to distribute. Over the course of four months, the officer had seen
    approximately 60 people coming and going from her apartment but observed none on the
    evening in question.
    Sandoz walked with his head down and his hands in his pockets toward the Jeep.
    When he looked up and saw the officer, Sandoz's eyes got big as he entered the backseat
    of the Jeep. The officer asked Sandoz what was going on, and Sandoz replied that his
    friend gave him a ride to collect $20 from Ms. Meadows. Sandoz was visibly shaking,
    3
    The officer described the spot as a "no parking, fire, handicapped area." VRP (Jan. 3, 2013) at
    18.
    3
    No. 90039-6 (consol. wiNo. 90270-4)
    and his face looked pale and thin. The officer, however, did not attribute Sandoz's
    appearance to drug use or to any specific cause.
    The officer believed that Sandoz's story for being at the apartment contradicted
    the driver's story. He asked Sandoz if he would mind stepping out of the vehicle. The
    officer again asked Sandoz what was going on, and Sandoz said he was there to collect
    $20 from Ms. Meadows. 4 After more conversation, Sandoz admitted that he had a drug
    problem and said that he had a crack pipe in his pocket. Sandoz took out the pipe, and
    the officer arrested Sandoz for possession of drug paraphernalia. During a search
    incident to arrest, the officer felt something in Sandoz's groin area. The officer read
    Sandoz his Miranda 5 rights, and Sandoz admitted that he had two small envelopes of
    cocaine in his underwear.
    The State charged Sandoz with possession of cocaine. At pretrial, Sandoz moved
    to suppress his statements and the cocaine. Sandoz argued that a seizure occurred when
    the officer asked Sandoz to get out of the Jeep and that reasonable suspicion of criminal
    activity did not support the seizure.
    The trial court disagreed, concluding that specific and articulable facts supported
    the seizure: (1) the officer knew the area had extremely high drug activity based on 911
    calls and drug dealing investigations, (2) the officer knew that the apartment Sandoz
    4
    Although the officer testified that what Sandoz said outside the vehicle contradicted what he
    said while sitting in the Jeep, the officer's testimony did not reveal any contradiction. Compare
    VRP (Jan. 3, 2013) at 23, with VRP (Jan. 3, 2013) at 21. The State claims that the officer's
    incident report, which the trial court did not admit into evidence, reveals different statements.
    Because the incident report was marked but not admitted into evidence, we do not consider it.
    5
    Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
    (1966).
    4
    No. 90039-6 (consol. w/No. 90270-4)
    exited belonged to Ms. Meadows, who had numerous drug-related convictions, including
    possession with intent to deliver, (3) the officer had express authority from the complex
    owner to trespass nonoccupants for "loitering" at the complex, (4) the Jeep did not belong
    to any of the tenants at the complex, (5) the driver of the Jeep slouched down when the
    officer drove past, (6) the driver and Sandoz had conflicting stories for why they were in
    the area, (7) Sandoz looked surprised when he saw the officer, and (8) Sandoz visibly
    shook and looked pale when the officer talked to him. Clerk's Papers at 53. On these
    facts, the trial court denied Sandoz's motion to suppress.
    After a bench trial on stipulated facts, the trial court found him guilty of cocaine
    possession. In an unpublished opinion, the court of appeals affirmed. Sandoz, 
    2014 WL 1600596
    , at *4. -Sandoz petitioned this court for discretionary review, which we granted.
    State v. Sandoz, 180 Wn.2d 1028,331 P.3d 1173 (2014).
    State v. Fuentes
    On October 5, 2011, 6 Officer Roman Trujillo and Officer Shirrell Veitenheimer of
    the Kennewick Police Department went to a Kennewick apartment as part of an
    apprehension team to look for a wanted person. The apartment belonged to Richard
    Fenton. In November 2010, 11 months before, police made controlled purchases of
    methamphetamine from Fenton. Police subsequently executed a search warrant on the
    apartment, where they found methamphetamine and related materials. Police suspected
    6
    The officers first visited the apartment after midnight on October 5, 2011, and returned around
    10 p.m. later that night.
    5
    No. 90039-6 (consol. wiNo. 90270-4)
    that Fenton was still selling narcotics based on recent interviews with individuals arrested
    for narcotics-related offenses.
    Approaching Fenton's apartment, officers saw two people on the steps who turned
    and went into the apartment when they saw the police. Police knocked on the door, but
    nobody answered, so the police left and returned that evening around 10 p.m. to set up
    surveillance on the apartment.
    During two hours of surveillance, police observed approximately 10 people enter
    and leave the apartment, each person staying inside between 5 and 20 minutes. Officer
    Trujillo testified that this behavior indicated narcotics activity: people arrive, make a
    purchase, and leave. VRP (Feb. 29, 2012) at 9. This observed behavior especially
    indicated narcotics activity because of the recent search warrant that uncovered narcotics
    at this apartment and because of the late hour of the short visits on a weeknight. See 
    id. at 9-10,
    30-31,44-46.
    Around midnight, police saw Maris a Fuentes park her car across the street from
    the apartment. She walked up to the apartment, entered, stayed for about five minutes,
    and returned to her car. She opened the trunk of her car and removed a small plastic bag.
    The bag contained something about the size of a small football. Then Fuentes reentered
    the apartment, stayed for about five minutes, and returned to her car with a bag that had
    noticeably less content than when she entered the apartment.
    Based on what officers observed, police stopped Fuentes' car on suspicion of
    narcotics activity. An officer advised Fuentes that he needed to talk with her. For safety
    6
    No. 90039-6 (consol. wiNo. 90270-4)
    reasons, the officer requested that Fuentes come to the police vehicle, which she did. The
    officer read Fuentes her Miranda rights. Fuentes waived those rights and admitted that
    she had just delivered marijuana to Fenton's apartment.
    The State charged Fuentes with delivery of marijuana. Fuentes moved to suppress
    evidence uncovered from the investigative stop of her car, including her statement about
    delivering marijuana, arguing that the police lacked reasonable suspicion to justify the
    Terry stop of her vehicle. The trial court concluded that officers had reasonable
    suspicion to stop the vehicle and therefore denied the motion to suppress. Fuentes was
    subsequently convicted of delivery of marijuana at a stipulated facts trial. She appealed.
    In an unpublished opinion, the court of appeals affirmed. Fuentes, 
    2014 WL 546587
    , at
    *4. We granted Fuentes' petition for discretionary review. State v. Fuentes, 
    180 Wash. 2d 1027
    , 
    328 P.3d 904
    (2014).
    ANALYSIS
    In reviewing the denial of a motion to suppress, we review the trial court's
    conclusions of law de novo and its findings of fact used to support those conclusions for
    substantial evidence. State v. Garvin, 
    166 Wash. 2d 242
    , 249, 
    207 P.3d 1266
    (2009).
    Generally, under the Fourth Amendment to the United States Constitution and
    article I, section 7 of Washington's constitution, an otlicer may not seize 7 a person
    without a warrant. State v. Garvin, 
    166 Wash. 2d 242
    , 248, 
    207 P.3d 1266
    (2009). But a
    7
    Under article I, section 7 of the Washington Constitution, a person is "seized" when an officer
    restrains-physically or by a show of authority-that person's freedom of movement to such an
    extent that a reasonable person would not feel free to leave or to decline the officer's request and
    terminate the encounter. State v. O'Neill, 
    148 Wash. 2d 564
    , 574, 62 P~3d 489 (2003).
    7
    No. 90039-6 (consol. wiNo. 90270-4)
    few carefully drawn exceptions exist. ld. We have recognized the Terry investigative
    stop as one ofthe exceptions. See State v. Day, 
    161 Wash. 2d 889
    , 895, 
    168 P.3d 1265
    (2007). Under this exception, an officer may, without a warrant, briefly detain a person
    for questioning if the officer has reasonable suspicion that the person stopped is or is
    about to be engaged in criminal activity. ld. Additionally, an officer may conduct a brief
    frisk for weapons, but only if a reasonable safety concern exists to justify the protective
    frisk. ld.
    A valid Terry stop requires that the officer have reasonable suspicion of criminal
    activity based on specific and articulable facts known to the officer at the inception of the
    stop. See State v. Gatewood, 
    163 Wash. 2d 534
    , 539-40, 
    182 P.3d 426
    (2008); State v.
    Glover, 
    116 Wash. 2d 509
    , 513-14, 
    806 P.2d 1068
    (1992). In evaluating the reasonableness
    of the officer's suspicion, the reviewing court looks at the totality of the circumstances
    known to the officer. 
    Glover, 116 Wash. 2d at 514
    . The totality of circumstances includes
    the officer's trah1ing and experience, the location of the stop, the conduct of the person
    detained, the purpose of the stop, and the amount of physical intrusion on the suspect's
    liberty. State v. Acrey, 
    148 Wash. 2d 738
    , 746-47, 
    64 P.3d 594
    (2003).
    We must determine if the officers had reasonable suspicion of criminal activity
    under the totality of circumstances to support the stops of Sandoz and Fuentes. If the
    officers did not, the evidence uncovered from the stops must be suppressed. See State v.
    Doughty, 
    170 Wash. 2d 57
    , 65, 
    239 P.3d 573
    (2010).
    8
    No. 90039-6 (consol. wiNo. 90270-4)
    Reasonable suspicion did not justify a Terry investigative stop of Sandoz
    Under the totality of the circumstances, we hold that the officer did not have
    reasonable suspicion of criminal activity individualized to Sandoz to justify his Terry
    stop. See State v. Thompson, 
    93 Wash. 2d 838
    , 841,
    613 P.2d 525
    (1980) (holding that
    suspicion must be individualized).
    The police relied on five facts to justify the Terry stop involving Sandoz: (1)
    Sandoz's surprise when he saw the officer, (2) the "conflicting" stories between Sandoz
    and the driver, (3) Sandoz's pale appearance and shaking, (4) the officer did not
    recognize the Jeep, and (5) the officer had authority to admonish nonoccupants for
    "loitering" under a trespass agreement.
    While we evaluate the totality of the circumstances to determine whether a
    reasonable suspicion of criminal activity exists, we do so, in part, by examining each fact
    identified by the officer as contributing to that suspicion.
    As to the fact of surprise, this encounter was late at night: Sandoz was walking
    with his head down, and he registered surprise when he looked up to see the officer
    standing by the Jeep he was about to enter. Sandoz's surprise at seeing the officer did not
    suggest criminal behavior. See State v. Gatewood, 
    163 Wash. 2d 534
    , 540, 
    182 P.3d 426
    (2008) ("Startled reactions to seeing the police do not amount to reasonable suspicion.").
    Next, the driver's story did not conflict with Sandoz's story. The driver said that
    his friend called him for a ride, and Sandoz said his friend gave him a ride to the
    apartment to collect $20. Rather than conflict, the stories confirmed one another.
    9
    No. 90039-6 (consol. wiNo. 90270-4)
    As to his physical appearance, the officer did not attribute Sandoz's pallor or
    shaking to drugs or to any illicit conduct. Thus, this fact does not add to circumstances
    that suggest criminal activity.
    The fact that the officer did not recognize the Jeep might justify the officer's
    contact with the driver, but the oflicer did not connect this fact with anything the officer
    observed about Sandoz.
    Finally, the officer also considered the trespass agreement that allowed him to
    investigate people who "loiter"; he also believed he had reasonable suspicion to detain
    Sandoz for drug-related loitering under SeaTac Municipal Code (STMC) 8.05.380(C).
    The word "loiter" is undefined in the statute. See STMC 8.05.380; RCW 69.50.101.
    When a statute does not define a term, the court may consider the plain and ordinary
    meaning of the term in a standard dictionary. State v. Bah!, 
    164 Wash. 2d 739
    , 754, 
    193 P.3d 678
    (2008)~ Sandoz did not loiter. 8 "Loiter" means "to remain in or near a place in
    an idle or apparently idle manner." WEBSTER'S THIRD NEW INTERNATIONAL
    DICTIONARY 1331 (2002). Sandoz did not remain idle: he left the apartment and walked
    immediately to the Jeep without stopping. Although the individuals in the Jeep may have
    loitered, that issue is not before the court. Similarly, Sandoz did not appear to trespass:
    he entered a tenant's apartment, stayed inside at least 15 minutes without any known
    discord, and left directly to the Jeep. The facts suggest that Sandoz was an invited guest
    8
    This analysis also applies to the argument that the officer suspected Sandoz of drug-related
    loitering under STMC 8.05.380(c). If Sandoz did not "loiter," the statute does not apply.
    10
    No. 90039-6 (consol. wiNo. 90270-4)
    of Ms. Meadows, and as the officer stated, simply going into an apartment does not equal
    wrongdoing.
    In analyzing the circumstances that supported reasonable suspicion, the trial court
    also considered the fact that the driver of the Jeep slumped down as the officer drove by.
    Again, this behavior understandably raised concerns in the officer's mind about the driver
    and, because the vehicle was parked illegally, justified the officer's inquiry of the driver.
    However, nothing in the behavior that the officer observed-the driver's activity-
    connected with anything the officer subsequently observed about Sandoz to suggest that
    Sandoz engaged in criminal activity.
    The trial court also cited the fact that Sandoz was visiting the apartment of a
    suspected drug dealer late at night in a high-crime area. However, without more, this fact
    does not justify a Terry stop. See 
    Doughty, 170 Wash. 2d at 62-63
    , 60 (holding police may
    not seize a person who visits a suspected drug house late at night and who stays for only
    two minutes based only on neighbor's complaints of short-stay traffic and where there is
    no "actual evidence of drugs, controlled buys, reports of known drug users or dealers
    frequenting the house, and so forth"). Other facts must exist to suggest criminal
    behavior. See 
    id. In this
    case, the officer merely acted on a hunch when he stopped Sandoz. The
    officer admitted that he did not have facts to believe Sandoz engaged in drug activity; he
    just felt "the entire circumstance was suspicious." VRP (Jan. 3, 2013) at 40. But an
    officer's suspicion must be of criminal activity and it must be reasonable. Doughty, 170
    11
    No. 90039-6 (consol. wiNo. 90270-4)
    Wn.2d at 63. An officer's hunch does not justify a stop. !d. The totality of the
    circumstances in this case do not justify a Terry stop.
    Reasonable suspicion existed to stop Fuentes' car
    In contrast to Sandoz, when evaluating the totality of the circumstances leading to
    the Terry stop of Fuentes' car, we hold that the police had reasonable suspicion of
    criminal activity particularized to Fuentes before the stop occurred. See 
    Glover, 116 Wash. 2d at 514
    .
    We agree with the Court of Appeals that State v. Kennedy, 
    107 Wash. 2d 1
    , 
    726 P.2d 445
    (1986), provides an apt analogy. Early in the morning, the officer in Kennedy went
    to investigate neighbor complaints about short-stay foot traffic going in and out of the
    "Smith house." !d. at 3. The officer had information from a reliable informant that
    Smith used this house to sell drugs. !d. The officer saw Kennedy leave the house and get
    into a maroon car, but the officer did not see anything in Kennedy's hands or see other
    suspicious activity. !d. at 3, 8. Nevertheless, the officer stopped Kennedy on suspicion
    of purchasing marijuana. !d. Although the informant told the officer that Kennedy
    bought marijuana from Smith in the past, only went to Smith's house to buy drugs, and
    drove a maroon car, the officer had no specific information that Kennedy bought drugs or
    intended to buy drugs that particular morning. Nevertheless, we held that reasonable
    suspicion supported the stop based on the present information about possible ongoing
    drug activity that morning-the short visits-and information about past drug
    transactions at Smith's house. See 
    id. at 8-9.
    12
    No. 90039-6 (consol. wiNo. 90270-4)
    The facts in this case closely parallel those in Kennedy. The officers in this case
    knew about past drug activity at Fenton's apartment. Police made controlled buys from
    Fenton and conducted a search of the apartment 11 months before and found drugs. The
    officers also testified they had recent information from individuals arrested on drug-
    related charges that Fenton was still dealing drugs. Additionally, officers observed short-
    stay foot traffic that morning (10 visits between 10 p.m. and midnight) that suggested
    ongoing drug transactions, like the neighbor complaints suggested in Kennedy.
    But this case presents a more compelling circumstance than the facts present in
    Kennedy. While the officer in Kennedy had information that Kennedy had previously
    purchased drugs at Smith's house, nothing suggested that Kennedy purchased drugs on
    the morning of the stop-except for complaints about ongoing short-stay traffic. Here, in
    addition to short-stay traffic, officers could reasonably infer that Fuentes participated in
    the ongoing drug transactions: Fuentes entered the apartment briefly, then returned to her
    car. She then carried a plastic bag into the apartment, and she left with a bag that had
    noticeably less content. Her stay lasted approximately five minutes. From these
    observations, officers could form a reasonable suspicion that Fuentes made a delivery at
    the apartment. Given the context of her short-stay visit to an apartment with known drug
    use-after officers observed short-stay traffic consistent with drug transactions-and her
    delivery, officers could reasonably suspect that Fuentes delivered drugs. Although the
    bag may have contained innocent content, officers do not need to rule out all possibilities
    of innocent behavior before they make a stop. I d. at 6.
    13
    No. 90039-6 (consol. w/No. 90270-4)
    Fuentes relies on Richardson and argues that a person's mere proximity to another
    independently suspected of criminal activity-in this case, Fenton-does not justify a
    stop. See State v. Richardson, 
    64 Wash. App. 693
    , 697, 
    825 P.2d 754
    (1992) (defendant
    was walking in a high-crime area near ~omeone the officer suspected of drug dealing).
    But officers observed more than Fuentes' mere proximity to Fenton. They observed her
    make a short-stay visit to Fenton's apartment, carry a bag into his apartment, and leave
    with the bag altered in its shape.
    Fuentes also compares her circumstances to Doughty, where we held an officer
    lacked reasonable suspicion to stop the defendant's car after the defendant merely visited
    a "suspected" drug 
    house. 170 Wash. 2d at 60
    . In that case, an officer saw the defendant
    park his car outs:ide a suspected drug house at 3:20a.m. !d. The defendant approached
    the house, returned to his car two minutes later, and drove away. !d. The officer did not
    see any of the defendant's actions at the house, including whether he entered the house.
    
    Id. Based on
    what the officer observed-the defendant's short-stay at a "suspected" drug
    house early in the morning-the officer stopped the defendant's car on suspicion of drug
    activity. 
    Id. Three facts
    differentiate this case from Doughty and lead to a different result.
    First, we noted that police labeled the house in Doughty as a "drug house" based
    only on neighbor complaints about large numbers of short-stay traffic. !d. at 60. The
    police had nothing concrete, such as actual evidence of drugs, controlled buys, or reports
    of known drug dealers or users visiting the apartment. !d. Here, police had considerable
    14
    No. 90039-6 (consol. wiNo. 90270-4)
    evidence that Fenton used his apartment for drug-related activity. Officers made
    controlled buys from Fenton, who still lived in the apartment, and conducted a search of
    the apartment 11 months before and found drugs. Additionally, police also had
    information suggesting Fenton was still dealing drugs.
    Second, the officer in Doughty did not observe the defendant carry any unusual
    objects or have any idea about what, if anything, the defendant did at the house. 
    Id. at 64-65.
    Here, officers saw Fuentes carry a plastic bag. And they had a well-founded idea
    of what Fuentes did at the apartment based on the alteration in the bag: she made a
    delivery.
    Third, the officer in Doughty did not observe any short-stay traffic at the house
    that evening other than the defendant's two-minute stay. 
    Id. at 60.
    Here, police observed
    approximately 10 people enter and leave the apartment over a period of two hours. This
    activity suggested ongoing drug transactions, and Fuentes' delivery reasonably appeared
    part of that illicit stream of commerce. Based on the totality of the circumstances, we
    hold that the officers had reasonable suspicion of criminal activity to justify the Terry
    stop of the Fuentes vehicle.
    CONCLUSION
    We affirm the Court of Appeals in Fuentes because, under the totality of
    circumstances, the officers had individualized reasonable suspicion of criminal activity.
    In contrast, the officer did not have reasonable suspicion that Sandoz engaged in criminal
    activity. Therefore, we reverse the Court of Appeals in Sandoz.
    15
    No. 90039-6 (consol. wiNo. 90270-4)
    .   (
    WE CONCUR:
    16
    State v. Fuentes, No. 90039-6 (Gonzalez, I. concurring/dissenting)
    No. 90039-6
    GONZALEZ, J. (concurring in part and dissenting in part)-Officers of the
    law stopped and searched both Steven Sandoz and Marisa Fuentes, without
    warrants, largely because each of them had been seen at a building that was
    under police surveillance. Sandoz was seized near the building; Fuentes was
    followed by police and seized as she pulled into the driveway of a home. The
    State contends that both seizures were lawful under Terry v. Ohio, 
    392 U.S. 1
    ,
    21, 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
    (1968), which empowers officers to make
    brief, warrantless searches and seizures under limited circumstances. Since
    officers seized and searched both Sandoz and Fuentes without warrants, the
    State bears the burden of showing the seizures were justified. I concur with the
    majority that the State has not met this burden as to Sandoz. But the State has
    also· failed to show sufficient lawful grounds to seize Fuentes. To the extent the
    majority finds otherwise, I respectfully dissent.
    Our constitution protects us from being disturbed in our private affairs
    without authority oflaw. WASH. CONST. art. I, § 7. If officers of the State
    violate this constitutional precept, the fruits of that violation are inadmissible in
    1
    State v. Fuentes, No. 90039-6 (Gonzalez, J. concurring/dissenting)
    court. State v. Doughty, 
    170 Wash. 2d 57
    , 65, 
    239 P.3d 573
    (2010) (citing State v.
    Garvin, 
    166 Wash. 2d 242
    , 254, 
    207 P.3d 1266
    (2009)).
    The State does not have authority of law to seize people merely because
    they know someone or go somewhere associated with criminal activity. We do
    not indulge in guilt by association in our state, and a person does not become a
    criminal simply by being with people or in places that are or are perceived to be
    associated with criminal activity. See 
    id. at 62
    ("A person's presence in a high-
    crime area at a 'late hour' does not, by itself, give rise to a reasonable suspicion
    to detain that person." (citing State v. Ellwood, 
    52 Wash. App. 70
    , 74, 
    757 P.2d 547
    (1988))); State v. Thompson, 
    93 Wash. 2d 838
    , 841, 
    613 P.2d 525
    (1980)
    (finding that "mere proximity to others independently suspected of criminal
    activity does not justify the stop" (citing Ybarra v. Illinois, 
    444 U.S. 85
    , 100 S.
    Ct. 338, 
    62 L. Ed. 2d 238
    (1979))). I respectfully disagree with the majority
    that it is appropriate to put so much weight on the fact Fuentes visited "a high-
    crime apartment complex." Majority at 1. Under article I, section 7 of our
    state constitution, searches must be based on individualized suspicion. In re
    Pers. Restraint of Nichols, 171 Wn.2d 370,377-78,256 P.3d 1131 (2011)
    (citing City ofSeattle v. Mesiani, 110 Wn.2d 454,755 P.2d 775 (1988); Yorkv.
    Wahkiakum Sch. Dist. No. 200, 
    163 Wash. 2d 297
    , 
    178 P.3d 995
    (2008)). As it is
    not a crime to be with people suspected of criminal activities or in places that
    may have crime, such facts alone cannot justify a Terry stop, and those living in
    or traveling through such places do not have a reduced expectation of privacy.
    
    Doughty, 170 Wash. 2d at 62
    (citing 
    Ellwood, 52 Wash. App. at 74
    ; 
    Thompson, 93 Wash. 2d at 841
    ).
    2
    State v. Fuentes, No. 90039-6 (Gonzalez, J. concurring/dissenting)
    Instead, Terry stops must be reasonable and based on "'specific and
    articulable facts"' that are individualized to the person the police seek to stop.
    !d. at 62 (quoting 
    Terry, 392 U.S. at 21
    ), 63. The trial court made 32 findings
    of fact relating to the officers' search and seizure of Fuentes. Twenty of those
    findings were entirely neutral, most having to do with things that happened
    after Fuentes was seized. Eleven of the findings concerned either Richard
    Fenton, the primary subject of their surveillance, or his apartment. Only one of
    the findings was individualized to potentially suspicious conduct by Fuentes.
    The trial court found that she
    approached the apartment in an unusual manner: she climbed the stairs
    to the door, then went back to the car and retrieved a bag from the trunk;
    then, went to the door again, remained for a short period of time and then
    exited again with a now empty or nearly-empty bag. She placed the bag
    in the trunk and departed.
    Clerk's Papers at 78. Even taken in the context of the fact she was close to a
    house being observed (without a warrant and with the assistance of night vision
    goggles), this fact alone simply cannot justify a seizure.
    The majority seems to suggest the fact that a "recent" search warrant had
    found narcotics in Fenton's apartment was relevant to whether police had
    reasonable suspicion of Fuentes. Majority at 6 (citing Verbatim Report of
    Proceedings (Jan. 3, 2013) at 9-10). The record suggests that warrant was
    issued in November 20 10. Fuentes was arrested in October 20 11, 11 months
    later. I respectfully disagree that this can be properly characterized as "recent."
    But even if Fuentes's visit to an apartment building while carrying a
    grocery bag alone could justify the stop, I find it remarkable that officers did
    3
    State v. Fuentes, No. 90039-6 (Gonzalez, J. concurring/dissenting)
    not seize Fuentes either at that time or right after she left the immediate area.
    Instead, she was followed by different officers than the ones who observed her
    at Fenton's home (who seem to have lost sight of her for some time) and
    stopped as she was about to pull into the driveway of a home where her
    boyfriend, among others, was in the front yard. Nothing in the record suggests
    anything happened that would warrant police attention from the time she drove
    away from the first home until she pulled into the driveway at the second, and
    the judge noted specifically that she was not stopped for a traffic infraction.
    I respectfully disagree with the majority that the facts in this case are
    analogous to those in State v. Kennedy, 
    107 Wash. 2d 1
    , 
    726 P.2d 445
    (1986). In
    Kennedy, a police officer was investigating complaints from neighbors
    regarding high levels of traffic at Rob Smith's home. 
    Id. at 3.
    Additionally,
    that officer had received a tip from a reliable informant "that Michael Kennedy
    regularly purchased marijuana from Smith, that Kennedy only went to Smith's
    house to buy drugs, and that Kennedy usually drove either a light green pickup
    truck or a maroon Oldsmobile." 
    Id. at 3.
    That officer was driving by Smith's
    house when he saw a maroon Oldsmobile parked nearby. He stopped, saw
    Kennedy leave the house, get into the Oldsmobile, and drive away. 
    Id. The officer
    pulled Kennedy over, saw him "lean forward as if to put something
    under the seat," and asked him to step out of the car. 
    Id. The officer
    found
    marijuana under the seat. !d. at 4. We found the officer had "sufficient
    articulable suspicion to stop Kennedy as he drove away from the Smith house."
    
    Id. at 8.
    4
    State v. Fuentes, No. 90039-6 (Gonzalez, J. concurring/dissenting)
    In contrast, nothing in the record before us suggests the officers had an
    informant's tip that Fuentes was buying or selling drugs herself at Fenton's
    home or that she went to Fenton's home only for such purposes. Nor, unlike
    Kennedy, did she appear to secrete anything in the car when stopped. Kennedy
    is not an apt analogy. Instead, this case is much more like Doughty. Doughty,
    like Fuentes, made a brief stop late at night at a house that was under
    
    surveillance. 170 Wash. 2d at 60
    . Shortly after and by the same officer who had
    observed him at the house, he was stopped, searched, found to be in possession
    of drugs, and arrested. !d. We found that the State had failed to show
    "sufficient specific and articulable facts" to justify the seizure and suppressed
    the fruits of the search. !d. at 65.
    The majority makes much of the fact that Doughty was not seen to have
    anything in his hands, while Fuentes did. I do not find this fact persuasive.
    First, we noted in Doughty that the most persuasive element in Kennedy was
    the reliable informant's tip, not the fact the defendant's hands were empty. Jd.
    at 64 (citing 
    Kennedy, 107 Wash. 2d at 6-8
    ). Second, people often carry small
    things in their hands, from phones to footballs. This is, at best, only weakly
    suggestive of criminal behavior.
    People in our state do not lose their legitimate expectation of privacy
    merely because they are seen near people or places suspected of criminal
    activities. I find the State has not met its burden of establishing officers had
    specific and articulable facts, individualized to the defendants, that gave rise to
    a reasonable suspicion in either case. To the extent the majority finds that it
    has, I respectfully dissent.
    5
    State v. Fuentes, No. 90039-6 (Gonzalez, J. concurring/dissenting)
    6