State v. Thompson , 24 Wash. App. 321 ( 1979 )

Williams, J.

Mack Harris Thompson appeals from a judgment entered upon his conviction in a trial to the court sitting without a jury of possession of heroin in violation of the Uniform Controlled Substances Act, RCW 69.50.401(c). He contends that certain evidence seized during a police investigation should have been suppressed. We affirm.

The facts are these: About noon on April 22, 1977, State Patrol Trooper Gary Jacobson was told by radio of a report that an occupant of an automobile heading north on Interstate 5 in King County was waving a handgun. The license number and description of the car were given. Shortly thereafter, the officer saw the described vehicle and followed it from the highway into the Southcenter parking lot. Then, according to the officer, the vehicle "meandered" rather slowly through the parking lot, finally parking immediately next to a car which was the only one in the vicinity for several hundred feet.

The officer stopped behind the car he had been following and ordered the occupants to step out with their hands in view, which they did. Thereupon, Thompson, who had been sitting in the driver's seat of the parked car, got out and started to walk rapidly past the officer who told him to remain.

Within a minute or two other police officers arrived. One asked Thompson to identify himself, which he did, and the information was radioed to headquarters. Soon,¹ information was returned that there was a $39 traffic warrant outstanding for Thompson. He was then arrested and searched. Because contraband was discovered, his car was impounded, and an inventory search produced more contraband.

Thompson contends that Officer Jacobson illegally detained him; that if the officer had not done so and had not made the arrest on the traffic warrant, the contraband would not have been discovered. The officer was investigating a serious situation. There was the report of the pistol being brandished, the suspicious "homing" of the car upon the other in an isolated part of the parking lot and Thompson's rapidly walking away from his car. Because of these circumstances further investigation was called for, but while waiting for help, the officer needed to take measures to protect himself which he did. An officer has the right to search out and neutralize persons in the vicinity who might be a threat to his safety. State v. Toliver, 5 Wn. App. 321, 487 P.2d 264 (1971).

Upon the arrival of other police officers, the investigation continued. Thompson was detained for identification and a radio check which was reasonable. State v. Gluck, 83 Wn.2d 424, 518 P.2d 703 (1974); State v. Clark, 13 Wn. App. 21, 533 P.2d 387, review denied, 85 Wn.2d 1018 (1975); State v. Davis, 12 Wn. App. 32, 527 P.2d 1131 (1974). Citing State v. Gluck, supra, this court in State v. Sinclair, 11 Wn. App. 523, 529, 523 P.2d 1209 (1974) said:

An officer, following a lawful investigatory stop and detention based on "a well-founded suspicion not amounting to probable cause" to arrest, may reasonably wish to check the suspect's answers to investigatory questions. He may be able to do this by questioning other persons present, or by police headquarters radio check. Because the investigation is still in progress, the officer may temporarily detain a suspect pending the receipt of results of the police headquarters radio check.

When the information concerning the traffic warrant was received, the police had full authority to arrest Thompson. The . search incident to the arrest followed. State v. Smith, 88 Wn.2d 127, 138, 559 P.2d 970, cert. denied, 434 U.S. 876, 54 L. Ed. 2d 155, 98 S. Ct. 226 (1977).

Thompson complains that by his own testimony, Officer Jacobson did hot have a reasonable suspicion, only an "instinct." The officer's testimony is that: Call it instinct, intuition, hunch, sixth sense, or whatever, there was reason for a trained police officer to believe that something untoward was afoot. As the trial court remarked:

I had a suspicious circumstance. Call it instinct or whatever. Something told me that I should keep this gentleman long enough to I.D. him.

It was a brief detention, to say under these circumstances that a law enforcement officer, who is alone, in view of the knowledge that he had, can't request a citizen to remain in the vicinity until such time as he can properly investigate it, I think would be ignoring reality.

Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979) should be mentioned. There, police officers saw defendant Brown and another man walk away from one another in an area with a high incidence of drug traffic. Because the situation "looked suspicious" and Brown had not been seen in that vicinity before, he was asked for identification which he refused to give. He was then arrested under a criminal statute requiring that a person must give his name and address to an officer "who has lawfully stopped him and requested the information." In deciding that this application of the statute violated the Fourth Amendment, the Supreme Court said in Brown v. Texas, supra at 52:

In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits.

In this case, as seen, objective criteria were present.

Thompson also contends that the impoundment and subsequent inventory search of his automobile by police officers violated the Fourth Amendment. The police impounded Thompson's car at the Southcenter parking lot and removed it to the Tukwila City garage, although Thompson informed the police that the car was not his and that the owner would come and pick it up. An officer then conducted an inventory search discovering narcotics and narcotics paraphernalia.

A good faith inventory search, incident to a lawful impoundment, is not violative of the Fourth Amendment. State v. Montague, 73 Wn.2d 381, 438 P.2d 571 (1968). To be lawful, the impoundment must be authorized by statute or ordinance or there must be reasonable cause for the impoundment. State v. Singleton, 9 Wn. App. 327, 511 P.2d 1396 (1973). The State carries the burden of proving that an impoundment is reasonable and that no reasonable alternative to impoundment exists. State v. Hardman, 17 Wn. App. 910, 567 P.2d 238 (1977), review denied, 89 Wn.2d 1020 (1978).

The inventory search, itself, must be conducted in good faith and for a proper purpose. As was said in State v. Gluck, supra at 428:

we have also insisted that they be conducted in good faith for the purposes of (1) finding, listing, and securing from loss during detention, property belonging to a detained person, (2) protecting police from liability due to dishonest claims of theft, and (3) protecting temporary storage bailees against false charges.

In this case, impoundment of Thompson's vehicle was reasonable. Contraband was found on Thompson's person during a search incident to his arrest and the police reasonably believed his vehicle might also contain contraband. There were no reasonable alternatives to impoundment. The police wished to secure the vehicle in order to obtain a search warrant. They could not release the car to its owner or any other person for fear the third party would destroy the evidence, purposely or inadvertently. The officer in charge of the arrest testified that he did not have enough personnel to assign an officer to guard the car at the scene. The impoundment was proper.

Once impounded, the police properly inventoried the vehicle. The inventory was conducted in good faith and was not a mere pretext for a general search. State v. Montague, supra. The police were entitled to inventory the car to protect themselves against false claims of missing property.

The judgment is affirmed.

Andersen, J., concurs.

1 One officer said that the time between the stop and the return call from headquarters was "within the period of less than 5 minutes." Another officer said that Thompson was held without any action being taken for "approximately 15 minutes or so." The tried court observed that "it was a brief detention."