State Of Washington v. Mitchell Eugene Wierman ( 2018 )

COLT OF APPc-t,l_c:
STATE OF WA Z.4-1..
2013 JAN cj: 36
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
)
STATE OF WASHINGTON, ) No. 75757-1-1
)
Respondent, ) DIVISION ONE
)
v. )
)
MITCHELL EUGENE WIERMAN, ) UNPUBLISHED
)
Appellant. ) FILED: January 29, 2018
)
Cox, J. — Mitchell Wierman appeals his judgment and sentence, claiming
that the trial court erred in denying his motion to suppress evidence. We hold
that the officer had reasonable suspicion to expand the scope of the traffic stop
to ask Wierman where he was coming from. Further, Wierman's Statement of
Additional Grounds for Review has no merit. We affirm.
Officer Christopher Farley was on patrol at 11:00 p.m. when Wierman
rode past him on his bicycle without any headlights. Officer Farley pulled into the
turn lane and activated his patrol car's flashing lights. Wierman stopped, and
Officer Farley confronted him about the missing headlight but did not issue a
citation.
Officer Farley then told Wierman that he had seen him a week or two
earlier engaging in a hand-to-hand drug transaction at a nearby casino. He
asked Wierman where he was coming from, and Wierman responded that he
No. 75757-1-1/2
was coming from the same casino. Officer Farley then told Wierman, "I believe
you're a drug dealer. Hand me your drugs."1 Wierman gave him a small bag of
what appeared to be methamphetamine. Officer Farley arrested Wierman and,
in the ensuing search incident to arrest, found that Wierman was carrying
additional bags of methamphetamine and a drug pipe.
The State charged Wierman with possession of a controlled substance.
Wierman moved to suppress the evidence, arguing that Officer Farley lacked
reasonable suspicion to detain him. The trial court denied the motion, and the
parties proceeded with a stipulated bench trial. The trial court found Wierman
guilty of possession of a controlled substance and entered its judgment and
sentence.
Wierman appeals.
MOTION TO SUPPRESS
Wierman argues that the trial court erred in denying his motion to
suppress because Officer Farley did not have reasonable suspicion to prolong
Wierman's detention after informing him about the missing bicycle light. We
disagree.
In general, a warrantless seizure is per se unreasonable and violates both
the Fourth Amendment and article I, section 7 of the Washington State
Constitution.2 An investigative stop is an exception to the warrant requirement
1 Report of Proceedings (July 31, 2014) at 11.
2 State v. Duncan, 146 Wn.2d 166, 171,43 P.3d 513(2002).
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under Terry v. Ohio.3 A Terry stop allows an officer to briefly detain a person for
questioning if the officer has a "reasonable suspicion that the person stopped is
or is about to be engaged in criminal activity." The State bears the burden of
proving that a warrantless seizure falls within an exception to the warrant
requirement.5
In evaluating whether an officer had reasonable suspicion justifying the
investigatory stop, we look at the totality of the circumstances known to the
officer.6 We consider "the officer's training and experience, the location of the
stop, the conduct of the suspect, the purpose of the stop, the amount of physical
intrusion on the suspect's liberty, and the length of time the suspect is detained."7
"[T]he determination of reasonable suspicion must be based on commonsense
judgments and inferences about human behavior."5 In the absence of
reasonable suspicion, the evidence uncovered from the stop must be
suppressed.9
3 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889(1968); State v. Fuentes,
183 Wn.2d 149, 158, 352 P.3d 152(2015).
4 Fuentes, 183 Wn.2d at 158.
5 State v. Doughty, 170 Wn.2d 57, 61, 239 P.3d 573(2010); State v.
Acrev, 148 Wn.2d 738, 745-46, 64 P.3d 594 (2003).
6 Acrev, 148 Wn.2d at 747.
7 State v. Mecham, 181 Wn. App. 932, 943, 331 P.3d 80(2014).
8 Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 145 L. Ed. 2d 570(2000).
9 Fuentes, 183 Wn.2d at 158.
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A lawful Terry stop is limited in scope and duration to fulfilling the
investigative purpose of the stop.1° Once that purpose is fulfilled, the officer must
end the investigative stop.11 If the officer's suspicions are further aroused,"the
scope of the stop may be extended and its duration may be prolonged."12
However,"foince the initial stop purpose is accomplished, any further detention
must be based on 'articulable facts giving rise to a reasonable suspicion of
criminal activity.'"13 "In other words,'police officers may not use routine traffic
stops as a basis for generalized, investigative detentions or searches.'"14
In reviewing a trial court's denial of a motion to suppress, we determine
whether substantial evidence supports the trial court's findings of fact and
whether those findings of fact support the conclusions of law.15 We review de
novo the trial court's conclusions of law."
Officer Farley was the only witness who testified at the CrR 3.6 hearing on
Wierman's motion to suppress. He testified that on December 9, 2013, he was
on patrol at 11:00 p.m. and parked at a red light, when Wierman road down the
10 Acrey, 148 Wn.2d at 747.
11 1d
12 Id.
13 Statev. Veltri, 136 Wn. App. 818, 822, 150 P.3d 1178(2007)(quoting
State v. Armenta, 134 Wn.2d 1, 15-16, 948 P.2d 1280 (1997)).
14 Id. (quoting State v. Henry, 80 Wn. App. 544, 553, 910 P.2d 1290(1995)).
15 Fuentes, 183 Wn.2d at 157.
16 Id.; Acrev, 148 Wn.2d at 745.
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sidewalk on his bicycle, without a headlight. Officer Farley stopped Wierman by
pulling into the turn lane and activating his patrol car's flashing lights. Officer
Farley recognized Wierman from previous encounters before he approached
him.
Approximately one to two weeks earlier, Officer Farley had been working
undercover, and he was parked in an unmarked car at the Quil Ceda Casino. He
saw Wierman ride up to another vehicle on his bicycle and engage in a "hand-to-
hand" exchange. Officer Farley later saw that same vehicle, parked, and the
driver appeared to be smoking or injecting what Officer Farley assumed to be
narcotics. Because he was working undercover on a different investigation,
Officer Farley did not approach Wierman or the other vehicle, and he did not ask
anyone else to investigate.
When Officer Farley approached Wierman on December 9, 2013, he told
him that he needed a light on his bicycle, but did not issue a citation. He then
told him that he had seen the hand-to-hand exchange one or two weeks prior.
He asked Wierman where he was coming from, and Wierman said the casino.
Officer Farley said, "I believe you're a drug dealer. Hand me your drugs."17
17 Report of Proceedings (July 31, 2014) at 11.
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Officer Farley testified that he "had been informed by other people,
informants, that Wierman deals in narcotics."18 He did not remember when the
informer told him this, but stated it was "probably months ago."19
The trial court concluded that the totality of the circumstances—the prior
suspected drug transaction at the casino, the unnamed informant's tip that
Wierman was a drug dealer, and Wierman's admission that he was coming from
the casino—was enough to establish reasonable suspicion. It denied Wierman's
motion to suppress.
Findings of Fact
Wierman argues that the trial court erred in finding that Office Farley "saw
Wierman engage in a hand-to-hand drug sale at a casino weeks before
December 9, 2013."20 Specifically, Wierman argues that substantial evidence
fails to establish that Officer Farley definitively saw him engage in a drug
transaction. He notes that Officer Farley only testified that he assumed the
earlier transaction was a narcotics transaction, and there was no evidence that
Officer Farley had the knowledge, training or experience to identify any such
exchange as a narcotics transaction. He argues that the transaction might have
been an innocuous exchange such as giving or receiving a cigarette from the
vehicle's occupant. We are unpersuaded by these arguments.
18 Id. at 20.
18 Id. at 25.
20 Appellant's Opening Brief at 9-10; Clerk's Papers at 70.
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Wierman does not challenge the trial court's findings that Officer Farley
observed some sort of exchange at the casino nor that he received the
informant's tip, so those finding are verities on appea1.21 In its conclusions, the
trial court noted that "Officer Farley saw what he thought was a drug
transaction."22 It characterized what Officer Farley saw as "some kind of
exchange that ended up with people smoking something," and recognized that
"Where was limited evidence to explain why he believed it was a drug
transaction."23 Despite the lack of definitive evidence as to what Officer Farley
observed, the trial court concluded that the unnamed informant's tip supported
Officer Farley's "belief" that he had seen a hand-to-hand drug transaction.24
Because the trial court acknowledged the uncertainty of what Officer
Farley observed in the casino parking lot, any error arising from its failure to
consistently use conditional language as to what Officer Farley witnessed was
harmless. To the extent the definitive characterization was not supported by the
evidence, it was not essential to, and did not materially affect, the trial court's
conclusions of law so it does not warrant reversa1.25
21 Veltri, 136 Wn. App. at 821; see Acrev, 148 Wn.2d at 745.
22 Clerk's Papers at 72(emphasis added).
23 Id.
24 id.
25 State v. Caldera, 66 Wn. App. 548, 551, 832 P.2d 139(1992).
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Conclusions of Law
The State and Wierman agree that Wierman was lawfully seized when
Office Farley activated his flashers, and confronted Wierman for failing to have a
light on his bicycle. But Wierman argues that Officer Farley lacked reasonable
suspicion to prolong the seizure once the traffic investigation concluded. We
disagree.
In order to expand the scope of the investigation, Officer Farley needed
reasonable suspicion of some other criminal activity.26 In determining whether
Officer Farley had reasonable suspicion to prolong the investigative encounter
with Wierman, the trial court considered the officer's knowledge that Wierman
was coming from the casino. But the determination of whether an officer had a
reasonable articulable suspicion is based on the facts that the officer knew at the
moment the seizure occurred.27 Thus, in determining whether Officer Farley had
reasonable suspicion to prolong the encounter, the trial court erred in considering
Wierman's response to the question about where he was coming from. The
State concedes this point.
We consider the facts known to Officer Farley at the time he decided to
confront Wierman about the earlier exchange at the casino and to ask him where
he was coming from. At that time, Officer Farley had stopped Wierman while he
was riding a bicycle, at night. A few weeks earlier, Officer Farley had observed .
State v. Smith, 115 Wn.2d 775, 785, 801 P.2d 975(1990); Henry, 80
26
Wn. App. at 551-53.
27 State v. Brown, 154 Wn.2d 787, 798, 117 P.3d 336 (2005).
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No. 75757-1-1/9
what he believed to be a drug transaction, at night, while Wierman was on his
bicycle. In addition, an unidentified informant had told Officer Farley that
Wierman was dealing drugs.
For purposes of a Terry stop, an informant's tip provides reasonable
suspicion if, under the totality of the circumstances, it has sufficient "indicia of
reliability."28 Sufficient indicia of reliability can be shown with evidence
suggesting that the informant is reliable or with police corroboration.29 Officers
can directly corroborate a tip by observing circumstances that suggest criminal
activity.30
Here, the unidentified informant's tip is corroborated by Officer Farley's
observation of the hand to hand exchange one to two weeks before stopping
Wierman. This was enough to justify prolonging the detention to confront
Wierman about the earlier exchange at the casino and to ask him where he was
coming from.
Wierman notes that the trial court appeared to conclude that without the
knowledge that Wierman was coming from the casino, Officer Farley might not
have had reasonable suspicion for extending the seizure beyond resolving the
headlight issue. But the trial court's determination that reasonable suspicion
28 State v. Howerton, 187 Wn. App. 357, 365, 348 P.3d 781, review
denied, 184 Wn.2d 1011(2015); State v. Marcum, 149 Wn. App. 894, 903, 205
P.3d 969 (2009).
29 Howerton, 187 Wn. App. at 365; Marcum, 149 Wn. App. at 904.
30 State v. Saggers, 182 Wn. App. 832, 841, 332 P.3d 1034(2014);
Marcum, 149 Wn. App. at 907.
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required Officer Farley to know that Wierman was coming from the casino is a
conclusion of law that we review de novo.31 In doing so, we disagree with the
trial court on this point. There was reasonable suspicion based on what the
officer knew.
In sum, Officer Farley had reasonable suspicion that Wierman was
engaged in criminal activity, specifically drug dealing, based on his observation of
what appeared to be a prior drug transaction, corroboration from an informant
that Wierman was a drug dealer, and the existence of similar circumstances in
that Wierman was again on his bicycle, riding at night.
STATEMENT OF ADDITIONAL GROUNDS
Wierman raises a number of issues in his statement of additional grounds.
None have merit.
He argues that Officer Farley had been harassing him, in part because he
had mistaken Wierman for someone else. He also claims that Officer Farley had
lied to Wierman's parents, told other lies, and refused to investigate a burglary at
his parents' home.
Because these arguments are not supported by evidence in the record,
we cannot review them.32 Moreover, to the extent Wierman is challenging Officer
Farley's credibility, he has failed to raise an issue for appeal because this court
defers to the trier of fact on issue of witness credibility.33
31 Howerton, 187 Wn. App. at 364.
32 See RAP 10.10(c).
33 State v. Rafay, 168 Wn. App. 734, 843, 285 P.3d 83(2012).
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We affirm the judgment and sentence.
‘ux,T
WE CONCUR:
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