State Of Washington, Res/cross-app. v. Shelly Bernard Ford, Iii, App/cross-res. ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
) No. 71711-1-1
Respondent,
) DIVISION ONE
V.
) UNPUBLISHED OPINION" '%
SHELLY BERNARD FORD III, 51 ~i
Appellant. ) FILED: April 27, 2015
Appelwick, J. — Ford appeals his conviction for possession of a
controlled substance, arguing that the court should have suppressed the drug
evidence as the product of an unlawful seizure and detention. The police
conducted a lawful Terry stop and detention. Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
1868, 20 L. Ed. 2d 889 (1968). Therefore, the trial court properly denied Ford's
motion to suppress. We affirm.
FACTS
Based on evidence recovered after police seized and detained Shelly Ford
III, the State charged him with possession of a controlled substance. Prior to
trial, Ford moved to suppress the controlled substance as the product of an
unlawful detention.
At the motion hearing, Everett Police Officer Tim Collings testified that on
January 29, 2012, he responded to a report of a residential disturbance. The
person reporting the disturbance said the perpetrator was a man named "Shelly
Ford." While en route to the residence, Officer Collings received dispatch reports
indicating the suspect was a 32 year old black male who had left the scene on
No. 64218-9-1/2
foot. Officer Collings also learned of an outstanding misdemeanor warrant for a
man named "Shelly Bernard Ford III." The warrant described him as a black
male born in 1978.
When Officer Collings arrived at the scene of the disturbance, he noticed a
black male, later identified as Ford, walking a few blocks away. As Officer
Collings approached Ford in his patrol car, Ford began to run. Officer Collings
activated his emergency lights and notified dispatch that he "saw a male
matching the description." He yelled at Ford to stop running. Ford complied.
Officer Collings then asked Ford for his name. Ford replied, "Shelly." Ford
glanced around as if "looking for an avenue of escape." Because Officer Collings
was alone and Ford had already fled once, he ordered Ford to drop to his knees
"to prevent him from running again." He then called for back-up.
When another officer arrived, Officer Collings confirmed Ford's name and
warrant status. He then removed Ford's backpack, handcuffed him, and placed
him under arrest. As Officer Collings carried the backpack to his patrol car, a
prescription pill bottle containing a controlled substance, Oxycodone, fell out of
the backpack. Ford did not have a prescription for Oxycodone.
In support of the motion to suppress, defense counsel argued that a Terry
stop was not justified until Officer Collings confirmed Ford's full name. Counsel
maintained that prior to receiving that information, Officer Collings lacked an
No. 64218-9-1/3
articulable suspicion that the Shelly Ford he was pursuing was the Shelly Ford III
described in the outstanding warrant. The court disagreed, stating in part:
I find that this was in fact a valid fTerrvl stop, that the reasonable
articulable facts that the officer had in his possession at the time
that he made the stop were numerous. He had a name. He has
the race of the individual. He had the sex of the individual, the age
of the individual. The fact that he's traveling on foot, and lastly,
within the 2004 block of Columbia. At the time he made contact
with the defendant, he was able to confirm the same race, the
same sex, same approximate age, the fact that the person was on
foot, and only a half a mile away from the location of the alleged
disturbance. Those are enough facts for him to have made a stop.
To the extent that he was required to turn on his lights and
command the defendant to stop when the individual began running
is not unreasonable. I don't find that there was an unreasonable
amount of force used and that for officer safety it was reasonable
for him to ask the defendant to wait on his knees while backup
came. The [Terry] stop was not unusual in its length. There were
no facts presented that this went on for a very long period of time,
or that there was a significant amount of time between the time of
the call and the time of the contact such that it would be
unreasonable to believe that the defendant would be the person
who would still be in the area.
Finally, the officer verified fairly quickly the name of the
individual. Upon making the fTerrvl stop he was able to confirm
there was a warrant out for his arrest, and then at that time, once
he was lawfully under arrest, pills were spilled out of the backpack
through no fault of the officer. To the extent pills were found by the
officer, they were either in plain view or they were found incident to
a lawful search pursuant to the arrest. Therefore, the defendant's
motion is denied.
The case proceeded to a bench trial on stipulated facts. The court found
Ford guilty as charged. He appeals.
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No. 64218-9-1/4
DECISION
Warrantless seizures are per se unreasonable and violate both the Fourth
Amendment and article I, section 7 of the Washington State Constitution. State
v. Williams. 102 Wash. 2d 733, 736, 689 P.2d 1065 (1984). However, there are a
few "'jealously and carefully drawn exceptions' to the warrant requirement." Id.
(quoting State v. Houser. 95 Wash. 2d 143, 149, 622 P.2d 1218 (1980)). These
include an investigatory detention, or Terry stop, if police have "a reasonable
suspicion, grounded in specific and articulable facts that the person stopped has
been . . . involved in a crime." State v. Acrev. 148 Wash. 2d 738, 746-47, 64 P.3d
594 (2003). The level of suspicion necessary to support an investigatory
detention is a "substantial possibility that criminal conduct has occurred or is
about to occur." State v. Kennedy. 107 Wash. 2d 1, 6, 726 P.2d 445 (1986).
Whether an officer's suspicion is reasonable is determined by the totality of the
circumstances known to the officer at the inception of the stop. State v. Rowe.
63 Wash. App. 750, 753, 822 P.2d 290 (1991). Whether circumstances justify a
Terry stop is a question of law that we review de novo. State v. Bailey. 154 Wn.
App. 295, 299, 224 P.3d 852. We review findings of fact for substantial
evidence. State v. Hill. 123 Wash. 2d 641, 647, 870 P.2d 313 (1994).
Ford contends the Terry stop in this case was unlawful in several
respects. First, he contends Officer Collings lacked the requisite suspicion of
criminal activity because the tip police received regarding the disturbance was
No. 64218-9-1/5
not reliable. This contention was not raised below. We need not consider
grounds for suppression that are raised for first time on appeal. State v.
Garbaccio. 151 Wash. App. 716, 731, 214 P.3d 168 (2009).
Second, Ford contends his flight from Officer Collings was insufficient to
justify a Terry Stop. While flight from police is insufficient by itself to support an
investigatory detention, it is a factor courts consider in assessing the totality of
the circumstances. State v. Little. 116 Wash. 2d 488, 504, 806 P.2d 749 (1991).
Here, the circumstances included: (i) the suspect matched the age, race, gender,
and location of a man identified in the dispatch report as Shelly Ford, (ii) the
reported age, race, and name of the suspect matched the warrant subject's
description, and (iii) the suspect fled in the presence of police. Taken together,
these circumstances supported an articulable suspicion that Ford was the person
named in the warrant.
Third, Ford claims his detention was unlawful because it "was significantly
longer and more intrusive than necessary to dispel or verify any suspicion of
criminal activity." The trial court found that "ftjhe Terry stop was not unusual in its
length. There were no facts presented that this went on for a very long period of
time." (Emphasis added.) We have reviewed the record and also find no
evidence supporting Ford's claim. The record does not indicate how much time
elapsed between his seizure and the confirmation of his warrant status at the
scene. In addition, his claim that it was "not necessary to wait for a cover officer
No. 64218-9-1/6
to arrive to confirm [his] identity" ignores the evidence that he was a flight risk
and posed safety concerns for an officer working alone at night.
Ford's detention was also not unreasonably intrusive. Intrusive measures
such as drawn weapons, handcuffs, and positioning suspects on the ground or
on their knees may be appropriate in a Terry stop. State v. Belieu. 112 Wash. 2d
587, 602, 773 P.2d 46 (1989); State v. Mitchell. 80 Wash. App. 143, 145-46, 906
P.2d 1013 (1995) (handcuffing, secluding suspect, and drawing guns may be
appropriate). Circumstances bearing on the reasonableness of such actions
include the nature of the crime, the degree of suspicion, the location of the stop,
the time of day, the number of officers present, and the reaction of the suspect to
the police. Belieu. 112 Wash. 2d at 600; Washington v. Lambert. 98 F.3d 1181,
1189-90 (9th Cir. 1996). Intrusive techniques may be reasonable "where the
suspect is uncooperative or takes action at the scene that raises a reasonable
possibility of danger or flight." Washington v. Lambert. 98 F.3d at 1189
(emphasis added); Abbott v. Sangamon County. Illinois. 705 F.3d 706, 724 (7th
Cir. 2013).
Officer Collings was alone at night with a suspect who had already fled
once and was preparing to flee again. In addition, Collings confirmed after the
stop that the suspect's name was "Shelly." This bolstered Officer Collings's
degree of suspicion that Ford was the Shelly Ford described in the warrant. In
No. 64218-9-1/7
these circumstances, directing Ford to stay on his knees until back-up arrived
was reasonable.
Affirmed.
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