State Of Washington, Repsondent v. Dvontaneous Na'aun Hoston ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 68437-0-1
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION (J'C
DVONTAVEOUS NAAUN HOSTON,
FILED: August 12, 2013
rs_i
Appellant.
Grosse, J. — Reports of citizen-eyewitnesses of criminal activityjare ~
co r™
presumed credible. An officer acting on a citizen-eyewitness report involving the
threat of violence and rapidly developing events is entitled to rely on the reliability
of the report and, where the officer's observations corroborate the information in
the report and create a reasonable suspicion of criminal activity, the officer is
entitled to make an investigatory stop. Here, under the totality of the
circumstances, the officers were entitled to rely on the report of the citizen-
eyewitnesses about a person who flashed a gun in public. The officers had a
reasonable suspicion that the appellant was engaged in criminal activity. The
investigatory stop and frisk were reasonable.
On July 22, 2011, King County Sheriff Deputies Matthew Paul and
Coulson Young were on foot patrol in downtown Seattle near Third Avenue and
Pine Street, policing Metro Transit bus stops and bus zones. The area is known
for gang activity, fights, and narcotics transactions. While turning onto Pike
Street from Third Avenue, the deputies came upon a group of about 8 to 12
"juvenile males in a giant circle with two people in the center actively pushing at
each other." The males were yelling, arguing, and screaming. Two people in the
No. 68437-0-1 / 2
center of the circle bumped chests, which is an indication that a fight is about to
start. The deputies yelled at the group to disperse. The group split into two
smaller groups; one group went north on Third Avenue and the other group went
east on Pike Street. Based on their experience, the deputies believed that they
were witnessing a "rolling fight," which means that the two groups would walk to
another corner, rejoin each other in a large circle, and resume fighting.
After the large group broke up, three men in their mid to late 20s
approached the deputies from another direction and asked to talk to them. All
three of the men said that they saw one member of the group flash a silver
handgun and then put the gun in his waistband. All three of the men also
described this male as black, medium build, wearing a red jacket or sweatshirt,
with short afro-style hair and a black pick sticking out of his hair.
The information the men relayed to the deputies alarmed them because
there had recently been several shootings in Seattle and because, in the
deputies' experience, red clothing signifies gang membership. They decided to
search for the person the three men described. Deputy Paul got on the Seattle
Police Department's (SPD's) radio and asked the surveillance units who were
using security cameras inside Macy's department store to look for the male who
purportedly was carrying a gun. The SPD officers inside Macy's told the deputies
that the male Deputy Paul described was standing in front of the McDonald's at
Third Avenue and Pine Street.
The deputies approached the suspect, later identified as appellant
Dvontaveous Hoston, and Deputy Paul grabbed his arms from behind. Hoston
No. 68437-0-1 / 3
tensed and dropped his right arm to his hip. That concerned the deputy because
the three men said the gun was in the front of Hoston's waistband. Deputy Paul
frisked Hoston and found a silver handgun in the front of his waistband. The gun
was loaded.
Deputy Paul handcuffed Hoston and told him he was under arrest.
Hoston, who had a prior conviction of delivery of cocaine, was charged with first
degree unlawful possession of a firearm. He filed a motion to suppress the gun
the deputies seized from him. After a hearing, the trial court denied Hoston's
motion. The court applied the "totality of the circumstances" test to determine
whether Deputy Paul's frisk of Hoston was reasonable and concluded:
2. The information provided to Deputy Paul and Deputy Young
was sufficiently reliable because it was volunteered by three
individuals who presented themselves to police and offered a
detailed description of the subject. Because the informants were
citizens who saw the gun first-hand, they are presumed under the
law to be more reliable than professional or anonymous informants.
The presence of a person flashing a gun in the context of a rolling
fight created a volatile situation. The deputies would have been
derelict in their duties had they failed to immediately investigate.
3. Deputy Paul had reasonable suspicion for frisking defendant.
The reports of a man with a gun in the context of a rolling fight gave
rise to valid concerns about a potential of violence and a risk to
community safety.
4. Deputy Paul also had a reasonable suspicion that a felony
had occurred.
5. Deputy Paul's reasonable suspicion ripened into probable
cause to arrest after he located the gun.
The matter proceeded to trial, and a jury found Hoston guilty as charged.
Hoston appeals, contending that the trial court erred by denying his motion to
suppress the gun.
No. 68437-0-1 / 4
We review findings of fact to which error has been assigned to determine
whether substantial evidence in the record supports the findings and, in turn,
whether those findings support the conclusions of law.1 Unchallenged findings
are verities on appeal.2 We review conclusions of law de novo.3
A warrantless, investigatory stop, or Terry4 stop, must be reasonable
under both the Fourth Amendment to the United States Constitution and article I,
section 7 of the Washington State Constitution.5 "An investigatory stop is
reasonable if the arresting officer can attest to specific and objective facts that
provide a reasonable suspicion that the person stopped has committed or is
about to commit a crime."6
A report of criminal activity from a citizen-witness may provide reasonable
suspicion to justify an investigatory detention.7 Carrying a firearm is a crime if it
is carried or displayed in a manner that either manifests an intent to intimidate
another or that warrants alarm for the safety of other persons.8 We determine
whether the requisite reasonable suspicion existed by applying the totality of the
circumstances test.9 Relevant factors are "(1) whether the informant is reliable,
(2) whether the information was obtained in a reliable fashion, and (3) whether
1State v. Ross. 106 Wn. App. 876, 880, 26 P.3d 298 (2001).
2 State v. Hill. 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
3 State v. Hopkins, 128 Wn. App. 855, 862, 117 P.3d 377 (2005).
4 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
5 Hopkins. 128 Wn. App. at 862.
6 Hopkins. 128 Wn. App. at 862.
7State v. Lee. 147 Wn. App. 912, 918-19, 199 P.3d 445 (2008).
8 RCW 9.41.270.
9 Lee, 147 Wn. App. at 916-17; State v. Randall. 73 Wn. App. 225, 228-29, 868
P.2d 207 (1994).
No. 68437-0-1 / 5
the officers can corroborate any details of the informant's tip."10 Police officers
may presume that citizen-witness reports are credible.11 A citizen-witness's
credibility is enhanced when he or she is an eyewitness to the events
described.12
The court's opinion in State v. Franklin13 is instructive. In that case, a
citizen told a police officer working as an off-duty security guard at a bus station
that he saw a person in the restroom with a gun. The citizen gave the officer a
description of the person's clothes and said he was in the middle stall. The
officer went directly to the rest room and saw that the middle stall was occupied
by a person wearing clothes that matched the description the citizen had given.
The officer detained the person when he came out of the stall and found a
revolver on his person. In determining that the detention in the rest room was
reasonable, the court stated: "[Cjourts have recognized the need for an
immediate investigatory stop when an anonymous informant of undetermined
reliability states that he or she observed a suspect carrying or displaying a gun in
a public place."14 The court's reasoning is applicable here:
[T]he unidentified citizen informant in the present case observed a
person in public with a firearm and reported his observations almost
contemporaneously with their occurrence. The informant specified
the public location of the suspect and gave a description of the
suspect's attire. In these unique and potentially dangerous
circumstances, such a tip is sufficiently reliable to support an
investigatory detention if the police immediately verify the accuracy
of the description and location of the suspect. Immediate police
10
Lee. 147 Wn. App. at 918.
11 State v. Wakelev. 29 Wn. App. 238, 241, 628 P.2d 835 (1981).
12 State v. Vandover. 63 Wn. App. 754, 759, 822 P.2d 784 (1992).
13 41 Wn. App. 409, 704 P.2d 666 (1985).
14 Franklin. 41 Wn. App. at 412-13.
No. 68437-0-1 / 6
verification of the tip's innocuous details supports reasonable
inferences that the anonymous informant's information is based on
eyewitness observation, and that the unverified portion of the tip
may also be accurate. Given the potential danger to the public in
this case, we think the informant's reliability was sufficiently
established for purposes of a temporary investigatory detention.1151
Another factor relevant to the totality of the circumstances is the nature of
the suspected crime.16 In this regard, the court's opinion in State v. Randall17 is
instructive. In that case, the officer acted on a police dispatch report of an armed
robbery. The dispatch provided a description of two suspects and described the
gun used in the robbery. Acting on the information from the dispatch, the officer
located and detained a person who matched the description of one of the
subjects and found marijuana on his person. In determining that the officer had
sufficient information to make an investigatory stop, the court noted the
difference between a suspected crime that poses no threat of physical violence
or harm to society or the officers and a suspected crime that is violent and poses
a significant threatto the safety ofthe officers and the general public:
An officer acting on a tip involving the threat of violence and rapidly
developing events does not have the opportunity to undertake a
methodical, measured inquiry into whether the tip is reliable, as
does an officer acting on a tip that a nonviolent offense such as
possession of drugs has been committed. . . . Rather, when acting
on a tip that a violent offense has just been committed, as here, the
officer must make a swift decision based upon a quick evaluation of
the information available at the instant his or her decision is
made.[18]
15 Franklin. 41 Wn. App. at 413 (citations omitted).
16 Randall. 73 Wn. App. at 229.
17 73 Wn. App. 225, 868 P.2d 207 (1994).
18 Randall. 73 Wn. App. at 230 (citations omitted).
No. 68437-0-1 / 7
The court reasoned that under those circumstances, requiring the officer to stop
and undertake an in-depth analysis of the reliability of the information from the
dispatch would greatly impede the officer in the discharge of his duty and would
greatly increase the threat to public safety. Rather, the court concluded that
under the circumstances, the officer should be entitled to rely on the reliability of
the information from the dispatch and, when the officer's own observations
corroborate the information from the dispatch and create a reasonable suspicion,
to make an investigatory stop.19 We see no reason why the same reasoning
should not apply where a citizen-eyewitness, rather than a police dispatch,
reports a crime that poses a threat to public safety, here carrying or displaying a
firearm in a manner that either manifests an intent to intimidate another or that
warrants alarm for the safety of other persons.
Here, the deputies, based on their training and experience, perceived the
situation to be potentially violent. The deputies saw two members of the large
group bump chests, which they knew indicated a fight was imminent. When they
ordered the group to disperse, the deputies recognized that a rolling fight had
developed and that it was very likely the two groups would move to another
corner, reconvene, and resume fighting. Three citizen-eyewitnesses gave the
deputies the same information that one of the males in the large group flashed a
gun and gave the same detailed description of the male's appearance and
location of the gun in his waistband. The circumstances were rapidly developing
and posed a clearthreat of violence and harm to the public safety. The deputies'
19
Randall. 73 Wn. App. at 230.
No. 68437-0-1 / 8
observations corroborated the citizens' information and created a reasonable
suspicion of criminal activity, thus justifying the investigatory stop.20
For the same reasons, Deputy Paul's frisk of Hoston was reasonable. The
deputies were acting on information that a person walking in downtown Seattle
flashed a gun in a situation that could have quickly turned potentially violent.
Hoston fit the description of the person who flashed the gun. All three of the
citizens also said that the person put the gun in his waistband. Hoston's hand
went to his waistband when Deputy Paul grabbed him. Under these
circumstances, the deputies had a reasonable suspicion that Hoston was armed.
The frisk was reasonable.
Affirmed. f ) .
WE CONCUR:
£t <*S/Y*^j ACL
20 We disagree with Hoston that State v. Hopkins. 128 Wn. App. 855, 117 P.3d
377 (2005), is dispositive. Rather, Hopkins is distinguishable. That case
involved a 911 call of a minor in possession of a gun at a pay phone. The
officers found a person matching the description the caller gave, but saw no gun
and, unlike this case, observed no dangerous, criminal, or suspicious behavior.
Further, the caller gave inaccurate information about the appellant's height,
weight, and age, and said only that the minor was scratching his leg with what
appeared to be a gun and that he thought the gun was in the minor's right
pocket. Florida v. J.L. 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000),
is likewise distinguishable. That case involved an anonymous call to the police
about a young male standing at a bus stop carrying a gun. Again, the officers
observed no criminal activity. And, there was nothing to indicate that the caller
was an eyewitness.
8