State Of Washington, Resp. v. Miguel Brown, App. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 70003-1-1
cz
Respondent, DIVISION ONE
CO
v.
UNPUBLISHED OPINION
CD
MIGUEL TERRY BROWN,
en
Appellant. FILED: August 18, 2014
SCHINDLER, J. — Miguel Terry Brown challenges his conviction of unlawful
possession of a firearm in the second degree. Brown contends that the trial court erred
in denying his motion to suppress. We affirm.
FACTS
According to the unchallenged findings of fact, on December 19, 2011, police
officer Donald Ames observed Omar Sow1 panhandling at a Tukwila gas station. Sow
then got into the backseat of a green Ford Escort. Officer Ames contacted Sow and the
two other occupants of the Escort. All three men, including the driver, smelled of
alcohol and appeared to be intoxicated. Based on their obvious impairment and
belligerent behavior, Officer Ames told the men to lock up the car and leave the area.
Officer Ames testified that he told the three men they had to leave the car at the gas
1Although the record contains different spellings ofthis name, we adopt the spelling set forth in
the trial court's findings of fact and conclusions of law.
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station "or they could find somebody who was sober and had a valid license that could
drive the car and take them away."
Officer Ames initially parked his patrol car across the street from the gas station
to watch the Escort while he performed other tasks. But the men could see the patrol
car and continued to try to engage with Officer Ames. Officer Ames moved his car to a
different location where he could still keep an eye on the Escort.
About 30 minutes later, the men returned to the Escort with an unknown fourth
person and they all got into the car. Officer Ames saw the brake lights activate but from
his vantage point across the street, could not see who was in the driver's seat.
Officer Ames drove back to the gas station to make sure that none of the three
individuals he had previously contacted were attempting to drive the car and to ensure
that the person who was about to drive the car was sober and had a valid license.
Officer Ames parked at an angle 10 to 12 feet behind the Escort, without blocking it in.
As he approached the driver's side door, Officer Ames saw that an unknown person,
later identified as Miguel Terry Brown, was sitting in the driver's seat with the keys in the
ignition and the engine running. Officer Ames asked to see Brown's driver's license.
Brown told Officer Ames that he did not have a driver's license. As Brown spoke to him,
Officer Ames detected alcohol on his breath.
Based on his belief that Brown was intoxicated and was about to operate a
vehicle, Officer Ames asked Brown to turn off the engine and hand him the car keys.
Officer Ames asked Brown to step out of the vehicle and, once he did so, asked for his
name and date of birth. Based on the information Brown provided, Officer Ames
learned that Brown had outstanding warrants. Officer Ames arrested Brown on the
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warrants. When he placed handcuffs on Brown, Officer Ames saw the handle of a gun
protruding from Brown's front pants pocket. After being advised of his Miranda2 rights,
Brown said that he had found the gun in Seattle the week before.
The State charged Brown with unlawful possession of a firearm in the second
degree. Brown filed a CrR 3.6 motion to suppress. The court denied Brown's motion,
concluding that Brown was not unlawfully seized because Officer Ames's contact with
him while he was in the driver's seat of the Escort was a "valid social contact." Brown
agreed to a bench trial on stipulated facts. The trial court found Brown guilty of the
charge. Brown appeals.
ANALYSIS
There is no dispute Officer Ames had no specific or particularized suspicion to
justify detaining Brown for investigatory purposes until he detected the strong smell of
alcohol when talking to Brown. Brown asserts that an unconstitutional seizure occurred
when Officer Ames asked to see his driver's license. Brown assigns error to two of the
trial court's findings of fact entered denying his motion to suppress: (1) the finding that
Officer Ames "asked" for identification but did not "demand" that he produce it, and (2)
the finding that Officer Ames "did not block" the Escort when he parked behind it.
However, Brown does not argue that the findings are not supported by substantial
evidence in the record and fails to support the assignments of error with argument as
required by RAP 10.3(a)(6). Accordingly, we treat the findings as verities on appeal.
State v. Moreno. 173 Wash. App. 479, 491, 294 P.3d 812 (2013). review denied, 177
Wash. 2d 1021, 304 P.3d 115 (2013).
2 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 70003-1-1/4
Brown bears the burden of establishing that a seizure occurred in violation of
article I, section 7. State v. Harrington. 167 Wash. 2d 656, 664, 222 P.3d 92 (2009).
Under article 1, section 7 of the Washington State Constitution, a person is "seized"
when by means of physical force or show of authority, his or her freedom of movement
is restrained and a reasonable person would not have believed he or she is (1) free to
leave, given all the circumstances, or (2) free to otherwise decline an officer's request
and terminate the encounter. State v. O'Neill. 148 Wash. 2d 564, 574, 62 P.3d 489 (2003).
This standard is "a purely objective one, looking to the actions of the law enforcement
officer." State v. Young. 135 Wash. 2d 498, 501, 957 P.2d 681 (1998). Police actions that
will likely result in a seizure include:
"[T]he threatening presence of several officers, the display of a weapon by
an officer, some physical touching of the person of the citizen, or the use
of language or tone of voice indicating that compliance with the officer's
request might be compelled."
Young. 135 Wash. 2d at 512 (quoting United States v. Mendenhall. 446 U.S. 544, 554-55,
100 S. Ct. 1870, 64 L Ed. 2d 497 (1980)).
A "social contact" does not amount to a seizure. Harrington. 167 Wash. 2d at 664-
65. A social contact is a type of interaction that "occupies an amorphous area
resting someplace between an officer's saying 'hello' to a stranger on the street and, at
the other end of the spectrum, an investigative detention." Harrington. 167 Wash. 2d at
664. Without more, engaging a pedestrian in conversation in a public place does not
raise the encounter to an investigatory detention requiring an articulable suspicion of
wrongdoing. Young, 135 Wash. 2d at 511; State v. Ellwood. 52 Wash. App. 70, 73, 757 P.2d
547 (1988). Likewise, no seizure occurs when an officer approaches a parked car, asks
an occupant to roll the window down, and asks questions or asks for identification. See
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e&, O'Neill. 148 Wash. 2d at 579-81 (occupant not seized when officer asked him to roll
down the window, asked him to try to start his vehicle, then asked for identification);
State v. Thorn. 129 Wash. 2d 347, 354, 917 P.2d 108 (1996), overruled on other grounds
by O'Neill. 148 Wash. 2d at 579 (no seizure when police officer asked the driver of a
parked car," 'Where is the pipe?'" after seeing a flicker of light); State v. Mote. 129 Wn.
App. 276, 292, 120 P.3d 596 (2005) (no seizure when officer asked occupants of a
parked car what they were doing and for identification). The focus of the inquiry is not
on whether the defendant's movements are confined due to circumstances independent
of the police action, but on whether the police conduct was coercive. Thorn. 129 Wash. 2d
at 353.
The question of whether police conduct amounts to a seizure is a mixed question
of law and fact. Harrington, 167 Wash. 2d at 662. We give great deference to the trial
court in resolving the facts, but the ultimate determination of whether those facts
constitute a seizure is one of law that we review de novo. Thorn, 129 Wash. 2d at 351.
Unchallenged factual findings are treated as verities on appeal. State v. Armenta, 134
Wash. 2d 1, 9, 948 P.2d 1280 (1997).
Brown contends that being asked to produce a driver's license by an "armed and
uniformed officer" elevated the encounter to a seizure. But in deciding what constitutes
a seizure, our courts have consistently required some overt show of force or intrusive
action above and beyond an officer approaching a vehicle and asking questions or
asking for identification. See e.g., State v. DeArman, 54 Wash. App. 621, 624, 774 P.2d
1247 (1989) (seizure occurred when police pulled behind another vehicle and activated
emergency lights); Ellwood. 52 Wash. App. at 73 (seizure occurred when police told
No. 70003-1-1/6
suspect to " '[wjait right here' ")3; State v. Sweet. 44 Wash. App. 226, 230, 721 P.2d 560
(1986) (seizure occurred when officer called out," 'Halt! Police!'"). Brown relies on
Harrington. 167 Wash. 2d at 669, and State v. Soto-Garcia. 68 Wash. App. 20, 25, 841 P.2d
1271 (1992). But unlike here, in Harrington and Soto-Garcia. the police encounters
involved a "progressive intrusion" that culminated in a seizure.
In Harrington, a police officer made a U-turn, got out of his patrol car, and
approached the defendant Harrington while he was walking on the sidewalk.
Harrington. 167 Wash. 2d at 660. The officer asked to speak with Harrington and began
asking him questions. A second officer arrived and stood seven or eight feet from
Harrington. Harrington, 167 Wash. 2d at 660-61. The first officer asked Harrington to
remove his hands from his pockets " 'to control Mr. Harrington's actions.'" Harrington,
167 Wash. 2d at 667. The court determined at that point that a "reasonable person would
not have felt free to leave due to the officers' display of authority." Harrington. 167
Wash. 2d at 669-70. Likewise, in Soto-Garcia. the encounter became a seizure when the
officer asked Soto-Garcia if he had cocaine on him and asked to search him. Soto-
Garcia, 68 Wash. App. at 25.
Here, Officer Ames approached the vehicle to ensure that the inebriated
individuals he contacted earlier were not attempting to drive the car and that as
instructed, the driver was unimpaired and had a valid license. The officer intruded no
more than necessary to ascertain this information. Officer Ames was alone and Brown
was sitting in a parked car in a public place. The undisputed record shows that the
3 Alteration in original.
No. 70003-1-1/7
encounter did not involve a progressive intrusion or a display of authority that resulted in
a seizure. Officer Ames merely requested identification.
The Supreme Court decision in O'Neill is analogous and controls. In O'Neill, an
officer approached a car parked in front of a store that was closed and had been
recently burglarized. O'Neill. 148 Wash. 2d at 571-72. The officer pulled up behind the
car, activated his spotlight, and ran a computer check on the license plate. The officer
learned that the car had been impounded within the last two months. O'Neill. 148
Wash. 2d at 572. The windows of the car were fogged up, leading the officer to believe
someone was in the car. The officer walked up to the driver's side door, shined his
flashlight in the driver's face, and asked him to roll down the window. O'Neill. 148
Wash. 2d at 572. After some discussion about what the driver was doing there, the officer
asked for identification. The driver, O'Neill, said he had no identification and his license
had been revoked, and gave the officer a name that turned out to be false. O'Neill. 148
Wash. 2d at 572. The officer asked O'Neill to step out of the vehicle, and subsequent
events led to O'Neill's arrest. O'Neill. 148 Wash. 2d at 572-73.
The court held that under article I, section 7, O'Neill was not seized until he was
asked to step out of the vehicle. O'Neill, 148 Wash. 2d at 574. The court "reject[ed] the
premise that under article I, section 7 a police officer cannot question an individual or
ask for identification because the officer subjectively suspects the possibility of criminal
activity, but does not have a suspicion rising to the level to justify a Terry'4] stop."
O'Neill, 148 Wash. 2d at 577. The court concluded that before that point, the officer did not
4 Terrvv. Ohio. 392 U.S. 1.88S. Ct. 1868, 20 L Ed. 2d 889 (1968).
7
No. 70003-1-1/8
use physical force nor display any show of authority. O'Neill, 148 Wash. 2d at 577-78. The
court observed:
The reasonable person standard does not mean that when a uniformed law
enforcement officer, with holstered weapon and official vehicle, approaches and
asks questions, he has made such a show of authority as to rise to the level of a
Terry stop. If that were true, then the vast majority of encounters between
citizens and law enforcement officers would be seizures.
O'Neill. 148Wn.2dat581.
Likewise, in Mote, a police officer approached two people who sat in a car legally
parked on a residential street late at night. The taillights and the interior lights of the car
were on. Mote, 129 Wash. App. at 279-80. The officer parked behind the vehicle,
approached the driver's-side window, and asked for identification from both occupants,
who complied. Mote, 129 Wash. App. at 280-81. We held that even assuming that the
officer used a spotlight when he approached the car, his actions would not constitute a
seizure at that point:
[The officer] did not turn on his siren or overhead lights. He did not display
his weapon or make any physical contact with [the defendant], and he was
alone. [The defendant] was in a car parked in a public place .... [The
officer] requested and did not demand [the defendant's identification.
Thus his use of language and tone of voice did not change this encounter
from a social contact into a seizure.
Mote, 129 Wash. App. at 292.
Brown suggests that he was objectively notfree to terminate the encounter in
light of Officer Ames's testimony that had Brown tried to drive away, the officer would
have followed and stopped the car. But Officer Ames testified that he would have
attempted to stop the caronly if the driver of the Escort had started to drive away before
he was able to verify who was driving. Officer Ames testified that if he had been able to
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No. 70003-1-1/9
verify that the driver was not one of the three men he believed to be impaired but before
he detected alcohol, he would not have stopped the car.
We affirm.
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WE CONCUR:
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