State Of Washington v. Jeanette Tara Demmon ( 2018 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 77230-9-I
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Respondent, ) DIVISION ONE
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JEANNETTE TARA DEMMON, ) ▪ -r1 TT
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Appellant ) FILED: November 13,?JIB (An
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ANDRUS,J. — Jeanette Demmon,a passenger in a car pulled over durwrg az:c -
traffic stop, sought to suppress evidence of drugs found in her purse after being
questioned by police and admitting the existence of an outstanding arrest warrant.
The trial court denied the motion to suppress, concluding that Demmon had not
been seized until after she admitted the existence of the warrant. Because
Demmon was seized when police asked her to reveal her identity, and this seizure
was unlawful, we reverse Demmon's conviction.
FACTS
Jeanette Demmon was a passenger in Jeffrey Pastian's car when he was
stopped for a missing center brake light and making an improper lane change.
During the stop, Lynnwood Police Officer Beau Mattheis learned that Pastian's
license was suspended and that he was the respondent in two no-contact orders
entered for the protection of two different females. Pastian told Officer Mattheis
that his passenger was not a protected party under either no-contact order.
No. 77230-9-112
As Officer Mattheis conducted a field sobriety test with Pastian, Lynnwood
Police Sergeant (Sgt.) Christopher Breault arrived on the scene. Sgt. Breault
approached the open driver's side door and spoke to Demmon as she sat in the
front passenger seat. He told her he was talking to her because the driver had two
protection orders. He told her he needed "her information to determine if she was
the protected person in those orders." Demmon initially mumbled something,
which Sgt. Breault thought might be her first name. Demmon then stated that she
did not want to give her name.
Demmon opened the passenger door, and Sgt. Breault moved around the
car to stand next to the open passenger door. As he stood next to Demmon, he
again said he needed her information. He told her again what he was investigating
and why he needed her name. He told her he needed to determine whether she
was the protected person in either of the no-contact orders. Demmon then replied
she did not want to give her name because she had an outstanding felony warrant)
At some point,"things started to escalate," with Demmon yelling at Pastian
and arguing with Sgt. Breault. When he heard about the possible outstanding
warrant, Sgt. Breault told Demmon she was not free to leave, ordered her out of
the car, and patted her down for weapons. After Sgt. Breault and Officer Mattheis
placed Demmon into handcuffs, she identified herself and Officer Mattheis
confirmed the existence of an outstanding felony warrant.
Sgt. Breault asked Demmon if she needed anything out of the car, and she
stated she wanted her purse. Demmon told Officer Mattheis she had drugs in her
I Demmon was not a protected party under either no-contact order.
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No. 77230-9-1/3
purse. When he searched Demmon's purse, he found methamphetamine and
heroin.
Demmon was charged with possession of a controlled substance while on
community custody. She moved to suppress the drug evidence, arguing that Sgt.
Breault had unlawfully detained her when he stood outside the passenger door
and requested her identification. The State advanced two arguments—first, that
Sgt Breault was engaged in community caretaking by asking Demmon for her
name; and second, State v. Rankin2 only prohibits asking a passenger to identify
herself when the police are investigating whether the passenger is engaged in
criminal conduct, not when investigating whether the driver is doing so.
The trial court denied Demmon's motion to suppress. In its oral ruling, the
trial court rejected the State's community caretaking argument:
Community caretaking is officer friendly. That's how I look at
it. There is a difference between an officer walking up to you and
saying, "what's your name," and that is different from an officer
saying, "hey, you know, this guy that we just stopped has two no
contact orders and we have to determine whether or not you are one
of the protected parties so we need your name?
It's completely different, not remotely the same.
The court went on to find that"there was no seizure" because the police officer told
her the reason he was asking her name, and "all she had to do was give it, and
she would have been free to leave." The trial court found that Demmon was the
"one who turned it into a criminal investigation," and there was no seizure because
"the initial contact was basically conversational." The trial court's written findings
are consistent with its oral ruling.
2 151 Wn.2d 689,92 P.3d 202(2004).
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No. 77230-9-1/4
Following a stipulated bench trial, in which Demmon was found guilty of
possessing heroin and methamphetamine while under community custody, she
was sentenced to confinement for six months and one day and 12 months of
community custody. Demmon appeals.
ANALYSIS
Demmon argues that she was unlawfully seized, in violation of article I,
section 7 of the Washington Constitution, when Sgt. Breault repeatedly requested
her name without any articulable, individualized suspicion that she was engaged
in criminal activity. We agree.
The Fourth Amendment to the United States Constitution and article I,
section 7 of the Washington Constitution prohibit an unreasonable search and
seizure without a warrant, unless an exception to the warrant requirement applies.
State v. Rankin, 151 Wn.2d, 689,695, 92 P.3d 202(2004). "It is well settled that
article I, section 7 of the Washington Constitution provides greater protection to
individual privacy rights than the Fourth Amendment to the United States
Constitution? it at 694 (quoting State v. Jones, 146 Wn.2d 328, 332, 45 P.3d
1062(2002)). Therefore, we need not engage in a Gunwall3 analysis. Id.The party asserting an unlawful seizure bears the burden of establishing it.
State v. Young, 135 Wn.2d 498, 510, 957 P.2d 681 (1998). If the defendant
establishes that a seizure occurred, the State bears the burden of showing the
seizure falls within one of the carefully drawn exceptions to the warrant
requirement. State v. Acrev, 148 Wn.2d 738, 746-48, 64 P.3d 594 (2003).
3 State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808(1986).
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No. 77230-9-1/5
Whether a law enforcement officer has seized a person is a mixed question of law
and fact. State V. Harrington 167 Wn.2d 656, 662, 222 P.3d 92 (2009). The
resolution by a trial court of differing accounts of the circumstances surrounding
the encounter are factual findings entitled to great deference, but the ultimate
question of whether those facts constitute a seizure is one of law and is reviewed
de novo. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280(1997). Demmon has
not assigned error to any of the trial court's findings of fact so our review focuses
on a de novo determination of whether the trial court derived proper conclusions
of law from those findings. Id.Demmon does not dispute the initial traffic stop was lawful. Officer Mattheis
saw that Pastien's vehicle did not have an operating center brake light, a violation
of RCW 46.37.070. Demmon argues the trial court erred in concluding that
Demmon was not seized during this traffic stop. We agree.
"[1]t is now well established that'[for the duration of a traffic stop... a police
officer effectively seizes everyone in the vehicle.'" State v. Marcum, 149 Wn. App.
894, 910, 205 P.3d 969(2009)(internal quotation marks omitted)(quoting Arizona
v. Johnson,555 U.S. 323, 327, 129 S. Ct. 781, 172 L. Ed.2d 694(2009)); see also
Brendlin v. California, 551 U.S. 249, 255, 127 S. Ct. 2400, 168 L. Ed. 2d 132(2007). Demmon was lawfully detained, along with the driver, during the
admittedly permissible traffic stop.
Although the initial stop was lawful, the police then began to question
Demmon. Because Demmon was seized when the police conducted its traffic
stop, the State must show that questioning Demmon falls within an exception to
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No. 77230-9-1/6
the warrant requirement. Acrev, 148 Wn.2d at 746. Under article I, section 7 of
the Washington Constitution,"passengers are unconstitutionally detained when an
officer requests identification 'unless other circumstances give the police
independent cause to question [the] passengers.'" Rankin 151 Wn.2d at 695(quoting State v. Larson 93 Wn.2d 638, 642, 611 P.2d 771 (1980)). One such
Independent cause" Is an articulable suspicion that the passenger is engaging in
criminal activity. Id. at 697-98.
The State raises two arguments on appeal to justify the police's questioning
Demmon. First, the State argues that the possibility that Demmon was a protected
person in a no-contact order constitutes "independent cause" under Rankin to
question her. Second, the State contends this court should affirm the police
questioning as a part of its permissible community caretaking function.
The State relies on State v. Pettit for its first argument. 160 Wn. App. 716,
251 P.3d 896 (2011). In Pettit, the defendant, a driver of a vehicle, sought to
suppress evidence of his passenger's identity, claiming that the investigating
officer exceeded the permissible scope of a traffic stop. Id. at 718. During the
stop, a Kitsap County sheriffs deputy learned that the driver was named in a no-
contact order issued for the protection of a 16-year-old girl. It The deputy asked
the passenger, who appeared to be about 16, for her name. Id. at 718-19. The
girl provided a name, which the deputy could not find in the police database. Id. at
719. He then learned that the 16-year-old girl listed in the no-contact order had
the same physical characteristics as the girl in the car. Id. The teen was also
identified as missing, and there was a warrant for her arrest. It
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No. 77230-9-I17
The court held that the facts of Pettit were sufficient to support a rational
inference warranting the officer's initial request for the passenger's identification to
determine whether she was the person whom the no-contact order sought to
protect. Id. at 720. After receiving false information from the passenger,the police
conducted an additional, brief investigation that did not significantly extend the
duration of the traffic stop. Id. at 721. It also held, however, that Pettit lacked
standing to challenge the deputy's questioning of the passenger. it Finally, it
held the fact that the passenger was possibly a missing minor runaway was an
exigent circumstance justifying the deputy's brief detention of Pettit to determine
the identity of the minor female in his car. Id.
Pettit does not hold that the police may question an unwilling passenger to
determine if she is the protected person in a no-contact order without violating the
passengers constitutional right to privacy. The court acknowledged as much by
distinguishing Pettit from State V. Allen, 138 Wn. App. 463, 157 P.3d 893(2007).
In Allen, a male passenger was asked to identify himself during a traffic stop. it
at465-66. A records check indicated that the female driver was the protected party
in a no-contact order, but initially, the driver provided a false name for her
passenger and denied he was the respondent named in that order. See id. at 466.
The court of appeals held that the police had no basis to ask the passenger to
identify himself because they had no reason to suspect the passenger was
violating the no-contact order. Id. at 471.
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No. 77230-9-1/8
We decline to extend Pettit to the facts of this case to justify the police
questioning of Demmon when there was no reasonable suspicion that Demmon
was engaged in any criminal activity or a minor.
The State's second argument is similarly unsupported by the record. The
community caretaking function is an exception to the warrant requirement, "totally
divorced from the detection, investigation, or acquisition of evidence relating to the
violation of a criminal statute." State v. Kinzv, 141 Wn.2d 373, 385, 5 P.3d 668(2000)(emphasis added)(quoting Cady v. Dombrowski,413 U.S. 433,441, 93S.
Ct. 2523, 37 L. Ed. 2d 706 (1973)). In Washington, courts have applied this
exception to the rendering of emergency aid and routine checks on health and
safety. Id. at 386. "[Ain officer may approach, detain, and question a person under
circumstances that may require the officer to provide aid or assistance." State v.
Acrev, 110 Wn.App. 769,774,45 P.3d 553(2002), affd, Acrev, 148 Wn.2d 738.
Such an invasion of privacy is allowed only if "(1)the police officer
subjectively believed that someone likely needed assistance for health or safety
concerns,(2)a reasonable person in the same situation would similarly believe
that there was need for assistance, and (3)there was a reasonable basis to
associate the need for assistance with the place being searched? State v.
Thompson, 151 Wn.2d 793, 802,92 P.3d 228(2004).
The trial court rejected this argument, and we do so as well. The State
questioned Demmon for one purpose and one purpose only—to Investigate a
potential criminal violation by the driver. Sgt. Breault testified he contacted
Demmon to investigate whether Pastian was committing a crime, and the trial
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No. 77230-9-1/9
court's unchallenged findings are consistent with this testimony—"Sergeant
Breault asked the woman her name and told her that he needed her name because
the driver was the restrained party in two protection orders and he needed to
determine whether she was one of the protected parties." He did not testify that
Demmon needed police aid for her personal safety or that she needed any medical
assistance. Although he testified that Demmon appeared "dope sick," he
conceded the reason he contacted her had nothing to do with her appearance or
medical condition. He told Demmon he needed to know her name because "we
were doing [an] investigation." Officer Mattheis similarly testified that they had a
"duty" to identify Demmon because they needed to determine if Pastian was
violating one of the no-contact orders.
It is undisputed in this record that the sole purpose of asking Demmon to
identify herself was to investigate a possible crime. The police officers did not
subjectively believe they were acting as community caretakers. See Acrev, 148
Wn.2d at 754-55(community caretaking function exception "may not be used as a
pretext for a criminal investigation"). Therefore, the community caretaking
exception does not apply.
Even if Sgt. Breault initially talked to Demmon as part of a permissible health
and safety check, once Demmon declined to identify herself, Sgt. Breault's further
request for Identification violated Demmon's privacy interests under article 1,
section 7. "[W]hether an encounter made for noncriminal noninvestigatory
purposes is reasonable depends on a balancing of the Individual's interest in
freedom from police interference against the public's interest in having the police
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No. 77230-9-1/10
perform a community caretaking function." Kinzv, 141 Wn.2d at 387 (emphasis
added) (internal quotation marks omitted). When, as in this case, a person is
seized, courts "must cautiously apply the community caretaking function exception
because of'a real risk of abuse In allowing even well-intentioned stops to assist.'"
Id. at 388 (quoting State v. DeArman 54 Wn. App. 621, 626, 774 P.2d 1247(1989)). "When in doubt, the balance should be struck on the side of privacy
because the policy of the Fourth Amendment is to minimize governmental intrusion
into the lives of citizens." Id. at 394-95; see also Rankin, 151 Wn.2d at 694("(A]rticle I, section 7 of the Washington Constitution provides greater protection to
individual privacy rights than the Fourth Amendment."). The increased protection
afforded by article I, section 7 of the Washington Constitution necessarily requires
less intrusion into Demmon's privacy. See Rankin 151 Wn.2d at 694.
In Kinzv, our Supreme Court concluded that a police officer's decision to
stop a potentially "at-risk youth" was reasonable and justified under the community
caretaking exception because of the strong public interest in protecting the safety
of children. 141 Wn.2d at 389. The officer subjectively believed the defendant
was under the age of 13, in a high narcotics area of downtown Seattle late at night,
and in the presence of an adult male known by the officer to be involved with
narcotics. Id. at 388-89. The Supreme Court deemed the initial stop to be an
appropriate act of community caretaking; otherwise, "a police 'officer could be
considered derelict by not acting promptly to ascertain if someone needed help.'"
Id. at 389 (emphasis omitted)(quoting State v. Gocken, 71 Wn. App. 267, 276,
857 P.2d 1074 (1993), review denied, 123 Wn.2d 1024, 875 P.2d 635 (1994)).
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No. 77230-9-1/11
However, when it became clear to the officer that the youth did not welcome the
interaction, the officer's decision to grab the youth by the arm changed the
encounter to a warrantless seizure. Id. at 390. The Court concluded the seizure
was unreasonable because the interest in maintaining the safety of children did
not outweigh the defendant's constitutional right to freedom of association and
movement. Id. at 392-93.
Similar to Kinzv, we must balance the public's interest in securing the safety
of individuals protected by restraining orders with the protected individuals'
freedom of association and movement. In this case, Sgt. Breault's inquiry into
Demmon's identity crossed the line. Demmon did not want to reveal her identity.
The first time he asked for her name, she mumbled something under her breath.
The second time he asked, she stated clearly she did not want to give her name.
When he asked a third time, she again declined to identify herself and, only at that
point, explained that she had outstanding felony warrants. Even if Sgt. Breault's
concern had been for the health and safety of a potential domestic violence victim,
when Demmon affirmatively declined to identify herself, Sgt. Breault violated her
article I, section 7 privacy rights by continuing to ask for her identification.
When an unconstitutional seizure occurs, "all subsequently uncovered
evidence becomes fruit of the poisonous tree and must be suppressed." Allen
138 Wn. App. at 469(quoting State v. Ladson, 138 Wn.2d 343,359,979 P.2d 833(1999)). The methamphetamine and heroin were discovered as a result of the
unlawful seizure. Therefore, the trial court erred in denying Demmon's motion to
suppress.
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No. 77230-9-1/12
We reverse Demmon's conviction for possession of a controlled substance
committed while on community custody and remand the case for an entry of an
order of dismissal.
WE CONCUR:
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