State Of Washington, Resp v. Aaron Justin Calloway, App ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 78899-0-I
Respondent,
DIVISION ONE
V.
UNPUBLISHED OPINION
AARON JUSTIN CALLOWAY,
Appellant. FILED: February 10, 2020
APPELWICK, C.J. — Calloway appeals his judgment and sentence. He
argues that a police officer’s investigatory stop of him was unlawful, and that the
evidence that flowed from it should have been suppressed. We affirm.
FACTS
While on a routine patrol, Tulalip Tribal Police Patrol Sergeant Jeremy
Mooring observed Aaron Calloway walk into a derelict property on Old Tulalip
Road. Sergeant Mooring knew from experience that the area was a high narcotics
area. The specific property was known for squatters and substance abusers. The
owners of the house had entered into an agreement with the Tulalip Tribe for
assistance in enforcing trespassing ordinances. The agreement provided that only
two individuals, Calvin Hatch and a male who goes by the name of “Boo Boo,”
were allowed to stay on the property. Hatch and Boo Boo were allowed to have
visitors. The property owners granted tribal police the right to enter the property
for the purpose of identifying and removing all others from the property.
No. 78899-0-1/2
Sergeant Mooring approached the house and knocked on the door. A
female voice answered, asking who was there. Sergeant Mooring responded, “It’s
the police. Nobody’s supposed to be in this house.” He received no further
response. Sergeant Mooring walked around the backside of the house to
investigate the rear entrance. He then heard the front door close. He moved back
towards the front of the home to investigate, and observed Calloway walking away
from the home towards the street. Sergeant Mooring followed and observed
Calloway proceed down the street to a recreational vehicle (RV), pick up a bicycle
off the ground near the RV, and attempt to ride away. Sergeant Mooring called
out to him, “How you doin’ partner? Come over here and talk to me for a second.”
Sergeant Mooring testified that, at the time, he was suspicious that Calloway had
committed two counts of trespass and potentially stolen the bike. Calloway then
peddled towards Sergeant Mooring.
Sergeant Mooring asked Calloway what he was doing at the house.
Calloway responded that he was “stopping by to see my friend Boo Boo.” Sergeant
Mooring asked if Boo Boo was in the house. Calloway responded, “Yeah I just
went in there to say hi to him.” Sergeant Mooring then stated, ‘That’s it? For 30
seconds? That’s consistent with running dope, man.” Calloway denied this,
saying, “[N]o, it’s consistent with they said nobody can be in the house.” He said
that he did not know that no one was allowed in the house.
Sergeant Mooring then asked Calloway if he had identification. Calloway
responded that he did, and reached into his pocket to retrieve it. While Calloway
did this, Sergeant Mooring asked him if the bike that he was riding was his.
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Sergeant Mooring pointed out that Calloway had originally approached the house
on foot from a different direction, but was now leaving on a bike that he had not
come with. Calloway responded that it was ‘his friend’s bike. I’m using it. It’s
fine.” Calloway then handed Sergeant Mooring his identification card. He
disclosed to Sergeant Mooring that he had a misdemeanor warrant in Fife. At that
point, Sergeant Mooring called in Calloway’s information over his radio.
The two continued to converse while police looked into the warrant. During
this time, another officer arrived at the scene. After two more officers arrived,
Sergeant Mooring indicated that he had been told to arrest Calloway on the basis
of the Fife warrant. He told Calloway that he was being placed under arrest for the
warrant and handcuffed him. During the search incident to arrest, Sergeant
Mooring recovered a scale, a needle, and a bag of methamphetamine from
Calloway’s pockets.
The State charged Calloway with possession of a controlled substance.
Calloway contended that the stop was unlawful and moved to suppress all
evidence gathered as a result. The trial court denied the motion, finding that
Sergeant Mooring had reasonable and articulable suspicion sufficient to support
the investigatory stop. The trial court found Calloway guilty as charged.
Calloway appeals.
DISCUSSION
Calloway argues that the trial court erred in denying his motion to suppress
the evidence seized as a result of Sergeant Mooring stopping him. He claims that
Sergeant Mooring was unable to articulate reasonable suspicion that he was
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No. 78899-0-1/4
engaged in criminal activity. As a result, he contends that his detention was
unconstitutional from its inception, and that all evidence that flowed from it should
have been suppressed.
Generally, under the Fourth Amendment to the United States Constitution
and article I, section 7 of the Washington Constitution, an officer may not seize a
personwithoutawarrant. Statev. Fuentes, 183 Wn.2d 149, 157-58, 352 P.3d 152(2015). A seizure occurs when, considering all the circumstances, an individual’s
freedom of movement is restrained and the individual would not believe he or she
is free to leave or decline a request due to an officer’s use of force or display of
authority. Statev. Harrinqton, 167 Wn.2d 656, 663, 222 P.3d 92(2009). An officer
may, without a warrant, briefly detain a person for questioning if the officer has
reasonable suspicion that the person stopped is engaged in criminal activity.
Fuentes, 183 Wn.2d at 158.
Reasonable suspicion must be based on specific and articulable facts. ki.
To determine the reasonableness of an officer’s suspicion, a reviewing court must
look at the totality of the circumstances known to the officer at the time of the stop.
Id. The exclusionary rule mandates the suppression of evidence obtained as the
direct result of an unlawful detention. See State v. Garvin, 166 Wn.2d 242, 254,
207 P.3d 1266 (2009). In reviewing the denial of a motion to suppress, we review
the trial court’s conclusions of law de novo and its findings of fact used to support
those conclusions for substantial evidence. Fuentes, 183 Wn.2d at 157.
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No. 78899-0-115
I. Seizure
The trial court found that a seizure occurred when Sergeant Mooring asked
for Calloway’s identification card. Calloway contends that the seizure occurred
when the officer initially stopped him. The State concedes this point. That
concession is well taken.
The trial court characterized the initial contact between Sergeant Mooring
and Calloway as “social,” because Sergeant Mooring “asked” Calloway to come
over. This characterization is consistent with the trial court’s finding of fact 12, that
the officer initiated contact with the words, “[H]ow you doing partner? Why don’t
you come over here and talk to me a sec[ondj?” The trial court did not find that a
seizure occurred until Sergeant Mooring asked for Calloway’s identification.
Finding of fact 12 is not supported by substantial evidence. Sergeant
Mooring testified that he initially “asked” Calloway to come talk to him. However,
his body camera records him saying “How you doin’ partner? Come over here and
talk to me for a second,” rather than “[H]ow you doing partner? Why don’t you
come over here and talk to me a sec[ond]?” A reasonable person would interpret
the latter as a request, but the former as a command. This is especially so because
Calloway had just exited a property after Sergeant Mooring had informed the
occupants that no one was allowed to be there. Under the circumstances, a
reasonable person would not feel free to disobey a police officer’s command to talk
to him. See Statev. Fredrick, 34Wn. App. 537, 541, 663 P.2d 122 (1989) (officer
seized a suspect by saying, “Stop, I want to talk to you.”).
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No. 78899-0-116
We reverse the trial court’s finding that Calloway’s seizure did not begin until
Sergeant Mooring asked for his identification. We instead find that Calloway’s
detention began when Sergeant Mooring initially stopped him. We evaluate the
reasonableness of the stop based on the facts known to Sergeant Mooring at that
point in time. ~ State v. Gatewood, 163 Wn.2d 534, 540, 182 P.3d 426 (2008).
II. Reasonable Suspicion
Calloway argues that Sergeant Mooring’s seizure was not justified by
reasonable suspicion.
Sergeant Mooring testified that he stopped Calloway on suspicion of two
counts of trespass and theft of a bike. Sergeant Mooring had personally observed
Calloway walk across private property to enter a house on different private
property. The owners of the house that Calloway entered had requested that
police document and remove any person on that property except for two male
individuals and their visitors.1 Sergeant Mooring knew what the two people who
were authorized to stay at the house looked like, and Calloway wasn’t one of them.
When Sergeant Mooring knocked on the door to investigate, a female voice
answered. When he identified himself as a police officer, he received no further
When asked why Sergeant Mooring said “no one was allowed” in the
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house when there were two lawful occupants, Sergeant Mooring responded,
Calvin’s allowed to stay there and Boo Boo. And then anybody else,
from my knowledge, . . there were several people that were
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trespassed, but I didn’t have access to the photographs and names
at that time. So when I just announced it generally that nobody’s
allowed to be there other than Calvin and Boo Boo that was just my
understanding nobody’s supposed to be staying there. Calvin and
Boo Boo can have visitors, but nobody’s you know, takes care of
--
the squatting problem.
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No. 78899-0-1/7
response. Sergeant Mooring then walked around to the back of the house.
Calloway exited the property while Sergeant Mooring was in the backyard. He left
through the front door and headed to the road, rather than retrace the steps of his
arrival. And, out on the road, he picked up a bicycle from beside an RV and began
to ride it away. This course of conduct raised a reasonable suspicion that Calloway
was trespassing, attempting to avoid apprehension, and stealing a bicycle in the
process.
Calloway argues that this is not enough information to suspect theft of the
bicycle. He points out that Sergeant Mooring testified to knowing nothing about
the bike or its owner, only that there were bikes piled up at the RV, but that he had
no idea whether they were stolen or not. But, we don’t look at these facts about
the bicycle in isolation. Under the totality of the circumstances, it was reasonable
for Sergeant Mooring to believe that Calloway was taking a bike that did not belong
to him.
Calloway raises the lack of signage or fencing around the property
indicating that trespassers were not allowed. He contends that this differentiates
Calloway’s case from cases like State v. Glover, 116 Wn.2d 509, 511-12, 806 P.2d
760 (1991), and State v. Little, 116 Wn.2d 488, 490-91, 806 P.2d 749 (1991). Each
of those cases involved officers stopping trespassers at the Lakeshore Village
Apartments. Little, 116 Wn.2d at 490; Glover, 116 Wn.2d at 511. The complex
was surrounded by fencing topped with concertina wire, no trespassing signs, and
had an armed security guard at the main entrance. Little, 116 Wn.2d at 490.
Similar to the facts here, management had also entered into an agreement with
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No. 78899-0-1/8
the Seattle Police Department to investigate persons who were suspected of being
trespassers. ki.
The court in Little considered the security and no trespassing signs to be a
factor that contributed to the officer’s reasonable suspicion.2 ki. at 497. However,
in both Little and Glover, the most significant factor was the officers’ familiarity with
the complex residents, combined with their unfamiliarity with the trespassers.
Little, 116 Wn.2d at 497; Clover, 116 Wn.2d at 514. This gave the officers
reasonable suspicion that a trespass was occurring. Little, 116 Wn.2d at 497;
Glover, 116 Wn.2d at 514. Here, Sergeant Mooring’s reasonable suspicion of
Calloway’s conduct was not negated by the fact that there were no signs
prohibiting trespassers. Sergeant Mooring knew that only two individuals were
allowed to occupy the property, knew who they were, and knew that Calloway was
not one of them. This fact, combined with Calloway’s departure from the property
and his attempt to avoid Sergeant Mooring, who had identified himself as an officer
and stated no one was supposed to be there, provided sufficient reasonable
suspicion to justify an investigatory stop.
Calloway argues in the alternative that even if the seizure was lawful at the
time, whatever reasonable suspicion Sergeant Mooring had of him trespassing
dissipated at the beginning of their conversation. To do so, he relies on the
conversation occurring after the lawful seizure. When Sergeant Mooring asked
him what he was doing at the house, Calloway responded that he was “see[ing]
2 The Clover court does not mention the various security measures in its
analysis of the reasonableness of the investigatory stop. 116 Wn.2d at 514.
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No. 78899-0-1/9
my friend Boo Boo.” Calloway claims that this should have dissipated Sergeant
Mooring’s suspicion because it was clear that he was a guest of a permitted
occupant and therefore not trespassing. This is not so. All that Calloway’s
response proves is that he knew that Boo Boo lived at the house. It was
reasonable for Sergeant Mooring’s suspicion to remain because, if Boo Boo were
in the house, he would have likely responded when Sergeant Mooring identified
himself as the police. And, Boo Boo would have told Calloway he was free to
remain as his guest. Instead, the only responses were a woman’s voice and
Calloway’s attempt to escape the property without detection. The suspicion of
trespass had not attenuated.
Calloway seeks to analogize this case to Fuentes. In that case, police
suspected criminal activity when Sandoz entered an apartment and remained for
about 15 minutes before leaving. Fuentes, 183 Wn.2d at 159. The area was
known for drugs, and the owner of the apartment complex had given police
permission to expel “loiterers.” j4~. at 155. The Washington Supreme Court
overruled the trial court’s finding of reasonable suspicion primarily because
Sandoz’s conduct was more indicative of being a visitor than a loiterer. ki. 160-
61.
In contrast to Fuentes, the owners of the property here instructed police to
identify and remove all individuals from the property except for two people, and
their visitors. Calloway was not one of the two authorized persons and Sergeant
Mooring did not otherwise recognize him. This is much more specific than a simple
“no loitering” policy. Also, Sergeant Mooring had reason to believe that Calloway
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No. 78899-0-1/10
was not an authorized guest. Neither he nor Boo Boo responded when Sergeant
Mooring knocked on the door and announced himself, and he instead sought
evade detection by police by leaving. These crucial differences provide the
reasonable suspicion necessary to justify Sergeant Mooring’s investigatory stop of
Calloway.
The seizure was supported by an articulable suspicion based on a totality
of the circumstances. Part of Sergeant Mooring’s mandate was to identify and
document anyone on the property who was not an authorized person. It was a
reasonable investigatory next step to ask for Calloway’s identification for
documentary purposes. At that point, Calloway volunteered that he had a warrant
out for his arrest, which provided reasonable grounds to continue to hold him while
Sergeant Mooring checked the warrant. The warrant provided the basis for the
arrest. The trial court did not err in not suppressing the evidence at issue.
We affirm.
1’
WE CONCUR:
LI’ 4F
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