State of Washington v. Marisa May Fuentes ( 2014 )

FILED
FEB 11,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 30983-5-III
Respondent, )
)
v. )
)
MARISA MAY FUENTES, ) UNPU6LISHED OPINION
)
Appellant. )
KORSMO, C.J. - Marisa Fuentes challenges the trial court's suppression rulings
arising from an investigative stop. We conclude that the officers had articulable
suspicion to justify the stop and affIrm.
FACTS
This case has its genesis in a November 2010 investigation by the Kennewick
Police Department. Officers performed a series of controlled drug buys at an apartment
occupied by Richard Fenton. These dealings led to a search warrant and the recovery of
illegal drugs and drug paraphernalia from the apartment. Almost a year later, officers
knew that Richard Fenton was still at the apartment and also suspected that other wanted
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State v. Fuentes
individuals frequented the apartment. Based on this information, officers set up a
stakeout outside.
On the night of the stakeout-October 5-6, 20 Il-officers first observed two
people outside the apartment. When the officers approached the people to ask if any of
the wanted individuals were present, the two ran inside and would not answer the door.
Later during the stakeout, officers observed 8 to 10 people come and go from the
apartment between 10 p.m. and 12 a.m. All of these people stayed between 5 and 20
minutes. It was also a weeknight. In the officers' training and experience, this activity
was consistent with illegal drug dealing.
Just after midnight, officers observed a woman, later identified as Marisa Fuentes,
arrive at the apartment. Within five minutes of entering the residence, Ms. Fuentes
returned to her vehicle. She then retrieved from the trunk of her car a white grocery bag
with unidentified contents about the size of a small football. She then took the bag into
the apartment and left within another five minutes. When Ms. Fuentes left the apartment,
the bag was noticeably emptier. Suspecting that she had just delivered illegal drugs, the
stakeout officers radioed for supporting officers to stop Ms. Fuentes on suspicion of
delivery of a controlled substance.
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Officers stopped the car and advised Ms, Fuentes of her Miranda' rights, She
waived those rights and the officers proceeded to question her, In the course of
questioning, Ms, Fuentes admitted that she had just delivered marijuana to Mr, Fenton's
apartment Based on this information, officers were able to obtain a search warrant for
both Ms, Fuentes's car and Mr, Fenton's apartment The search of the apartment yielded
methamphetamine, marijuana, and other illicit substances, The vehicle search yielded
methamphetamine,
Ms, Fuentes was charged with delivery of marijuana to the apartment; no charges
were filed related to the methamphetamine found in the car, 2 Ms, Fuentes moved to
suppress the evidence derived from the investigative stop of her vehicle, including her
admission to delivering marijuana, The trial court ruled that officers made a valid stop of
the vehicle, Ms. Fuentes then was convicted of delivering marijuana at a stipulated facts
trial. She timely appealed to this court.
ANALYSIS
The sole issue in this appeal concerns whether officers had reasonable suspicion to
stop Ms. Fuentes as she drove away from the apartment. We agree with the trial court
that the officers had articulable suspicion justifying the stop.
, Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2 The methamphetamine was found in her purse, which was found in the white bag
she had placed in the trunk.
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A finding of reasonable suspicion presents a question of law that this court
reviews de novo. State v. Johnson, 128 Wn.2d 431,443,909 P.2d 293 (1996). In
reviewing the denial of a suppression motion, conclusions of law are reviewed de novo
and the findings of fact used to support those conclusions are reviewed for substantial
evidence. State v. Garvin, 166 Wn.2d 242,249,207 P.3d 1266 (2009). Because Ms.
Fuentes only challenges whether the uncontested facts were legally sufficient to give rise
to reasonable suspicion, our review is de novo.
In the context of a TerrI stop, '" [t]he reasonableness of the officer's suspicion is
determined by the totality of the circumstances known to the officer at the inception of
the stop.'" State v. Lee, 147 Wash. App. 912, 917,199 P.3d 445 (2008) (quoting State v.
Rowe,63 Wn. App. 750, 753, 822 P.2d 290 (1991». We have noted that "the suspicion
must be individualized." State v. Richardson, 64 Wash. App. 693, 697, 825 P.2d 754
(1992). Thus, if officers "have nothing to independently connect such person to illegal
activity, a search of the person is invalid under article I, section 7 [of the Washington
State Constitution]." State v. Parker, 139 Wn.2d 486,498,987 P.2d 73 (1999). Where a
suspect's activity is consistent with both criminal and noncriminal activity, officers may
still justifY a brief detention under Terry without first ruling out all possibilities of
3 Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968).
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innocent behavior. State v. Kennedy, 107 Wn.2d 1,6,726 P.2d 445 (1986); State v.
Anderson, 51 Wash. App. 775, 780, 755 P.2d 191 (1988).
In challenging the Terry stop, Ms. Fuentes chiefly relies on two cases: Richardson
and State v. Doughty, 170 Wash. 2d 57, 239 P.3d 573 (2010).
In Richardson, Yakima officers were patrolling an area late at night known for
high drug activity.- Richardson, 64 Wash. App. at 694. Multiple times throughout the
course of the night, officers observed a man standing on a comer who would then
approach cars and talk to their occupants. The man would then disappear and reappear at
the same comer a little bit later. When officers would approach the man, he would walk
away, disappear out of view, and later show back up at the comer. Based on their
training and experience, the officers believed the man's activity was consistent with drug
dealing. Id. at 694-95. When the man showed up again later, this time with another
person-Richardson-officers stopped the two and detained them on suspicion of drug
dealing. A search revealed that they were both in possession of illegal drugs. Id. at 695.
This court ultimately reversed Richardson's conviction because the officers had no
individualized evidence that he was involved in drug-related activity. Id. at 697-98.
Although Richardson was seen with a person reasonably suspected4 of drug-related
activity, "an individual's mere proximity to others independently suspected of criminal
4 Although dicta, this court opined that officers had reasonable suspicion to detain
the man on the comer. Richardson, 64 Wash. App. at 697.
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activity justify an investigative stop; the suspicion must be individualized." Id. at 697
(citing State v. Thompson, 93 Wn.2d 838,841,613 P.2d 525 (1980».
In Doughty, the appellant similar to here showed up to a suspected drug house late
at night, stood there for two minutes, and then drove away. Officers then seized Mr.
Doughty and found methamphetamine in his car. Doughty, 170 Wash. 2d at 59-60. The
Supreme Court reversed the conviction because the officers did not observe Mr. Doughty
enter the house or observe anyone come to the door and interact with him. Id. at 64. The
court also noted that Doughty was not seen carrying any unusual objects or otherwise
acting suspiciously. Id. at 65.
While some parallels can be drawn from Richardson and Doughty to this case, the
officers in this case had more information on which to base their suspicions than in those
cases. In Richardson and Doughty, officers did not see the defendant actually interact
with the other suspected party. Here, Ms. Fuentes showed up with a suspicious package
from her trunk and left with the same package noticeably lighter. In Doughty, officers
only had complaints that the house was a drug house. Doughty, 170 Wash. 2d at 60. Here,
officers knew that the apartment had been and currently appeared to be used for drug
dealing. In Doughty, officers also did not see Mr. Doughty go inside or see anyone else
acting suspiciously. Here, officers saw Ms. Fuentes enter and exit twice within minutes
and also observed 8 to 10 other people do the same earlier in the night. In the officers'
training and experience, large numbers of people do not show up one at a time late at
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night on a weeknight and stay for only minutes unless illegal activity is occurring. While
such activity may in some circumstances be consistent with some noncriminal activities,
the Constitution does not require officers to rule out all possibility of innocent behavior
before making a brief investigatory stop. Anderson, 51 Wash. App. at 780; Kennedy, 107
Wash. 2d at 6.
The more apt analogy is to Kennedy. There, officers were investigating a house
suspected of being used for drug dealing based on complaints by neighbors that there was
heavy traffic in and out ofthe house by people who stayed only minutes. Kennedy, 107
Wash. 2d at 3. One of the people that officers observed leave the house was Mr. Kennedy.
Officers did not see Kennedy enter or leave with any objects or see him otherwise acting
suspiciously, but stopped him anyway after observing him leave the house. Id. The one
substantial difference between that case and this one is that officers had a tip from an
informant that Mr. Kennedy regularly purchased marijuana from the residence he was
observed leaving. Id.
While an informant's tip is strong evidence supporting reasonable suspicion,
nothing in the Kennedy opinion states or suggests that an informant's tip is an absolute
minimum for establishing reasonable suspicion. Indeed, Kennedy noted that no such rule
is possible, or even desirable: '" no single rule can be fashioned to meet every
conceivable confrontation between the police and citizen. Evaluating the reasonableness
of the police action and the extent of the intrusion, each case must be considered in light
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of the particular circumstances facing the law enforcement officer.'" Kennedy, 107
Wash. 2d at 7 (quoting State v. Lesnick, 84 Wn.2d 940,944,530 P.2d 243 (1975)).
Looking at the facts of this case in light of the particular circumstances facing
officers, we find that the additional facts separating this case from Richardson and
Doughty sufficed to give officers individualized suspicion that Ms. Fuentes had just been
involved in the drug dealing that was known to take place at Mr. Fenton's apartment.
Unlike those cases, she was seen carrying a bag into the apartment and came out carrying
something different in the bag. Unlike those cases, here, the officers' suspicion that Mr.
Fenton's apartment was a place of drug dealing was especially well founded, based on
the search conducted a year earlier. She also went to the apartment after two hours of
surveillance revealed that apparent drug activity was taking place there that very evening
shortly before her arrival at midnight on a weekday. It was reasonable to infer that she
had arrived to help resupply Mr. Fenton and/or would have information about his
activities that evening.
There was articulable suspicion as well as individualized suspicion of Ms.
Fuentes. The trial court correctly denied the motion to suppress.
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Affinned.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Brown, J.
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