State v. Carney , 142 Wash. App. 197 ( 2007 )

¶1 — Roxanne Elaine Carney appeals her conviction for possession of methamphetamine. We hold that an officer who seized Carney because she may have had information that would identify a reckless driver had no articulable suspicion that Carney had committed any criminal activity. Moreover, we note that the officer was not searching for weapons for his safety. Thus, the officer had no justification for checking for an outstanding warrant, the discovery of which led the officer to arrest and search Carney. The trial court should have suppressed the evidence. We reverse.

Bridgewater, J.

¶2 Deputy Kendall of the Clark County Sheriff’s Department responded to an identified citizen’s complaint that a man on a white and blue “crotch rocket type street bike [zipped] up and down 10th Ave in front of his house.” Clerk’s Papers (CP) at 18. According to the citizen, the motorcyclist was driving recklessly at excessive speeds while cutting off other traffic, doing “wheelies” while riding the center line, and returning to an area of new homes under construction north of the citizen’s house. CP at 18, 32. The citizen described the motorcyclist as a white male wearing a dark helmet, white shirt, and blue jeans.

¶3 The deputy drove to a dead-end street ending in a cul-de-sac. At the west end of the street, he saw a black sedan legally parked facing the west end of the street. Two people occupied the car. A man matching the citizen’s description of the motorcyclist (but not wearing a helmet) was standing near the driver’s side of the car, talking to the car’s occupants. The deputy noticed a white and blue motorcycle parked near the car. As the deputy approached the area, the man ran to the motorcycle, climbed on, and started the engine. The deputy turned on the emergency lights of his patrol car and yelled to the motorcyclist to stop the bike and get off. He also attempted to block the motorcycle, but the motorcyclist swerved around the patrol car, drove over the curb, and fled the area.

¶4 The deputy did not pursue the motorcyclist but instead pulled up behind the parked car with his emergency lights still on. The deputy then detained the two women in the car, asked them to show him their hands, and requested identifying information. He radioed in their names and birthdates to conduct a records check.

¶5 As he waited for the record check results, the deputy questioned the two women about the motorcyclist. During his questioning, the dispatcher notified him that there was an outstanding warrant for the arrest of Carney.¹ The deputy arrested Carney, handcuffed her, and placed her in his patrol car. A search incident to arrest resulted in the discovery of two small bags of methamphetamine in Carney’s windbreaker.

¶6 The trial court held a CrR 3.6 suppression hearing, but it ultimately denied Carney’s motion to suppress the evidence. Thereafter, at a stipulated facts trial, the trial court found Carney guilty. Carney appeals.

¶7 We review the denial of a suppression motion to determine whether substantial evidence supports the trial court’s findings of fact and whether those findings support the conclusions of law. State v. Dempsey, 88 Wn. App. 918, 921, 947 P.2d 265 (1997); State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Whether a seizure occurred is a mixed question of law and fact. Although the trial court’s factual findings are entitled to great deference, whether those facts constitute a seizure is a question of law that we review de novo. State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108 (1996), overruled on other grounds by State v. O’Neill, 148 Wn.2d 564, 62 P.3d 489 (2003).

¶8 Initially, we hold that Carney, the passenger in the parked car, was seized. Whether a seizure occurred and whether that seizure was valid are separate inquiries. See O’Neill, 148 Wn.2d at 575-76. A seizure under article I, section 7 of the Washington State Constitution occurs when an individual’s freedom of movement is restrained and when, considering all the circumstances, a reasonable person in the individual’s position would not believe that he is free to leave or decline a request due to an officer’s use or display of authority. O’Neill, 148 Wn.2d at 574. This determination is a purely objective one, looking at the actions of the law enforcement officer. O’Neill, 148 Wn.2d at 574. If the officer’s conduct or show of authority, objectively viewed, rises to the level of a seizure, that seizure is valid only where there are “ ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant’ ” detaining the individual. O’Neill, 148 Wn.2d at 576 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). The officer must have a well-founded suspicion that the individual is engaged in criminal activity and must be able to “ ‘point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ ” State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991) (quoting Terry, 392 U.S. at 21). “The officer’s reasonable suspicions are, therefore, relevant once a seizure occurs, and relate to the question whether the seizure is valid under article I, section 7.” O’Neill, 148 Wn.2d at 576.

¶9 Here, the seizure was clearly an investigative detention. The deputy requested identification after he had seized Carney. “ ‘A police officer’s conduct in engaging a defendant in conversation in a public place and asking for identification does not, alone, raise the encounter to an investigative detention.’ ” O’Neill, 148 Wn.2d at 580 (quoting State v. Armenia, 134 Wn.2d 1, 11, 948 P.2d 1280 (1997)). In this case, though, the deputy’s request that Carney provide identification followed a considerable display of authority. When the motorcyclist fled, the deputy did not follow him and did not turn off the patrol car’s emergency lights. Instead, the deputy pulled up behind the sedan with the emergency lights still flashing and then approached the vehicle. He commanded the women to show their hands and demanded their identification. Under these circumstances, a reasonable person in Carney’s position would not have felt free to ignore the deputy’s request to identify herself after being seized.²

¶10 Based on the holding in O’Neill, the women here were in the same position as a law enforcement officer contacting a pedestrian. See O’Neill, 148 Wn.2d at 579 (“[W]here a vehicle is parked in a public place, the distinction between a pedestrian and the occupant of a vehicle dissipates.”). But following the analysis in O’Neill and Terry, the deputy was not engaged in a social contact as would be permitted if he merely asked for information, including Carney’s name. See O’Neill, 148 Wn.2d at 580. Here, he did not suspect criminal activity on Carney’s part and he was not searching for weapons for his safety. Yet he persisted in checking Carney’s identity and records, even though he had no justification either for a Terry stop or for running Carney’s name for any arrest warrants.

¶11 The deputy detained the celt’s occupants, based on the deputy’s belief that they knew or could have known the identity of the motorcyclist or had information about the alleged reckless driving. But this alone does not justify an unconstitutional intrusion into Carney’s private affairs. There is no authority—either statutory or otherwise— permitting an officer to seize a witness without a warrant, absent exigent circumstances or officer safety, neither of which applies to this case. In fact, both statutory and common law precedent mandate the conclusion that an individual’s alleged ability to provide the police with information material to the investigation of a potential crime does not justify a warrantless seizure, absent reasonable suspicion and based on objective facts that the individual is involved in criminal conduct. See RCW 10.31.100;³ O’Neill, 148 Wn.2d at 576. Finally, the only authority for detaining a witness is RCW 10.52.040 (courts shall hold a hearing to determine whether a material witness should be detained until the hearing or trial in which the witness is to testify) and CrR 4.10 (courts may issue a warrant for the arrest of a material witness only when certain requirements are met). Were it otherwise, the police would be free to detain any person suspected of having information about a crime without a warrant, thus considerably diminishing the protections of State v. Young, 135 Wn.2d 498, 957 P.2d 681 (1998), State v. Rankin, 151 Wn.2d 689, 92 P.3d 202 (2004), and O’Neill.

¶12 To better comprehend the seriousness of an opposite holding, one should consider the broad seizure powers that the police could use in the fairly common situation of a vehicle speeding in a downtown area. Under an opposite holding to ours today, the police would be justified in seizing any person on the street who might have been a witness to the speeding offense and checking their record for “warrants.” Similarly, any passenger in a vehicle where the driver is committing a crime—from speeding, to reckless driving, to greater felonies—could be asked for identification in spite of Rankin’s categorical prohibition, merely because he or she witnessed the driver committing the crime or had information about the driver. Again, there is no authority for such a radical departure from our jurisprudence on the protections afforded by article I, section 7 of the Washington State Constitution.

¶13 In conclusion, the deputy in this case had no articulable suspicion of criminal wrongdoing on Carney’s part. Therefore, Deputy Kendall’s seizure of Carney was unconstitutional and the trial court erroneously denied Carney’s motion to suppress the drug evidence. As the drug evidence was the sole basis of Carney’s conviction, we reverse and remand for the trial court to enter an order of dismissal.

¶14 Reversed.

1 The warrant was for failure to transfer title within 45 days.

2 Relying on State v. Rankin, 151 Wn.2d 689, 92 P.3d 202 (2004), the State concedes that a seizure occurred in this case. Under Rankin, freedom from disturbance in “private affairs” afforded to ear passengers by article I, section 7 of the Washington State Constitution prohibits officers from requesting identification from passengers for investigative purposes unless am independent reason justifies the request. Rankin, 151 Wn.2d at 699. Rankin, however, does not reach occupants in cars parked in public spaces. See Rankin, 151 Wn.2d at 697 (distinguishing between pedestrians and passengers for article I, section 7 purposes); O’Neill, 148 Wn.2d at 579 (concluding that where a vehicle is parked in a public space, the distinction between a pedestrian and the occupant of a vehicle dissipates); State v. Mote, 129 Wn. App. 276, 120 P.3d 596 (2005) (pointing out that Rankin addresses passengers in vehicles stopped by law enforcement after a show of authority, whereas O’Neill addresses persons seated in vehicles parked in public places).

3 Under RCW 10.31.100,

[a] police officer having probable cause to believe that a person has committed or is committing a felony shall have the authority to arrest the person without a warrant. A police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the presence of the officer.

(Emphasis added.)