State of Washington v. D.E.D. ( 2017 )

FILED
SEPTEMBER 19, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33858-4-111
Respondent, )
)
V. )
)
D.E.D., ) PUBLISHED OPINION
)
Appellant. )
KORSMO, J. - D .E.D. 1 appeals from a juvenile adjudication finding him guilty of
obstructing a public servant. For reasons different than he argues, we conclude that his
passive resistance to an investigatory stop was not a crime under these facts. The
conviction is reversed.
FACTS
The essential facts of the case revolve around an encounter between 17-year-old
D.E.D. and Wapato Police Department Officer Michael Deccio. The officer responded to
a call from a woman complaining about a group of youths who did not belong in her
neighborhood along the 500 block of South Tieton Street. Several minutes later the
officer arrived in the area in his patrol car.
1
Our concurring colleague has created the pseudonym of Dennis Davis for young
D.E.D. We will adopt that pseudonym and occasionally make reference to "Dennis,"
"Dennis Davis," or "Mr. Davis" rather than refer to the appellant solely by his initials.
No. 33858-4-111
State v. D.E.D.
Instead of seeing a group of youths, the officer saw Mr. Davis walking down the
middle of the street by himself. The officer did not immediately recognize Mr. Davis, but
eventually recalled that he lived a few blocks away, although he could not remember the
young man's name. The youth was walking in the direction of his house.
Admittedly lacking evidence of reasonable suspicion to justify detaining the
youth, Officer Deccio pulled up alongside in his patrol car and asked, "what's going on?"
Dennis responded with profanity and accused the officer of bothering him. The youth's
body was tense with fists clenched and arms flexed tight. The officer decided to park his
car and further attempt to speak to the youth.
As the officer was getting out of his car, the police dispatch advised that another
caller had reported a group of kids, one of whom displayed a gun, outside his front yard.
Officer Deccio then detained Davis while indicating that the young man was not under
arrest. The officer attempted to handcuff Davis, but the younger man pulled his arm
away and demanded that the officer not touch him. The officer directed Davis to put his
arms behind his back, but the young man refused to comply. He attempted to stiffen his
body and pull away from the officer in order to avoid being handcuffed. The officer
continued to attempt to handcuff the young man in order to search for a gun. After two
minutes, the officer prevailed in overpowering Davis and handcuffing him. A search
failed to uncover any weapons.
2
No. 33858-4-III
State v. D.E.D.
A charge of obstructing a public servant was filed in the juvenile division of the
Yakima County Superior Court. Although no motion to suppress was ever filed, defense
counsel attempted to argue during trial that the seizure was unlawful and, therefore, his
client should be acquitted. The trial court declined to entertain the argument, pointing out
that the defense never sought to challenge the legality of the stop by pretrial motion.
Instead, counsel had objected to the officer relating the hearsay basis for his decision to
detain Dennis. The trial court described defense counsel's approach as an effort to gain a
tactical advantage over the prosecution. Report of Proceedings (RP) at 51-53.
The court concluded that D.E.D. had hindered the officer in the course of his
official duties by struggling and resisting the detention, along with attempting to kick the
officer in the groin. RP at 54. This resistance had cost the officer several minutes of
time. Accordingly, the court found that the defendant committed the crime of obstructing
a public servant. RP at 54.
The court imposed a standard disposition. Clerk's Papers at 9. D.E.D. then timely
appealed to this court, arguing that his counsel rendered ineffective assistance by failing
to file a motion to suppress. A panel considered the case without oral argument and then
directed the parties to file supplemental briefing concerning the sufficiency of the
evidence. 2
2
See RAP 10.l(h) (appellate court may, on its own, direct the filing of briefs on
the merits).
3
No. 33858-4-111
State v. D.E.D.
ANALYSIS
The sole issue is whether the evidence was sufficient to support the conviction for
obstructing a public servant. 3 We conclude that the evidence was insufficient and
reverse.
One obstructs an officer when he "willfully hinders, delays, or obstructs" the
officer "in the discharge of his or her official powers or duties." RCW 9A.76.020(1). To
avoid constitutional infirmities, the obstruction statute requires conduct beyond merely
making false statements to the police. State v. Williams, 171 Wn.2d 4 74, 485-86, 251
P.3d 877 (2011); accord State v. E.J.J., 183 Wn.2d 497, 502, 354 P.3d 815 (2015).
Evidence is insufficient if the trier of fact could not find each element of the offense
proven beyond a reasonable doubt. State v. Farnsworth, 185 Wn.2d 768, 775, 374 P.3d
1152 (2016); State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).
While a charge of obstructing a public servant is the offense at issue in this case, it
plays out in the context of an investigative detention authorized by Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (Fourth Amendment), and State v.
Kennedy, 107 Wn.2d 1, 4-6, 726 P.2d 445 (1986) (Wash. Const., art. I,§ 7). When an
officer can articulate the basis for believing possible criminal activity is afoot, a brief
detention to investigate is permissible. Terry, 392 U.S. at 21. The test is whether the
3Sufficiency of the evidence is an issue that may be presented for the first time on
appeal. RAP 2.5(a)(2); State v. Clark, 195 Wn. App. 868, 873-77, 381 P.3d 198 (2016).
4
No. 33858-4-III
State v. D.E.D.
facts known to the officer show "a substantial possibility that criminal conduct has
occurred or is about to occur." Kennedy, 107 Wn.2d at 6. The Kennedy court also noted,
"When the activity is consistent with criminal activity, although also consistent with
noncriminal activity, it may justify a brief detention." Id.D.E.D initially argued on appeal that his counsel rendered ineffective assistance
by failing to file a motion to suppress. For several reasons, we disagree with that position
because the ineffective assistance standard was not satisfied here. Under the Sixth
Amendment, an attorney provides ineffective assistance when he or she fails to live up to
the standards of the profession and prejudice to the client results from that failure. State
v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). In evaluating
ineffectiveness claims, courts must be highly deferential to counsel's decisions. A
strategic or tactical decision is not a basis for finding error. Strickland v. Washington,
466 U.S. 668, 689-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). When the issue is raised
for the first time on appeal, as here, the issue is not "manifest" if the record is insufficient
to properly adjudge the matter. McFarland, 127 Wn.2d at 334. Furthermore, in the
context of the failure to bring a motion to suppress, counsel can only have been
ineffective if it can be shown that the motion likely would have been granted. Id.The preceding authorities show three of the reasons why the ineffective assistance
argument fails. First, there is an insufficient record to fairly consider the issue. Because
there was no motion to suppress, the State had no obligation or interest in developing the
5
No. 33858-4-III
State v. D.E.D.
factual basis for the detention. Second, defense counsel had a tactical reason not to bring
the motion-he wanted to keep the contents of the dispatch reports to Officer Deccio out
of the record in order to support his theory that the detention was improper. 4 He
successfully kept much of that information from entering the record. Third, the defense
success in keeping the evidence out of the record leaves this court unable to determine
whether or not a motion to suppress would have been granted. For all three reasons, the
Strickland argument was unavailing; D.E.D. has not established that his counsel
performed ineffectively.
Moreover, even if one had been timely filed, a suppression motion necessarily
would have failed because there was no evidence to suppress. The exclusionary rule only
extends to the fruits of the bad search or seizure resulting from the illegal actions of the
police. State v. Aydelotte, 35 Wn. App. 125, 131-32, 665 P.2d 443 (1983) (citing Wong
Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). It is not a "but
for" rule of causation leading to suppression of all evidence obtained after the improper
conduct. Wong Sun, 371 U.S. at 487-88 ("We need not hold that all evidence is 'fruit of
the poisonous tree' simply because it would not have come to light but for the illegal
4
The officer was free to rely on that information in making his decision to detain
D.E.D. State v. Howerton, 187 Wn. App. 357, 375, 348 P.3d 781 (2015).
6
No. 33858-4-III
State v. D.E.D.
actions of the police.") 5 Rather, suppression extends only to evidence that "has been
come at by exploitation of that illegality." Id. at 488. Accord State v. Mierz, 127 Wn.2d
460, 474-75, 901 P.2d 286 (1995); State v. Bonds, 98 Wn.2d 1, 10-14, 653 P.2d 1024(1982) (declining to suppress confession following illegal arrest and return from Oregon
where officers had probable cause to make arrest); Aydelotte, 35 Wn. App. at 132. 6
It is for that reason that it long has been the rule that a defendant's criminal
behavior in response to a police illegality is not subject to suppression. In State v.
Hoffman, 116 Wn.2d 51, 804 P .2d 577 ( 1991 ), a defendant argued that an officer was not
performing his official duties because the officer had (allegedly) illegally attempted to
arrest the defendant without a search warrant. Id. at 99-100. Our court disagreed, ruling
that as long as the officer was not engaged in a "frolic of his or her own," the officer was
still performing his official duties even if the arrest was improper or had lacked probable
cause. Id. at 100. Mierz involved a similar claim by a defendant who argued that he was
not guilty of assault because the officers he attacked were trespassing on his property in
5 Accord United States v. Ceccolini, 435 U.S. 268, 276, 98 S. Ct. 1054, 55 L. Ed.
2d 268 ( 1978) ("Even in situations where the exclusionary rule is plainly applicable, we
have declined to adopt a 'per se or "but for" rule' that would make inadmissible any
evidence, whether tangible or live-witness testimony, which somehow came to light
through a chain of causation that began with an illegal arrest." (citing Brown v. Illinois,
422 U.S. 590, 603, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975)).
6
Because there was no evidence to suppress, the proper procedure in a case of this
nature more likely would have been a pretrial motion to dismiss pursuant to State v.
Knapstad, 107 Wn.2d 346, 729 P .2d 48 ( 1986).
7
No. 33858-4-III
State v. D.E.D.
violation of the constitution. Our court again disagreed, holding that officers were still
performing official duties even if they were acting outside the strictures of the
constitution. Id. at 473-76. 7 In State v. Valentine, 132 Wn.2d 1, 935 P.2d 1294 (1997),
the court, rejecting an old common law rule, determined that a person cannot respond to
police illegality by performing a criminal act in return. Id. at 21. In State v. Holeman,
103 Wn.2d 426, 429-31, 693 P.2d 89 (1985), a defendant was guilty of obstructing a
public servant for attempting to assist another in resisting what was believed to be an
unlawful arrest of his father. The illegality of that arrest did not justify the defendant
hindering the officers.
D.E.D. argues, and our concurring brother agrees, that an illegal seizure does not
constitute "official powers or duties." For at least two reasons, we disagree. First, for the
reasons previously noted, there is no basis for determining in this case whether the
seizure was illegal or not. It may well have been. However, the defense never put the
illegality of the stop before the trial court and the State had no opportunity to present its
evidence on the topic. Second, the argument is based on dicta from a decision of this
court that is at odds with the noted Washington Supreme Court authorities cited in the
previous paragraph.
7
Mierz also overruled State v. Apodaca, 67 Wn. App. 736, 839 P.2d 352 (1992),
where this court had suppressed evidence of a defendant's efforts to grab a gun and shoot
officers who had improperly entered the defendant's apartment. See Mierz, 127 Wn.2d at
474.
8
No. 33858-4-III
State v. D.E.D.
The case in question is an opinion by a divided panel in State v. Barnes, 96 Wn.
App. 217, 978 P.2d 1131 (1999). There an officer had asked the defendant to wait while
he checked to see if an arrest warrant was still outstanding; the defendant told the officer
it had been cleared. Id. at 219. Mr. Barnes fidgeted while waiting and would not keep
his hands out of his pockets despite the officer's directives. That activity led the officer
to arrest Barnes for obstructing a public servant. A search subsequently found cocaine.
Id. at 220. On appeal, the prosecutor did not try to defend the stop other than to argue
that initially it was consensual. Id. at 221-22. This court, thus, concluded the nature of
the encounter was the "only question before us." Id. at 222. The majority determined
that the encounter was not consensual and suppressed the drugs. Id. at 222-24. The court
then went on to state that the arrest for obstructing a public servant also was invalid
because an illegal arrest is not an official duty of a police officer. Id. at 225.
It is this final-and unnecessary--observation on which Mr. Davis largely rests
his argument. We do not. In addition to being unnecessary dicta since the determination
that Mr. Barnes had been illegally detained prior to the arrest rendered the subsequent
seizure of the drugs inadmissible, the comment is completely at odds with the repeated
observations by our court that criminal behavior is not excused merely because the
officer erred in arresting or seizing a suspect. As noted in Mierz, such a rule could result
in an officer having to "pay the ultimate price" for a mistaken arrest with evidence of the
officer's murder being suppressed. Mierz, 127 Wn.2d at 475. Suppression standards do
9
No. 33858-4-III
State v. D.E.D.
not extend so far. Id. This approach also makes Barnes run afoul of Hoffman. If an
illegal arrest does not justify suppression of a defendant's subsequent criminal action,
Hoffman, 116 Wn.2d at 99-100, an illegal detention certainly cannot.
But in addition to being dicta, the language from Barnes also was made without
analysis; the sufficiency of the evidence question was never presented to that court
because Mr. Barnes never was prosecuted for obstructing the officer. The only support
cited by Barnes was the plurality opinion in State v. Little, 116 Wn.2d 488, 806 P.2d 749( 1991 ), where the four justice lead opinion would have found that fleeing from a valid
Terry stop constituted obstructing a public servant. Id. at 496-98. The three justice
concurrence would have resolved the case on the basis that the defendants were
trespassing. Id. at 498-99 (Guy, J., concurring). Only the two dissenting justices
challenged the validity of the detention. Id. at 499-504 (Utter, J., dissenting).
Little is thus a very curious case to cite for the proposition that a valid detention is
a requirement for an obstructing a public servant prosecution. After all, Little upheld the
detention of the defendants and, although not a sufficiency of the evidence action,
suggests that fleeing a valid stop is a crime. It does not stand for the converse proposition
that fleeing an invalid stop is not a crime. The Barnes dicta is simply without support.
We think a better way to approach the obstructing statute is to determine if the defendant
had any obligation to cooperate with the officer.
10
No. 33858-4-III
State v. D.E.D.
As a general proposition, there is no obligation to cooperate with the police. E.g.,
State v. Budik, 173 Wn.2d 727,272 P.3d 816 (2012) (defendant falsely telling police that
he was unaware of identity of man who shot him not a crime). Refusing to provide
information to the police does not constitute obstructing a public servant. E.g., State v.
Steen, 164 Wn. App. 789, 265 P.3d 901 (2011) (defendant not guilty of obstructing for
refusing to provide his name and identification to officers, but was guilty for refusing to
obey their commands to leave a trailer); State v. Contreras, 92 Wn. App. 307,316,966
P.2d 915 (1998) (refusal to answer questions not a basis for obstructing charge, but
failing to obey commands to exit car and keep hands in sight were bases for obstructing);
State v. Hoffman, 35 Wn. App. 13, 16-17, 664 P.2d 1259 (1983) (refusal to provide name
and other information not obstructing). Similarly, there must be conduct in addition to
providing false information to the police for a defendant to commit obstructing a public
servant. Williams, 171 Wn.2d at 486.
From these authorities, we conclude there is no general obligation to cooperate
with a police investigation. 8 Whenever such a duty exists, it frequently is imposed by
statute. For instance, all drivers and pedestrians have an obligation to provide
8
Accord State v. White, 97 Wn.2d 92, 106, 640 P.2d 1061 (1982) ("Although a
person may be briefly detained on the basis of reasonable suspicion 'while pertinent
questions are directed to him ... the person stopped is not obliged to answer, answers
may not be compelled, and refusal to answer furnishes no basis for an arrest.'" (quoting
concurring opinion of Justice White from Terry, 392 U.S. at 34)).
11
No. 33858-4-III
State v. D.E.D.
information necessary to enforce the traffic codes. RCW 46.61.020, .021; RCW
46.63.020. Anyone being lawfully arrested has an obligation to not resist the arrest.
RCW 9A.76.040(1). The duty imposed by the obstructing statute is not to hinder or delay
the police investigation; there is no duty to cooperate. E.g., Holeman ( obstructing by
interfering with arrest of another); Steen (refusal to obey commands designed to control
scene); Contreras (failing to obey commands to leave car and keep hands in sight). 9
But where the suspect is personally the target of the investigative detention, we
think the lack of an obligation to assist the police precludes use of the obstructing statute
to enforce cooperation, a position bolstered by the resisting arrest statute. The legislature
has only imposed a duty to cooperate with a lawful arrest. 10 Since the resisting arrest
statute does not even purport to address detentions or other seizures short of an arrest, the
statute cannot be said to have imposed any duty of cooperation with the detention. Other
statutes impose different duties that may arise in this situation such as the duty to not
assault or threaten the officer. RCW 9A.36.031 (third degree assault); RCW 9A.36.041
(fourth degree assault); RCW 9A.46.020 (harassment). However, no charges along any
of those lines were filed in this case, nor does the behavior of D.E.D rise to such levels.
9
Here, we believe Barnes is in error where it cites the obstructing statute for the
proposition that a defendant must comply with an officer. 96 Wn. App. at 224. That
statute prohibits actions that hinder police; it does not compel compliance.
10
By implication, there is no duty to refrain from resisting an unlawful arrest.
12
No. 33858-4-III
State v. D.E.D.
Passive resistance consistent with the lack of a duty to cooperate, however, is not
criminal behavior. Accordingly, we conclude that D.E.D.'s resistance to being
handcuffed and his ensuing struggle to prevent handcuffing that did not amount to
obstructing a public servant. He did not hinder or obstruct the officer since he had no
obligation to cooperate with the officer.
We caution against extending our narrow holding, which is simply that resisting
handcuffing when a suspect is not under arrest does not constitute obstructing a public
servant. More active resistance, possibly such as the flight at issue in Little, could
perhaps rise to the level of obstructing a public servant. I I This case, however, does not
involve such facts and we leave resolution of that problem to another day.
Crime detection and prevention are permissive bases for investigative stops under
our federal and state constitutions. Terry, 392 U.S. at 22; Kennedy, 107 Wn.2d at 5-6.
Accordingly, we believe that those investigative stops are "official duties" within the
meaning of the obstructing statute. Even if an officer's error might make the stop
improper under Terry and Kennedy, it does not thereby convert the stop into a "frolic of
his or her own" that might otherwise indicate that the officer was acting outside of his
11But see State v. Mendez, 137 Wn.2d 208, 224, 970 P.2d 722 (1999) (noting
instances when flight is not a crime).
13
No. 33858-4-III
State v. D.E.D.
official duties. Hoffman, 116 Wn.2d at 100. 12 We adjudge a suspect's response to an
investigative stop in accordance with the reasonableness of that behavior and its effect on
the investigation. Failing to cooperate with an investigative stop is not necessarily an
obstruction of that investigation. This case is an example. Dennis Davis passively
resisted being handcuffed; he did not thereby hinder or obstruct the investigation into
whether he was the armed youth the officer was trying to find.
The conviction is reversed.
I CONCUR:
12
We do not equate "official duties" with the propriety or impropriety of an
officer's actions in the performance of those duties. In other words, an officer's
performance of his duties in violation of the constitution does not mean the investigation
was no longer within the scope of his "official duties." It may mean that he performed
the duties improperly, requiring suppression of evidence obtained in violation of
constitutional commands, but it does not change the nature of his original duties.
14
No. 33858-4-III
FEARING, C.J. (concurring)- I concur in the result accompanying the majority's
opinion. I disagree with the analysis provided by the majority. This court should
conclude that Officer Michael Deccio lacked grounds for a Terry stop, rather than
conclude that Dennis Davis could resist the Terry stop, and this court should ignore
Davis' contention that he suffered ineffectual representation of trial counsel. Dennis
Davis is a pseudonym.
Our ruling that insufficient evidence supported Dennis Davis' adjudication of
obstructing a public servant results in dismissal of the charges. A ruling that Davis
suffered ineffective assistance of counsel would not dismiss the charges, but would result
in a remand for a new trial. Since we dismiss the charges, any argument that Davis
experienced ineffective assistance of counsel becomes moot. We need not and should not
address Davis' assistance of counsel contention.
I disagree with the majority's implied conclusion that Officer Michael Deccio had
reasonable suspicion that Dennis Davis engaged in criminal activity such that Officer
Deccio could perform a Terry stop. I also disagree with the majority's conclusion that,
assuming an officer has lawful grounds for a stop, the detained individual lacks any duty
No. 33858-4-III
State v. D.E.D. (concurring)
to cooperate. At the least, the detainee should cooperate by standing still and refraining
from struggling with the officer.
The majority omits some focal facts. The first anonymous 911 caller complained
to the Wapato Police Department of the presence of minors who did not belong in her
neighborhood along the 500 block of South Tieton Street. She believed they "were up to
no good or causing trouble." Report of Proceedings (RP) at 4. The caller did not identify
the number of juveniles or their ages, genders, race, or clothing. Dennis Davis is
African-American.
Wapato Police Officer Michael Deccio responded to the 911 call. Daylight still
prevailed. Deccio knew that the caller's report contained no information of criminal
activity. When Officer Deccio approached Dennis Davis on the street, Deccio knew he
lacked reasonable suspicion to detain Davis and understood that no threat endangered
him.
As Officer Michael Deccio opened his car door to speak with Dennis Davis,
dispatch advised Deccio of a second 911 caller, who complained of a group of kids, one
who held a gun, outside his front yard. The caller did not describe, to dispatch, the gun or
identify the teenager holding the gun. The caller had not seen a gun, but repeated what
someone told him.
This appeal raises at least two questions. Did Officer Michael Deccio unlawfully
detain Davis? Is Dennis Davis free from guilt of obstructing a law enforcement officer if
2
No. 33858-4-III
State v. D.E.D. (concurring)
he obstructed Officer Michael Deccio after the officer unlawfully detained him?
The trial court convicted Dennis Davis of obstructing a law enforcement officer in
violation of RCW 9A.76.020. The statute reads, in pertinent part:
( 1) A person is guilty of obstructing a law enforcement officer if the
person willfully hinders, delays, or obstructs any law enforcement officer in
the discharge of his or her official powers or duties.
Dennis Davis argues that if Officer Michael Deccio lacked cause to detain him,
this court must dismiss the charges against him. He cites cases that suppress evidence
seized by an officer as a result of an illegal seizure. State v. Fuentes, 183 Wn.2d 149,
352 P.3d 152 (2015); State v. Ladson, 138 Wn.2d 343, 979 P.2d 833 (1999); State v.
Armenta, 134 Wn.2d 1, 948 P .2d 1280 (1997). In each case, the high court dismissed
charges for possession of controlled substances or firearms because suppression of the
controlled substance or firearm left no evidence on which to convict the accused.
Officer Michael Deccio did not seize physical evidence after detaining Dennis
Davis. Davis does not seek to suppress physical evidence. He seeks to suppress
testimony as to events that occurred during the seizure. He cites no case dismissing
charges against one accused of obstructing a law enforcement officer by resisting a
seizure under the circumstances of an illegal detainment. The State did not charge
Dennis Davis with resisting arrest or assault. A defendant may not excuse his assaultive
behavior toward a law enforcement officer on the grounds of an illegal search or seizure.
State v. Mierz, 127 Wn.2d 460,474, 901 P.2d 286 (1995).
3
No. 33858-4-III
State v. D.E.D. (concurring)
The State of Washington charged Dennis Davis only with obstructing a law
enforcement officer. The majority and I recognize the logic behind rejecting charges of
obstructing an officer based on an accused's reaction to unlawful behavior of a law
enforcement officer. In a distinguishable case, this court ruled that one does not obstruct
a law enforcement officer during an unlawful detention, because an unlawful detention is
by definition not part of lawful police duties. State v. Barnes, 96 Wn. App. 217, 225, 978
P .2d 1131 ( 1999). The State does not argue against dismissal of the charges against
Davis on the assumption Officer Michael Deccio unlawfully detained Davis. Instead the
State claims that Deccio lawfully restrained Davis.
I now ask if Officer Michael Deccio unlawfully detained Dennis Davis. As a
general rule, warrantless searches and seizures are per se unreasonable, in violation of the
United States Constitution's Fourth Amendment and article I, section 7 of the
Washington State Constitution. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513(2002). Washington recognizes five jealously and carefully drawn exceptions to the
warrant requirement, which include exigent circumstances, searches incident to a valid
arrest, inventory searches, plain view searches, and Terry investigative stops. State v.
Garvin, 166 Wn.2d 242,249, 207 P.3d 1266 (2009). This appeal concerns a Terry stop,
named for Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
The State bears the burden of demonstrating that a warrantless seizure falls into a
narrow exception to the rule. State v. Doughty, 170 Wn.2d 57, 61, 239 P.3d 573 (2010).
4
No. 33858-4-III
State v. D.E.D. (concurring)
This imposition of the burden of proof is a strict rule. State v. White, 135 Wn.2d 761,
769, 958 P.2d 982 (1998).
A Terry stop constitutes a law enforcement officer's intermediate response to a
situation for which he lacks probable cause to arrest but which calls for further
investigation. State v. Armenta, 134 Wn.2d at 16 (1997); State v. Moreno, 173 Wn. App.
479, 491-92, 294 PJd 812 (2013). To justify a Terry stop, the police officer must
identify specific and articulable facts which, taken together with rational inferences from
those facts, reasonably warrant an intrusion. Terry v. Ohio, 392 U.S. at 21; State v.
Armenta, 134 Wn.2d at 10. An officer is justified in taking protective measures, such as
a warrantless search, when the officer can point to specific articulable facts that create an
objectively reasonable belief that a suspect is armed and presently dangerous. State v.
Bee Xiong, 164 Wn.2d 506,514, 191 P.3d 1278 (2008). The officer's actions must be
justified at their inception. State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426(2008).
The level of articulable suspicion necessary to support an investigative detention is
a substantial possibility that criminal conduct has occurred or is about to occur. State v.
Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986). Use of the word "possibility" suggests
that the information known to the officer need not support a probability of criminal
activity. The requisite level of suspicion is less than proof of wrongdoing by a
preponderance of the evidence. United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581,
5
No. 33858-4-111
State v. D.E.D. (concurring)
104 L. Ed. 2d 1 (1989).
Although a Terry stop may be based on "suspicion," use of the modifier
"articulable" suggests the suspicion must be explainable. Another formulation of the
Terry stop rule requires facts to form the suspicion. An officer may not detain a citizen
when the officer claims a reasonable suspicion of criminal activity but cannot articulate
objective facts warranting the reasonable suspicion. State v. Richardson, 64 Wn. App.
693,697,825 P.2d 754 (1992). A protective frisk is justified only when the officer can
point to ''specific and articulable facts" that create an objective, reasonable belief that the
suspect is armed and dangerous. State v. Lennon, 94 Wn. App. 573, 580, 976 P.2d 121(1999). A hunch alone does not warrant police intrusion into people's everyday lives.
State v. Doughty, 170 Wn.2d at 63 (2010). Innocuous facts alone do not justify a stop.
State v. Roland Tijerina, 61 Wn. App. 626,629, 811 P.2d 241 (1991). When reviewing
the merits of an investigatory stop, a court must evaluate the totality of circumstances
presented to the investigating officer. State v. Doughty, 170 Wn.2d at 62. A person's
presence in a high-crime area does not, by itself, give rise to a reasonable suspicion to
detain that person. Terry v. Ohio, 392 U.S. at 21-22 (1968); State v. Doughty, 170 Wn.2d
at 62; State v. Ellwood, 52 Wn. App. 70, 74, 757 P.2d 547 (1988).
An informant's tip can provide police reasonable suspicion to make an
investigatory stop, but the informant's tip must be reliable. State v. Hopkins, 128 Wn.
App. 855, 862, 117 P.3d 377 (2005). The informant's tip is reliable when (1) the
6
No. 33858-4-III
State v. D.E.D. (concurring)
information is reliable and (2) the informant's tip contains enough objective facts to
justify the pursuit and detention of the suspect or the noninnocuous details of the tip have
been corroborated by the police thus suggesting that the information was obtained in a
reliable fashion. State v. Hopkins, 128 Wn. App. at 862-63. The law deems a named or
unknown telephone informant unreliable because such an informant could easily fabricate
an alias and thereby remain, like an anonymous informant, unidentifiable. State v.
Hopkins, 128 Wn. App. at 863-64. In State v. Hopkins, the court of appeals reversed
convictions for unlawful possession of a firearm, unlawful possession of a controlled
substance, and making a false statement to a public servant because the law enforcement
officer had no cause to make an investigatory stop based on an anonymous phone tip that
someone possessed a gun. Hopkins controls this appeal.
My analysis of this appeal begins with the first 911 call. The first emergency
dispatch caller reported the depositing of juveniles in her neighborhood. The unidentified
caller did not recognize the juveniles, but the caller declared that the youngsters "were up
to no good or causing trouble." RP at 4. The caller did not specify any conduct of the
teenagers, let alone any unlawful conduct. One may be "up to no good" or "causing
trouble".without engaging in criminal behavior. The caller provided no information that
the teenagers roamed in a prohibited area.
When responding to the call, Officer Michael Deccio knew not the number of
juveniles or their ages, genders, race, or clothing. When Deccio arrived at the scene, he
7
No. 33858-4-III
State v. D.E.D. (concurring)
encountered Dennis Davis walking alone, not with a gaggle of juveniles. Deccio later
remembered that Davis lived in the neighborhood and conceded that Davis walked in the
direction of his home. Nonetheless, Deccio confronted Davis, despite no observation
connecting Davis to the first 911 call except his age. Deccio admitted that he lacked
reasonable suspicion to detain Davis after the first 911 call.
The State contends Dennis Davis walked down the middle of the street in the exact
location reported by 911 callers. I question the validity of the State's contention and
whether the middle of the particular street coincided with the reported location. The first
caller merely reported juveniles in her neighborhood. The second caller reported kids
outside his house.
The State next emphasizes the hostility and threatening posture exhibited by
Dennis Davis when Police Officer Michael Deccio drove next to Davis. The State
contends this behavior justified Deccio leaving his car and contacting Davis. I question
whether an officer needs any suspicion to leave his car and approach a citizen. The
constitution permits such social conduct. Deccio walking toward Davis is not the issue.
The challenged conduct entails Officer Deccio stopping and handcuffing Davis.
Dennis Davis exhibited confrontational behavior when Officer Michael Deccio
questioned him, but Deccio admitted this type of conduct did not constitute reasonable
suspicion to detain. A person's demeanor and his actions during police questioning may
provide a sufficient basis for an officer to believe the person is armed and dangerous.
8
No. 33858-4-III
State v. D.E.D. (concurring)
State v. Harper, 33 Wn. App. 507,511,655 P.2d 1199 (1982); City of Seattle v. Hall, 60
Wn. App. 645, 652-53, 806 P.2d 1246 (1991). In Harper, the police officer's search was
justified because the defendant had repeatedly thrust his hands into his coat pockets when
the officer questioned him. In City of Seattle v. Hall, the appellate court found the police
officer's search reasonable when the defendant's behavior was "antsy," "hostile," and
"nervous"; the defendant's statements were "defensive"; and the defendant kept his hands
in his pockets during the exchange. 60 Wn. App. at 651.
I agree with Police Officer Michael Deccio that Dennis Davis' hostile behavior did
not constitute reasonable suspicion to search Davis. Officer Deccio approached Davis
without any reasonable suspicion of criminal activity. Deccio questioned Davis, and
Davis responded with obscenities while standing in a fighting stance. Davis' behavior,
however, did not create an objective reasonable belief that Davis was armed or
dangerous. Davis did not put his hands in his pockets. Deccio admitted that he did not
believe Davis was armed or dangerous during their interchange. Davis took no steps to
hide any contraband.
The State's argument assumes that Officer Michael Deccio could rely on the
report of a gun by the second caller. Nevertheless, the record contains no information
that either 911 caller identified himself or herself. Even if a caller identified himself or
herself, the caller could have used an alias. Therefore, we cannot consider the
information provided to emergency dispatch reliable. Also, the second caller lacked
9
No. 33858-4-III
State v. D.E.D. (concurring)
percipient knowledge of a gun and merely reported what someone else told him.
Although we do not judge the officer's conduct in hindsight, Officer Michael Deccio
never confirmed the loitering of a group of teenagers or anyone possessing a gun.
The record contains scattered references to officer safety concerns by Police
Officer Michael Deccio. Early in his direct examination, Michael Deccio testified about
"officer safety" concerns in the 500 block of South Tieton neighborhood as a result of
several past shootings. RP at 9.
The State justifies the stop on the basis of Officer Michael Deccio' s safety needs.
Nevertheless, the State cites no authority to support its position. This court does not
consider conclusory arguments that are unsupported by citation to authority. Joy v.
Department ofLabor & Industries, 170 Wn. App. 614,629,285 P.3d 187 (2012). A
reasonable safety concern exists and an officer may perform a protective frisk for
weapons when the officer articulates specific facts that create an objectively reasonable
belief that a suspect is armed and dangerous. State v. Collins, 121 Wn.2d 168, 173, 847
P .2d 919 ( 1993 ). Officer Deccio never testified that he believed Dennis Davis to be
armed and dangerous.
I do not contend that Officer Michael Deccio engaged in racist conduct.
Nevertheless, the legal system would benefit from viewing the detaining of Dennis Davis
from Davis' perspective. The legal system should not question Davis as to why he could
not or would not kindly respond to Officer Deccio' s overtures and calmly submit to a
10
No. 33858-4-III
State v. D.E.D. (concurring)
search.
The criminal justice system has interrupted and detoured Dennis Davis' life for
two years because Davis walked in his neighborhood. Nevertheless, the Fourth
Amendment to the United States Constitution guarantees the privacy, dignity, and
security of persons against certain arbitrary and invasive acts by officers of the
government. Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 613-14,
109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989). The Fourth Amendment and article I, section
7 of the Washington State Constitution thereby recognize the sanctity of one's own body.
A human being as a human being enjoys the right of privacy in his or her own
physicality. Every competent human being holds the right to determine what shall be
done with his own body. Miller-McGee v. Washington Hospital Center, 920 A.2d 430,
.439 (D.C. 2007) .. Except in limited instances, government authority has no right to
intrude on this sacred privilege by seizing one's person or even touching one's body. An
authority figure's arbitrary stopping of one's physical movement and indiscriminate
feeling of one's body invokes memories of an era of slavery when a member of a race of
people lacked any right to be left alone and lacked any entitlement to the possession of
his or her corporeal existence. State v. Mann, 13 N.C. (2 Dev.) 263 (1829). No one
should be surprised or offended by Dennis Davis' response to the unconsented and
unlawful handling of his person by a police officer.
I question the validity and practical wisdom of the majority's holding that a
11
No. 33858-4-III
State v. D.E.D. (concurring)
detainee need not cooperate during a Terry stop. The decisions cited by the majority hold
that the detainee need not provide information to the detaining officer and need not obey
orders to move one's person or display one's hands. None of the decisions excuse the
detainee from physically resisting the stop. The law should not promote a wrestling
match between an armed law enforcement officer and a detained citizen when the officer
conducts a legitimate Terry stop. Since Officer Michael Deccio lacked grounds to
conduct a Terry stop, the majority need not hold that a detainee may physically repel the
stop.
I CONCUR:
_;£
Fearing,~
,~-
!
I
12
I
Il
t
!'
t