State of Washington v. Ryan Ward

FILED
JULY 29, 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. 31319-I-III
Respondent, )
)
v. )
)
RYAN WARD, ) OPINION PUBLISHED IN PART
)
Appellant. )
FEARING, J. - Ryan Ward raises procedural and substantive errors to the trial
court's denial of his motion to suppress evidence. He complains that the findings of fact
and conclusions of law entered in response to the motion were signed by a judge other
than the judge that heard the motion. He also claims that a law enforcement officer, who
searched his pants, lacked a reasonable articulable suspicion to search and that the officer
exceeded the scope of a protective frisk. The denial of the motion to suppress led to a
conviction, on stipulated facts, of possession of a controlled substance.
We hold that, because Ward prepared the findings of fact signed by the substitute
judge and Ward did not object to the signature, there was no error in a substitute judge
signing the fmdings. We also hold that the law enforcement officer had reasonable
articulable suspicion to search Ward's person and the search did not exceed the
permissible scope. Thus, we affrrm Ryan Ward's conviction.
No.3l319-1-1I1
State v. Ward
FACTS
On May 26,2012, at about 4:44 p.m., Eric Whitemarsh and an unnamed Pasco
Jack in the Box employee called police to report a fight developing between three to four
males inside the restaurant. Each caller provided dispatch a phone number and neither
refused to be identified. Officer Ismael Cano of the Pasco Police Department responded.
Police dispatch informed Officer Cano, while he was in route, that the altercation had
turned "physical." Report of Proceedings (RP) at 6. Dispatch reported pushing, but no
weapons. Based upon information provided, Cano concluded that the crimes of assault or
disorderly conduct had possibly occurred.
As Officer Ismael Cano arrived at Jack in the Box, dispatch radioed that some of
the males involved in the fight were leaving the restaurant in a gray Maxima and others in
a black BMW. Officer Cano saw a black BMW exit Jack in the Box's parking lot. The
BMW, driven by Ryan Ward, turned right. Cano turned on his patrol car's emergency
lights. The BMW pulled to the side of the street.
Officer Ismael Cano stopped the BMW, because he believed the car's occupant
was involved in the altercation at Jack in the Box. Cano did not observe any traffic
violation. Officer Cano did not know if the driver of the car, Ryan Ward, was a victim,
offender, or both. Cano knew that more than one person reported the altercation, but did
not know the identity of who called.
During a suppression hearing, Ismael Cano testified:
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State v. Ward
Q. And prior to you stopping Mr. Ward did you confirm the altercation
with any of the witnesses or any of the reporting caIIers?
A. No, 1 hadn't spoken to anybody.
Q. And you had the ability to follow Mr. Ward before initiating the stop
until that was confirmed, correct?
A. No, 1 saw him leaving at the time 1 was arriving. 1 was arriving when
dispatch had notified some people involved were leaving, and they gave a
description of the vehicles, and 1 happened to be arriving at the time. And
so the description of one of the vehicles leaving, and so that's why 1 ended
up following him and stopping him.
RP at 19. Cano admitted that he relied entirely on information from dispatch to
stop the BMW.
Officer Ismael Cano approached the car and spoke to its driver, who identified
himself as Ryan Ward. Ward "started to explain everything from the beginning," and he
stated he pulled out pepper spray during the altercation. RP at 9. Officer Cano testified:
As [Ward] was telling me what happened, he mentioned something
about a pepper spray bottle, and tried to reach underneath the seat. 1 asked
him not to reach underneath the seat but keep his hands up where 1 can see
them. And then he attempted to do it again the second time, so at that point
1 decided to pull him out of the vehicle and pat him down for weapons for
my safety.
Up to this point I knew there was an altercation. There could be
weapons involved. Also 1 have been involved in lot of situations where
people have weapons underneath the seat such as guns.
RP at 9. Cano asked Ward to step out of his vehicle and place his hands on his head, so
Cano could frisk him for weapons. Ward complied.
Prior to the frisk, Ismael Cano asked Ryan Ward ifhe had any weapons. Ward
responded that he had pepper spray and a knife, and that both were under the front seat of
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State v. Ward
his car. Officer Cano began to pat the outside of Ward's clothes. Ward tried to reach
down. Cano reminded Ward to keep his hands on his head. Cano felt a hard object in
Ward's front left pants pocket. The object felt similar in size to a pocket knife, but
wrapped in paper towels.
Ismael Cano had concern that the hard object might be a weapon, so he removed
the object from Ryan Ward's pocket. As Cano removed the object, he grabbed, in
addition, a small clear bag containing methamphetamine. Cano unwrapped the object to
discover a glass pipe.
Another officer arrived at the scene and the additional officer stated he had reason
to arrest Ryan Ward for assaulting someone with pepper spray during the altercation at
Jack in the Box. Officer Cano arrested Ward for assault and possession of drug
paraphernalia. Incident to this arrest, Cano again searched Ward. Cano found another
baggie containing a "crystal-like substance" and a screw driver. RP at 15.
PROCEDURE
On May 31, 2012, the State charged Ryan Ward, in Franklin County Superior
Court, with unlawful possession of a controlled substance in violation of former RCW
69.50.4013 (2003), a class C felony. On November 1,2012, Ward moved, under CrR
3.6, to suppress the seized methamphetamine and drug paraphernalia on two grounds.
First, Officer Ismael Cano lacked reasonable articulable suspicion to pull Ward over.
Second, Cano exceeded the scope of a protective frisk when he removed the pipe from
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No. 31319-1-111
State v. Ward
Ward's pocket. The Honorable Craig J. Matheson heard arguments on the motion
November 13,2012. On November 27,2012, the trial court denied Ward's motion to
suppress.
On November 27, Franklin County Superior Court Judge Matheson issued the
following oral ruling:
THE COURT: 1 have had a chance to read the cited cases
and the additional memorandum and the documents that were handed up
last week in detail. The rule that 1 think applies here is the totality of the
circumstances rule. The Court is free to apply the concepts of Aguilar [v.
Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964)], Spinelli [v.
Us., 393 U.S. 410, 89 S. Ct. 584,21 L. Ed. 2d 637 (1969)] on a
confidential informant. And but really the Court has to make a
determination of the indicia of reliability of the information given to the
police.
As 1 read the cases, the information can be entirely based on
information from an informant, if the Court finds that to be reliable.
This case is not your typical drug case where the police are given
information and then go and investigate. This case arose out of a report to
the police to police dispatch of an ongoing altercation and argument. And
there was more than one report to the police. And it was a real-time report
in the sense that these people were reporting their present-sense impression
about what was going on, and it was an urgent situation.
1 believe from how 1 heard the evidence-the police reports are there
in the file as well-that the report was originally made not to investigate
the crime but to prevent the violence. So there's not a strong motivation
there to fabricate by the informants. Just the opposite. They're apparently
citizens making a call to the police to come and interrupt an ongoing
dispute. Then there was a subsequent call made reporting that it had gone
from verbal to physical, and then there was a call to dispatch and sequence
reporting that the parties had jumped in cars and were leaving.
The location of the fast-food restaurant was confirmed by the officer
as the car was leaving. So there's confirming facts there. And also it was
confirmed or corroborated that it was the same type of car description and
driven by a male.
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State v. Ward
So I think there's indicia of reliability here to support the articulable
facts. There's indicia of reliability on the infonnants, and the facts are
con finned by the officer arriving while this incident is still taking place.
Also the cases seem to indicate that it's just that type of situation where
there's allegations of violence that assert urgency and a relaxation of the
level of proof in the opportunity for the officer to verify the facts is less in a
situation where you have violence going on at the very same time.
So this is a reasonable stop and reasonable detention. It's within the
Terry stop exclusion. [Terry v. Ohio, 392 U.S. 1,21,88 S. Ct. 1868,20 L.
Ed. 2d 889 (1968)]. I find that there's indicia of reliability confirmed by the
officers. Some of the basic facts were con finned, quite a few of them under the
circumstance, because he happened to arrive as people were doing what the
infonnant was describing at the very same time. So I think this is a good stop
and therefore will deny the motion to suppress.
[PROSECUTION]: Your Honor, the other issue was the
patdown or frisk.
THE COURT: The [pat down] was consistent with the cases.
There was an allegation of an assault and a real reason to search for a
weapon. There was as I remember, make sure I don't confuse my cases
here, there was in a search he had a weapon in the car. So we have an
allegation of an assault immediately prior to this incident followed by the
acknowledgement of the weapon. I think a patdown was appropriate, and
when he hit something hard that it was reasonable to extract that.
[PROSECUTION]: And that's something hard in the shape
of something that he compared to perhaps a pocket knife.
THE COURT: Yeah, well, this glass pipe. So eventually we
know. That's consistent with a pocket knife.
So the motion to suppress is denied. It's a good motion. I think on
the face of it, it looked pretty strong, but as I read the cases and looked at
the actual facts and circumstances taken as a whole, I think it supports a
lawful search. Motion to suppress denied.
[DEFENSE COUNSEL]: Your Honor, is part of your
findings then that totality of the circumstances or Aguilar Spinelli does not
need to apply?
THE COURT: Doesn't have to apply in this situation. Court
could apply it, but there are other indicia of reliability. And this is not
evidence to support a search warrant, which is an entirely different animal
than evidence necessary to stop, the detention. And there's clearly
evidence that a crime was going on and that this person was leaving the
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No. 313l9-l-II1
State v. Ward
scene. I don't think it's clear whether he was the assailant or the victim,
but I don't think it matters. I think you can stop the victim, witness, or the
assailant equally in that situation in order to make investigatory stop. Not
too much different than the type of evidence necessary to do a search.
[DEFENSE COUNSEL]: And also to clarity your findings,
your Honor, just in case Mr. Ward wants to appeal. On the Randall [State
v. Randall, 73 Wash. App. 225, 868, P.2d 207 (1994)] case it distinguished
"Lesnig" [State v. Lesnick, 84 Wash. 2d 940, 530 P.2d 243 (1975)] as being a
gross misdemeanor and that the Court of Appeals-or the Supreme Court
recognized that the totality still worked, but there had to be corroboration
under Aguilar Spinelli because that crime was a gross misdemeanor being
not a violent crime such as the one cited in Randall, which was an armed
robbery, which gave the officers permission to go into it because it was
something that was urgent and there was going to be more crime committed
or it was dangerous to the community, excuse me. And how they
distinguish that from Lesnig. So do you have a finding that we can
indicate-
THE COURT: I will say this is an urgent situation with an
allegation and reports of violent crime taking place at the time. I think
that's crucial. I would say that the reason that this citizen complaint has
indicia of reliability is very similar to an excited utterance or present-sense
impression in terms of admissibility of evidence, and I think both those
things are present Plus you have the real-time confirmation of the car
moving out of the restaurant that was just reported. And this was arguably
stopping a crime immediately after it happened, or at least investigating it
So I think there's enough there to say, "Hey, hold on while we get your
name and investigate this thing." That's different than getting a search
warrant
So I don't think that Aguilar Spinelli really applies. I think the idea
of Aguilar Spinelli, that is evaluating the reliability of the witness, that
identified informant, could apply, but I don't think it does in this situation.
So I'd choose not to do it, not to apply it
Frankly I think that Spokane case is, you know, they're applying the
same rules, and I guess reasonable minds could differ, but it might have
gone the other way on the Spokane case as well. It'd [sic] enough there,
but we'll see. That's why they have a Court of Appeals.
[DEFENSE COUNSEL]: And just to make sure, the dispatch
was part of the record that you reviewed so that­
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No. 31319-1-III
State v. Ward
THE COURT: Yes, it was, and it identified a second
informant. I think that the fact that there are multiple informants giving the
same basic information also lends credibility to the information coming to
the officer. Very interesting case, because I hadn't really worked through
that issue before.
RP at 40-44.
On December 4, 2012, Judge Craig Matheson conducted a trial based upon
stipulated facts. Ryan Ward and the State stipulated:
1. On May 26, 2012. Officer Ismael Cano stopped a vehicle driven
by [Ward]. [He] was detained and frisked for weapons.
2. During the frisk and search incident to arrest, Officer Cano
located two plastic bags in his pants pockets which contained a crystalline
substance which field tested positive for methamphetamine.
3. The crystalline substance was sent to the Washington State Patrol
Crime Lab, examined by a forensic chemist and found to be
Methamphetamine, a controlled substance.
Clerk's Papers (CP) at 57. On these facts, the court found Ryan Ward guilty of
possession of a controlled substance. That same day, December 4, the trial court entered
findings of fact and conclusions of law for the trial.
One week later, on December 11,2012, the court sentenced Ryan Ward to 30 days
incarceration, ordered 12 months' community custody, and imposed $1,400 in legal
financial obligations. Both Ward and the State then proposed findings and conclusions
for Ward's suppression hearing. Judge Matheson stated, "Why don't I just read them
over and sign one of them. It's kind of hard to do on the bench." RP at 53-54.
For reasons unknown, Franklin County Superior Court Judge Cameron Mitchell,
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No.31319-I-II1
State v. Ward
instead of Judge Craig Matheson, signed Ward's proposed finding and conclusions, dated
December 11,2012. Next to his signature Judge Mitchell wrote, "for CJM," the initials
for Judge Craig Jay Matheson. CP at 7. Ryan Ward did not object, until this appeal, to
Judge Mitchell's signature on the findings of fact Judge Matheson has since retired from
the bench.
LA W AND ANALYSIS
Signature ofJudge
Ryan Ward contends that Judge Cameron Mitchell cannot sign written findings
and conclusions on behalf of Judge Craig Matheson, citing RCW 2.28.030(2) and State v.
Bryant, 65 Wash. App. 547, 549, 829 P.2d 209 (1992). RCW 2.28.030 provides:
A judicial officer is a person authorized to act as a judge in a court of
justice. Such officer shall not act as such in a court of which he or she is a
member in any of the following cases:
(2) When he or she was not present and sitting as a member of the
court at the hearing of a matter submitted for its decision.
Judge Mitchell was not present and did not sit as a member of the court for Ward's
suppression hearing.
Generally, a successor judge lacks authority to enter findings of fact on the basis
of testimony heard by a predecessor judge. DGHI, Enters. v. Pacific Cities, Inc., 137
Wn.2d 933,977 P.2d 1231 (1999); Svarz v.Dunlap, 149 Wash. 663, 665-66,271 P. 893
(1928); In re Marriage ofCrosetto, 101 Wash. App. 89,95, 1 P.3d 1180 (2000); Tacoma
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No. 31319-1-III
State v. Ward
Recycling, Inc. v. Capital Material Handling Co., 42 Wash. App. 439, 441-42, 711 P.2d
388 (1985); In re Welfare o/Woods, 20 Wash. App. 515, 517, 581 P.2d 587 (1978); Woldv.
Wold,7 Wn. App. 872,877,503 P.2d 118 (1972). Case law and court rules set forth the
rule that a successor judge only has the authority to do acts which do not require finding
facts. Crosetto. 101 Wash. App. at 96. Only the judge who has heard evidence has the
authority to find facts. Crosetto, 101 Wash. App. at 96; State v. Bryant, 65 Wash. App. at
550. Nevertheless, the parties may agree to allow a successor judge to make findings of
fact based upon the evidence in the record. Crosetto, 101 Wash. App. at 96.
We find two Washington decisions that give us contrary directions as to how to
resolve this appeal: State v. Bryant, 65 Wash. App. 547 and In re Marriage o/Crosetto,
101 Wash. App. 89. We discuss the two cases before deciding which one to follow.
In Bryant, Alexander Bryant pled guilty to two counts of theft. The juvenile
disposition hearing was held, before Judge Terrence Carroll, on August 12, 1991. Judge
Carroll found a manifest injustice and imposed an exceptional commitment of 21 to 28
weeks. At the end of his oral decision, Judge Carroll directed the State to prepare written
findings consistent with his oral decision. Carroll thereafter retired. On December 2,
1991, findings of fact and conclusions oflaw in support of the disposition were signed by
Superior Court Commissioner Maurice Epstein. Alexander Bryant appealed the
disposition on the ground that the facts did not support a manifest injustice finding.
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No. 31319-I-III
State v. Ward
Bryant also moved to strike the findings and conclusions on the ground that they were not
signed by Judge Carroll.
On appeal, the Bryant court addressed whether the findings of fact and
conclusions of law on the manifest injustice disposition must be stricken because they
were signed by a judge other than the disposition judge. There was no indication in the
record as to the procedure used by Commissioner Epstein, i.e., whether he reviewed the
evidence presented at the disposition hearing or Judge Carroll's oral decision, or whether
he merely signed the findings and conclusions as presented by the State. This court
ruled, nonetheless, that Commissioner Epstein was without authority to sign the findings
and conclusions under any procedure. The decision does not disclose whether Bryant
agreed to the form of the findings, agreed to someone other than Judge Carroll signing
the findings, or even was given notice of presentment.
In Marriage ojCrosetto, the Court of Appeals affirmed a substitute trial judge's
findings of fact on remand of a divorce suit based upon evidence from the first trial
conducted by a first judge. While the case was first on appeal, the original judge retired,
and the parties agreed to allow a successor judge to make the necessary determinations
based upon the record from the first trial. The successor judge determined that he could
render findings without engaging in credibility determinations. After agreeing to the
procedure, Laurel Crosetto appealed from the successor judge'S findings, arguing that she
was entitled to a new trial and that the trial court abused its discretion in making its
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No. 31319-1-III
State v. Ward
findings. This court disagreed. The court observed that no Washington law prohibited
the parties from agreeing to a substitute judge entering findings.
We do not know why Judge Cameron Mitchell signed the findings of fact or if
Ryan Ward knew in advance that Judge Mitchell, not Judge Craig Matheson, would sign
the findings. Nevertheless, Ryan Ward's counsel presented the findings to the court and
would have received a copy after Judge Mitchell's signature. Judge Mitchell signed
Ward's proposed findings, so Ward agreed to the form of the findings as being consistent
with Judge Matheson's ruling. If Ward did not agree to the signature of Judge Mitchell,
his counsel could have immediately remedied the anomaly by presenting the findings of
fact anew to Judge Craig Matheson, rather than waiting to complain on appeal. By
failing to object with knowledge of the irregularity, Ward agreed to the signature of
Judge Mitchell. Therefore, we decide to follow Marriage ofCrosetto rather than State v.
Bryant.
The facts in our appeal are distinct from the facts in Crosetto, but militate more in
favor of approving the findings of fact signed by a substitute judge. Judge Cameron
Mitchell signed the findings of fact and conclusions prepared by Ryan Ward. The
findings follow the extensive oral ruling issued earlier by Judge Matheson. Judge
Mitchell in fact noted that he was signing on behalf of the hearing judge, Judge
Matheson. Ryan Ward is not harmed by a substitute judge signing findings that his
attorney prepared based upon another judge's ruling. Therefore, we hold that a substitute
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No. 31319-1-III
State v. Ward
judge may sign findings of fact and conclusions of law based upon another judge's
ruling, when the parties do not object, after knowledge of the signature by the substitute
judge.
A purpose behind RCW 2.28.030 is to preclude one judge from rendering a
finding of fact based on evidence heard by another trier of fact. State v. Sims, 67 Wn.
App. 50, 59, 834 P.2d 78 (1992); State v. Olson, 47 Wn. App. 514,519,735 P.2d 1362
(1987). Judge Mitchell did not render any decision on his own. He only engaged in a
ministerial act by signing findings of fact previously announced by Judge Matheson. The
signed findings were consistent with Judge Matheson's oral findings.
Our ruling is consistent with the rule that one must object to any error to preserve
the error for an appeal. It is well settled that we will not review an issue, theory,
argument, or claim of error not presented at the trial court level. Lindblad v. Boeing Co.,
108 Wash. App. 198, 207, 31 P.3d 1 (2001). A party must inform the court of the rules of
law it wishes the court to apply and afford the trial court an opportunity to correct any
error. Smith v. Shannon, 100 Wn.2d 26,37,666 P.2d 351 (1983). Failure to do so
precludes raising the error on appeal. Smith, 100 Wash. 2d at 37. If Ryan Ward opposed
Judge Mitchell's signing of the findings of fact, he could and should have brought the
matter to the attention of the court in order to correct the signature before appealing.
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No. 31319-1-II1
State v. Ward
The remainder of this opinion has no precedential value. Therefore, it will be filed
for public record in accordance with RCW 2.06.040, the rules governing unpublished
OpInIOns.
Unlawful Search and Seizure
Ryan Ward contends his constitutional rights were violated twice during his
interaction with Officer Ismael Cano. He first contends that Officer Cano lacked
reasonable, articulable suspicion to stop his car and detain him. He also contends that
Officer Cano lacked grounds to frisk his person. Ward contends evidence of the glass
pipe and methamphetamine must be suppressed as the "fruit of [a] poisonous tree." RP at
48. We reject his contentions.
Stop ofBMW
We review a trial court's denial of a CrR 3.6 suppression motion to determine
whether substantial evidence supports the trial court's challenged findings of fact and, if
so, whether the findings support the trial court's conclusions of law. State v. Cole, 122
Wash. App. 319, 322-23, 93 P.3d 209 (2004). The constitutionality of a warrantless stop is
a question of law we review de novo. State v. Gatewood, 163 Wn.2d 534,539, 182 P.3d
426 (2008).
As a general rule, warrantless searches and seizures are per se unreasonable, in
violation of the Fourth Amendment and article I, section 7 of the Washington State
Constitution. State v. Duncan, 146 Wash. 2d 166, 171, 43 P.3d 513 (2002). There are a few
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No. 31319-1-III
State v. Ward
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. Terry, 392 U.S. at 21; State v. Garvin, 166
Wn.2d 242,249,207 PJd 1266 (2009). 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). A seizure is not justified by what a subsequent
search discloses. Lesnick, 84 Wash. 2d at 944.
To justify a Terry stop, the police officer must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion. Terry, 392 U.S. at 21; State v. Armenta, 134 Wash. 2d 1,
10, 948 P.2d 1280 (1997). The officers' actions must be justified at their inception.
Gatewood, 163 Wash. 2d at 540. 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).
In this case, dispatch informed Officer Cano that three to four men argued at Jack
in the Box, that this argument escalated, and the men were driving away in a black
BMW. Based on dispatch's reports, Cano reasonably believed that the men committed
an assault or the crime of disorderly conduct and those men were leaving the scene. If
Cano had observed the pushing himself, he would hold specific and articulable facts to
support his investigative detention of Ward. But Cano relied on information from
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No. 31319-1-111
State v. Ward
unknown infonnants. Ryan Ward argues that this reliance on the uncorroborated
conclusions of unidentified infonnants renders his stop and seizure unconstitutional.
The infonnants were a bystander and employee of Jack in the Box. Generally,
citizen-informants are deemed presumptively reliable sources of infonnation. State v.
Wakeley, 29 Wn. App. 238,241,628 P.2d 835 (1981). But still, an infonnant's tip
cannot constitutionally provide police with such a suspicion unless it possesses sufficient
"indicia of reliability." State v. Sieler, 95 Wash. 2d 43, 47,621 P.2d 1272 (1980); Adams v.
Williams, 407 U.S. 143, 147,92 S. Ct. 1921,32 L. Ed. 2d 612 (1972). As noted in Sieler:
"'It is difficult to conceive ofa tip more 'completely lacking in indicia of reliability' than
one provided by a completely anonymous and unidentifiable informer, containing no
more than a conclusionary assertion that a certain individual is engaged in criminal
activity.'" 95 Wash. 2d at 47 (quoting Lesnick, 84 Wash. 2d at 944).
Ryan Ward analogizes to two cases, Lesnick and Sieler, to argue that Officer
Cano's reliance on unknown informants was unreasonable and that Cano could not
assume the infonnants were reliable. In Lesnick, Charles Lesnick challenged his
conviction for possession of gambling devices claiming law enforcement wrongfully
seized evidence. An anonymous infonnant called police to report a van pulling a trailer,
the driver of which was attempting to sell punchboards in the city. The caller also
supplied a license plate number. The caller remained completely anonymous, refusing to
identify himself and not providing any infonnation as to the source of his knowledge.
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No. 31319-1-III
State v. Ward
Following the tip, police located the van and pulled it over. In plain view, officers saw
the offending gambling devices. The Lesnick court held, "The fact that the anonymous
tipster accurately described the defendant's vehicle is not such corroboration or indicia of
reliability as to make reasonable the officers' action." Lesnick, 84 Wash. 2d at 943.
In Sieler, James Tuntland, while waiting in the school parking lot for his son,
observed what he believed to be a drug sale in another car in the parking lot. Tuntland
informed the school secretary by telephone of his conclusion, described the car, reported
its license number, apparently gave her his telephone number, and left. The secretary
called police, who radioed two officers that a drug transaction had possibly occurred in
the school parking lot in a black and gold Dodge with a certain license number. The
officers knew nothing about the informant beyond his name, nor why he concluded a
drug transaction had occurred. The State and this court distinguished Sieler from Lesnick
on the ground that Tuntland provided his name. Unconvinced, our Supreme Court wrote:
We are not persuaded by this attempted distinction. The reliability of an
anonymous telephone informant is not significantly different from the
reliability of a named but unknown telephone informant. Such an
informant could easily fabricate an alias, and thereby remain, like an
anonymous informant, unidentifiable.
[T]he State generally should not be allowed to detain and question an
individual based on a reliable informant's tip which is merely a bare
conclusion unsupported by a sufficient factual basis which is disclosed to
the police prior to the detention.
Sieler, 95 Wash. 2d at 48. In a footnote, however, the Sieler court commented:
17
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No. 31319-1-I11
State v. Ward
Of course such a conclusory allegation by a reliable informant is
sufficient to justify an investigatory detention if, as Lesnick's second and
third criteria indicate, it is corroborated by adequate police observation.
Sieler, 95 Wash. 2d at 49 n.l.
Echoing Lesnick, the Sieler court wrote:
While the police may have a duty to investigate tips which sound
reasonable, [(1)] absent circumstances suggesting the informant's
reliability, or some corroborative observation which suggests either [(2)]
the presence of criminal activity or [(3)] that the informer's information
was obtained in a reliable fashion, a forcible stop based solely upon such
information is not permissible.
Sieler, 95 Wash. 2d at 47 (quoting Lesnick, 84 Wash. 2d at 944) (emphasis added). This is a
disjunctive test.
Officer Ismael Cano depended on reliable information. Unlike Lesnick and Sieler,
there were two informants, Eric Whitemarsh and a Jack in the Box employee. Each
informant provided dispatch a phone number and neither refused to be identified. Two
independent sources of information may provide support for the other's veracity.
Kennedy, 107 Wash. 2d at 8. At least one informant provided dispatch real-time updates,
which dispatch relayed to Officer Cano. One informant reported a fighter was leaving
the restaurant in a BMW. Officer Cano saw a black BMW leave Jack in the Box as
dispatch reported the exit. Thus, Officer Cano directly observed action that corroborated
the informant's story.
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We conclude that the trial court did not err when it ruled that Officer Cano had
reasonable, articulable suspicion to support his investigative stop of Ward.
Protective Frisk
We also conclude the trial court did not err when it ruled that Officer Ismael
Cano's frisk of Ryan Ward meets constitutional muster.
This court employs the same standard of review as for investigatory detentions.
"We review a trial court's denial of a CrR 3.6 suppression motion to determine whether
substantial evidence supports the trial court's challenged findings of fact and, if so,
whether the findings support the trial court's conclusions of law." Cole, 122 Wash. App.
at 322-23. This court reviews de novo whether a protective frisk was justified under the
circumstances. State v. Ibrahim, 164 Wash. App. 503, 508,269 P.3d 292 (2011).
During a Terry stop, the officer may briefly frisk the individual for weapons ifhe
reasonably believes his safety or that of others is endangered. Garvin, 166 Wash. 2d at 250.
"For a permissible Terry stop the State must show that (1) the initial stop is legitimate;
(2) a reasonable safety concern exists to justifY the protective frisk for weapons; and (3)
the scope of the frisk is limited to the protective purposes." Duncan, 146 Wash. 2d at 172.
'''[C]ourts are reluctant to substitute their judgment for that of police officers in the field.
A founded suspicion is all that is necessary, some basis from which the court can
determine that the [frisk] was not arbitrary or harassing.'" State v. Collins, 121 Wash. 2d
168, 173, 847 P .2d 919 (1993 ) (alterations in original) (emphasis and internal quotation
19
No.31319-I-II1
State v. Ward
marks omitted) (quoting State v. Belieu, 112 Wash. 2d 587, 601-02, 773 P.2d 46 (1989)).
An officer's "right to act was not invalidated when it turn [s] out, after the fact, that the
pocket contained contraband instead of a weapon." State v. Harper, 33 Wash. App. 507,
511,655 P.2d 1199 (1982).
Ryan Ward correctly notes that only objects that feel like weapons in a superficial
pat down of the outer clothing may be removed and examined under Terry. Terry, 392
U.S. at 21; State v. Horton, 136 Wash. App. 29, 38, 146 P.3d 1227 (2006). On this basis,
Ward asserts that around glass pipe does not feel like a metal knife, even when wrapped
in a paper towel. The State counters that this initial frisk was so limited in scope that
Officer Cano did not notice the screwdriver in Ward's back pocket.
Here, Officer Ismael Cano responded to reports of an assault or disorderly
conduct. Ryan Ward claimed that a knife and pepper spray were under the car's front
seat. Ward reached under the seat. Against Officer Cano' s request, Ward reached under
the seat a second time. Under these circumstances, it was reasonable for Officer Cano to
believe his safety was endangered. Officer Cano's frisk did not exceed the scope of this
belief. Cano testified that he limited the frisk to the outside of Ward's clothing, only
patting down for weapons. Cano felt a hard object wrapped in paper in Ward's front-left
pocket, which he believed might be a knife. Because the object felt to Cano that it could
be used as a weapon, and this court defers to his realistic impressions, it was reasonable
for Cano to remove the object in order to ensure that it was not a weapon.
20
No. 31319-1-III
State v. Ward
CONCLUSION
We affinn the conviction of Ryan Ward.
Fearing, J.
WE CONCUR:
J
Lawrence-Berrey, 1.
21