State v. Doughty

Sweeney, J.

¶1 The defendant here appeals the trial court’s refusal to suppress drug evidence seized after he visited a drug house at 3:20 a.m. for a two-minute-long visit. We conclude that the circumstances provided ample grounds for a Terry¹ stop and affirm the trial judge’s refusal to suppress the drug evidence.

FACTS

¶2 Officer Derek Bishop was watching a particular house for drug activity because informants identified it as a drug house. At 3:20 a.m., Officer Bishop saw a car park in front of the house. The driver, Walter Doughty, entered the house and returned to his car in less than two minutes. Mr. Doughty drove away from the house. Officer Bishop suspected drug activity based on the time of day, complaints of drug activities from neighbors, the fact that police had identified the house as a drug house, and the short duration of the visit. He stopped the car.

¶3 Officer Bishop ran a records check and discovered Mr. Doughty’s license was suspended. He arrested Mr. Doughty and searched his car incident to arrest. The officer found a pipe and scale with methamphetamine residue. Police also found a baggy of methamphetamine in Mr. Doughty’s shoe during the booking process.

¶4 Mr. Doughty moved to suppress the drug evidence. The trial judge concluded that the officer had a reasonable suspicion of criminal activity “[biased on the time of day, the designation by the police of the house as a drug house, the neighbors’ complaints and the defendant’s actions.” Clerk’s Papers (CP) at 14. The State and Mr. Doughty stipulated to the facts for trial, and the court found Mr. Doughty guilty of one count of possession of methamphetamine.

DISCUSSION

Terry Stop

¶5 Mr. Doughty assigns error to the trial judge’s conclusion that police had sufficient grounds to warrant a Terry stop. The court concluded that “the officer had a reasonable suspicion that the defendant was involved in criminal activity.” CP at 14. We review a conclusion of law de novo. State v. Chang, 147 Wn. App. 490, 495, 195 P.3d 1008 (2008).

¶6 Significantly, Mr. Doughty does not assign error to any of the trial court’s findings of fact from the suppression hearing, including that the house had been identified as a drug house by police or that police were “watching a house, not a business open for legitimate activity.” CP at 14. We accept unchallenged findings of fact following a CrR 3.6 suppression hearing as verities on appeal and will not review them. State v. Hill, 123 Wn.2d 641, 644-47, 870 P.2d 313 (1994).

¶7 A police officer may conduct an investigatory stop based on less than probable cause if the officer has a well-founded suspicion of criminal activity based on specific and articulable facts. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). 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). We decide the “reasonableness” of the officer’s suspicion based on the totality of the circumstances, including the officer’s training and experience, the location of the stop, and the conduct of the person detained. Glover, 116 Wn.2d at 514.

f 8 The trial court concluded that the stop in this case was justified because of the early morning hour, the designation by the police of the house as a drug house, the neighbors’ complaints, and Mr. Doughty’s “actions.” CP at 14. Mr. Doughty argues that the State provided no reliable information to support its assertion that the house was a drug house, noting that the record fails to show any efforts by law enforcement to determine the identity of the informants or verify the accuracy of their complaints. But that misses the essential point on appeal here. The house had already been identified as a drug house, and Mr. Doughty does not challenge that finding of fact. Indeed, the finding appears to us to be well supported by the record, in any event.

¶9 So the question before us is whether the following facts give rise to a reasonable suspicion of criminal activity sufficient to support a Terry stop:

• A house identified as a drug house;

• Mr. Doughty stops at the drug house;

• he is there for only two minutes; and

• he visits the drug house at 3:20 in the morning.

¶10 The stop here was a seizure. State v. Santacruz, 132 Wn. App. 615, 619, 133 P.3d 484 (2006). The question is whether it was reasonable given these circumstances. Id. The stop is reasonable if the State can point to “ ‘specific and articulable facts giving rise to a reasonable suspicion that the person stopped is, or is about to be, engaged in criminal activity.’ ” Id. (internal quotation marks omitted) (quoting State v. Villarreal, 97 Wn. App. 636, 640, 984 P.2d 1064 (1999)). The stop must be based on more than the officer’s hunch. Id. The Washington Supreme Court has held a stop valid under similar circumstances. Kennedy, 107 Wn.2d at 8-9 (Terry stop after police see defendant leave a suspected marijuana dealer’s house and, before police reached the car, defendant leaned forward in his car as if to place something under the driver’s seat). And we conclude there are sufficient grounds here to justify the stop.

¶11 We have required more than simple presence in a high crime area or physical proximity to a suspected drug dealer to justify a stop. In State v. Richardson, a patrolling officer saw the appellant walking in a “high drug activity” neighborhood of Yakima with a person the officer suspected of “running drugs.” 64 Wn. App. 693, 694-95, 825 P.2d 754 (1992). The officer stopped both men, questioned them, and examined the contents of the appellant’s pockets. Id. at 695. The primary question in Richardson was whether the search was consensual. Id. at 696. Here, the State does not argue that the search of Mr. Doughty was consensual because it clearly was not. The Richardson court also addressed the question whether the Yakima police had reasonable grounds to seize the defendant. Id. The court concluded that presence in a high crime area and proximity to a suspected drug runner was not enough to support the necessary suspicion for the stop. Id. at 697.

¶12 Here, however, Officer Bishop’s suspicion was supported by more than Mr. Doughty’s proximity to a drug dealer or his mere presence in a certain neighborhood that supported the officer’s suspicion. It was supported instead by Mr. Doughty’s own suspicious behavior. He drove to a drug house at 3:20 a.m., entered the house for a mere two minutes, and then left. We conclude that this scenario, in this setting, is legally sufficient to support with substantial probability the officer’s reasonable suspicion that criminal conduct had occurred.

Pretextual Stop

¶13 Mr. Doughty also contends that the stop was a pretextual stop under article I, section 7 of the Washington Constitution. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). We need not address that issue since we conclude the officer had ample reason to stop Mr. Doughty based on factors other than a traffic infraction; and, in fact, the officer never claimed that he stopped Mr. Doughty for a traffic infraction.

¶14 We affirm the judgment of the trial court.

Brown, J., concurs.

1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).