State v. Flores

Brown, A.C.J.

¶34 (concurring in result) — First, Mr. Flores’ case was decided by the trial court applying solely the investigative stop principles of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). While fact-finding, the judge unsuccessfully searched the record for “articulable circumstances indicating the particular person in the arrestee’s company poses a threat to officer safety to justify that person’s detention and frisk.” Clerk’s Papers (CP) at 56. The judge did not find facts justifying Mr. Flores’ continued detention and search after Mr. Powell’s arrest. The judge applied Terry as did State v. Adams, 144 Wn. App. 100, 107, 181 P.3d 37 (2008), a passenger search case. But passenger cases are not distinct from Terry or separately “controlling” as the majority reasons. We should not depart from the principles established in Terry.

¶35 Second, we should defer to the trial court’s discretionary fact-finding and witness credibility decisions in both letter and spirit. The judge found Mr. Flores was ordered to “walk” backward and did not describe the walk as a “promenade” or “parade.” CP at 61. The judge did not criticize the officers’ need to safely control Mr. Powell’s arrest scene and briefly detain his walking companion, Mr. Flores. Initial police interactions with individuals in Terry situations are generally and neutrally described as stops or encounters; thus in Terry situations, a police officer initially stops or encounters rather than “accosts” individuals. “Accost” connotes challenging and aggressive behavior, which is not always true in police encounters. I cannot join in the noted incorrect descriptions.

¶36 Accordingly, for these two reasons, I must respectfully concur solely in the result.

Review granted at 184 Wn.2d 1019 (2015).