773 P.2d 46 (Wash. 1989), 55075-1, State v. Belieu

Docket Nº:55075-1.
Citation:773 P.2d 46, 112 Wn.2d 587
Opinion Judge:SMITH
Party Name:STATE of Washington, Petitioner, v. Kevin R. BELIEU, Respondent. STATE of Washington, Petitioner, v. Kevin R. BELIEU, Defendant, Ronald M. BLOUNT, Respondent.
Attorney:Donald Brockett, Spokane County Prosecutor, Neil H. Korbas, and Patricia A. , Thompson, Deputy County Prosecutors, Spokane, for petitioner., Michael D. Kinkley, Spokane, for respondent Belieu., Lewis M. Schrawyer, Spokane, for respondent Blount.
Judge Panel:CALLOW, C.J., and DORE, BRACHTENBACH, DOLLIVER, UTTER and ANDERSEN, JJ., concur.
Case Date:May 18, 1989
Court:Supreme Court of Washington
 
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Page 46

773 P.2d 46 (Wash. 1989)

112 Wn.2d 587

STATE of Washington, Petitioner,

v.

Kevin R. BELIEU, Respondent.

STATE of Washington, Petitioner,

v.

Kevin R. BELIEU, Defendant,

Ronald M. BLOUNT, Respondent.

No. 55075-1.

Supreme Court of Washington, En Banc.

May 18, 1989

[112 Wn.2d 588] Donald Brockett, Spokane County Prosecutor, Neil H. Korbas, and Patricia A.

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Thompson, Deputy County Prosecutors, Spokane, for petitioner.

Michael D. Kinkley, Spokane, for respondent Belieu.

Lewis M. Schrawyer, Spokane, for respondent Blount.

SMITH, Justice.

The State of Washington sought review of a ruling of the Court of Appeals, Division III, that the use of drawn guns and felony-stop procedures by police exceeded the permissible scope of a "Terry" 1 investigative stop. We find that the officers had sufficient information about the suspects upon which to base reasonable fears for their own safety. We reverse.

The single issue in this case is whether reasonable fears for their own safety justified the use of drawn guns by police officers for an investigative stop of four men in a car at night who were reasonably suspected by the officers of planning a burglary in an area where weapons had been stolen in a series of earlier burglaries.

On the evening of October 21, 1985, Stephen Duffy was at his home in Spokane on the east 2600 block of Heroy Avenue watching television. The lights in his house were dimmed. The blinds were drawn. From outside, it appeared [112 Wn.2d 589] that the Duffy residence was unoccupied. At about 9:30 p.m. there was a loud knock on his door. He answered it. A bearded white male, about five foot seven, wearing a jacket and jeans, asked to use Mr. Duffy's telephone. The stranger said his automobile had broken down and that he wanted to call for assistance. Mr. Duffy saw another man waiting at the end of his walkway. He was suspicious because other houses in the neighborhood were "lit up like a Christmas tree." He wondered why these men had come to his house for help when his was the darkest house on the block. He sent them away.

Moments later, Mr. Duffy telephoned 911. He told the operator he thought the men were "casing" his house for burglary and explained the details of his encounter. He identified himself and gave the operator his telephone number and a description of the men.

Meanwhile, about a mile away, three officers of the Spokane Police Department were engaged in surveillance of a suspected burglary. Officers Richard J. Poole, Joel Fertakis and Larry Lindskog were all in unmarked cars and wearing plain clothes. They heard a report of the Duffy incident over the police radio, giving a description of the men suspected of casing houses for burglary. At 9:39 p.m. Officer Lindskog, who was in charge of the special surveillance group, dispatched Officer Poole, who arrived in the area of the Duffy residence at 9:46 p.m.

Officer Poole headed east on Heroy Avenue. In the area of the 2700-2800 block, he saw two men walking west on the north side of the street. One of them matched the description given on the radio. Officer Poole continued east in his automobile and took up a position on the next side street. From there he could observe the two men who were then walking away from him west on Heroy Avenue. He reported this information on the radio.

Shortly afterward, Officer Fertakis approached the area in his automobile heading south on Lacey Street. He saw two men walking north on Lacey from Heroy, one of whom matched the description broadcast earlier. Officer Fertakis [112 Wn.2d 590] made a U-turn and pulled in behind a white Ford Torino parked on Lacey Street about 1 1/2 car lengths from the intersection at Heroy. The men on the street had maintained eye contact with Officer Fertakis as he drove by. He watched them cross the street toward the white automobile. They continued to watch his vehicle. As they crossed in front of the Torino and looked back toward it, Fertakis parked behind it. As he did so, someone sitting in the driver's seat of the Torino slouched down. This caused the officer some concern. The two men on foot turned left, went north on Lacey, and turned right, disappearing around the corner on Hoffman Avenue.

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By this time, approximately 9:50 p.m., Officer Lindskog had also arrived in the area in his automobile. He took up a position on the west side of Lacey at the intersection of Wellesley Avenue, looking south toward Hoffman and Heroy. He saw the two men turn the corner from Lacey onto Hoffman. He could not see the white Torino near Heroy, but was monitoring the radio. After hearing Fertakis' report about the Torino, Lindskog told him to leave his location. Officer Fertakis pulled past the Torino, drove up to the intersection of Hoffman, and turned east, attempting to follow the two men who had just gone around the corner. They had disappeared. The officer continued east on Hoffman. It was 9:51 p.m.

Officer Lindskog saw the two men running back from the area where they had just gone out of his line of sight on Hoffman. He reported this by radio. The men cut across a yard at the corner of Lacey and Hoffman, running hard in the direction of the white car. Officer Fertakis made a U-turn and headed back toward Lacey Street.

The white Torino started up Lacey toward Officer Lindskog in the dark with its lights off. The officer could see a passenger in the darkened car bent over or slouched down in the front seat doing something. As the automobile entered the intersection of Hoffman, its lights came on. Officer Fertakis, heading back toward that same intersection from the east, observed four people in the Torino. [112 Wn.2d 591]

Officers John C. Stanley and Donald Giese were in plain clothes driving an unmarked police car. Unlike the vehicles of Officers Lindskog, Poole and Fertakis, theirs was equipped with blue-and-red flashing lights behind the grille. They had been monitoring the radio transmissions. They approached Lacey from the west on Wellesley Avenue with the grille lights flashing. As they turned south on Lacey, Officer Lindskog pulled his automobile in front of the Torino, blocking its path.

Officer Lindskog got out of his vehicle, pointed his service revolver at the Torino, identified himself as a police officer, and ordered the men in the white Ford Torino to keep their hands in plain view. Officers Stanley and Giese also got out of their vehicle and drew their weapons. It was 9:55 p.m.

Officer Lindskog instructed the driver of the Torino, Respondent Ronald M. Blount, to get out of the vehicle with his hands on his head and to back toward Officer Giese. As Blount was backing up, Officer Stanley observed what appeared to be a weapon on the driver's hip. Blount began to move his hand toward it. He was ordered to replace his hands behind his neck. Officer Giese frisked him and discovered a knife, referred to at trial as a "survival" knife. The officer then removed the weapon and handcuffed Respondent Blount.

Officer Stanley had taken up a position behind a tree on the passenger side of the Torino. Officer Lindskog ordered the passenger, Respondent Kevin R. Belieu, out of the car and ordered him to back toward Officer Stanley. When the officer frisked Belieu for weapons, he discovered some hard objects in Belieu's pocket and removed them for the officers' safety. A ring, proved at trial to have been stolen, fell to the ground. Officer Stanley handcuffed Belieu and placed him in a patrol car.

After Brian Anderson, riding in the right rear seat of the Torino, got out, Officer Stanley could see a rifle on the back seat. Officer Lindskog also observed this weapon from outside the vehicle after the fourth man, John Sweet, got out [112 Wn.2d 592] from the passenger-side door. The butt of the rifle had been sawn off and appeared to be illegal. Lindskog directed that no one touch the weapon or the automobile. He then contacted the officers who had the four men in custody.

Respondent Donald Blount had been placed in the custody of Officer Gregory Harshman, who then gave "Miranda" warnings which Blount said he understood. It was 10:01 p.m.

At 10:05 p.m. Officer Lindskog heard Respondent Blount consent to a search of the vehicle. He then checked beneath the driver's seat and noticed a protruding gun

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handle. He did not touch nor remove the gun at that time. Later it was identified as a .357 magnum revolver. He found another handgun under the passenger seat. It was a .38 caliber weapon. There was a quantity of trash and garbage under the front seats which would have prevented the weapons being passed from the back to the front. All the weapons were loaded. About 10 minutes after the initial stop, it was discovered that Respondent Ronald Blount had an outstanding traffic warrant. He was then placed under arrest.

Brian Anderson initially gave a false name when questioned about his identity. It was later discovered that there was an outstanding felony escape warrant for him. At trial, he testified that he and the three others had committed a number of burglaries. He said the four men were looking for places to burglarize and that their plan was to find a vacant home. They were doing this when he and John Sweet approached the Duffy residence.

Respondent Kevin Belieu was on parole from, and had prior convictions for, second degree robbery and second degree assault.

At their separate trials in the Spokane County Superior Court, both Kevin Belieu and Ronald Blount made motions to suppress evidence obtained during the vehicle stop, contending the stop was unlawful. Both motions were denied.

Judge George T. Shields incorporated into his conclusions of law in Respondent Belieu's case a statement that [112 Wn.2d 593] "probable cause...

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