State Of Wash. v. Johnson

• Decision Date: 11 May 2010
• Docket Number: No. 38540-6-II.,38540-6-II.
• Citation: 231 P.3d 225,156 Wash.App. 82
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent,v.Jesse Ray JOHNSON, Appellant.

156 Wash.App. 82

231 P.3d 225

STATE of Washington, Respondent,v.Jesse Ray JOHNSON, Appellant.

No. 38540-6-II.

Court of Appeals of Washington,

Division 2.

May 11, 2010.

Rebecca Wold Bouchey, Attorney at Law, Mercer Island, WA, for Appellant.

Stephen D. Trinen, Pierce County Prosecutor's Ofc., Tacoma, WA, for Respondent.

HUNT, J.

¶ 1 Jesse Ray Johnson appeals his convictions for two felony counts of unlawful possession of a controlled substance (heroin and cocaine), Counts I and V, and one count unlawful use of drug paraphernalia, Count II. ¹ He argues that the trial court should have suppressed the evidence seized during a vehicle search incident to his arrest because (1) the officer had unreasonably “seized” the illegally parked vehicle in which he was a passenger, which led to discovery of his outstanding arrest warrants; and (2) the later vehicle search incident to his arrest was unlawful under the Fourth Amendment to the United States Constitution, as recently interpreted in Arizona v. Gant, 556 U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). We reject these arguments and affirm.

FACTS

I. Traffic Stop, Warrant Arrest, and Incident Vehicle Search

¶ 2 Working as a city-wide truancy enforcement officer for the Tacoma School District, Tacoma Police Patrol Officer Jared Williams was patrolling in a public park adjacent to a high school on a school day morning when he observed an occupied vehicle in a parking spot designated for persons with disabilities ² ; the vehicle did not display a disabled placard or a disabled license plate, required for parking in the space.³ Without activating his emergency lights or siren, he parked his patrol car at an angle, about 10 to 15 feet behind the vehicle, for officer safety.⁴

¶ 3 The vehicle's windows were “steamed up.” Verbatim Transcript of Proceeding (VTP) (Aug. 4, 2008) at 19. Williams observed a female in the driver's seat and a male, Johnson, apparently sleeping, in the passenger's seat. He also observed that the female driver had “numerous sores on her arms, ... appeared to be kind of be what [officers] refer to as tweaking, [and] was kind of uncontrollably moving involuntarily.” VTP (Aug. 4, 2008) at 22-23. In addition to enforcing the disabled parking violation, Williams suspected possible drug use and decided to check to see whether the vehicle's occupants were “okay.” VTP (Aug. 4, 2008) at 24.

¶ 4 Williams approached the female driver and asked why she and her passenger were at the park and why they had parked in a disabled spot. When he asked for identification, she provided only a name. Telling her that he would return, he went back to his patrol car and ran a records inquiry on the name. Williams did not, however, tell the driver or her passenger that they could not leave.

¶ 5 Williams' inquiry revealed a restraining order that prohibited a named male from having contact with this female driver. Williams returned to the patrol car to determine whether the male passenger was the same person listed on the restraining order. Williams asked for, but did not demand, identification from the passenger. The passenger told Williams that his name was “Duane K. Johnson” and provided a birth date. VTP (Aug. 4, 2008) at 10.

¶ 6 Williams ran another records inquiry, determined that “Duane K. Johnson” was a possible alias for Jesse Johnson, who had an outstanding felony warrant and “numerous” bench warrants for his arrest,⁵ VTP (Aug. 4, 2008) at 12; VTP (Nov. 5, 2008) at 31, and discovered that Johnson's booking photos matched the vehicle's male passenger. Williams returned to the vehicle, arrested Johnson on the warrants, handcuffed him, advised him of his Miranda⁶ rights, and placed him in the back of his patrol car. Williams then asked the female driver to step out of the vehicle, patted her down for weapons, and asked her to stand near his patrol car while he searched the vehicle incident to Johnson's arrest.

¶ 7 Inside the vehicle, Williams discovered a small screw-top container (which tested positive for traces of heroin), one small rock of crack cocaine (found inside the screw-top container), and miscellaneous drug paraphernalia. He then arrested the female driver, advised her of her Miranda rights, placed her in the backseat of his patrol vehicle, and continued to search the vehicle incident to arrest.

II. Procedure

¶ 8 The State charged Johnson with unlawful possession of a controlled substance, cocaine, Count I; unlawful use of drug paraphernalia, Count II; unlawful possession of a dangerous weapons, Count, III; obstructing a law enforcement officer, Count IV; and unlawful possession of a controlled substance, heroin, Count V. Johnson moved to suppress the evidence, arguing that Williams' initial “traffic stop” was pretextual and an unconstitutional seizure. Clerks Papers (CP) at 8. Johnson did not expressly challenge the vehicle search as outside the scope of a lawful search incident to arrest of a person handcuffed in the back of a patrol car. The trial court denied Johnson's suppression motion.

¶ 9 At Johnson's first trial, the jury convicted him of obstructing a law enforcement officer, acquitted him of possession of a dangerous weapon, and failed to reach a verdict on the three other counts (two counts of unlawful possession of a controlled substance and one count of unlawful use of drug paraphernalia). At his second jury trial, the trial court relied on its previous denial of Johnson's suppression motion. The jury convicted Johnson of all three remaining charges. He appeals.

ANALYSIS

I. Traffic Stop

¶ 10 Johnson argues on appeal that Williams unlawfully seized him by parking his patrol car behind the vehicle in which Johnson was a passenger. Br. of Appellant at 9. In support, he cites the Fourth Amendment; article. I, section 7 of Washington's Constitution; and State v. Day, 161 Wash.2d 889, 893, 168 P.3d 1265 (2007). The State responds that Williams' conduct before discovering Johnson's outstanding warrants was a permissible “social contact.” Br. of Resp't at 6-12. Johnson's argument fails.

A. Standard of Review

¶ 11 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). Unchallenged findings of fact are verities on appeal.⁷ State v. Balch, 114 Wash.App. 55, 60, 55 P.3d 1199 (2002). We review de novo conclusions of law, “including mischaracterized ‘findings.’ ” Cole, 122 Wash.App. at 323, 93 P.3d 209. We defer to the fact finder on witness credibility issues. State v. Thomas, 150 Wash.2d 821, 874-75, 83 P.3d 970 (2004).

¶ 12 Whether a law enforcement officer has seized a person is a mixed question of law and fact. State v. Harrington, 167 Wash.2d 656, 662, 222 P.3d 92 (2009). The defendant bears the burden of proving that an unlawful seizure occurred. State v. Young, 135 Wash.2d 498, 501, 957 P.2d 681 (1998). To determine whether a seizure occurred, Washington courts use an objective standard to examine the police officer's actions.⁸ State v. O'Neill, 148 Wash.2d 564, 574, 62 P.3d 489 (2003). Not every encounter between a law enforcement officer and an individual amounts to a seizure. State v. Armenta, 134 Wash.2d 1, 10, 948 P.2d 1280 (1997) (quoting State v. Aranguren, 42 Wash.App. 452, 455, 711 P.2d 1096 (1985)).⁹

B. No Seizure

¶ 13 Wash. Const. art. I, § 7 permits social contacts between police and citizens.¹⁰Young, 135 Wash.2d at 511, 957 P.2d 681. Thus, an officer's mere social contact with an individual in a public place with a request for identifying information, without more, is not a seizure.¹¹Young, 135 Wash.2d at 511, 957 P.2d 681; Armenta, 134 Wash.2d at 11, 948 P.2d 1280. The Washington Supreme Court recently clarified the limitations of a “social contact” in Harrington, 167 Wash.2d at 656, 222 P.3d 92. That court held that a series of police actions that might pass constitutional muster separately, may, when viewed cumulatively, constitute an impermissible progressive intrusion into a person's private affairs and, thus, an unlawful seizure. Harrington, 167 Wash.2d at 660, 222 P.3d 92. An officer asked Harrington to remove his hands from his pockets. A second officer arrived and stood nearby. And, of particular significance, the first officer asked Harrington for permission to pat him down (“When [officer] requested a frisk, the officers' series of actions matured into a progressive intrusion substantial enough to seize Harrington.”). Harrington, 167 Wash.2d at 669-70, 222 P.3d 92. Here, in contrast, the degree of officer intrusion was less because contact was limited to questions about the vehicle occupants' presence in the disabled parking spot and a request for identification.¹²

¶ 14 When an officer subjectively suspects the possibility of criminal activity but does not have suspicion justifying an investigative detention ( Terry¹³ stop), officer contact does not constitute seizure. O'Neill, 148 Wash.2d at 574-75, 62 P.3d 489. Thus, it is not a seizure when a law enforcement officer parks behind a vehicle parked in a public place,¹⁴ asks an occupant to roll down a window, questions him, and requests identification.¹⁵ See O'Neill, 148 Wash.2d at 572, 577, 579-581, 62 P.3d 489.

¶ 15 Here, the trial court found credible Williams' testimony that he had parked his patrol car approximately 10 to 15 feet behind the vehicle illegally parked in the disabled spot and that Williams did not activate his emergency lights or siren. Williams was the only officer on the scene.¹⁶ He did not demand identification from Johnson, nor did he ask Johnson to step out of the parked vehicle until after he (Williams) had learned about Johnson's outstanding arrest warrants. Until this point, a reasonable person would have felt free to leave under the circumstances. Accordingly, we hold that Williams lawfully...