State v. Barber
| Decision Date | 06 February 1992 |
| Docket Number | No. 56416-7,56416-7 |
| Parties | STATE of Washington, Respondent, v. Darron W. BARBER, Petitioner. |
| Court | Washington Supreme Court |
Norm Maleng, King County Prosecutor, Timothy Michael Blood, Deputy, Seattle, for respondent.
Washington Appellate Defender, Jesse Wm. Barton, Seattle, for petitioner.
Jeffrey L. Needle, Seattle, amicus curiae for respondent on behalf of American Civil Liberties Union.
At issue in this case is whether racial incongruity, i.e., a person of any race being allegedly "out of place" in a particular geographic area, can ever constitute a finding of reasonable suspicion of criminal behavior; we hold that it cannot.
On the evening in question, a police officer observed three young men walking along the 13300 block of Northeast Eighth Street in Bellevue, Washington. One of the three was carrying a bundle wrapped in a blanket, another a brown paper bag and the third (the defendant, Darron W. Barber) a duffel bag. The bags appeared to be filled with objects of some kind. After the officer drove past, he continued to observe the three, then made a U-turn, drove back, stopped and began questioning them. As was to develop, the three men were burglars carrying loot taken in a recent residential burglary.
The defendant, Darron W. Barber, was very shortly thereafter arrested and charged with burglary in the second At the suppression hearing before the trial court, testimony was taken. Pursuant to the Superior Court Criminal Rules, 1 the trial court entered findings of fact and conclusions of law. Therein the trial court detailed the facts of the case and the conclusions it drew therefrom, and denied defendant's motion to suppress. To understand this case, it is first necessary to have the trial court's findings and conclusions before us. They are as follows: 2
degree and possession of stolen property in the second degree. In the trial court, he challenged the legality of the officer stopping him as well as the legality of his arrest, and moved to suppress the evidence seized by the police at the time of the arrest
I.
1. On May 25, 1987, at approximately 8:00 p.m., Officer Jim Hershey of the Bellevue Police Department was on patrol in Bellevue in King County, Washington. At that time he was heading westbound on Northeast Eighth Street in the 13300 block in his patrol vehicle. Officer Hershey is black.
2. As he proceeded down the hillside, Officer Hershey's attention was drawn to three black males walking westbound on the north shoulder of the roadway. Each of the three was carrying a package of some sort. One of the males was carrying a multi-colored blanket which appeared to be covering a large bundle. Another of the males was carrying a large blue duffel bag which appeared to be filled with objects. The third male was carrying a brown paper bag. As he drove past the three, they noticed Officer Hershey and began glancing at him and each other.
3. Upon passing the three males, Officer Hershey kept an eye on them through his rear view mirror. The three continued to glance at him and then at each other. Through his mirror, Officer Hershey then observed the male carrying the blanketed bundle heave the bundle into some brush just off the shoulder of the roadway. When thrown, the contents of the blanket appeared to be of substantial weight, as the bundle did not fall very far into the brush despite what appeared to be a fair amount of exertion by the male throwing the bundle.
4. Beside the fact that the male's act constituted littering, Officer Hershey regarded that act and his observations up to that point as unusual and suspicious. Further, it had been his experience on the previous occasions that when a person is carrying a bundle within a blanket on a street, the items covered are usually the fruits of a recent burglary.
5. At that point, Officer Hershey made a U-turn and contacted the three males approximately 40 to 50 yards west of where the male had thrown the bundle into the brush. It was Officer Hershey's intention to investigate these three males' suspicious activities further. He patted down each of the males for weapons and found none. He then advised each of the males of his Miranda warnings. Each said he understood those rights. It was Officer Hershey's opinion that the 3 males were not under arrest at that time.
6. By this time, the males who had been carrying the duffel bag and the brown paper bag had placed those packages on the ground. The brown paper bag sat opened, and in plain view Officer Hershey observed two telephones and two cartons of Kool cigarettes.
7. The male who had been carrying the duffel bag was identified as defendant Darron Barber. Defendant stated he did not wish to answer any of Officer Hershey's questions, and made movements as if he was going to leave the scene. Concerned as to his ability to investigate the situation further if any or all of the three males fled, Officer Hershey then handcuffed defendant to keep him at the scene. Given that defendant stated he did not wish to talk to Officer Hershey, Officer Hershey asked him no further questions.
8. The male who had been carrying the brown paper bag identified himself as Junior Aron Walker, although his true name was subsequently determined to be Chris Barber, the brother of defendant. Chris Barber agreed to talk to Officer Hershey and told him that he and his "friend" Darron had met Kim Anderson, the third male, at the bus stop up the street. He further stated that Anderson had told them that he was moving, and asked them to help him carry his property.
9. Officer Hershey then spoke separately with the third male who had thrown the bundle into the brush, identified as Kim Anderson. Anderson told Officer Hershey a different version of recent events. He stated that he had met up with the other two males at the bus stop and that they had told him that they were moving and that they had asked him to help them carry their load. When asked why he threw the bundle into the brush, Anderson told Officer Hershey that he did not know what Officer Hershey was talking about.
10. To make sure none of the three males took off with either of the two packages still in front of Officer Hershey, Officer Hershey placed the open paper bag and duffel bag on 11. At this point, approximately three minutes after Officer Hershey had first contacted the three males, other police officers began arriving in response to an earlier summons by Officer Hershey. Among those arriving was Officer T. Simonton. At Officer Hershey's request, Officer Simonton immediately checked the area where Anderson had thrown the bundle into the brush and found a videocassette recorder wrapped in an afghan blanket.
top of his patrol car's hood. He patted down the duffel bag for weapons when he moved it, and felt what he immediately recognized to be, from his experience, electronic equipment
12. Another officer who had arrived, Lt. Vestal, informed Officer Hershey that approximately one-half hour earlier he had seen the defendant and the individual later identified as Chris Barber at the bus stop on the north side of Northeast Eighth Street just west of the west entrance to the Foothills Apartments (13700 block of Northeast Eighth Street). With that information, Officer Simonton then immediately drove to that bus stop, approximately four blocks away, and put his tracking dog to work in that area.
13. The dog immediately responded to a strong scent in the brush, and began tracking northbound to the south parking area of Foothills Apartments. The dog continued to the southwest corner of the apartments contained in Building C-4, and showed some interest in the corner apartment's west balcony. The dog then continued northbound past the balcony and responded to very strong scents in some bushes between the corner balcony and the next balcony to the north, of Apartment # 103. The dog then directed Officer Simonton to a wall of the building directly below a sliding glass window. Officer Simonton then noticed the screen for that window was lying in the bushes.
14. As he was removing the dog from the bushes, Officer Simonton was contacted by the resident of an apartment in the building, one Dean Bakken. Bakken advised Officer Simonton that his apartment had recently been broken into, and that items were missing. He further told the officer that among the items missing were his Hitachi VCR, telephones, other electronic equipment, and a multi-colored afghan.
15. Officer Simonton then radioed the information relating to the burglary and the items stolen to Officer Hershey. The officers at the scene confirmed that the VCR which had been found in the brush was manufactured by Hitachi. At that point, Officer Hershey and the other officers at the scene detaining the defendant and the other two males believed they had probable cause to arrest the three males for possession of stolen property. Accordingly, the three males were then arrested. No more than ten to fifteen minutes had passed 16. Incident to the arrests at the scene, Officer Hershey and the other officers searched the three males and opened the duffel bag which had been carried by defendant. All of the items which had been reported stolen by Bakken were found either on the three males, in the open paper bag, or in the opened duffel bag. If the duffel bag had not been opened at the scene, its entire contents would have become visible to the officers once they had arrived at the police station and inventoried the bag's contents, given Bellevue police's inventory procedures.
between the time of the initial stop by Officer Hershey and the time of the three males' arrests.
II. THE DISPUTED FACTS
1. Whether Officer Hershey's initial stop of defendant and his companions was based on a well-founded suspicion of criminal activity based upon specific and articulable facts?
2. Whether Officer...
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