State v. Broadnax

• Decision Date: 02 December 1982
• Docket Number: No. 47976-3,47976-3
• Citation: 98 Wn.2d 289,654 P.2d 96
• Parties: The STATE of Washington, Respondent, v. Clifton BROADNAX, Jr., Beotis Bea Lashley, Defendants, Steven Arthur Thompson, Petitioner.
• Court: Washington Supreme Court

Page 289

98 Wn.2d 289

654 P.2d 96

The STATE of Washington, Respondent, v. Clifton BROADNAX, Jr., Beotis Bea Lashley, Defendants, Steven Arthur Thompson, Petitioner.

No. 47976-3.

Supreme Court of Washington,

En Banc.

Dec. 2, 1982.

Rebecca Baker, Republic, for petitioner.

Norman K. Maleng, Pros. Atty., J. Robin Hunt, Deputy Pros. Atty., Seattle, for respondent.

WILLIAM H. WILLIAMS, Justice.

Petitioner, Steven Arthur Thompson, was charged with possession of heroin, a violation of the Uniform Controlled Substances Act, RCW 69.50. The trial court judge denied petitioner's motion to suppress the evidence and found him guilty. Petitioner's appeal to the Court of Appeals, Division One, resulted in an affirmance of the conviction by a 2-1 vote. State v. Broadnax, 25 Wash.App. 704, 612 P.2d 391 (1980). On October 10, 1980, Department Two of this court considered Thompson's first petition for review and remanded the case "for Decision in light of State v. Hobart [94 Wash.2d 437, 617 P.2d 429 (1980) ]." Notation Order remanding cause to Court of Appeals, October 10, 1980. State v. Broadnax, 94 Wash.2d 1016 (1980). The Court of Appeals reaffirmed its original decision, again by a 2-1 vote, by attempting to distinguish our decision in Hobart. State v. Broadnax, 29 Wash.App. 443, 628 P.2d 1332 (1981). Petitioner filed a second petition for review with this court, which we accepted. Since we find the evidence should have been suppressed, we reverse the Court of Appeals and vacate petitioner's conviction.

On October 28, 1977, Detective Frank Roesler of the Seattle Police Department Narcotics Unit obtained a search warrant for the premises at 6539 Third Avenue Northwest in Seattle. The warrant named no persons, but in his affidavit, Detective Roesler stated that he had been informed that within the previous 24 hours, narcotics had been offered for sale by a "male known as Clifford ... who resides at the above address." Exhibit 1. Four police officers went to the residence to conduct the search. One of the officers, Detective Richard Buckland, Jr., was posted to guard the back door while the other three entered through the front door. Detective Buckland had not read the warrant or supporting affidavit, and knew only that they were looking for narcotics.

Clifton Broadnax, the occupant of the house and apparently the "Clifford" referred to in the affidavit, answered the door. Once inside the house, the officers encountered petitioner, as well as a teenage woman and a small child, in the living room. Detective Roesler instructed Broadnax and petitioner each to put their hands on their heads. The two men complied.

After about 30 seconds outside the rear of the building, Detective Buckland observed the other officers inside the house. He returned to the front door of the dwelling and entered. Detective Buckland saw Sergeant Charles Scheuffele in the living room with the infant, the woman, Broadnax, and petitioner. Broadnax and the petitioner were standing with their hands on their heads. Detective Buckland asked Sergeant Scheuffele, "Would you like him [Thompson] to be searched?" He received an affirmative response and began to search petitioner's person. Report of Proceedings, at 5.

Sergeant Scheuffele testified: "Buckland asked me if Thompson had been searched and I took that to mean frisked and I answered that he hadn't because he hadn't." Report of Proceedings, at 23-24. Detective Buckland, on the other hand, assumed petitioner was already under arrest. He testified on cross-examination:

Q: ... Now, when you searched Mr. Thompson [petitioner] ..., to your knowledge no narcotics had been found. Is that correct? A: That's correct. Well, excuse me. If I may back up on that. I presumed something was found because when I entered I presumed that the defendant was under arrest. Q: And then later on you found no one was under arrest. Is that correct? A: That's correct.

Report of Proceedings, at 10-11. Neither Sergeant Scheuffele nor Detective Buckland indicated any fears that petitioner might be armed with a weapon. In fact, Sergeant Scheuffele twice stated that he saw no reason to do a "patdown" for weapons "[a]s long as we could see their hands". Report of Proceedings, at 21.

During Detective Buckland's initial cursory search of petitioner's body, he felt a small bulge in petitioner's shirt pocket. He testified repeatedly that it did not feel like a gun or other weapon:

Q: You didn't have any belief at all it was a weapon? A: No, I didn't believe it was a weapon, that's correct.

Report of Proceedings, at 11. Nevertheless, Detective Buckland then reached into petitioner's pocket and removed a balloon containing ".1 gram of brown powder containing heroin." Clerk's Papers, at 5. Shortly thereafter, Detective Roesler returned to the living room with Beotis Lashley, whom he had found in the bedroom near a quantity of controlled substances discovered in plain view. He ordered that everyone be placed under arrest.

Petitioner contends the evidence seized from his person should have been suppressed because the search violated his constitutional right to be free from unreasonable searches and seizures. ¹ We agree.

The general rule is that an official "seizure" of a person must be supported by probable cause, even if no formal arrest is made. Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 2254, 60 L.Ed.2d 824 (1979). Those cases authorizing seizures of persons on lesser cause are narrowly drawn and carefully circumscribed. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. White, 97 Wash.2d 92, 640 P.2d 1061 (1982). Specifically, Terry permits an officer to briefly detain, for limited questioning, a person whom he reasonably suspects of criminal activity and to frisk the person for weapons if he has reasonable grounds to believe the person to be armed and presently dangerous. Terry v. Ohio, supra; State v. Hobart, 94 Wash.2d 437, 441, 617 P.2d 429 (1980).

The narrow scope of the Terry "stop-and-frisk" exception is emphasized in the companion case of Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), a case remarkably similar to the present case in its facts. In Sibron, an officer had thrust his hand into the pocket of a person suspected of possessing narcotics. In ruling that the evidence should have been suppressed, the Court stated that before an officer places a hand on the person of a citizen in search of anything,

he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.

(Citation omitted and italics ours.) Sibron, at 64, 88 S.Ct. at 1903. Moreover, the scope of a search for weapons was expressly limited to a patting of the outer clothing of the suspect for concealed objects capable of use as instruments of assault. The Supreme Court went on to conclude:

In this case, with no attempt at an initial limited exploration for arms, [the officer] thrust his hand into Sibron's pocket and took from him envelopes of heroin. His testimony shows that he was looking for narcotics, and he found them. The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception--the protection of the officer by disarming a potentially dangerous man. Such a search violates the guarantee of the Fourth Amendment, which protects the sanctity of the person against unreasonable intrusions on the part of all government agents.

(Italics ours.) Sibron, at 65-66, 88 S.Ct. at 1904.

In Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the Court determined that even if an individual is found at a place where the police are authorized to search by a valid search warrant, the individual may only be patted down for weapons if Terry's requirement of "reasonable suspicion" is satisfied. In that case, Ybarra was a patron of a public tavern who was subjected to a patdown frisk during the execution of a search warrant authorizing a search of the premises and the bartender. After an initial patdown, the police officers returned to Ybarra and removed a cigarette pack from his pocket which was found later to contain tinfoil packets of heroin. The Supreme Court held that the evidence should be suppressed because the patdown was unjustified:

The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons.

* * *

... The "narrow scope" of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.

(Footnotes and citations omitted.) Ybarra, at 92-94, 100 S.Ct. at 343. The Court refused to permit the search of individuals, other than the bartender, simply by virtue of their "mere presence" on the premises, noting that

a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.

Ybarra, at 91, 100 S.Ct. at 342. See also United States v. Di Re, 332 U.S. 581, 583-87, 68 S.Ct. 222, 223-25, 92 L.Ed. 210 (1948).

Ybarra is controlling here. The officers testified that petitioner obeyed the instruction to put his hands on his head. They mentioned no facts indicating a reasonable belief or suspicion that petitioner was armed or presently dangerous. Petitioner's "mere presence" at a private residence being searched pursuant to a search warrant cannot justify a frisk of petitioner's person under Ybarra.

The Court of Appeals attempted to distinguish Ybarra because it involved a search at a public...