State v. O'CAIN

• Decision Date: 24 September 2001
• Docket Number: No. 46327-6-I.,46327-6-I.
• Citation: 108 Wn. App. 542,108 Wash. App. 542,31 P.3d 733
• Parties: STATE of Washington, Respondent, v. James M. O'CAIN, Appellant.
• Court: Washington Court of Appeals

31 P.3d 733

108 Wash. App. 542

108 Wn. App. 542

STATE of Washington, Respondent, v. James M. O'CAIN, Appellant.

No. 46327-6-I.

Court of Appeals of Washington, Division 1.

September 24, 2001.

Shannon B. Marsch, Washington Appellate Project, Seattle , for Appellant.

Daniel J. Clark, King County Deputy Pros. Atty., Seattle, for Respondent.

KENNEDY, J.

When evidence is uncovered during a warrantless seizure based on a police dispatch that a particular vehicle has been reported stolen, the admissibility of the evidence turns on whether the State can prove at a subsequent suppression hearing that the police dispatch was based on a sufficient factual foundation to support the kind of seizure at issue—probable cause in the event of an arrest, or well-founded suspicion based on articulable facts in the event of an investigative stop. Officers who act on the basis of the dispatch are not required to have personal knowledge of the factual foundation, and are not expected to cross-examine the dispatcher about the foundation for the transmitted information before acting on it. Rather, the collective knowledge of law enforcement agencies giving rise to the police dispatch will be imputed to the officers who act on it. If the resulting seizure is later challenged in court, the State cannot simply rely on the fact that there was such a dispatch, but must prove that the dispatch was based on a sufficient factual foundation to justify the stop at issue.

Here, the State presented no testimony regarding the source for the dispatch, relying instead on the primary investigating officer's post-seizure verification that the vehicle had in fact been stolen from a rental car agency at SeaTac Airport, and that the appellant James O'Cain did not have the owner's permission to drive the vehicle. Although it is counterintuitive that a trial court cannot infer from this post-seizure verification that the source for the dispatch was reliable, the Fourth Amendment is not so easily satisfied.¹ The question is not whether the vehicle was actually stolen, but whether police collectively had sufficient information at the time of the seizure to justify the stop. Because the record in this case contains no evidence from which the underlying reliability of the police dispatch can be assessed, and because police had no other lawful basis for the stop in this case, we reverse the trial court's suppression ruling and vacate O'Cain's judgment and sentence for unlawful possession of a firearm in the first degree.

FACTS

At approximately 3:30 p.m. on October 12, 1999, King County Sheriff's Detective Lurry was stopped at a traffic light on Pacific Highway South near its intersection with South 200th Street. Detective Lurry was in plain clothes and driving an unmarked police vehicle. As he waited for the light to change, he noticed an Isuzu Trooper parked next to another car in a 7-Eleven parking lot. Two subjects who appeared to be associated with the other car were standing on each side of the Trooper, conversing with the occupants. Lurry noticed that none of the individuals appeared to be in the parking lot for the purpose of shopping at the 7-Eleven Store.

Lurry has extensive experience in narcotics investigations, including 500 investigations involving crack cocaine, 40 to 50 buy/busts, and 15 to 20 cases as an undercover buy officer. Lurry was assigned to the "Pro-Act" team that conducts narcotics and vice enforcement. The area in question is one in which numerous narcotic transactions have occurred and where Lurry had been a participant in undercover buy/bust operations twice in the past. Although Lurry suspected, based on what he saw in the parking lot in light of all these factors, that a narcotics transaction had taken place, he took no action except to run a license check on the Isuzu Trooper. When the traffic light changed, Lurry proceeded on his way.

After driving about three blocks, Lurry was informed by police dispatch that the Trooper had been reported stolen. Lurry turned around, and as he proceeded back toward the 7-Eleven parking lot he requested assistance from uniformed police in the area. Deputy Keller, who was in uniform and driving a marked police vehicle, was one of several officers who responded.

As Lurry saw the Trooper begin to back out of the parking spot, he ordered Deputy Keller to stop the Trooper. Keller blocked in the Trooper with his marked police vehicle, and activated his emergency lights. Several other marked police vehicles arrived simultaneously and surrounded the Trooper. Keller and the other officers got out of their vehicles with their guns drawn, and ordered the several occupants of the Trooper to put their hands in the air. Everyone complied except for the driver of the Trooper, who was later determined to be James O'Cain. O'Cain appeared to be reaching under the driver's seat with one or both hands, and continued with this reaching motion for approximately 10 to 15 seconds despite repeated orders that he raise his hands. Keller yelled to the other officers that O'Cain would not show his hands. He then heard the sound of metal being dropped against metal, after which O'Cain complied with the orders to raise his hands.

The occupants of the Isuzu Trooper were ordered out of the vehicle. One of the deputies recovered a loaded Ruger Security Six.357 Magnum revolver from just under the driver's seat where O'Cain had been reaching. It was determined that O'Cain had a previous felony conviction and was prohibited from possessing a firearm. O'Cain was arrested and subsequently charged with and convicted of unlawful possession of a firearm in the first degree.

Detective Lurry followed up on the stolen vehicle report and subsequently testified at the suppression hearing that he confirmed that the Trooper had been stolen from a rental-car agency at SeaTac Airport, and that O'Cain was driving the vehicle without the owner's permission.²

O'Cain requested a CrR 3.6 hearing and moved to suppress the firearm, contending that it was obtained during an unlawful search and seizure. The court denied this motion. O'Cain appeals that ruling.

DISCUSSION

O'Cain does not assign error to any of the trial court's findings of fact on the CrR 3.6 hearing. Unchallenged findings of fact following a CrR 3.6 suppression hearing are accepted as verities on appeal, and will not be reviewed by the appellate court. State v. Hill, 123 Wash.2d 641, 644-47, 870 P.2d 313 (1994). Accordingly, "our review in this case is limited to a de novo determination of whether the trial court derived proper conclusions of law from those [unchallenged] findings." State v. Armenta, 134 Wash.2d 1, 9, 948 P.2d 1280 (1997) (citing Hill, 123 Wash.2d at 647, 870 P.2d 313).

O'Cain argues that the court erroneously denied his motion to suppress the firearm because the State failed to prove at the suppression hearing that the officers had a well-founded articulable suspicion to support a warrantless investigatory stop.³

"As a general rule, warrantless searches and seizures are per se unreasonable." State v. Williams, 102 Wash.2d 733, 736, 689 P.2d 1065 (1984) (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), overruled on other grounds sub nom. United States v. Yu, 755 F.Supp. 578 (S.D.N.Y.1991)). However, under the Terry⁴ exception, police may conduct a warrantless investigatory stop of an individual where the officer has a well-founded suspicion of criminal activity based on specific and articulable facts. State v. White, 97 Wash.2d 92, 105, 640 P.2d 1061 (1982), overruled on other grounds sub nom. State v. Cerrillo, 89 Wash.App. 1014 (1998). Our Supreme Court has defined "articulable suspicion" as "a substantial possibility that criminal conduct has occurred or is about to occur." State v. Kennedy, 107 Wash.2d 1, 6, 726 P.2d 445 (1986) (citing 3 Wayne R. LaFave, SEARCH AND SEIZURE § 9.2 at 65 (1978)).

The trial court concluded that the stop in this case was justified because Detective Lurry, based on both the police radio report that the Trooper was listed as stolen and what he observed in the parking lot in light of his extensive experience with narcotics enforcement, had a "reasonable and articulable suspicion ... that a drug transaction may be taking place involving defendant who was driving a stolen vehicle." Clerk's Papers at 52-53. Although the State has attempted to persuade us otherwise, we disagree that what Detective Lurry observed in the parking lot was legally sufficient to give rise to a well-founded suspicion that a narcotics transaction had taken place. Detective Lurry saw two vehicles parked side by side in the middle of the day at a 7-Eleven store, and saw the occupants of one of the vehicles standing along side the Trooper, conversing with its occupants. None of these people appeared to be headed into the 7-Eleven store. The officer saw no hand motions suggesting an exchange of product or money. Based on his extensive experience enforcing narcotics laws in this particular neighborhood, Detective Lurry certainly had a hunch that a narcotics transaction had taken place; but a hunch does not rise to the level of a reasonable, articulable suspicion. See Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (anything less than an objectively reasonable basis for an investigative stop would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches).

To Detective Lurry's professional credit, he obviously understood the distinction between a hunch and articulable suspicion, for when the traffic light changed he proceeded on his way, taking no other action than to run a routine license check on the Trooper. The only reasonable conclusion that can be drawn from this evidence is that O'Cain was stopped solely on the basis of the police dispatch that the Isuzu Trooper had been reported stolen. Accordingly, this case turns on the...