State v. Carlson

• Decision Date: 01 December 2005
• Docket Number: No. 22775-8-III.,22775-8-III.
• Citation: 130 Wn. App. 589,123 P.3d 891
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent and Cross-Appellant, v. Jeffrey Otto CARLSON, Appellant.

123 P.3d 891

130 Wn. App. 589

STATE of Washington, Respondent and Cross-Appellant, v. Jeffrey Otto CARLSON, Appellant.

No. 22775-8-III.

Court of Appeals of Washington, Division 3, Panel Two.

December 1, 2005.

Dennis W. Morgan, Attorney at Law, Ritzville, WA, for Appellant.

Barrett J. Scudder, Adams County Prosecutor's Office, Ritzville, WA, for Respondent.

SCHULTHEIS, J.

¶ 1 Jeffrey Otto Carlson and Joey Owens entered a rural store. Each separately bought an unremarkable amount of a different product that can be lawfully possessed and purchased. The store's manager knew that when mixed together and also combined with a number of other substances, the two products purchased by Mr. Carlson and Mr. Owens—muriatic acid and denatured alcohol—could be used to make methamphetamine. The manager called police. An officer stopped the vehicle in which Mr. Carlson and Mr. Owens were then traveling and ultimately discovered pseudoephedrine.

¶ 2 Mr. Carlson was charged with possession of pseudoephedrine with intent to manufacture methamphetamine. His motion to suppress was denied and he was convicted. He appeals, claiming the stop was unlawful. We conclude that because police did not have reasonable suspicion of criminal activity, it was improper to stop Mr. Carlson's vehicle and the evidence should have been suppressed. We therefore reverse his conviction and dismiss.

FACTS

¶ 3 Robert Boyce, the manager of Potter Drug in Othello, Washington, saw two men, Mr. Carlson and Mr. Owens, enter the store on May 22, 2003. He was suspicious of them by their appearance and by the way they acted. The two men were "rough dressed, unkempt and dirty." Clerk's Papers (CP) at 58. Upon entering the store, one man went to the sundries section of the paint shop while the other went to another area. The man in the paint shop area declined Mr. Boyce's offer of assistance. As soon as the first man paid for his item and left the store, the other man bought his item and left the store. One man bought a container of muriatic acid and the other bought a container of denatured alcohol.¹

¶ 4 Mr. Boyce testified that he knew from his training through a local law enforcement program that the items the men purchased were ingredients for the manufacture of methamphetamine and that those attempting to buy methamphetamine components tend to be elusive and decline help in locating the products in the store because they do not want to be noticed. He recorded the license plate number of the vehicle the men were driving and noted the vehicle description.

¶ 5 Mr. Boyce then called police and identified himself to a police dispatcher and reported what he had observed. The call was dispatched to Bo Lamens, a police officer with the Othello Police Department. Officer Lamens located the car bearing the reported license number, and noted the vehicle and its occupants matched the description provided by dispatch. He then stopped the car.

ANALYSIS

¶ 6 We review the trial court's findings of fact on a motion to suppress for substantial evidence. State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994). Substantial evidence exists if the evidence in the record is sufficient to persuade a fair-minded, rational person of the truth of the court's finding. Id. at 644, 870 P.2d 313. We review the conclusions of law de novo. State v. Johnson, 128 Wash.2d 431, 443, 909 P.2d 293 (1996).

¶ 7 An officer may briefly detain occupants of a vehicle for investigation if the circumstances satisfy the Terry² stop reasonable suspicion standard. State v. Mendez, 137 Wash.2d 208, 220, 970 P.2d 722 (1999). Our state and federal constitutions require officers making a valid Terry stop to be able to identify specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant the intrusion. Id. at 223, 970 P.2d 722 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Articulable suspicion means "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)).

¶ 8 Reasonableness is determined from the totality of the circumstances known by the officer at the inception of the stop. State v. Glover, 116 Wash.2d 509, 514, 806 P.2d 760 (1991); State v. Jones, 117 Wash.App. 721, 728, 72 P.3d 1110 (2003), review denied, 151 Wash.2d 1006, 87 P.3d 1184 (2004). The factual basis for an investigatory stop need not arise out of the officer's personal observation, but may be supplied by information acquired from another person. Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Police may rely on information known to its agency and relayed through dispatch. State v. Gaddy, 114 Wash.App. 702, 706, 60 P.3d 116 (2002), aff'd, 152 Wash.2d 64, 93 P.3d 872 (2004); State v. Mance, 82 Wash.App. 539, 542-44, 918 P.2d 527 (1996).

¶ 9 Mr. Carlson argues that what was known to law enforcement was not enough to amount to reasonable articulable suspicion. We agree.

¶ 10 A number of courts have found that similar purchases of legitimate and innocuous items were an insufficient basis for reasonable suspicion of criminal activity. For instance, in State v. Bergerson, 659 N.W.2d 791, 793-94 (Minn.Ct.App.2003), police stopped a driver after the owner of a hardware store reported that he purchased rubber tubing and acetone, items used to manufacture methamphetamine. A Minnesota appellate court held:

Prior to the seizure, Deputy Carlson knew only that Bergerson had purchased common, everyday items from the hardware store that can also be used for an unlawful purpose. . . . Absent any other activity or information about Bergerson, merely purchasing two generic items from a hardware store, which separately and together have numerous legitimate uses, does not create reasonable suspicion of criminal activity.

Id. at 796.

¶ 11 In this case, other than knowing that the innocuous items were purchased, police had some information about the shopping practices and current grooming of the occupants of the car. These matters, when coupled with the purchase of lawful goods, are inadequate to substantiate reasonable suspicion.

¶ 12 With respect to shopping practices, the act of entering a store with a companion and then splitting up to purchase pseudoephedrine products is a suspicious activity often seen in methamphetamine manufacture litigation, and it frequently serves to support investigative stops in published cases. E.g., United States v. Ameling, 328 F.3d 443 (8th Cir.), cert. denied, 540 U.S. 961, 124 S.Ct. 422, 157 L.Ed.2d 301 (2003); State v. Bulington, 802 N.E.2d 435 (Ind.2004); State v. Heuser, 661 N.W.2d 157 (Iowa 2003); State v. Schneider, 32 Kan.App.2d 258, 80 P.3d 1184 (2003). But that activity has not been documented in cases involving the purchase of anything other than pseudoephedrine products.³ In Schneider, a Kansas appellate court affirmed the trial court's suppression of evidence, in the presence of the seemingly suspicious activity of separating to make purchases of pseudoephedrine products, noting that it agreed with the trial court's characterization as "`scary'" that articulable suspicion could be derived from a perfectly legal transaction. Schneider, 80 P.3d at 1189.

¶ 13 Moreover, that Mr. Carlson and Mr. Owens entered this particular store together and then made separate selections and purchases of legitimate items was certainly not suspicious or even atypical. The store manager conceded that it was not unusual for two or more people to enter into the store and then separate to shop. Report of Proceedings (Oct. 9, 2003) (RP) at 12-13.

¶ 14 As for the suspects' appearance, while a person's appearance might be a legitimate factor in deciding whether police have reasonable suspicion of criminal activity to support an investigative stop, such in itself is not sufficient. United States v. Betemit, 899 F.Supp. 255, 261 (E.D.Va.1995) (citing Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)), aff'd by unpublished opinion, 129 F.3d 117 (4th Cir.1997). Appearance is not used to stereotype physical characteristics with criminal conduct or propensity, but to assess suspicion in the context of the situation at hand. Id. See, e.g., United States v. McFarley, 991 F.2d 1188, 1192 (4th Cir.1993) (holding that the fresh and well dressed appearance of men who arrived via bus to New York City advanced establishment of articulable suspicion). There was nothing compelling about the description of the men that is relevant to the context here. The store manager testified that it was not unusual to see customers that were "dressed rough" or not "dressed their best" in the store. RP at 12.

¶ 15 Courts in other jurisdictions have held that police lacked reasonable suspicion in similar innocuous item cases when they have insufficient additional facts to support the stop.

¶ 16 In State v. Abeln, 136 S.W.3d 803, 807 (Mo.Ct.App.2004), police received a report from a store that a man picked up a case of engine starter fluid as if to purchase it, but set it down once he realized he was attracting the attention of store employees and instead purchased a single can. The employees also reported that the man had purchased funnels and hoses earlier in the week. Knowing that these items are used in the manufacture of methamphetamine, an officer stopped the man who was then driving on the highway. An appellate court in Missouri held that these facts, based entirely on items that had legitimate uses, did not add up to reasonable suspicion of criminal activity. Id. at 812.

¶ 17 In State v. Knight, 33 Kan.App.2d 325, 104 P.3d 403, 404 (2004), a Kansas appellate court held that an investigatory stop was not lawful where a man bought two boxes of cold pills, a six-pack of bottled water, and table salt. The court held that although salt was a methamphetamine ingredient and...