State v. Carriero

• Decision Date: 25 April 2019
• Docket Number: No. 35560-8-III,35560-8-III
• Citation: 439 P.3d 679
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Otoniel CARRIERO, Appellant.

439 P.3d 679

STATE of Washington, Respondent,

v.Otoniel CARRIERO, Appellant.

No. 35560-8-III

Court of Appeals of Washington, Division 3.

FILED APRIL 25, 2019

PUBLISHED OPINION

Fearing, J.

So what do we do if we don't know [whether a seizure occurred]? I can follow my instinct. My instinct is he would feel he wasn't free because the red light’s flashing. That’s just one person’s instinct. Or I could say, let’s look for some studies. They could have asked people about this, and there are none .... What should I do? Look for more studies?

—Justice Stephen Breyer

Maybe we can just pass until the studies are done?

—Justice Antonin Scalia

Transcript of Oral Argument at 43, Brendlin v. California , 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (No. 06-8120).

¶ 1 We address familiar questions in a unique setting for Washington law. First, did law enforcement seize a citizen within the meaning of the Fourth Amendment to the United States Constitution or WASH. CONST . art. I, § 7 ? Second, did reasonable suspicion for a Terry stop support any seizure? We hold that law enforcement officers seized appellant Otoniel Carriero when two patrol cars blocked the only exit of Carriero’s Monte Carlo from a dead end alley and two officers respectively approached the passenger and driver side windows. Since the police officers lacked any suspicion of criminal activity, the seizure was unlawful. Because of the violation of Carriero’s constitutional rights, we reverse his conviction for unlawful possession of a firearm.

FACTS

¶ 2 We borrow our narrative from the findings of fact entered by the trial court after a CrR 3.6 suppression hearing. We add some of the underlying testimony of law enforcement officers during the hearing.

¶ 3 At 2:00 a.m. on a summer morning, the Yakima Police Department received a phone call from a resident who lived adjacent to the alleyway between the 1500 block of Roosevelt Avenue and Cherry Avenue. The State presented no testimony that the caller identified himself or herself. The reporting party called 911 to report a suspicious vehicle, with lights off, parked at the dead end of the alley. The caller did not recognize the car. Law enforcement knows the neighborhood as plagued with burglaries, vehicle prowling, and gang violence.

¶ 4 Yakima Police Officers Garrett Walk and Scott Gronewald, in their respective marked patrol cars, responded to the call. Officer Walk drove down the dim, block-long, narrow alleyway, followed by Officer Gronewald. Neither officer activated his car’s emergency lights or sirens, but each car’s headlights illuminated the Monte Carlo. Officer Gronewald activated his directional rear lights, which flash yellow to oncoming traffic. At the end of the alleyway, the officers saw a red Chevrolet Monte Carlo facing their direction, occupied by two individuals, later identified as Otoniel Carriero and Amber Rodriguez. According to Officer Gronewald, the two officers endangered themselves by driving down the narrow alley facing Carriero’s vehicle, but the two lacked a safe way to approach the Monte Carlo. The unlit Monte Carlo had its engine off.

¶ 5 Officer Garrett Walk stopped his patrol vehicle one car length away from Otoniel Carriero’s Monte Carlo, and Officer Scott Gronewald parked his car behind Officer Walk’s car. By stopping their patrol vehicles in the narrow alley, the officers' patrol cars blocked Carriero’s egress. Officer Walk testified at the suppression hearing:

Q. And the alleyway, is it a narrow or wide alleyway?

A. It’s not the widest one I've been in, but there is space to actually get two cars down the alleyway.

Report of Proceedings (RP) at 13-14. Officer Scott Gronewald testified:

Every situation is different, I guess, but in this case it’s a pretty narrow alley.

I believe when Officer Walk ended up having to turn around, he had to do a five or six-point turn. I think I had to move my side mirror in so he could fit by me. So it’s a very narrow alley. I believe, to memory, Officer Walk parked more on the north side of the alley as what I did....

RP at 38-39.

¶ 6 Officer Garrett Walk further testified at the suppression hearing:

Q. (By Mr. Hintze) When you first made contact with the defendant and his vehicle and the passenger, were there any concerns that a crime might be being committed?

A. There is always a potential. I never know for sure until we actually talk and have done an investigation.

RP at 24.

¶ 7 Officers Garrett Walk and Scott Gronewald exited their respective vehicles with flashlights in hand and approached the stationary Monte Carlo. The officers noticed Otoniel Carriero seated in the driver’s seat and Amber Rodriguez seated in the front passenger seat. Neither officer observed any suspicious behavior or furtive movements from either occupant. Officer Gronewald ambled to the driver’s side door and positioned himself adjacent to the door. Officer Walk walked to the passenger side door.

¶ 8 Officer Garrett Walk greeted the pair with "[h]i guys" and spoke with a casual and friendly tone of voice. Clerk’s Papers (CP) at 38. Officer Walk questioned whether either lived in the neighborhood, and Carriero responded that neither did. Carriero told the officers that the two wanted to be alone together. Carriero added that he owned the Monte Carlo.

¶ 9 Officer Garrett Walk explained that a concerned neighbor called 911 and reported an unfamiliar car in the alley. Walk asked Otoniel Carriero and Amber Rodriguez if either possessed identification. Neither Officer Scott Gronewald nor Officer Walk told the two that they were free to leave. Rodriguez handed Walk her identification card, while Carriero handed Gronewald his card.

During cross-examination at the suppression hearing, Gronewald declared:

Q. (By Ms. Holman) Is it possible, had he [Carriero] grabbed the license out of your hands and took off, that you would have eventually charged him, you personally, with assault or obstruction?

A. It is possible, yes.

RP at 43.

¶ 10 Officer Scott Gronewald read Otoniel Carriero’s name and date of birth to dispatch over his radio while standing by the vehicle. In turn, dispatch informed Gronewald that Carriero was a convicted felon, who bore a conviction for unlawful possession of a firearm, but had no outstanding warrants. Officer Gronewald returned the identification card to Carriero.

¶ 11 Officer Garrett Walk read Amber Rodriguez’s information to dispatch and restored her identification card to her. Dispatch informed Officer Walk of outstanding arrest warrants for Rodriguez. At Officer Walk’s order, Rodriguez exited the Monte Carlo. Walk placed Rodriguez in handcuffs and sat her near the rear of the car.

¶ 12 Officer Scott Gronewald remained standing on the driver’s side of the car and shined his flashlight into Otoniel Carriero’s vehicle. Gronewald espied a silver and black handgun in a pouch behind the driver’s seat. Gronewald told Carriero to keep his hands on the steering wheel. Both officers directed Carriero to exit the vehicle, and the pair placed Carriero in custody. Law enforcement later procured a search warrant for the Monte Carlo and retrieved a loaded semiautomatic pistol from the seat pouch.

PROCEDURE

¶ 13 The State of Washington charged Otoniel Carriero with first degree unlawful possession of a firearm. Carriero moved to suppress all evidence and his statements based on an unlawful seizure. The trial court conducted a CrR 3.6 hearing, during which the court viewed a video of the interaction between Otoniel Carriero and Officers Garrett Walker and Scott Gronewald. Officers Walk and Gronewald testified.

¶ 14 Following the suppression hearing, the trial court entered twenty-seven findings of fact, all consistent with the hearing testimony except a finding that the officers knew the identity of the caller. We repeat the critical findings:

3. The caller’s identity was known to police. The caller reported to dispatch that there was a darkened occupied vehicle parked at the end of the dead-end alley, that the vehicle was not associated with any of his neighbors, and that he was very concerned that criminal activity or violence would be committed.

....

9. Officer Walk stopped his vehicle about one car length away from the Defendant’s vehicle. Officer Gronewald stopped his vehicle right behind officer Walk’s.

10. Due to the narrowness of the alley, two vehicles could not have driven past each other where the officers stopped their vehicles.

....

12. Although their headlights illuminated the scene in front of their patrol vehicles, the officers never activated their emergency lights or sirens.

13. The two officers exited their vehicles with flashlights in their hands and approached the Defendant’s parked vehicle. The Defendant was seated in the driver’s seat and a female passenger was seated in the front passenger seat.

14. The COBAN video of the encounter from the beginning to end did not show any indication of the two occupants ever readjusting their clothing.

15. Officer Gronewald walked around the rear of the vehicle and up to the driver’s side door.

16. Officer Walk went up to the passenger side door and began speaking to the Defendant and the passenger.

....

25. After spotting what appeared to be a firearm, Officer Gronewald told the Defendant to keep his hands on the vehicle’s steering wheel. The Defendant had never been ordered to do anything or been told that he was detained prior to this point.....

CP at 37-40.

¶ 15 The trial court concluded, founded on the totality of the circumstances, that the Yakima Police Department officers based their conduct on a reasonable articulable suspicion of criminal activity. The trial court upheld the seizure of the pistol confiscated from the Monte Carlo pouch.

¶ 16 The prosecution proceeded to trial. The jury convicted Otoniel Carriero as charged. The trial court sentenced Carriero to a standard range sentence of 36 months’ confinement.

LAW AND ANALYSIS

Facts on Appeal

¶ 17 Before addressing the merits of Otoniel Carriero’s appeal, we must discern the facts on...