State v. Collins

• Decision Date: 25 March 1993
• Docket Number: No. 59512-7,59512-7
• Citation: 847 P.2d 919,121 Wn.2d 168
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Michael Floyd COLLINS, Petitioner. En Banc

Page 168

121 Wn.2d 168

847 P.2d 919

STATE of Washington, Respondent, v. Michael Floyd COLLINS, Petitioner.

No. 59512-7.

Supreme Court of Washington,

En Banc.

March 25, 1993.

Washington Appellate Defender Ass'n, Eric Broman, Seattle, for petitioner.

Norm Maleng, Pros. Atty., Brenda L. Bannon, Deputy, Seattle, for respondent.

Richard B. Sanders, Bellevue, amicus curiae for petitioner on behalf of Second Amendment Foundation.

BRACHTENBACH, Justice.

Defendant was convicted of a violation of the Uniform Controlled Substances Act (UCSA), RCW 69.50.401(d). Defendant assigns error to the trial court's denial of his motion to suppress evidence obtained from a protective frisk for weapons following a stop for a minor traffic infraction. The only issue in this case is whether the circumstances were sufficient to create the type of reasonable safety concern necessary to justify the protective frisk for weapons.

The Court of Appeals, with one judge dissenting, affirmed the trial court's ruling on defendant's motion to suppress. State v. Collins, 66 Wash.App. 157, 831 P.2d 767 (1992). We granted a petition for review. We affirm.

During the early morning of July 10, 1989, Officer Kaffer and his partner were patrolling the Capitol Hill area of Seattle in a marked patrol car. At approximately 4 a.m., on East Pike Street, the officers stopped a 1969 green Pontiac after observing that the vehicle's brake lights failed to comeon when the vehicle was stopped at a red traffic light. The driver of the vehicle was defendant Michael F. Collins, a 6-foot-3-inch-tall white male.

As soon as the vehicle was stopped, Officer Kaffer approached the driver's side of the vehicle. When he reached the driver's window, he immediately recognized defendant from an arrest on a felony warrant made approximately 2 months earlier. Although Officer Kaffer could not recall the exact date of the arrest or the exact nature of the warrant, he did recall the circumstances of his prior contact with defendant.

The prior contact occurred when defendant was stopped for riding a bicycle at night without a light. Following the stop, Officer Kaffer ran a routine check on defendant's identification, and was informed of an outstanding felony warrant for defendant. Defendant was then placed under arrest, and the officers agreed to defendant's request that his bike be placed in the bed of his truck three blocks away. When the officers carried out this request, they noticed "a large amount of either .38 or .357" ammunition, a holster, and a set of handcuffs in the passenger compartment of the truck. Clerk's Papers, at 12. Defendant told the officers that they would not find a gun in the truck, and the officers did not find a gun when they searched the truck's passenger compartment with defendant's permission.

Upon recognizing defendant and recalling these facts, Officer Kaffer ordered defendant out of the vehicle and conducted a brief, pat-down frisk of defendant's outer clothing to search for weapons. During the frisk, Officer Kaffer discovered a hard object in defendant's left rear pocket. Believing that the hard object could be a weapon, Officer Kaffer reached into the pocket and retrieved a knife with a 3-inch blade. As Officer Kaffer pulled out the knife, a plastic bag containing a powdery substance fell out of the pocket. Suspecting that the bag contained a controlled substance, Officer Kaffer placed defendant under arrest for a violation of the UCSA. The contents of the bag tested positive for methamphetamine.

Defendant was charged with possession of methamphetamine, a controlled substance. Defendant, alleging that the frisk for weapons was in violation of his rights under the Fourth Amendment to the United States Constitution, moved to suppress the controlled substance found during that frisk. The trial court denied the motion to suppress and entered a judgment of guilty upon defendant's "stipulation to facts sufficient to enter a guilty finding."

Because the State argues that Officer Kaffer's warrantless frisk of defendant is within an exception to the Fourth Amendment's warrant requirement, the burden is on the State to show that the evidence supported the admission of the methamphetamine. State v. Leach, 113 Wash.2d 735, 738, 782 P.2d 1035 (1989). The exception relied on by the State is the one recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, (1968), for what the Court there referred to as a "stop and frisk."

In Terry, the United States Supreme Court rejected the argument that the Fourth Amendment is inapplicable to a seizure of a person short of a custodial arrest and to an accompanying brief frisk of an individual's outer clothing to search for weapons. Terry, 392 U.S. at 16, 88 S.Ct. at 1877. However, the Court explained that such police action is subject only to the Fourth Amendment's requirement that searches and seizures not be unreasonable, not to the warrant and probable cause requirements. Terry, 392 U.S. at 20, 88 S.Ct. at 1879. See State v. Hobart, 94 Wash.2d 437, 441, 617 P.2d 429 (1980).

[W]e deal here with an entire rubric of police conduct--necessarily swift action predicated upon the on-the-spot observations of the officer on the beat--which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.

(Footnote omitted.) Terry, 392 U.S. at 20, 88 S.Ct. at 1879.

The Court explained that the lesser Fourth Amendment burden imposed in the protective frisk context is justified by the strong government interest in police officer safety. Terry, 392 U.S. at 23, 88 S.Ct. at 1881.

We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded.

Terry, 392 U.S. at 23, 88 S.Ct. at 1881.

The Fourth Amendment will be satisfied where the following requirements are met: (1) the initial stop must be legitimate; (2) a reasonable safety concern must exist to justify a protective frisk for weapons; and (3) the scope of the frisk must be limited to the protective purpose. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, (1972). In this case, only the existence of a reasonable safety concern that would justify the protective frisk is at issue. In his petition for review, defendant does not challenge the validity of the original stop or the scope of the search.

A reasonable safety concern exists, and a protective frisk for weapons is justified, when an officer can point to "specific and articulable facts" which create an objectively reasonable belief that a suspect is "armed and presently dangerous." Terry, 392 U.S. at 21-24, 88 S.Ct. at 1879-1882. As the Court in Terry further explained:

The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger.

Terry, 392 U.S. at 27, 88 S.Ct. at 1883. This court recently phrased the principle thusly:

[C]ourts are reluctant to substitute their judgment for that of police officers in the field. "A founded suspicion is all that is necessary, some basis from which the court can determine that the [frisk] was not arbitrary or harassing."

(Footnote omitted.) State v. Belieu, 112 Wash.2d 587, 601-02, 773 P.2d 46 (1989) (quoting Wilson v. Porter, 361 F.2d 412, 415 (9th Cir.1966)).

Applying the reasonable safety concern standard to the present case, the trial court's denial of defendant's suppression motion was proper if, under the circumstances surrounding Officer Kaffer's frisk of defendant, a reasonably careful police officer would have had a "founded suspicion" that his or her own safety or the safety of others was threatened. The circumstances which gave rise to Officer Kaffer's belief that a frisk was justified are: (1) the time of night at which Officer Kaffer's current stop of defendant occurred; (2) defendant's prior felony arrest; and (3) the presence of ammunition and a holster in a vehicle associated with the defendant at the time of the prior felony arrest. At the suppression hearing Officer Kaffer explained his reaction to these circumstances: "I didn't want to get shot, so I had him step out of the vehicle right away." Verbatim Report of Proceedings, at 12.

In ruling on defendant's suppression motion, the trial court concluded: "There was no abuse of police action, no harassment or misconduct. Given the totality of the circumstances, Officer Kaffer had a reasonable and articuable [sic] suspicion that the defendant might be armed and presently dangerous." Clerk's Paper, at 29. Although we must independently examine the circumstances surrounding the frisk, because of the constitutional right at issue, conclusions entered by a trial court following a suppression hearing carry great significance for a reviewing court. State v. Daugherty, 94 Wash.2d 263, 269, 616 P.2d 649 (1980), cert. denied, 450 U.S. 958, 101 S.Ct. 1417, 67 L.Ed.2d 382 (1981). In this case, we agree with the trial court that the circumstances were sufficient to support a reasonable belief that the defendant posed a threat to the safety of Officer Kaffer or to the safety of his partner.

The first fact we must evaluate is the timing of the stop. This fact may not be...