State v. Cormier, 18287-8-III.

• Decision Date: 18 April 2000
• Docket Number: No. 18287-8-III.,18287-8-III.
• Citation: 997 P.2d 950,100 Wash.App. 457
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Manuel R. CORMIER, Appellant.

997 P.2d 950

100 Wash.App. 457

STATE of Washington, Respondent, v. Manuel R. CORMIER, Appellant.

No. 18287-8-III.

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

April 18, 2000.

Reconsideration Denied May 24, 2000.

David N. Gasch, Spokane, for Appellant.

Kevin M. Korsmo, Andrew J. Metts, III, Deputy Prosecuting Attorneys, Spokane, for Respondent.

SWEENEY, A.C.J.

Evidence discovered as a result of an unconstitutional Terry stop may generally be excluded. Terry v. Ohio, 392 U.S. 1, 14-15, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). But a person detained by a police officer, even illegally, may not assault the officer, if the arrest threatens only a loss of freedom. State v. Valentine, 132 Wash.2d 1, 21-22, 935 P.2d 1294 (1997).

Manuel Cormier rode his bicycle by and stared at police executing a search warrant. They stopped him. He refused to cooperate and assaulted an officer. Police then arrested him and found drugs. Police had no reason to suspect Mr. Cormier of criminal activity or suspect that he was armed and dangerous. The officers, nonetheless, legally arrested him after he assaulted them. We hold then that any evidence seized pursuant to this legal arrest was admissible. We, therefore, affirm the convictions.

FACTS

Spokane Police were investigating an assault with firearms and preparing to execute a search warrant. It was dark and the lighting was poor. Mr. Cormier rode his bicycle by the police patrol cars and the staging area a number of times. He then stopped to watch.

Detective Mark Burbridge approached Mr. Cormier, asked why he was there, and asked whether he knew anything about the residence the police intended to search. The detective asked Mr. Cormier to remove his hands from his coat pockets. Mr. Cormier refused. The detective told Mr. Cormier that if he did not remove his hands, he would arrest him for obstructing. Mr. Cormier again refused. He also refused to identify himself. Officers then tried to take custody of Mr. Cormier. He fought back and twice struck Detective Burbridge. The officers finally subdued Mr. Cormier and took him to jail. They found drugs in Mr. Cormier's shirt pocket during a search at the jail.

The State charged Mr. Cormier with assault in the third degree, RCW 9A.36.031(1)(d), and possession of a controlled substance, RCW 69.50.401(d). Mr. Cormier moved to dismiss the charges. He argued that police had no basis for a Terry stop. The prosecutor noted that the motion was untimely, but did not object.

The court found that Mr. Cormier's conduct and responses at the scene justified the original stop. It concluded that the original contact was justified under Terry and denied Mr. Cormier's motion to dismiss. Later a jury found him guilty of third degree assault and possession of a controlled substance.

DISCUSSION

Mr. Cormier appeals from the denial of his "motion to dismiss" based on what he claims was an unconstitutional seizure. Procedure. The State argues that Mr. Cormier has changed his argument from a motion to dismiss in the trial court to a motion to suppress on appeal. And he did. But we fail to see the practical difference. Suppression would require exclusion of the drugs. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Richardson, 64 Wash.App. 693, 697, 825 P.2d 754 (1992). Both a motion to dismiss and a motion to suppress would lead to the same result—dismissal of the charges based on the unconstitutional seizure.

Seizure. Whether a person is seized is a mixed question of law and fact. State v. Armenta, 134 Wash.2d 1, 9, 948 P.2d 1280 (1997). Mr. Cormier does not assign error to the findings of fact; they are therefore verities on appeal. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994). We review the conclusions of law de novo. Armenta, 134 Wash.2d at 9, 948 P.2d 1280.

The Fourth Amendment prohibits unreasonable searches and seizures. Terry, 392 U.S. at 8-9, 88 S.Ct. 1868. A person is "seized" only if a reasonable person would have believed that he or she was not free to leave based on all the objective circumstances surrounding the incident. Armenta, 134 Wash.2d at 10-11, 948 P.2d 1280; State v. Nettles, 70 Wash.App. 706, 710, 855 P.2d 699 (1993); Richardson, 64 Wash.App. at 696, 825 P.2d 754. We focus on whether the police conduct was coercive. State v. Thorn, 129 Wash.2d 347, 353, 917 P.2d 108 (1996).

Where an officer commands a person to halt or demands information from the person, a seizure occurs. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); State v. Gleason, 70 Wash.App. 13, 17, 851 P.2d 731 (1993). But no seizure occurs where an officer approaches an individual in public and requests to talk to him or her, engages in conversation, or requests identification, so long as the person involved need not answer and may walk away. Armenta, 134 Wash.2d at 11-12, 948 P.2d 1280; Nettles, 70 Wash. App. at 709, 855 P.2d 699; Richardson, 64 Wash.App. at 696, 825 P.2d 754; State v. Aranguren, 42 Wash.App. 452, 454-55, 711 P.2d 1096 (1985).

The basis for the stop here was officer safety. Police may stop a person and frisk for weapons if: (1) the initial stop was justified, (2) a reasonable safety concern exists to justify the frisk, and (3) the scope of the frisk is limited to address their concerns. Terry, 392 U.S. at 20-25, 88 S.Ct. 1868; State v. Collins, 121 Wash.2d 168, 173, 847 P.2d 919 (1993).

The officer must point to specific and articulable facts which, coupled with rational inferences, create an objectively reasonable belief or well founded suspicion that the person is a safety risk. Terry, 392 U.S. at 24-25, 88 S.Ct. 1868; Collins, 121 Wash.2d at 173-74, 847 P.2d 919; State v. L.K., 95 Wash.App. 686, 695, 977 P.2d 39 (1999); Richardson, 64 Wash.App. at 697, 825 P.2d 754. We consider the totality of the circumstances surrounding the stop, including the officer's training and experience, the location of the suspect-officer contact, the time of day, the suspect's conduct and response to the officer, and any other circumstances. State v. Glover, 116 Wash.2d 509, 514, 806 P.2d 760 (1991); L.K., 95 Wash.App. at 695-96, 977 P.2d 39.

The court found: The officers were preparing to execute a search warrant at a location where an assault involving firearms had occurred. It was dark and the lighting was poor. Mr. Cormier rode his bicycle by the police cars and staging area for the warrant numerous times. He then stopped to observe near the staging area. It was difficult for the officers to see Mr. Cormier. Mr. Cormier's behavior indicated that he was very interested in what was going on.

Mr. Cormier made no furtive movements and did not appear armed, nor was he threatening. He rode his bicycle by, stared at police, and appeared interested. This conduct is not sufficient to justify a stop. The officers did not have a reasonable belief that Mr. Cormier was armed and, therefore, were not justified in stopping him. Terry, 392 U.S. at 27,88 S.Ct. 1868; Collins, 121 Wash.2d at 173,847 P.2d 919; State v. Terrazas, 71 Wash.App. 873, 879, 863 P.2d 75 (1993).

Assault. But Mr. Cormier has no right to assault an officer. State v. Mierz, 127 Wash.2d 460, 901 P.2d 286, 50 A.L.R.5th 921 (1995). And that assault justified the resulting custodial arrest.

In Mierz, the defendant was convicted of two counts of third degree assault and one count of unlawful possession of wildlife. Department of Wildlife agents entered Mr. Mierz's property without a warrant to confiscate two coyotes. Mr. Mierz commanded his dogs to attack the agents. Mr. Mierz also bit an agent. Id. at 464-66, 901 P.2d 286.

On appeal, Mr. Mierz argued that his attorney was ineffective for failing to suppress evidence obtained as a result of the agent's illegal entry into his yard. Id. at 471-72, 901 P.2d 286. The court concluded "that the evidence of Mierz's assaultive behavior was properly admitted regardless of any alleged Fourth Amendment violation[.]" Id. at 473, 901 P.2d 286. "[A]n assault against police officers following an illegal entry is outside the scope of the exclusionary rule, because it is sufficiently distinguishable from any initial police illegality `to be purged of the primary taint[.]'" Id. at 473-74, 901 P.2d 286 (citing State v. Aydelotte, 35 Wash.App. 125, 132, 665 P.2d 443 (1983)). Excluding evidence would allow one whose constitutional rights were violated to "`respond with unlimited force and, under the exclusionary rule, ... be effectively immunized from criminal responsibility.'" Id. at 474, 901 P.2d 286 (quoting Aydelotte, 35 Wash.App. at 132, 665 P.2d 443).

Any benefit provided by exclusion of evidence in these cases comes at too high a price. Given the complexity and nuance of Fourth Amendment law, in many cases the law enforcement officer and the citizen may both have sincere or reasonable beliefs about the lawfulness of the entry or arrest. Encouraging citizens to test their beliefs through force simply returns us to a system of trial by combat. The proper location for dealing with such issues in a civilized society is in a court of law.

Mierz, 127 Wash.2d at 475, 901 P.2d 286.

We employed the Mierz rationale in an application of article I, section 7 of the Washington Constitution.¹ State v. McKinlay, 87 Wash.App. 394, 398-99, 942 P.2d 999 (1997). Unless a traditional self-defense analysis is possible, an unconstitutional act by law enforcement does not justify assaultive conduct by an accused against a police officer. Id. (concluding that evidence of the defendant's use of a firearm to intimidate or assault those conducting the aerial surveillance is not subject to the exclusionary rule).

Mr. Cormier does not argue that he acted in self-defense. Id. Police therefore had the right to arrest him for the assault and take him into custody. The specific question then becomes whether evidence of a crime, other than evidence of Mr. Cormier's assault, is admissible following the...