State v. Crespo Aranguren, DUQUESNE-VALER

• Decision Date: 30 December 1985
• Docket Number: A,DUQUESNE-VALER,Nos. 14499-5-,14608-4-I,s. 14499-5-
• Citation: 711 P.2d 1096,42 Wn.App. 452
• Parties: STATE of Washington, Respondent, v. Emilio CRESPO ARANGUREN, Guillermo Duquesne-Valera, and each of them, Appellants. STATE of Washington, Respondent, v. Guillermoppellant.
• Court: Washington Court of Appeals

Page 452

42 Wn.App. 452

711 P.2d 1096

STATE of Washington, Respondent, v. Emilio CRESPO ARANGUREN, Guillermo Duquesne-Valera, and each

of them, Appellants.

STATE of Washington, Respondent, v. Guillermo DUQUESNE-VALERA, Appellant.

Nos. 14499-5-I, 14608-4-I.

Court of Appeals of Washington Division 1.

Dec. 30, 1985.

Mark W. Muenster, Washington Appellate Defenders Ass'n, (Court appointed), Seattle, for appellants.

David S. McEachran, Wahtcom County Pros. Atty., Karen L. Nelson, Deputy, Bellingham, for respondent.

COLEMAN, Judge.

Emilio Crespo Aranguren and Guillermo Duquesne-Valera appeal their convictions for possession of stolen property in the third degree. Their cases, tried separately at the trial court level, have been consolidated on appeal. Both appellants argue that the trial court erred in denying the motion to suppress evidence that was obtained from an allegedly illegal investigatory stop.

On January 8, 1984, at approximately 7 p.m., Officer Gill of the Bellingham Police Department was patrolling by car when he received a report of vandalism. Officer Gill testified that "the call was of three people doing vandalism in the 1200 block of West Holly and they may have described the three people involved as being of Indian descent or Indians." At the time of the report, Officer Gill was approximately 6 blocks away from the reported vandalism. About 10 to 15 seconds after the report, Officer Gill heard "commotion or loud talking" coming from a nearby parking lot. He saw two people on bicycles ride out from the parking lot. The officer pulled in behind them because, he said, "I felt, basically, being about four blocks from the area of the reported vandalism that they may possibly have come from that area or have known something about it." When asked, "how did you signal to them?", he replied, "I pulled over and got out of the car and said can I talk to you guys for a minute." Officer Gill further testified as follows:

I just walked up to them and talked to them, contacted both of them and explained to them that I received a complaint of some vandalism being done a few blocks from where we were currently at and I explained to them I was curious to know if they had been in that area or if they observed anything suspicious in that area. I also asked them at that time if they had any type of identification.

Q. Did they, in fact, provide you with identification?

A. Yes, they did.

Q. What happened then?

A. I went back to my car to write their names down and to make local warrant checks on them and when I got into the car I was advised by the dispatch center that a person had just reported two bicycles had been stolen from the 1100 block of West Holly Street and the dispatcher went on to describe the bicycles as being two Fuji bicycles, silver in color and also said that either one or both of them had a chamois type of seat covering.

Q. Then what did you do?

A. That matched exactly the bicycles that these two fellows were riding....

Officer Hill then arrested both appellants.

Both appellants moved to suppress the evidence. After argument by counsel and testimony from Officer Gill, the motion was denied. In separate proceedings, the appellants were convicted upon stipulated evidence of possession of stolen property in the third degree.

Aranguren and Duquesne-Valera now appeal the denial of their motion to suppress. Appellants argue that the officer did not have a particularized and objective basis for a reasonable suspicion that they were involved in criminal activity and that they were therefore illegally detained. The State argues that the encounter between appellants and Officer Gill was not a "seizure," and that even if it was a seizure, the officer had a well-founded suspicion, based on specific and articulable facts, that appellants had been involved in criminal activity.

Not every encounter between an officer and an individual amounts to a seizure. A person is "seized" only if, "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." (Footnote omitted.) United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). The U.S. Supreme Court has said that police questioning relating to one's identity, or a request for identification by the police, without more, is unlikely to result in a Fourth Amendment seizure. Immigration and Naturalization Serv. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984).

In Washington, a police officer has not seized an individual merely by approaching him in a public place and asking him questions, if a reasonable person would have felt free to leave. State v. Belanger, 36 Wash.App. 818, 677 P.2d 781 (1984). In the present case, the appellants were on bicycles when the officer approached them. Such an encounter is analogous to the situation of an officer approaching an individual on foot, especially when, as appears to be the case here, the officer gets out of the car to hail the individual rather than using the flashing light and siren of the police vehicle. See State v. Stroud, 30 Wash.App. 392, 634 P.2d 316 (1981).

In the present case the officer did nothing wrong in stopping the appellants to ask if they had come from the area of the reported vandalism or knew anything about it.

Moreover, there was nothing coercive about the initial encounter. The officer used permissive language when he asked, "can I talk to you guys for a minute", and it appears that when asked if they had any type of identification, they readily produced it. As indicated by the trial court in ruling on the motion to suppress:

I don't find any support in the record for the argument that the defendants were not free to go. The testimony, as I understand it, is that at about 7:00 p.m. on January 8th Officer Gill, while he was at Broadway and Elm Street, heard a report of some vandalism on Broadway. He saw some people in the area and stated that he was within a few blocks of the reported vandalism and was curious to know if they had seen anyone or knew what was going on and asked if he could stop and talk to them. They apparently did not object to that....

I really have great difficulty thinking that a police officer can't ask somebody on the street if they had been in an area where there's a crime.

This is certainly consistent with the criteria set forth in State v. Belanger, supra, describing police encounters with citizens that do not constitute seizures. We conclude that the initial stop of the appellants was proper under the analysis set forth above. However, the officer took the appellants' identification with him to his vehicle in order to write the appellants' names down and run warrant checks on them. Courts which have directly considered this issue have found that a simple encounter can mature into an investigatory detention depending on the circumstances after the officer requests the suspect's identification. For example, if the officer hands the suspect's identification and airline ticket over to another officer and tells the suspect the officers are conducting a narcotics investigation, a seizure has occurred. United States v. Cordell, 723 F.2d 1283 (7th Cir.1983), cert. denied, 465 U.S. 1029, 104 S.Ct. 1291, 79 L.Ed.2d 693 (1984). If the officer asks the suspect to accompany him to a nearby office, while still retaining the ticket and identification, a seizure has occurred. United States v. Waksal, 709 F.2d 653 (11th Cir.1983). If the officer retains the suspect's driver's license while asking him other questions, a seizure has occurred since the suspect is effectively immobilized without the license. United States v. Thompson, 712 F.2d 1356 (11th Cir.1983); State v. Painter, 296 Or. 422, 676 P.2d 309 (1984).

In this case, once the officer retained the...