State v. D.E.D.

• Decision Date: 19 September 2017
• Docket Number: No. 33858-4-III.,33858-4-III.
• Citation: 200 Wash.App. 484,402 P.3d 851
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. D.E.D., Appellant.

200 Wash.App. 484

402 P.3d 851

STATE of Washington, Respondent,

v.D.E.D., Appellant.

No. 33858-4-III.

Court of Appeals of Washington, Division 3.

SEPTEMBER 19, 2017

Eric J. Nielsen, Jared Berkeley Steed, Nielsen Broman & Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, for Appellant.

Joseph Anthony Brusic, Yakima County Prosecutor's Office, 128 N. 2nd St., Rm. 329, Yakima, WA, 98901-2621, David Brian Trefry, Yakima County Prosecutors Office, P.O. Box 4846, Spokane, WA, 99220-0846, for Respondent.

Korsmo, J.¶1 D.E.D.¹ appeals from a juvenile adjudication finding him guilty of obstructing a public servant. For reasons different than he argues, we conclude that his passive resistance to an investigatory stop was not a crime under these facts. The conviction is reversed.

FACTS

¶2 The essential facts of the case revolve around an encounter between 17-year-old D.E.D. and Wapato Police Department Officer Michael Deccio. The officer responded to a call from a woman complaining about a group of youths who did not belong in her neighborhood along the 500 block of South Tieton Street. Several minutes later the officer arrived in the area in his patrol car.

¶3 Instead of seeing a group of youths, the officer saw Mr. Davis walking down the middle of the street by himself. The officer did not immediately recognize Mr. Davis, but eventually recalled that he lived a few blocks away, although he could not remember the young man's name. The youth was walking in the direction of his house.

¶4 Admittedly lacking evidence of reasonable suspicion to justify detaining the youth, Officer Deccio pulled up alongside in his patrol car and asked, "what's going on?" Dennis responded with profanity and accused the officer of bothering him. The youth's body was tense with fists clenched and arms flexed tight. The officer decided to park his car and further attempt to speak to the youth.

¶5 As the officer was getting out of his car, the police dispatch advised that another caller had reported a group of kids, one of whom displayed a gun, outside his front yard. Officer Deccio then detained Davis while indicating that the young man was not under arrest. The officer attempted to handcuff Davis, but the younger man pulled his arm away and demanded that the officer not touch him. The officer directed Davis to put his arms behind his back, but the young man refused to comply. He attempted to stiffen his body and pull away from the officer in order to avoid being handcuffed. The officer continued to attempt to handcuff the young man in order to search for a gun. After two minutes, the officer prevailed in overpowering Davis and handcuffing him. A search failed to uncover any weapons.

¶6 A charge of obstructing a public servant was filed in the juvenile division of the Yakima County Superior Court. Although no motion to suppress was ever filed, defense counsel attempted to argue during trial that the seizure was unlawful and, therefore, his client should be acquitted. The trial court declined to entertain the argument, pointing out that the defense never sought to challenge the legality of the stop by pretrial motion. Instead, counsel had objected to the officer relating the hearsay basis for his decision to detain Dennis. The trial court described defense counsel's approach as an effort to gain a tactical advantage over the prosecution. Report of Proceedings (RP) at 51-53.

¶7 The court concluded that D.E.D. had hindered the officer in the course of his official duties by struggling and resisting the detention, along with attempting to kick the officer in the groin. RP at 54. This resistance had cost the officer several minutes of time. Accordingly, the court found that the defendant committed the crime of obstructing a public servant. RP at 54.

¶8 The court imposed a standard disposition. Clerk's Papers at 9. D.E.D. then timely appealed to this court, arguing that his counsel rendered ineffective assistance by failing to file a motion to suppress. A panel considered the case without oral argument and then directed the parties to file supplemental briefing concerning the sufficiency of the evidence.²

ANALYSIS

¶9 The sole issue is whether the evidence was sufficient to support the conviction for obstructing a public servant.³ We conclude that the evidence was insufficient and reverse.

¶10 One obstructs an officer when he "willfully hinders, delays, or obstructs" the officer "in the discharge of his or her official powers or duties." RCW 9A.76.020(1). To avoid constitutional infirmities, the obstruction statute requires conduct beyond merely making false statements to the police. State v. Williams, 171 Wash.2d 474, 485-86, 251 P.3d 877 (2011) ; accord State v. E.J.J., 183 Wash.2d 497, 502, 354 P.3d 815 (2015). Evidence is insufficient if the trier of fact could not find each element of the offense proven beyond a reasonable doubt. State v . Farnsworth, 185 Wash.2d 768, 775, 374 P.3d 1152 (2016) ; State v. Green, 94 Wash.2d 216, 221-22, 616 P.2d 628 (1980).

¶11 While a charge of obstructing a public servant is the offense at issue in this case, it plays out in the context of an investigative detention authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (Fourth Amendment), and State v. Kennedy, 107 Wash.2d 1, 4-6, 726 P.2d 445 (1986) ( Wash. Const., art. I, § 7 ). When an officer can articulate the basis for believing possible criminal activity is afoot, a brief detention to investigate is permissible. Terry, 392 U.S. at 21, 88 S.Ct. 1868. The test is whether the facts known to the officer show "a substantial possibility that criminal conduct has occurred or is about to occur." Kennedy, 107 Wash.2d at 6, 726 P.2d 445. The Kennedy court also noted, "When the activity is consistent with criminal activity, although also consistent with noncriminal activity, it may justify a brief detention." Id.

¶12 D.E.D. initially argued on appeal that his counsel rendered ineffective assistance by failing to file a motion to suppress. For several reasons, we disagree with that position because the ineffective assistance standard was not satisfied here. Under the Sixth Amendment, an attorney provides ineffective assistance when he or she fails to live up to the standards of the profession and prejudice to the client results from that failure. State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When the issue is raised for the first time on appeal, as here, the issue is not "manifest" if the record is insufficient to properly adjudge the matter. McFarland, 127 Wash.2d at 334, 899 P.2d 1251. Furthermore, in the context of the failure to bring a motion to suppress, counsel can only have been ineffective if it can be shown that the motion likely would have been granted. Id.

¶13 The preceding authorities show three of the reasons why the ineffective assistance argument fails. First, there is an insufficient record to fairly consider the issue. Because there was no motion to suppress, the State had no obligation or interest in developing the factual basis for the detention. Second, defense counsel had a tactical reason not to bring the motion—he wanted to keep the contents of the dispatch reports to Officer Deccio out of the record in order to support his theory that the detention was improper.⁴ He successfully kept much of that information from entering the record. Third, the defense success in keeping the evidence out of the record leaves this court unable to determine whether or not a motion to suppress would have been granted. For all three reasons, the Strickland argument was unavailing; D.E.D. has not established that his counsel performed ineffectively.

¶14 Moreover, even if one had been timely filed, a suppression motion necessarily would have failed because there was no evidence to suppress. The exclusionary rule only extends to the fruits of the bad search or seizure resulting from the illegal actions of the police. State v. Aydelotte, 35 Wash.App. 125, 131-32, 665 P.2d 443 (1983) (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ). It is not a "but for" rule of causation leading to suppression of all evidence obtained after the improper conduct. Wong Sun, 371 U.S. at 487-88, 83 S.Ct. 407 ("We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.")⁵ Rather, suppression extends only to evidence that "has been come at by exploitation of that illegality." Id. at 488, 83 S.Ct. 407. Accord State v. Mierz, 127 Wash.2d 460, 474-75, 901 P.2d 286 (1995) ; State v. Bonds, 98 Wash.2d 1, 10-14, 653 P.2d 1024 (1982) (declining to suppress confession following illegal arrest and return from Oregon where officers had probable cause to make arrest); Aydelotte, 35 Wash.App. at 132, 665 P.2d 443.⁶

¶15 It is for that reason that it long has been the rule that a defendant's criminal behavior in response to a police illegality is not subject to suppression. In State v. Hoffman, 116 Wash.2d 51, 804 P.2d 577 (1991), a defendant argued that an officer was not performing his official duties because the officer had (allegedly) illegally attempted to arrest the defendant without a search warrant. Id. at 99-100, 804 P.2d 577. Our court disagreed, ruling that as long as the officer was not engaged in a "frolic of his or her own," the officer was still performing his official duties even if the arrest was improper or had lacked probable cause. Id. at 100, 804 P.2d 577. Mierz involved a similar claim by a defendant who argued that he was not guilty of assault because the officers he attacked were trespassing on his property in violation of the constitution. Our court again...