State v. Dorey

• Decision Date: 26 June 2008
• Docket Number: No. 25938-2-III.,25938-2-III.
• Citation: 186 P.3d 363,145 Wn. App. 423
• Parties: STATE of Washington, Respondent, v. Christopher Todd DOREY, Appellant.
• Court: Washington Court of Appeals

186 P.3d 363

145 Wn. App. 423

STATE of Washington, Respondent, v. Christopher Todd DOREY, Appellant.

No. 25938-2-III.

Court of Appeals of Washington, Division 3.

June 26, 2008.

Andrew Kelvin Miller, Benton County Prosecutors Office, Alexander Bruce Johnson, Attorney at Law, Kennewick, WA, for Respondent.

Susan Marie Gasch, Gasch Law Office, Spokane, WA, for Appellant.

SCHULTHEIS, C.J.

¶ 1 We are asked to decide a single issue: whether police may stop a potential witness when investigating a disturbance complaint when there exists no exigent circumstances. We hold that they may not and reverse.

FACTS

¶ 2 At approximately 8:46 p.m. on June 29, 2006, Benton County Sheriff's Deputy Jason Bostic responded to a complaint by a named citizen of a disturbance involving a black man and another man in a black shirt. Deputy Bostic arrived at the intersection where the alleged disturbance was reported to have occurred 5 to 10 minutes earlier and found nothing. He then went to a convenience store that was in the direction in which one of the males had reportedly run. Upon entering the parking lot, Deputy Bostic saw a car in the stall of the car wash and a male in a black shirt, Christopher Dorey, squatting down with his back to the deputy. The deputy went into the store and spoke with the clerk who knew nothing of the reported disturbance.

¶ 3 Deputy Bostic then pulled his patrol car up to Mr. Dorey, who was by then getting into his car to leave. The deputy yelled at Mr. Dorey "to hold on a minute and indicated that he wanted to talk to [Mr. Dorey]." Clerk's Papers (CP) at 74 (Finding of Fact 8). Mr. Dorey stopped his car, and got out to speak with the deputy. Deputy Bostic asked Mr. Dorey if he had seen anything. Mr. Dorey said that he saw a group of people, one of whom matched the race of one of the persons described by the deputy, but that group had just left.

¶ 4 The deputy asked for Mr. Dorey's identification, which Mr. Dorey provided. The deputy recorded the information and thanked Mr. Dorey. The deputy ran the information for warrants as he watched Mr. Dorey leave.

¶ 5 When the inquiry turned up warrants, the deputy took off after Mr. Dorey. He found Mr. Dorey within minutes, walking away from his car. The deputy saw Mr. Dorey toss a fanny pack into the bushes. Mr. Dorey was arrested on the warrants and charged with possession of the methamphetamine that was in the recovered fanny pack.

¶ 6 Mr. Dorey challenged the legality of the stop. The trial court denied his motion to suppress, holding "this was a valid Terry¹ stop of a potential witness to the reported disturbance." CP at 75 (Conclusion of Law 1). The court further concluded that it was limited in time and purpose, and it was appropriate for the deputy to take Mr. Dorey's identification because Mr. Dorey had witnessed something associated with the disturbance. Mr. Dorey was found guilty as charged. This timely appeal follows.

DISCUSSION

¶ 7 On a motion to suppress, we review factual findings for substantial evidence and conclusions of law de novo. State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999), overruled on other grounds by Brendlin v. California, ___ U.S. ___, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994). Whether particular facts constitute a seizure under the Fourth Amendment is a question of law that is reviewed de novo. State v. Armenta, 134 Wash.2d 1, 9, 948 P.2d 1280 (1997).

¶ 8 The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). A warrantless seizure is presumed unreasonable under the Fourth Amendment. State v. Houser, 95 Wash.2d 143, 149, 622 P.2d 1218 (1980). The presumption of unreasonableness may be rebutted by a showing that one of the "few `jealously and carefully drawn exceptions' to the warrant requirement" applies to the case under consideration. Id. at 149, 622 P.2d 1218 (internal quotation marks omitted) (quoting Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979)). "The State bears the burden of showing a seizure without a warrant falls within one of these exceptions." State v. Kinzy, 141 Wash.2d 373, 384, 5 P.3d 668 (2000).

¶ 9 As an initial matter, the State suggests by citation to authority that there was no seizure in this case, rather merely a casual encounter with police in a public place. The State cites State v. Mote, 129 Wash.App. 276, 282, 120 P.3d 596 (2005). That case involved an officer speaking to the occupants of a stopped car. See State v. O'Neill, 148 Wash.2d 564, 579, 62 P.3d 489 (2003) (concluding that where a vehicle is parked in a public space, the distinction between a pedestrian and the occupant of a vehicle dissipates). Police officers are permitted to approach citizens and permissively inquire into whether they will answer questions as part of their "community caretaking" function. State v. Nettles, 70 Wash.App. 706, 712, 855 P.2d 699 (1993).

¶ 10 Here, Deputy Bostic stopped Mr. Dorey in a moving car. "`[T]he use of language or tone of voice indicating that compliance with the officer's request might be compelled'" is a seizure. State v. Young, 135 Wash.2d 498, 512, 957 P.2d 681 (1998) (quoting United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)); see also State v. Gleason, 70 Wash. App. 13, 17, 851 P.2d 731 (1993) (holding that a seizure occurred when one of two officers called out to the defendant, "`[C]an I talk to you a minute,'" as he walked away from the officers); State v. Ellwood, 52 Wash.App. 70, 73, 757 P.2d 547 (1988) (holding that the defendant was seized when told by officer to "`[w]ait right here'"). Yelling at Mr. Dorey "to hold on a minute and indicat[ing] that he wanted to talk to [Mr. Dorey]" and "flag[ging] him down" was a seizure. CP at 74 (Finding of Fact 8); Report of Proceedings (Feb. 8, 2007) at 5. We hold that Mr. Dorey was seized.

¶ 11 An investigative Terry stop, based upon less evidence than is needed for probable cause to make an arrest, is among the specific exceptions to the warrant requirement. State v. Glover, 116 Wash.2d 509, 513, 806 P.2d 760 (1991) (citing Terry, 392 U.S. at 25-26, 88 S.Ct. 1868). An investigative detention occurs under Terry when the police briefly seize an individual for questioning based on "specific and articulable," objective facts that give rise to a reasonable suspicion that the individual has been or is about to be involved in a crime. Terry, 392 U.S. at 21-22, 88 S.Ct. 1868; Armenta, 134 Wash.2d at 10, 948 P.2d 1280.

¶ 12 The State argues, as the trial court held, that the deputy properly stopped Mr. Dorey under Terry as a witness to a disturbance. Mr. Dorey argues that Washington law does not authorize the police to stop him as a witness and even if it did, there was no crime under investigation.

¶ 13 The State found no Washington authority addressing the detention of a witness. But after the briefing in this case was completed, Division Two of this court filed a case on this issue holding: "There is no authority—either statutory or otherwise—permitting an officer to seize a witness without a warrant, absent exigent circumstances or officer safety." State v. Carney, 142 Wash. App. 197, 203, 174 P.3d 142 (2007) (Bridgewater, J.), petition for review filed (Wash. Jan 23, 2008) (No. 81124-5); see id. at 206-07, 174 P.3d 142 (Penoyar, J., concurring); id. at 210, 174 P.3d 142 (Quinn-Brintnall, J., dissenting).

¶ 14 In Carney, a sheriff's deputy reported to an area to investigate a reckless motorcyclist that was reported by a citizen to be driving at high speeds and doing "wheelies" in a residential neighborhood. Id. at 200, 174 P.3d 142. The deputy saw a motorcycle and rider that matched the description in the report talking to two occupants in a parked car. When the deputy approached, the driver ran to his bike and fled, swerving around the patrol car that the deputy attempted to use to block the motorcycle, and ignoring the deputy's emergency lights and verbal instructions to stop.

¶ 15 The deputy then pulled up behind the parked car with his emergency lights still on. He asked the two women in the car to show him their hands and requested identifying information. He radioed in their names and birthdates to conduct a records check. Ms. Carney, the passenger, was found to have an outstanding warrant. In a search incident to the arrest, the deputy discovered methamphetamine in Ms. Carney's jacket, resulting in a drug possession charge. The trial court denied her suppression motion. On appeal, the majority in Division Two reversed.

¶ 16 As previously stated, the majority held that an officer may seize a witness in exigent circumstances. Id. at 203, 174 P.3d 142. The concurrence agreed that a witness may be held under exigent circumstances. Id. at 206, 174 P.3d 142 (Penoyar, J., concurring). From there, the majority split.

¶ 17 The author of the opinion found no exigency. See id. at 203-04, 174 P.3d 142 (Bridgewater, J.). But the concurrence opined that there was an exigency that justified the stop under both the limited circumstances in Washington's common law for exigency and the circumstances referred to in City of Kodiak v. Samaniego, 83 P.3d 1077 (Alaska 2004) and the AM. LAW INST. A MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE § 110.0(1)(b) (1975) (ALI Model Code). Id. 206-07, 174 P.3d 142 (Penoyar, J., concurring).

¶ 18 In Samaniego, a driver sued the city for false confinement and battery when an officer grabbed her and prevented her from leaving the scene of an Immigration and Naturalization...