State v. Duncan

• Decision Date: 11 April 2002
• Docket Number: No. 71111-9.,71111-9.
• Citation: 146 Wn.2d 166,146 Wash.2d 166,43 P.3d 513
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Demetrius Marcel DUNCAN, Petitioner.

43 P.3d 513

146 Wn.2d 166

146 Wash.2d 166

STATE of Washington, Respondent, v. Demetrius Marcel DUNCAN, Petitioner.

No. 71111-9.

Supreme Court of Washington, En Banc.

Argued November 29, 2001.

Decided April 11, 2002.

Mark Watanabe, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, Endel R. Kolde, Deputy, Seattle, for Respondent.

BRIDGE J.

This case presents the classic scenario where an investigation for one violation of law leads to the discovery of evidence for another, more serious, violation. While investigating the possession of an open container in public, a civil infraction, two police officers uncovered a felon in possession of a firearm who was also carrying a purse and credit cards belonging to another individual. We are asked to determine whether we will extend the principles from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to include stops for civil infractions and, more specifically, whether the police officers in this case had a justifiable basis for stopping and detaining Demetrius Duncan.

We decline to extend the Terry principles to encompass civil infractions and we hold that in this instance the officers lacked a reasonable and justifiable basis for stopping and detaining Duncan. Accordingly, we reverse the Court of Appeals and reinstate the trial court's decision.

FACTS

Around 3:00 p.m. on October 7, 1999, Officers Renihan and Hockett drove past an enclosed bus stop in Seattle. They observed three black men standing in front of the shelter, and at least one brown paper bag sitting on a bench inside the shelter, with a glass bottleneck protruding from its top. One of the men later testified that people would, on occasion, leave beer bottles in the shelter when they boarded the bus. Seeing the bottle, the officers stopped to investigate a potential violation of the Seattle Municipal Code that prohibits possessing an open container in public. Seattle Municipal Code (SMC) 12A.24.025. Based on the officers' experience, bottles in paper bags often mean the surreptitious consumption or possession of alcohol in public.

When the officers approached the shelter, they discovered a half-empty beer bottle sitting on the bench, approximately six inches from where Demetrius Duncan was standing. The bottle was closer to him than the other two people at the shelter. The bottle was cold to the touch and Officer Renihan could smell alcohol on Duncan's breath. Officer Hockett indicated that he did not smell alcohol. Each of the three men in the shelter denied drinking the beer. Despite his denial, the officers decided to cite Duncan for violating the open container ordinance.

Upon exiting the police vehicle Renihan had recognized Duncan from a prior contact and after obtaining Duncan's identification, Renihan remembered Duncan from an arrest nine months earlier where an officer had recovered a firearm and Duncan had to be wrestled to the ground. Renihan also recalled that Duncan had a history of violent criminal offenses, including murder. Based on this prior knowledge and the fact that Duncan was wearing a bulky jacket, which might conceal a firearm, Renihan quickly frisked Duncan to check for weapons and protect the officers' safety. Duncan had made no furtive movements or acted erratically in any way.

The officers uncovered a handgun in Duncan's waistband from the search. They then arrested Duncan for being a felon in possession of a firearm. Following the arrest, the officers searched Duncan and recovered a purse and credit cards from his pockets. Duncan was later charged with unlawful possession of a firearm, possession of a stolen firearm, and possession of stolen property.

PROCEDURAL HISTORY

Following a pretrial hearing, the trial court found that the officers' initial stop of Duncan was not justified under the Fourth Amendment to the United States Constitution or article I, section 7 of the Washington State Constitution. The court stated:

The officers in this case did not have reasonable grounds to believe that Duncan consumed, opened or possessed alcohol in public in or out of their presence in violation of SMC 12A.24.025. Duncan's mere proximity to the beer bottle was insufficient as a matter of law to support a finding of constructive possession."[¹]

As a result of these findings, the trial court suppressed all of the evidence seized from Duncan and dismissed the charges against him.

The State appealed. Division One of the Court of Appeals reversed the trial court's order and remanded the case for a trial. State v. Duncan, No. 46174-5-I, 105 Wash. App. 1007, 2001 WL 181114 (Wn.Ct.App. Feb. 26, 2001). In an unpublished opinion, the Court of Appeals concluded that the arresting officer had probable cause to believe that an infraction had been committed. Id. The court stated that "an officer need not have evidence sufficient to prove every element of the crime beyond a reasonable doubt to possess probable cause for arrest." Id. at *2.

STANDARD OF REVIEW

This court reviews conclusions of law from an order pertaining to the suppression of evidence de novo. State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999).

ANALYSIS

As a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution. State v. Williams, 102 Wash.2d 733, 736, 689 P.2d 1065 (1984) (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)).

There are, however, a few "`"jealously and carefully drawn" exceptions'" to the warrant requirement which provide for those cases where the societal costs of obtaining a warrant (such as danger to officers or the risk of loss or destruction of evidence) outweigh the reasons for prior recourse to a neutral magistrate.

Williams, 102 Wash.2d at 736,689 P.2d 1065 (quoting State v. Houser, 95 Wash.2d 143, 149, 622 P.2d 1218. 95 Wash.2d 143,622 P.2d 1218 (1980) (quoting Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) (quoting Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958)))). These jealously and carefully drawn exceptions include consent, exigent circumstances, searches incident to a valid arrest, inventory searches, plain view searches, and Terry investigative stops. State v. Rife, 133 Wash.2d 140, 150-51, 943 P.2d 266 (1997). The State carries the burden of showing that the particular search or seizure in question falls within one of these exceptions. Williams, 102 Wash.2d at 736,689 P.2d 1065 (citing Houser, 95 Wash.2d at 149,622 P.2d 1218).

The State in this case contends that the seizure of Duncan was permissible as a Terry stop. We disagree. In Terry, the Supreme Court held that if an initial stop is justified, a police officer may make a reasonable search for weapons without violating the Fourth Amendment, regardless of whether he has probable cause to arrest the individual, if the circumstances lead the officer to reasonably believe that his safety or the safety of others is endangered. 392 U.S. at 20-27, 88 S.Ct. 1868. "[A]n officer may briefly stop an individual based upon reasonable suspicion of criminal activity if necessary to maintain the status quo while obtaining more information." State v. Miller, 91 Wash. App 181, 184, 955 P.2d 810, 961 P.2d 973 (1998). See also Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)

. For a permissible Terry stop the State must show that (1) the initial stop is legitimate; (2) a reasonable safety concern exists to justify the protective frisk for weapons; and (3) the scope of the frisk is limited to the protective purposes. State v. Collins, 121 Wash.2d 168, 173, 847 P.2d 919 (1993) (citing Adams, 407 U.S. at 146,

92 S.Ct. 1921). Because neither the reasonableness of the search nor its scope is challenged here, we will focus on whether the initial stop was justified.

To justify a seizure on less than probable cause, Terry requires a reasonable, articulable suspicion, based on specific, objective facts, that the person seized has committed or is about to commit a crime. Terry, 392 U.S. at 21,

88 S.Ct. 1868. Officers Renihan and Hockett approached Duncan and his two companions to investigate a suspected violation of SMC 12A.24.025, which forbids opening, possessing or consuming liquor in a public place. Possessing an open container in public is a noncriminal violation of the SMC, a civil infraction. Both officers testified that neither Duncan nor the other two men were free to leave during their investigation. The trial court found, and we agree, that Duncan was thus seized under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution. For that seizure to be legitimate, it must be either (a) based on a reasonable suspicion of criminal activity, in accordance with Terry principles, or (b) a proper detention to issue a notice of a civil infraction.

Applicability of Terry v. Ohio

A few months prior to the officers' detention of Duncan, the Legislature amended RCW 66.44.100, relating to the opening or consumption of liquor in a public place, decriminalizing such conduct from a misdemeanor to a civil infraction under chapter 7.80 RCW, effective July 25, 1999. By amending RCW 66.44.100, the Legislature effectively decriminalized SMC 12A.24.025 as well, making a violation of this code provision a civil infraction.²

To effectuate the public policy of preventing criminal activity in progress, Terry and its progeny have predominantly analyzed the reasonable suspicion of an ensuing crime. In State v. Pressley, 64 Wash.App. 591, 593, 825 P.2d 749 (1992), for example, a law enforcement officer suspected that he was witnessing a drug transaction. The officer was in a well-known area for drug trafficking and gang activity. Id. He observed the respondent and a companion huddled together looking at an object in the respondent's hand,...