State v. Flores

• Decision Date: 21 May 2015
• Docket Number: No. 32233–5–III.,32233–5–III.
• Citation: 188 Wash.App. 305,351 P.3d 189
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Appellant, v. Cody Ray FLORES, Respondent.

188 Wash.App. 305

351 P.3d 189

STATE of Washington, Appellant

v.Cody Ray FLORES, Respondent.

No. 32233–5–III.

Court of Appeals of Washington, Division 3.

May 21, 2015.

Publication Ordered June 25, 2015.

Kevin James McCrae, Grant County Prosecutor's Office, Garth Louis Dano, Ephrata, WA, for Appellant.

David Bustamante, Bellevue, WA, for Respondent.

FEARING, KORSMO and BROWN, JJ.

Opinion

FEARING, J.

¶ 1 We address under what circumstances and to what extent a law enforcement officer may detain and search a companion of another engaged in criminal activity. The trial court suppressed evidence of a gun on the person of Cody Flores, who accompanied one accused of a crime. Although the law enforcement officer had cause to detain Flores, the officer lacked reason to order Flores to walk toward him and to search him. We affirm the trial court.

FACTS

¶ 2 On November 2, 2013, Moses Lake police dispatch sent all available patrol officers to 1120 Alderwood Drive. Dispatch relayed an anonymous report that Giovanni Powell held a gun to somebody's head at that address. Dispatch also reported an outstanding warrant for the arrest of Powell.

¶ 3 Officer Kyle McCain arrived at 1120 Alderwood Drive first and espied Giovanni Powell ambling with Cody Flores north of the address. The anonymous caller had not mentioned Flores. Officer McCain knew Powell to be a member of the “Base Block” gang. McCain identified Powell from pictures on Facebook, whereon Powell or his friends held firearms. McCain also knew Powell from the latter's testimony as a material witness after one of Powell's best friends was shot and killed in a fight at a Spokane motel. Officer McCain did not recognize or know Cody Flores.

¶ 4 After spotting Giovanni Powell, Officer Kyle McCain exited his car and drew his gun aimed at the ground or at a low ready position. An officer employs the low ready position when he has not identified a specific violent threat, but knows that danger may await in his immediate area. Kyle McCain ordered Giovanni Powell and Cody Flores to stop walking. Powell and Flores complied. Officer McCain ordered each man to place his respective hands on his head, face away from McCain, and kneel on the sidewalk. Powell and Flores obeyed and kneeled about five to seven feet from each other.

¶ 5 Office Kyle McCain stood next to his patrol car and utilized the car as cover, while he paused for other officers to arrive. Giovanni Powell and Cody Flores spoke to each other, and McCain ordered them to cease talking. Kyle McCain directed Flores to move further from Powell, and Flores complied while still on his knees. Another four officers arrived at the Alderwood address, and each drew his gun. Officer McCain and other officers ordered Powell to approach them by walking backward with his hands on his head. Powell obeyed, and the officers arrested him without harm. Cody Flores never obstructed in the detaining of Giovanni Powell.

¶ 6 Moses Lake Officer Paul Oiumette was one of the other officers who arrived at the Alderwood address. Oiumette assumed control over Cody Flores, who remained kneeling on the street comer with his hands up, facing away from the officers. He had no knowledge of Cody Flores engaging in criminal activity. Nevertheless, Oiumette believed Flores to be involved in the gun incident that prompted the anonymous call to dispatch. Officer Oiumette drew his gun and held it at the low ready position. He instructed Flores to keep his hands where Oiumette could see them and to walk backward to the sound of his voice. Cody Flores rose from his knees and complied. As Flores walked backward, he saw Officer Oiumette's drawn gun.

¶ 7 After Cody Flores walked ten to fifteen feet and neared within twenty feet of Officer Paul Oiumette, Flores peered over his shoulder and notified the officer that Giovanni Powell gave him a gun. Oiumette commanded Flores to keep walking backward. Oiumette asked Flores about the location of the gun, and Flores responded that he carried the firearm in his pants under his jacket. Flores continued to promenade backward. When Flores approached within feet of Officer Oiumette, the officer ordered Flores to kneel, and other officers approached Flores and secured him in handcuffs. With his gun drawn, Oiumette removed the gun from Cody Flores' pants and detained Flores in the back of a patrol car.

¶ 8 Moses Lake law enforcement officers reviewed Cody Flores' criminal history and discovered a conviction in October 2012 for residential burglary, a felony disqualifying Flores from possessing a firearm.

PROCEDURE

¶ 9 The State of Washington charged Cody Flores with unlawful possession of a firearm in the first degree, in violation of RCW 9.41.040(1)(a). Cody Flores filed a CrR 3.6 motion to suppress the gun found on his person as the product of an unlawful seizure. Flores argued that the Moses Lake officers lacked an articulable suspicion essential to justify detaining him. At the motion to suppress hearing, Officers Kyle McCain and Paul Oiumette testified. Thereafter the trial court issued a letter opinion, including findings of fact and conclusions of law. Among other findings, the trial court found that the officers lacked individualized articulable suspicion to suspect Cody Flores of criminal activity.

¶ 10 The trial court granted Cody Flores' motion to suppress evidence of the gun found on his person and dismissed the charge against him without prejudice. In the letter opinion, the trial court observed that federal law assumes that all arrestee companions are dangerous and thus are subject to search, The court continued:

In Washington, however, while a reasonable concern for officer safety justifies a brief detention and protective frisk of an arrestee's companion, proximity to the arrestee, even coupled with general circumstances, such as being in a high crime [area], are insufficient to create a reasonable concern. State v. Adams, 144 Wash.App. 100, 106–07, 181 P.3d 37 (2008). Rather, there must be articulable circumstances particular person in the arrestee's company poses a threat to officer safety to justify that person's detention and frisk.Id.

Here, Mr. Flores was compliant, made no furtive movements, and there is no evidence the officers during the relevant time period were aware of any violent propensities the Defendant may have had. There were, therefore, no grounds under Washington law to detain the Defendant. His motion to suppress is granted.

Clerk's Papers at 56.

LAW AND ANALYSIS

¶ 11 We outline the arguments raised by the parties in order to circumscribe our analysis. The State of Washington argues that a concern for officer safety justified the detention of Cody Flores and later seizure of the gun on Flores' person. The State contends that Officer Paul Oiumette had a legitimate concern that Giovanni Powell could have passed his gun to Cody Flores. The State, however, does not argue that the Terry investigatory stop rule validated Officer Oiumette's search of Flores' person. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)

¶ 12 The State of Washington analogizes this appeal to a case involving the detaining of a passenger in a stopped car. We agree with this analogy, but our agreement harms, not advances, the State's position.

¶ 13 When reviewing claims of unlawful searches and seizures, we often must isolate discrete actions of a police officer during an extended encounter, as if the actions are separate frames in a movie. Cody Flores does not argue that Officer Kyle McCain lacked reason to detain him until officers accomplished the arrest of Giovanni Powell. Flores does not need to assert this argument to be successful. Flores contends that Officer Paul Oiumette lacked grounds, after the arrest of Powell, to require him to walk toward the officer and to search his person. Flores emphasizes that he informed Oiumette of the gun on his person only after Oiumette unlawfully directed him to parade carefully toward the officer.

¶ 14 Cody Flores also argues that the law enforcement officers lacked reasonable suspicion to legitimize a Terry stop of Flores. We agree with the State that this latter contention is irrelevant since the State does not substantiate the detention and search of Flores under Terry.

¶ 15 As the trial court did, we rely on the Washington constitution, not the Fourth Amendment to the United States Constitution. Article I, section 7, provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” That protection encompasses and exceeds the protection guaranteed in the Fourth Amendment of the United States Constitution. State v. Horrace, 144 Wash.2d 386, 392 n. 2, 28 P.3d 753 (2001) ; State v. Parker, 139 Wash.2d 486, 493–94, 987 P.2d 73 (1999).

¶ 16 The State of Washington does not assign error to any finding of fact of the trial court. Unchallenged findings, entered after a suppression motion hearing, are verities on appeal. State v. O'Neill, 148 Wash.2d 564, 571, 62 P.3d 489 (2003) ; State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994).

¶ 17 Whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized the person. Terry v. Ohio, 392 U.S. at 16, 88 S.Ct. 1868 (1968). Once an officer seizes an individual, no subsequent events or circumstances retroactively justify the seizure. state v. Mendez, 137 Wash.2d 208, 224, 970 P.2d 722 (1999), abrogated on other grounds by Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).

¶ 18 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. Duncan, 146 Wash.2d 166, 171, 43 P.3d 513 (2002). There are five jealously and carefully drawn exceptions to the warrant requirement, which include exigent circumstances, searches incident to a valid arrest, inventory searches, plain view searches, and Terry investigative stops....