State v. Freeman, 2289--II

• Decision Date: 25 April 1977
• Docket Number: No. 2289--II,2289--II
• Citation: 563 P.2d 1283,17 Wn.App. 377
• Parties: The STATE of Washington, Respondent and Cross-Appellant, v. Harvey Oren FREEMAN, Appellant.
• Court: Washington Court of Appeals

Page 377

17 Wn.App. 377

563 P.2d 1283

The STATE of Washington, Respondent and Cross-Appellant, v. Harvey Oren FREEMAN, Appellant.

No. 2289--II.

Court of Appeals of Washington, Division 2.

April 25, 1977.

Jackson H. Welch, J. Dean Morgan, Clark County Legal Defender Services, Vancouver, for appellant.

James Carty, Pros. Atty., John Hilzer, Deputy Pros. Atty., Vancouver, for respondent.

PEARSON, Judge.

Harvey Oren Freeman was convicted of a robbery which occurred on November 26, 1975. His appeal raised five claims of error: (1) that evidence seized or obtained as a result of the stop of an automobile in which he was riding at the time of his arrest should have been suppressed; (2) and (3) that cumulative evidence of the failure of an eyewitness to correctly identify him should not have been excluded; (4) that the defense should have been allowed to call a person incorrectly identified by the eyewitness; (5) that the exclusion of certain testimony offered to show the bias of a witness for the State was error. We affirm.

On November 26, 1975, a man entered the back door of Skipper's Fish and Chips Restaurant in Vancouver, Washington, demanded and received money from the manager and a chef. The robber was described as having worn a gray or salmon colored sweatshirt with the hood drawn tightly over his head, sunglasses, faded jeans and tennis shoes. Investigators surmised that he left the vicinity on foot along a trial to the south. Investigation in that direction revealed a salmon colored sweatshirt, evidently recently discarded, lying near a trail a few blocks from the restaurant. Footprints apparently made by tennis shoes were discovered leading as far as a turnout in a nearby road, where fresh automobile tracks were observed. The turnout was one seldom used for parking by automobiles in the last 10 years.

A few weeks later, on December 14, 1975, Police Officer Alfred Carter of the Vancouver Police Department was patrolling the area of Skipper's Fish and Chips when he noticed a car parked in the same turnout. He noted the color and license number and the fact that there was one man seated in the driver's seat. He proceeded to Skipper's, where he turned around, returned in the same direction from which he had come, and passed the parked vehicle again. Approximately 45 minutes later he received a call over the police radio directing him to 'head for Skipper's.' While on the way, he passed the car he had previously noted proceeding in the opposite direction. He immediately turned around to follow the car, and pulled it over within a few blocks. Upon confronting the two men in the car, he noticed that the driver was a man, and the passenger was wearing a blue hooded sweatshirt, faded jeans, and tennis shoes. The two occupants were searched for weapons, placed in the back seats of separate patrol cars, and told they were under arrest for 'suspicion of robbery.'

Officer Carter then searched the vehicle, finding a pair of sunglasses and defendant's billfold, which was lying on the front seat. He next found a chrome-plated revolver, similar to the one described as having been used in the first robbery. It was located about 50 to 60 feet from the suspects' car in a position indicating it could have been thrown from the car. At approximately that time he learned, via his radio, there had been an attempted robbery of Skipper's by a man suspected to be the same person who had robbed them on November 26. Defendant and his accomplice were then taken to the police station and charged with the November 26th robbery.

At a pretrial hearing, the trial court ruled that the officers made an unlawful arrest and search of the car. The items seized, namely, the billfold and sunglasses, were not allowed in evidence. Both parties acknowledge the correctness of this ruling. State v. Byers, 88 Wash.2d 1, 559 P.2d 1334 (1977).

However, defendant's first assignment of error contends the initial stop was not justified, and that all evidence obtained as a result of the stop, namely, the pistol, the sweatshirt, defendant's identity, and the accomplice's confession, must also be suppressed as fruits of an unconstitutional intrusion. We disagree.

Whenever the facts are not in dispute and a fundamental constitutional right is in issue, as here, the appellate court must make its own independent examination and evaluation of the facts. In re McNear v. Rhay, 65 Wash.2d 530, 398 P.2d 732 (1965). Whether the facts and circumstances were sufficient to constitute a well-founded suspicion is a question of law which is reviewable upon appeal. State v. Byers, supra; Eberhart v. Murphy, 113 Wash. 449, 194 P. 415 (1920).

Our review of the record persuades us that Officer Carter, in view of his experience, his knowledge of the area, and his knowledge of what had transpired both on December 14 and previously on November 26, coupled with good police instincts while responding to a present emergency call to the same establishment that had been robbed once before, had a well-founded suspicion of possible criminal activity which justified an investigatory stop of the vehicle in which defendant was riding. State v. Gluck, 83 Wash.2d 424, 518 P.2d 703 (1974); State v. Serrano, 14 Wash.App. 462, 544 P.2d 101 (1975).

In State v. Gluck, supra, 83 Wash.2d at 426, 518 P.2d at 705, the court approved the police practice of making investigatory stops under circumstances in which an arrest or search would not be justified.

(W)here officers entertain a well-founded suspicion not amounting to probable cause, they may stop the suspected person, identify themselves and require the suspect to identify himself and explain his activity without being adjudged to have made a formal arrest. State v. Rankin, 477 S.W.2d 72 (Mo.1972); United States v. Bonanno (180 F.Supp. 71, 80 (S.D.N.Y.1960)).

We hold that an investigatory stop was justified in this case in order for Officer Carter to satisfy himself that the vehicle he had previously observed parked in an unusual place with one occupant, and later observed with two occupants proceeding away from the undetermined emergency at Skipper's, was not somehow involved in that emergency. See State v. Serrano, supra.

Defendant argues that even if the initial stop was justifiable, the subsequent seizure of his sweatshirt and billfold were made without the probable cause and should be excluded from evidence, along with the testimony of Officer Carter resulting from the identification of defendant. Defendant removed his sweatshirt and handed it to Officer Carter on his own volition. This sonsensual relinquishment of an item cannot fairly be...