State v. Garvin, 80941-1.

• Citation: 207 P.3d 1266,166 Wn.2d 242
• Decision Date: 28 May 2009
• Docket Number: No. 80941-1.,80941-1.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. Anthony Gaylord GARVIN, Petitioner.

207 P.3d 1266

166 Wn.2d 242

STATE of Washington, Respondent, v. Anthony Gaylord GARVIN, Petitioner.

No. 80941-1.

Supreme Court of Washington, En Banc.

Argued February 12, 2009.

Decided May 28, 2009.

Casey Grannis, Nielsen Broman & Koch, PLLC, Seattle, WA, for Petitioner.

Kevin Gregory Eilmes, Yakima County Prosecutor's Office, Yakima, WA, for Respondent.

SANDERS, J.

¶ 1 We are asked to determine whether a police officer exceeded the permissible scope of a stop-and-frisk search when he squeezed a man's pants pocket until he discovered a small packet of methamphetamine. The Court of Appeals affirmed the man's conviction for one count of possession of methamphetamine, holding the officer did not exceed the scope of a lawful Terry frisk¹ when he squeezed the contents of the man's coin pocket despite ascertaining there was no weapon there. We reverse the conviction, as the evidence was the product of an unlawful search and should have been suppressed.

FACTS AND PROCEDURAL HISTORY

¶ 2 On October 21, 2005, Union Gap police officer Gregory Cobb was on patrol when he stopped Anthony Gaylord Garvin's car for what he observed to be either burned out or defective brake lights and a broken front windshield. As he questioned Garvin, Cobb saw the car's ignition had been punched out and there was a knife lying next to Garvin on the front seat. Clerk's Papers (CP) at 14. Cobb asked his patrol partner to have Garvin get out of the car, and Garvin used the knife to turn off the ignition.² Garvin put the knife back down and got out of the car without incident.

¶ 3 Cobb asked Garvin whether he had any other weapons on him, and Garvin responded that he had another knife in his pants pocket. After directing Garvin to stand with his feet shoulder-width apart and his hands interlaced behind his back, Cobb proceeded to pat him down. Id.; Verbatim Report of Proceedings (RP) at 5. The officer found and removed a lock blade knife from Garvin's rear pants pocket.

Cobb wrote in his report:

As I pat searched his right front pants pocket area I felt something in the coin pocket. I recognized the feel of the object as a plastic baggie. There was something inside the plastic baggie that moved around inside when I squeezed it. I recognized the feel of the object through training and experience as the type of baggie used by drug users to package illegal drugs. I placed Garvin in handcuffs and removed the baggie from the coin pocket.

CP at 14-15.

¶ 4 Officer Cobb elaborated on the incident during the March 28, 2006 hearing on Garvin's motion to suppress the evidence.³ On direct examination, Cobb testified he routinely uses a slow squeezing method rather than a traditional pat-down search because he is "concerned about needles and sharp objects." RP at 6. He explained, "[Y]ou can feel the texture of things by squeezing." Id. "We don't really pat anymore. It's more of a squeeze search.... I'll squeeze the contents of the pocket and try to identify what's in there, and then I work my way up the pocket and I squeeze." Id. at 7. The prosecutor asked, "All the squeezing is routine for you," to which Cobb replied, "Yes." Id. at 8.

¶ 5 The officer said he applied the same technique to his search of Garvin's jean pockets:

Something was in the pocket. It was obvious when I squeezed it gave way, and it felt like there was something granule inside the pocket. As I continued to squeeze, the granules separated. It's like the area I pinched granules separated and down from there.

Id. at 9. Cobb testified he knew through experience that a coin pocket is a common place for people to keep so-called dime baggies. "I pretty much knew what it was in terms of I suspected I was dealing with narcotics." Id. at 10. Cobb then handcuffed Garvin and removed the bag from his coin pocket, noting it was filled with an "off-white, crystalline substance ... that [he] recognized through training and experience as suspected methamphetamine."⁴ Id.

¶ 6 On cross-examination, Cobb testified he did not feel any weapons or hard objects when he first felt Garvin's coin pocket. Id. at 12. He said he continued to squeeze the pocket in "one motion" and suspected it contained narcotics but did not know. Id. He knew, however, that the object in Garvin's pocket was not a weapon. Defense counsel then had the officer demonstrate on Garvin how he conducted the search. The officer testified he could tell during the demonstration that there was a lighter and some change or papers in one of Garvin's pockets, and "a plastic baggy containing something" in another pocket. Id. at 14. He admitted he could not tell by touch what was in the bag.

¶ 7 Upon questioning by the court, the officer explained he feels a coin pocket in "a separate squeeze," because "the dimensions of the pocket are much different," and he is concerned about needles and razor blades, as the pocket is not large enough for other weapons. Id. at 16. Cobb concluded:

In my experience and my training, when I feel a small an inch and a half by inch and a half plastic baggy containing a powder or crystalline substance, my training and experience tells me that that's contraband. In a front pocket, a big baggy, [defense counsel] is right. It could be Kool-Aid for all I know. In that pocket, that location, that size of a container, my training and experience tells me that I am dealing with contraband.

Id. at 17.

¶ 8 The trial court denied Garvin's motion to suppress and upheld the warrantless search and seizure under the plain touch doctrine⁵ discussed in State v. Hudson, 124 Wash.2d 107, 874 P.2d 160 (1994). See CP at 32-34 (Findings of Fact and Conclusions of Law Re: [CrR] 3.6).⁶ The judge concluded Cobb "used a single squeezing motion as opposed to squeezing, sliding or manipulating the contents of pockets." Id. at 32-33 (Finding of Fact III). "Upon squeezing the pocket the officer immediately recognized the incriminating character of a baggy and its contents as possible narcotics." Id. at 33 (Finding of Fact IV). The judge concluded, "Where an officer lawfully pats down a defendant ... and feels an object possessing characteristics that make its identity as contraband immediately apparent, ... there has been no invasion of the Defendant's privacy beyond the search for weapons." Id. (Conclusion of Law III). On May 26, 2006, Garvin was found guilty of possession of methamphetamine after a bench trial on stipulated facts.⁷ On appeal to Division Three, Garvin argued Officer Cobb exceeded the scope a lawful Terry frisk when he squeezed the contents of Garvin's pocket despite discovering there was no weapon there. Garvin also claimed the officer lacked probable cause to believe the object in his pocket was contraband. But the Court of Appeals affirmed. In an unpublished opinion, the court held that based on the officer's testimony, he "immediately recognized narcotics in Mr. Garvin's pocket during the weapons frisk without any further manipulation of the pocket." State v. Garvin, noted at 141 Wash.App. 1015, 2007 WL 3112416, at *3; CP at 32-34. Thus, the court concluded, "[u]nder the plain touch doctrine of Hudson, the officer's actions did not exceed the scope of Terry." Garvin, 141 Wash.App. 1015, 2007 WL 3112416, at *3; see Hudson, 124 Wash.2d 107, 874 P.2d 160; Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. We granted review. State v. Garvin, 163 Wash.2d 1059, 187 P.3d 752 (2008).

STANDARD OF REVIEW

¶ 9 When reviewing the denial of a suppression motion, an appellate court determines whether substantial evidence supports the challenged findings of fact and whether the findings support the conclusions of law. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994). Evidence is substantial when it is enough "to persuade a fair-minded person of the truth of the stated premise." State v. Reid, 98 Wash.App. 152, 156, 988 P.2d 1038 (1999). We review conclusions of law from an order pertaining to the suppression of evidence de novo. State v. Duncan, 146 Wash.2d 166, 171, 43 P.3d 513 (2002); see also State v. Carneh, 153 Wash.2d 274, 281, 103 P.3d 743 (2004).

ANALYSIS

¶ 10 Officer Cobb testified he knew there was no weapon in Garvin's coin pocket but continued squeezing in one slow motion because he felt something and suspected it might be a baggy with narcotics. In doing so, he exceeded the permissible scope of a limited Terry stop-and-frisk. "Without probable cause and a warrant, an officer is limited in what he can do. He cannot arrest a suspect; he cannot conduct a broad search." State v. Setterstrom, 163 Wash.2d 621, 626, 183 P.3d 1075 (2008) (citing Hudson, 124 Wash.2d at 112, 874 P.2d 160).

¶ 11 As a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. Duncan, 146 Wash.2d at 171, 43 P.3d 513 (citing State v. Williams, 102 Wash.2d 733, 736, 689 P.2d 1065 (1984)). There are "a few `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. Duncan, 146 Wash.2d at 171-72, 43 P.3d 513 (quoting Williams, 102 Wash.2d at 736, 689 P.2d 1065, and citing State v. Rife, 133 Wash.2d 140, 150-51, 943 P.2d 266 (1997)). The State bears a heavy burden to show the search falls within one of the "narrowly drawn" exceptions. State v. Jones, 146 Wash.2d 328, 335, 45 P.3d 1062 (2002). The State must establish the exception to the warrant requirement by clear and convincing evidence. State v. Smith, 115 Wash.2d 775, 789, 801 P.2d 975 (1990).

¶ 12 In what is commonly known as a Terry stop, a police officer may briefly stop and detain an individual for investigation without a warrant if the officer reasonably suspects the person is engaged or about to be engaged in criminal conduct. State v. Day, 161 Wash.2d 889, 895, 168 P.3d 1265 (2...