State v. Gonzales

• Decision Date: 30 December 1986
• Docket Number: 6978-8-III,Nos. 6977-0-II,s. 6977-0-II
• Citation: 46 Wn.App. 388,731 P.2d 1101
• Parties: STATE of Washington, Respondent, v. Robert B. GONZALES, Appellant.
• Court: Washington Court of Appeals

Page 388

46 Wn.App. 388

731 P.2d 1101

STATE of Washington, Respondent, v. Robert B. GONZALES, Appellant.

Nos. 6977-0-III, 6978-8-III.

Court of Appeals of Washington Division 3, Panel Four.

Dec. 30, 1986.

John D. Knodell, Quincy, for appellant

Paul A. Klasen, Jr., Pros. Atty., Mary Ann Brady, Deputy, Ephrata, for respondent.

THOMPSON, Judge.

Robert Gonzales was convicted of two counts of burglary in the second degree, two counts of theft, and in a separate trial, three counts of possession of a controlled substance. He appeals the convictions and the sentences imposed. We reverse in part and remand for resentencing.

At 4 a.m. on August 14, 1984, Officer John Mays of the Moses Lake Police Department was on patrol in a Moses Lake lakeshore residential area. Officer Mays' patrol was in response to a recent rash of burglaries. Near the Lakeway Drive home of Mrs. Marguerite Conklin, Officer Mays observed a vehicle's headlights come on. Since he had not seen this particular car in the area before, he began following it. Officer Mays observed the car speed up for a short distance, then fail to come to a complete stop at a stop sign and fail to signal a turn. He also noticed the passenger glancing back at his patrol car. The officer felt the driver was trying to elude him.

After following the car for several blocks, noting the license number, and determining the registration had expired, he activated his lights and pulled the vehicle over. Before approaching the car, he called for a backup. The officer then confronted the driver, whom he recognized as Mr. Gonzales and knew to be on parole for burglary. He asked Mr. Gonzales what was going on. The defendant responded that he did not know, that the "other guy" had called him up on the phone and told him to meet him up there, and "he didn't know anything that was in the car". Officer Mays saw a portable TV in the rear seat behind At this point, Officer Mays asked the defendant to get out of the car and step to the back of the vehicle. Officer Christiansen then arrived and Officer Mays asked him to watch the passenger. Mr. Gonzales was frisked and placed in the patrol car but not handcuffed. Officer Mays then returned to the passenger side of the stopped car to question its passenger, Ronzell Vernor, who he knew had a juvenile burglary record. He told Mr. Vernor to step outside of the vehicle. In doing so, Mr. Vernor kicked a small brown package onto the roadway. Officer Christiansen advised Officer Mays that he could see a weapon under the car's front seat. The package was examined, found to be unopened, and mailed by the Crescent Department Store to a Mrs. K. Conklin at a Lakeway Drive address. Mr. Vernor was then placed under arrest and Mr. Gonzales was handcuffed. Both suspects were then transported to the Moses Lake Police Department, where Mr. Gonzales was told he was under arrest.

the driver, and noted both Mr. Gonzales and his passenger were wearing dark clothing.

While Mr. Gonzales was being transported to the station, another officer was sent to the Conklin residence to see if it had been burglarized. Officers confirmed the Conklin home had been burglarized. Property taken from the Conklin home and the home of William Calderon was later found in Mr. Gonzales' vehicle pursuant to a warrant authorizing the search.

At the police station, during booking, Mr. Gonzales volunteered to allow a search of his home. Officer Christiansen obtained a written consent to search from the defendant, which Officer Mays reviewed in detail with Mr. Gonzales. After Officer Mays advised Mr. Gonzales of his rights, Mr. Gonzales executed a waiver of his Miranda rights.

Officer Mays and Officer Baltzell then proceeded to Mr. Gonzales' home, arriving around 6 a.m., and commenced to search for stolen property associated with the burglary. One room of the home was sublet to Ronzell Vernor. During the search, marijuana, capsules, pills, drug paraphernalia, and a Thereafter, Detective Tindall met with the defendant, confronted him with the seized contraband and again advised him of his rights. Detective Tindall discussed the possibility he might speak to the prosecutor about releasing Mrs. Gonzales on her own recognizance. Subsequently, Mr. Gonzales gave a statement incriminating himself with regard to the controlled substance.

                marijuana pipe were found in various locations in the home.   Mr. Gonzales' wife, who was present during the search, was arrested for possession of a controlled substance
                

Upon investigation, it was determined that the Calderon home had also been burglarized and Mr. Gonzales' footprint was found on the driveway behind the Calderon garage.

Mr. Gonzales was charged with two counts of burglary in the second degree, two counts of theft, and three counts of possession of a controlled substance. Defense motions to suppress evidence were denied and he was convicted by a jury on the burglary and theft counts. After a bench trial, he was also convicted on the three counts of possession of a controlled substance.

The prosecution asked the court to exceed the Sentencing Reform Act (SRA) presumptive sentences for both the burglary and drug convictions. Following a "real facts" evidentiary hearing, the court entered findings of fact and conclusions of law giving reasons for its exceptional sentence of 43 months on the burglary and theft charges and 12 months on the drug charges. Mr. Gonzales appeals all the convictions and sentences.

INVESTIGATORY STOP

Mr. Gonzales first argues the police exceeded the permissible scope of an investigatory stop and thereby illegally seized him. As a general rule, warrantless searches and seizures are per se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). However, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court announced an Nevertheless, a Terry stop of an automobile is a "seizure" of its occupants for Fourth Amendment and Const. art. 1, § 7 purposes, and must, therefore, be reasonable. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979); State v. Kennedy, 107 Wash.2d 1, 4, 726 P.2d 445 (1986); State v. Larson, 93 Wash.2d 638, 648, 611 P.2d 771 (1980). An investigative stop must be temporary and last no longer than necessary to carry out the purpose of the stop. The investigative methods used must be the least intrusive means reasonably available to verify or dispel the police officer's suspicion in a short period of time. Florida v. Royer, 460 U.S. at 500, 103 S.Ct. at 1325. The initial stop must be justified and its scope reasonably related to the initial justification. Williams, at 739-40, 689 P.2d 1065. Three considerations in determining the proper scope of an investigatory stop are: "the purpose of the stop, the amount of physical intrusion upon the suspect's liberty, and the length of time the suspect is detained". Williams, at 740, 689 P.2d 1065.

                exception:  the "stop and frisk" or investigatory stop.   Such a stop need be supported by only a reasonably well founded suspicion of criminal activity based on specific and articulable facts, not necessarily rising to the level of probable cause to arrest.   State v. Gluck, 83 Wash.2d 424, 518 P.2d 703 (1974).   However, more intensive seizures require probable cause to arrest.   Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983);   Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979);   State v. Williams, 102 Wash.2d 733, 689 P.2d 1065 (1984)
                

Here, the initial stop was justified, based on the traffic infractions and early morning presence of an unfamiliar car in the high crime area. Delaware v. Prouse, 440 U.S. at 663, 99 S.Ct. at 1401; State v. Gluck, supra. Officer Mays first questioned Mr. Gonzales about why he was there, thus directly linking the purpose of the stop to the intrusion. The officer knew Mr. Gonzales was on parole for burglary and knew his passenger had a prior juvenile burglary record. This knowledge, coupled with the answers given to questions asked, justified the conclusion a further short intrusion was necessary

                to dispel suspicions.   See State v. Sweet, 44 Wash.App. 226, 721 P.2d 560 (1986);   State v. McIntosh, 42 Wash.App. 579, 712 P.2d 323 (1986).   Mr. Gonzales gave an implausible explanation for his presence in the area at that time of the morning and further drew attention to items plainly visible in the car by denying connection with them.   Mere placement in the patrol car to preserve the status quo did not exceed the scope of a Terry stop.   Sweet, 44 Wash.App. at 233, 721 P.2d 560;   State v. Gardner, 28 Wash.App. 721, 725, 626 P.2d 56 (1981).   The continued detention was limited to the length of time needed to investigate the increasingly suspicious circumstances.  State v. McIntosh, supra.   Thus, up to this point, the police did not "unreasonably" seize Mr. Gonzales
                

PROBABLE CAUSE TO ARREST

The next question is whether the officers' reasonable suspicions ripened into probable cause to arrest the defendant prior to his actual arrest. Probable cause exists when an officer has reasonable grounds to believe a suspect has committed or is committing a crime based on circumstances sufficiently strong to warrant that conclusion. The test is one of reasonableness, considering the time, place, and circumstances and the officer's special expertise in identifying criminal behavior. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); Gluck, 83 Wash.2d at 426, 518 P.2d 703; State v. Fricks, 91 Wash.2d 391, 588 P.2d 1328 (1979). Presence in a high crime area can be taken into account to establish probable cause. State v. Sinclair, 11 Wash.App. 523, 523 P.2d 1209 (1974); 1 W. LaFave, Search & Seizure § 3.6(g) (1978). A defendant's criminal history may also be considered. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Hoffman, 64...