State v. Harrington, 81719-7.

Citation167 Wn.2d 656,222 P.3d 92
Decision Date10 December 2009
Docket NumberNo. 81719-7.,81719-7.
PartiesSTATE of Washington, Respondent, v. Dustin Warren HARRINGTON, Petitioner.
CourtUnited States State Supreme Court of Washington

Susan Marie Gasch, Gasch Law Office, Spokane, WA, for Petitioner.

Adrienne Michelle Farabee, Benton County Prosecutors Office, Scott Wayne Johnson, Mendoza Law Office PS, Kennewick, WA, for Respondent.

Douglas B. Klunder, Attorney at Law, Seattle, WA, for Amicus Curiae on behalf of American Civil Liberties Union.

SANDERS, J.

¶ Law enforcement officers arrested petitioner Dustin Warren Harrington after patting him down and finding a glass pipe in his pocket. The State contends the search was consensual and flowed from a valid social contact. Harrington asserts police officers unconstitutionally seized him, violating his rights under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. The trial court denied his motion to suppress the evidence, and the Court of Appeals affirmed.

¶ 2 We conclude the officers' actions, when viewed cumulatively, impermissibly disturbed Harrington's private affairs without authority of law and therefore constituted an unlawful seizure. Article I, section 7 cannot tolerate the officers' progressive intrusion into Harrington's privacy. We reverse the Court of Appeals, suppress the evidence against Harrington, and dismiss.

FACTS

¶ 3 At roughly 11:00 p.m. on August 13, 2005, Richland Police Officer Scott Reiber was driving his marked patrol car north on Jadwin Avenue in Richland. Reiber noticed Harrington walking south along the sidewalk. Reiber made a U-turn, drove south past Harrington, and pulled into a driveway. The officer did not activate his lights or siren. Reiber exited his patrol car and approached Harrington who was then walking toward the officer. Reiber testified he "contact[ed]" Harrington because "[t]hat area, late at night, a gentleman walking — social contact. See what he was up to, just to talk." Verbatim Report of Proceedings (VRP) at 11-12.

¶ 4 When close enough, Reiber asked, "Hey, can I talk to you" or "Mind if I talk to you for a minute?" Id. at 13. Harrington replied either "Yeah" or "Yes." Id. The two men began a conversation, standing approximately five feet apart. Reiber positioned himself off the sidewalk on the grass. Reiber testified Harrington's path was not obstructed by either Reiber or the patrol car. Reiber asked Harrington where he was coming from. Harrington responded he was coming from his sister's house. Asked where his sister lived, Harrington replied he did not know. Reiber considered that lack of knowledge "a little suspicious." Id. at 14. Reiber testified Harrington was acting "quite nervous, pretty fidgety" throughout the encounter. Id. at 15. Reiber also noticed bulges in Harrington's pockets. Early in the encounter Harrington put his hands into his pockets, prompting Reiber to ask Harrington to remove his hands. Harrington took his hands out when initially asked but repeatedly put his hands back into his pockets before quickly removing them again. Their conversation lasted between two and five minutes.

¶ 5 During that time frame Washington State Patrol Trooper William Bryan coincidentally drove south past the encounter. After noticing an officer speaking alone with an individual, Bryan made a U-turn and parked his marked patrol car in the northbound lane of traffic, approximately 10 to 30 feet from Harrington and Reiber. Bryan exited his car and stood seven or eight feet from Harrington. Bryan did not speak to either Harrington or Reiber. When testifying Bryan could not recall whether he activated any pattern of lights when he made the U-turn or when he parked his car in the lane.

¶ 6 After Bryan appeared Reiber asked if he could pat down Harrington for officer safety. Reiber told Harrington he was not under arrest at that moment. Harrington answered, "Yeah." Id. at 15. During the pat down Reiber felt a hard, cylindrical object in Harrington's front right pocket. Reiber asked what it was, to which Harrington responded, "My glass." Id. at 16. Asked for clarification, Harrington added, "My meth pipe." Id. at 16-17. Reiber then told Harrington he was under arrest. Incident to arrest the officers searched Harrington and discovered a pipe and baggie. Both contained methamphetamine.

¶ 7 Harrington agreed to a bench trial on stipulated facts. Defense counsel moved to suppress the evidence based on illegal seizure. After hearing testimony from both Reiber and Bryan, the trial court denied Harrington's suppression motion. The Benton County Superior Court found Harrington guilty of unlawful possession of a controlled substance — methamphetamine. Harrington appealed to the Court of Appeals, which affirmed the conviction by a two-to-one vote, over a forceful dissent by Judge Dennis J. Sweeney. State v. Harrington, 144 Wash. App. 558, 183 P.3d 352 (2008).

ISSUE

¶ 8 Whether the encounter between Harrington and the police officers rose to an unconstitutional seizure prior to arrest, in violation of article I, section 7 of the Washington Constitution, requiring suppression of drugs found on his person.

STANDARD OF REVIEW

¶ 9 Whether police have seized a person is a mixed question of law and fact. State v. Armenta, 134 Wash.2d 1, 9, 948 P.2d 1280 (1997). "`The resolution by a trial court of differing accounts of the circumstances surrounding the encounter are factual findings entitled to great deference,' but `the ultimate determination of whether those facts constitute a seizure is one of law and is reviewed de novo.'" Id. (quoting State v. Thorn, 129 Wash.2d 347, 351, 917 P.2d 108 (1996), overruled on other grounds by State v. O'Neill, 148 Wash.2d 564, 62 P.3d 489 (2003)).

ANALYSIS

I. Unlawful disturbance of private affairs

¶ 10 Article I, section 7 of our state constitution grants greater protection to individual privacy rights than the Fourth Amendment.1 See, e.g., State v. Rankin, 151 Wash.2d 689, 694, 92 P.3d 202 (2004); O'Neill, 148 Wash.2d at 584, 62 P.3d 489; State v. Jones, 146 Wash.2d 328, 332, 45 P.3d 1062 (2002).2 Article I, section 7 provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." The text focuses on disturbance of private affairs, which casts a wider net than the Fourth Amendment's protection against unreasonable search and seizure. Because searches and seizures incontrovertibly disturb private affairs, article I, section 7 envelops search and seizure.

¶ 11 Pursuant to article I, section 7 seizure occurs when "considering all the circumstances, an individual's freedom of movement is restrained and the individual would not believe he or she is free to leave or decline a request due to an officer's use of force or display of authority." Rankin, 151 Wash.2d at 695, 92 P.3d 202 (citing O'Neill, 148 Wash.2d at 574, 62 P.3d 489). The standard is "a purely objective one, looking to the actions of the law enforcement officer. . . ." State v. Young, 135 Wash.2d 498, 501, 957 P.2d 681 (1998).3 The relevant question is whether a reasonable person in the individual's position would feel he or she was being detained. O'Neill, 148 Wash.2d at 581, 62 P.3d 489. An encounter between a citizen and the police is consensual if a reasonable person under the circumstances would feel free to walk away. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

¶ 12 In Young we embraced a nonexclusive list of police actions likely resulting in seizure: "`the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.'" Young, 135 Wash.2d at 512, 957 P.2d 681 (quoting Mendenhall, 446 U.S. at 554-55, 100 S.Ct. 1870). "`In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.'" Id. Harrington bears the burden of proving a seizure occurred in violation of article I, section 7. Id. at 510, 957 P.2d 681.

¶ 13 If police unconstitutionally seize an individual prior to arrest, the exclusionary rule calls for suppression of evidence obtained via the government's illegality. See State v. Garvin, 166 Wash.2d 242, 254, 207 P.3d 1266 (2009). "`The exclusionary rule mandates the suppression of evidence gathered through unconstitutional means.'" Id. (quoting State v. Duncan, 146 Wash.2d 166, 176, 43 P.3d 513 (2002)).

a. Social contact

¶ 14 Washington courts have not set in stone a definition for so-called social contact. It occupies an amorphous area in our jurisprudence, resting someplace between an officer's saying "hello" to a stranger on the street and, at the other end of the spectrum, an investigative detention (i.e., Terry stop). See generally Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The phrase's plain meaning seems somewhat misplaced. "Social contact" suggests idle conversation about, presumably, the weather or last night's ball game — trivial niceties that have no likelihood of triggering an officer's suspicion of criminality. The term "social contact" does not suggest an investigative component.

¶ 15 However its application in the field — and in this court — appears different. For example we have categorized interactions where officers ask for an individual's identification as social contact. See Young, 135 Wash.2d at 511, 957 P.2d 681. "Article I, section 7 does not forbid social contacts between police and citizens: `[A] police officer's conduct in engaging a defendant in conversation in a public place and asking for identification does not, alone, raise the encounter to an investigative detention.'" Id. (alteration in original) (quoting Armenta, 134 Wash.2d at 11, ...

To continue reading

Request your trial
169 cases
  • State v. Meredith
    • United States
    • Court of Appeals of Washington
    • 26 Julio 2021
    ......8 State v. Carriero , 8 Wash. App. 2d 641, 654, 439 P.3d 679 (2019) (citing State v. Harrington , 167 Wash.2d 656, 663, 222 P.3d 92 (2009) ). 9 Compare State v. Muhammad , 194 Wash.2d 577, 586, 451 P.3d 1060 (2019) (considering whether ......
  • State v. Carriero
    • United States
    • Court of Appeals of Washington
    • 25 Abril 2019
    ...... State v. Harrington, 167 Wash.2d 656, 663, 222 P.3d 92 (2009). A law enforcement officer needs no cause to question a citizen unless the officer seizes the citizen. ¶ ......
  • State v. Johnson, 77720-3-I
    • United States
    • Court of Appeals of Washington
    • 6 Mayo 2019
    ......Harrington , 167 Wash.2d 656, 664, 222 P.3d 92 (2009) (citing Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). "The term ‘social ......
  • State v. Slert
    • United States
    • Court of Appeals of Washington
    • 8 Agosto 2012
    ......Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also State v. Harrington, 167 Wash.2d 656, 664, 222 P.3d 92 (2009).          17. The trial court made the following relevant findings of fact: ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT