State v. Hobart, 46784

• Decision Date: 02 October 1980
• Docket Number: No. 46784,46784
• Parties: The STATE of Washington, Respondent, v. Gary E. HOBART, Petitioner.
• Court: Washington Supreme Court

Page 437

94 Wn.2d 437

617 P.2d 429

The STATE of Washington, Respondent, v. Gary E. HOBART, Petitioner.

No. 46784.

Supreme Court of Washington, En Banc.

Oct. 2, 1980.

Short & Debay, P. S., James R. Short, Federal Way, for petitioner.

Norm Maleng, King County Prosecutor, Gordon S. Jones, Marc Boman, Deputy Pros. Attys., Seattle, for respondent.

ROSELLINI, Justice.

The petitioner was charged with possession of controlled substances and pleaded guilty after the court denied his motion to suppress the State's evidence reserving his right to appeal the ruling. That denial was affirmed by the Court of Appeals, Division One, State v. Hobart, 24 Wash.App. 240, 600 P.2d 660 (1979).

The evidence which the petitioner sought to suppress was seized when officers stopped him for questioning at 1:30 on the morning of October 18, 1977. The stop came about in the following manner: Two police officers, in their marked patrol car, were proceeding east on Madison Street on Seattle's First Hill, when they observed an approaching Plymouth Valiant "quickly" turn north onto Summit Avenue, when it was about a block away from them. They decided to follow the vehicle to see if they could ascertain the reason for the turn. It proceeded slowly (about 20 miles per hour) until it reached University Street, turned east, proceeded 1 block, then turned south on Boylston Avenue where it entered a parking lot serving the Arcadia Apartments, which had an entrance on University Street. The petitioner parked his car and walked to the door of the apartment building, the patrol car close behind him. He shook the front door, received no answer, looked up at the second story windows and started walking back toward his car. At this moment Officer Dornay, who had pulled the patrol car up at the curb in front of the apartment house, called to him, asking if he were lost. The petitioner answered no, and said that he was meeting a girlfriend. The petitioner was standing a few feet from the officer at the time.

At that moment Officer Dornay recognized the petitioner as a person he had arrested in 1972 for possession of marijuana and cocaine and again in 1974 for carrying a concealed weapon. ¹ He stated that because of the petitioner's record and for his own safety, he got out of the car, asked for identification, and "patted" the petitioner for weapons. He found none, but did detect in the petitioner's shirt pocket two spongy objects which he squeezed and concluded were balloons containing narcotics.

In the meantime Officer Dornay's colleague had radioed to learn if there were any warrants out for the petitioner's arrest. Receiving a negative report, Dornay so advised the petitioner and returned his driver license to him. As he did so he asked the petitioner if "that was cocaine in his pocket." The petitioner reached for his pocket and the officer, fearing he was preparing to swallow the balloons, grabbed his hand and, in the scuffle which ensued, pulled him backward onto the ground. After he was handcuffed, balloons containing heroin and cocaine were found on the grass in the area in which the scuffle had occurred.

While the scuffle was taking place, a young woman appeared at the scene, as did one or more other persons. She demanded to know what the officers were doing, and was told to stay back. At the suppression hearing, the petitioner stated that this was the woman with whom he had made a date for breakfast; that she worked at the YWCA and that she got off from work around 12:30.

The fourth amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It is the contention of the petitioner that the officers' conduct in this case did not conform to the requirements of this amendment, as interpreted by the Supreme Court of the United States.

While, on its face, the amendment could be read as prohibiting any search or seizure not authorized by a warrant issued upon probable cause, the Supreme Court, recognizing the practical necessities of law enforcement, has held that a warrantless arrest can be made, provided that there is probable cause to believe that (1) a crime has been committed or (2) a crime is in the process of being committed or (3) a crime is about to be committed. In Wong Sun v. United States, 371 U.S. 471, 479-84, 83 S.Ct. 407,, 412-15, 9 L.Ed.2d 441 (1963), it was said that the requirements of reliability and particularity of information upon which a police officer acts are at least as strong where a warrant is absent as they are where one has been obtained.

The Supreme Court has approved certain limited exceptions to the requirements of probable cause for searches or seizures. The exception which is relied upon by the prosecution in this case is that which was delineated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The question before the court there was the legality of the police practice of stopping and "frisking" persons suspected of criminal activity. Recognizing the public interest in the investigation and prevention of crime, the Court found that the Fourth Amendment tolerates "stops" which are less intrusive than arrests, where less than probable cause for arrest is present. An officer may briefly detain for limited questioning a person whom he reasonably suspects of criminal activity and may frisk the person for weapons, provided the officer has reasonable grounds to believe that he is armed and dangerous. This right is accorded in order that the officer may protect himself and others from physical harm, and its scope is strictly limited to the purpose for which it is permitted.

In Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the Court said that before an officer places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so, and that in the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. There, an officer had thrust his hand into the pocket of a person suspected of possessing narcotics. The Supreme Court noted that there were no circumstances warranting a belief that the defendant was armed and dangerous, and therefore a search for weapons was not justified. Further, the Court said, the search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as objects of assault. The search in the Sibron case was found to have been aimed at the discovery of narcotics, and was not limited in scope to the only goal which might have justified its inception-the protection of the officer.

The United States Supreme Court has more recently defined the circumstances under which an officer is justified in stopping an individual and requesting identification. In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the Court held invalid the application of a Texas statute which made it a crime to refuse to identify oneself when asked to do so by an officer, where the officer confronting the defendant lacked any reasonable ground to believe that the appellant was engaged in or had engaged in criminal conduct.

In that case officers observed the defendant in an area of high drug traffic. He appeared to have been meeting with or about to meet with another man in the alley, and he started to walk away as the officers came on the scene. The Court noted that the officers did not claim to suspect the appellant of any specific misconduct, nor did they have any reason to believe that he was armed. When the defendant refused to identify himself, the officers frisked him but found nothing. They arrested him, nevertheless, and he was charged with a violation of the statute which made it a crime to refuse to identify oneself.

Declaring that when an officer accosts an individual and restrains his freedom to walk away, he performs a seizure of that person within the meaning of the Fourth Amendment, the Court noted that such seizures, though less intrusive than an arrest, must be reasonable. Such reasonableness depends upon a balance between the public interest in law enforcement and the individual's right to personal security free from arbitrary interferences by law officers. ² Constitutionality of such seizures involves the weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. And, the Court said, a central concern in balancing these competing considerations in a variety of settings has been to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers (citing Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); and United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976)).

There, as here, it was not contended that the officers stopped the defendant pursuant to a practice embodying neutral criteria, but rather it was urged that the officers were justified in stopping him because they had a " 'reasonable, articulable suspicion that a crime had just been,...