State v. Howerton

• Decision Date: 30 March 2015
• Docket Number: No. 71837–1–I.,71837–1–I.
• Citation: 348 P.3d 781,187 Wash.App. 357
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Delante Ian HOWERTON, Appellant.

187 Wash.App. 357

348 P.3d 781

STATE of Washington, Respondent

v.Delante Ian HOWERTON, Appellant.

No. 71837–1–I.

Court of Appeals of Washington, Division 1.

March 30, 2015.

Publication Ordered May 7, 2015.

Nielsen Broman Koch PLLC, Attorney at Law, Jennifer J. Sweigert, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Mari K. Isaacson, Jennifer Paige Joseph, King County Prosecutor's Office Seattle, WA, for Respondent.

Opinion

LAU, J.

¶ 1 Delante Howerton appeals his conviction for second degree attempted taking of a motor vehicle without permission and making or having vehicle theft tools. Howerton argues the trial court erred when it failed to suppress evidence following an unconstitutional seizure. He contends police acted on an unreliable 911 citizen informant tip and therefore seized him without the reasonable suspicion required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He also argues the trial court erred by failing to timely file written findings of fact and conclusions of law. Because the citizen informant's tip demonstrated sufficient indicia of reliability supporting a reasonable suspicion and because Howerton fails to demonstrate that the trial court's findings and conclusions prejudiced him, we affirm the judgment and sentence.

FACTS

¶ 2 On September 29, 2013, at 2:00 am, Laura Parks called 911 from her cell phone to report that she just witnessed someone break into a van parked across the street from her house. She provided her name, address, and telephone number to the dispatcher. Parks described the suspect as a black male, average build, five feet seven inches tall, wearing a baggy black leather jacket and baggy pants. She stated he left the area on foot and was heading south on Second Avenue in Burien, Washington.

¶ 3 King County Deputy Sheriff David Hutchinson was dispatched to the area at 2:03 a.m. and arrived at 2:06 a.m—six minutes after Parks dialed 911. He received the description of the suspect from the 911 dispatcher—black male with short hair, wearing a black leather jacket and baggy pants. He also knew the suspect was heading south on Second Avenue. As Hutchinson drove north on Second Avenue, he saw Delante Howerton walking south. Howerton matched the description of the suspect from the 911 call. When Howerton saw Hutchinson's patrol car, he turned around and walked the other direction. Howerton complied when Hutchinson told him to stop and come over to his car. He placed Howerton in handcuffs and noticed a blade sticking out of Howerton's sleeve. When Hutchinson searched Howerton for weapons, he found a foot-long bread knife and a screwdriver.

¶ 4 Deputy Kelley Kinser arrived, spoke to Hutchinson, and spoke with Parks on the telephone. Parks watched Hutchinson detain Howerton from her house. She confirmed that Howerton was the individual she saw break into the van earlier. Hutchinson arrested Howerton and read him his Miranda rights.¹

¶ 5 The vehicle Parks saw Howerton break into was damaged. The front passenger window was smashed out and the ignition and steering column sustained significant damage.

Gretchen Lemon, the owner of the van, confirmed that it was not damaged when she parked it the night before. Lemon did not know Howerton and did not give him permission to enter her van.

¶ 6 Howerton was charged by information with attempted theft of a motor vehicle, making or having vehicle theft tools, and intimidating a public servant. The trial court later dismissed the charge of intimidating a public servant. Howerton moved to suppress evidence obtained as a result of the investigatory detention. Specifically, Howerton argued Hutchinson lacked reasonable articulable suspicion to detain him when Hutchinson's only source of information was from a named but unknown telephone informant. After a CrR 3.5 and 3.6 hearing, the trial court denied Howerton's motion to suppress.

¶ 7 A jury convicted Howerton of misdemeanor second degree attempted taking of a motor vehicle without permission and making or having vehicle theft tools. The court imposed suspended consecutive sentences of 364 days on each count on the condition that Howerton serve 150 days of confinement. Howerton appeals.

ANALYSIS

Standard of Review

¶ 8 The court reviews a trial court's order following a motion to suppress evidence to determine if substantial evidence supports the trial court's factual findings. State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994). We review the trial court's legal conclusions de novo. State v. Carneh, 153 Wash.2d 274, 281, 103 P.3d 743 (2004).

¶ 9 Whether policed 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). What the police said and did and what the defendant said and did are questions of fact. State v. Bailey, 154 Wash.App. 295, 299, 224 P.3d 852 (2010). What legal consequences flow from those facts is a question of law. State v. Lee, 147 Wash.App. 912, 916, 199 P.3d 445 (2008). Whether a warrantless seizure or Terry stop passes constitutional muster is a question of law the court reviews de novo. State v. Rankin, 151 Wash.2d 689, 694, 92 P.3d 202 (2004).

Whether the 911 Call Supported Reasonable Suspicion

¶ 10 “[A] stop, although less intrusive than an arrest, is nevertheless a seizure and therefore must be reasonable under the Fourth Amendment and article 1, section 7 of the Washington Constitution.” State v. Kennedy, 107 Wash.2d 1, 4, 726 P.2d 445 (1986). An investigatory Terry stop is permissible if the investigating officer has “a reasonable and articulable suspicion that the individual is involved in criminal activity.” State v. Walker, 66 Wash.App. 622, 626, 834 P.2d 41 (1992). A reasonable suspicion is the “substantial possibility that criminal conduct has occurred or is about to occur.” Kennedy, 107 Wash.2d at 6, 726 P.2d 445.

It is well established that, “[i]n allowing such detentions, Terry accepts the risk that officers may stop innocent people.” [Illinois v.] Wardlow, 528 U.S. [119,] 126[, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ]. However, despite this risk, “[t]he courts have repeatedly encouraged law enforcement officers to investigate suspicious situations. State v. Mercer, 45 Wash.App. 769, 775, 727 P.2d 676 (1986).”

Lee, 147 Wash.App. at 918, 199 P.3d 445. A reasonable suspicion can arise from information that is less reliable than that required to establish probable cause. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). We review the reasonableness of the police action in light of the particular circumstances of each case. State v. Lesnick, 84 Wash.2d 940, 944, 530 P.2d 243 (1975).

¶ 11 An informant's tip can provide police with reasonable suspicion to justify an investigatory Terry stop if the tip possesses sufficient “ ‘indicia of reliability.’ ” State v. Sieler, 95 Wash.2d 43, 47, 621 P.2d 1272 (1980) (quoting Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) ). Courts employ the totality of the circumstances test to determine whether an informant's tip possessed sufficient indicia of reliability to support reasonable suspicion.

State v. Marcum, 149 Wash.App. 894, 903, 205 P.3d 969 (2009) : see Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). When deciding whether this indicia of reliability exists, the courts will generally consider several factors, primarily “(1) whether the informant is reliable, (2) whether the information was obtained in a reliable fashion, and (3) whether the officers can corroborate any details of the informant's tip.” Lee, 147 Wash.App. at 918, 199 P.3d 445. “The existing standard does not require all three factors to establish indicia of reliability.” State v. Saggers, 182 Wash.App. 832, 840 n. 18, 332 P.3d 1034 (2014).

“Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the ‘totality of the circumstances—the whole picture,’ United States v. Cortez, 449 U.S. 411, 417[, 66 L.Ed.2d 621, 101 S.Ct. 690] (1981), that must be taken into account when evaluating whether there is reasonable suspicion.”

Lee, 147 Wash.App. at 917, 199 P.3d 445 (alteration in original) (quoting State v. Randall, 73 Wash.App. 225, 229, 868 P.2d 207 (1994) ).

1. Reliability of the Informant

¶ 12 Known citizen informants are presumptively reliable. “Citizen informants are deemed presumptively reliable.” State v. Gaddy, 152 Wash.2d 64, 73, 93 P.3d 872 (2004) ; see also Kennedy, 107 Wash.2d at 8, 726 P.2d 445 (“The neighbors' information does not require a showing of the same degree of reliability as the informant's tip since it comes from ‘citizen’ rather than ‘professional’ informants.”); State v. Conner, 58 Wash.App. 90, 96, 791 P.2d 261 (1990) (“We hold that ... a citizen informant reporting a crime can be inherently reliable for purposes of a Terry stop, even if calling on the telephone rather than speaking to the police in person.”). In Lee, we discussed the enhanced reliability of an eyewitness informant:

A citizen-witness's credibility is enhanced when he or she purports to be an eyewitness to the events described. State v. Vandover, 63 Wash.App. 754, 759, 822 P.2d 784 (1992) ; United States v. Colon, 111 F.Supp.2d 439, 443 (S.D.N.Y.2000) (“crystal clear that the caller had first hand knowledge of the alleged criminal activity”), rev'd on other grounds, 250 F.3d 130 (2d Cir.2001). Indeed, “victim-witness cases usually require a very prompt police response in an effort to find the perpetrator, so that a leisurely investigation of the report is seldom feasible.” 2 [Wayne R. ] LaFave, [Search and Seizure: A Treatise on the Fourth Amendment § 3.4(a),] at 210 [ (3d ed.1996) ]. Moreover, courts should not treat information from ordinary citizens who have been the victim of or witness to criminal conduct the

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