State v. Kennedy

• Decision Date: 16 October 1986
• Docket Number: No. 50848-8,50848-8
• Citation: 726 P.2d 445,107 Wn.2d 1
• Parties: The STATE of Washington, Respondent, v. Michael KENNEDY, Petitioner.
• Court: Washington Supreme Court

Page 1

107 Wn.2d 1

726 P.2d 445

The STATE of Washington, Respondent, v. Michael KENNEDY, Petitioner.

No. 50848-8.

Supreme Court of Washington,

En Banc.

Oct. 16, 1986.

Makus & Makus, Jerry Makus, James L. Nagle, Walla Walla, for petitioner.

Arthur R. Eggers, Walla Walla County Pros., Donald Schacht, Deputy County Pros., Walla Walla, for respondent.

UTTER, Justice.

Michael Kennedy appeals the Court of Appeals affirmance of his conviction for possession of over 40 grams of marijuana, 38 Wash.App. 41, 684 P.2d 1326. He urges reversal of his conviction because the initial police stop of the car he was driving and its subsequent search was a violation of article 1, section 7 of the Washington Constitution and the fourth amendment to the United States Constitution. As such, he contends that the subsequent discovery of marijuana should have been suppressed at trial. We disagree and affirm the conviction.

At about 2:30 p.m. on September 17, 1982, Officer Leonard Adams drove by Rob Smith's house in Walla Walla. He was investigating complaints from Smith's neighbors that there was heavy pedestrian traffic in and out of the Smith house and that individuals involved stayed only for a few moments. As he drove by he saw a maroon car, with someone seated on the passenger side, parked near the Smith house.

Adams had received information from an informant that Michael Kennedy regularly purchased marijuana from Smith, that Kennedy only went to Smith's house to buy drugs, and that Kennedy usually drove either a light green pickup truck or a maroon Oldsmobile belonging to Sue Sison. He had the license checked and found out the car belonged to Sue Sison. As he sat in his car, he observed Kennedy come out of the Smith house, get into the car and drive off. He saw nothing in Kennedy's hands nor any suspicious activity but nevertheless decided to stop Kennedy to investigate because he believed Kennedy had purchased some marijuana.

After he signaled Kennedy to pull over, Adams observed Kennedy lean forward as if to put something under the seat. Once they both stopped, Adams approached the car and asked Kennedy to get out. Kennedy complied and moved to the rear of his car. Adams looked into the car to identify the passenger and reached under the front seat. A plastic bag was found which he suspected contained marijuana and he removed it from the car. Kennedy was released after a conversation in which he stated he had purchased the marijuana at the Smith house. Kennedy was subsequently charged with possession of marijuana and moved to suppress the marijuana seized from the car. The motion was denied and he was convicted. He appealed, and the Court of Appeals upheld the conviction.

I

Whether defendant's rights were violated begins with the stop of the car. If the initial stop was unlawful, the subsequent search and fruits of that search are inadmissible as fruits of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Larson, 93 Wash.2d 638, 611 P.2d 771 (1980).

Both the State and Kennedy agree that 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. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Lesnick, 84 Wash.2d 940, 530 P.2d 243, cert. denied, 423 U.S. 891, 96 S.Ct. 187, 46 L.Ed.2d 122 (1975) (restraint of an individual by the police, even if not an arrest is seizure); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) (the Fourth Amendment applies to involuntary detention at the investigative stage). Article 1, section 7 of the Washington Constitution provides, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Under article 1, section 7, the concern regarding whether a defendant has been disturbed in his "private affairs" raises questions in many ways similar to the inquiries regarding the reasonableness of the stop required to be examined under Terry.

The term "private affairs" has been found to include automobiles and their contents. State v. Gibbons, 118 Wash. 171, 203 P. 390 (1922). Nevertheless, that does not altogether preclude the warrantless stop or search of an automobile. There is no historical evidence that the framers of our constitution, had they contemplated the existence of the automobile, would have completely exempted it from a reasonable search or seizure. Nothing in the language of our constitution compels a different result. Furthermore, this court has recognized, albeit in the context of arrest, that article 1, section 7 permits a warrantless search of the passenger compartment of an automobile. State v. Stroud, 106 Wash.2d 144, 720 P.2d 436 (1986).

Our approach is further reflected by our analysis of article 1, section 7 in State v. Myrick, 102 Wash.2d 506, 510, 688 P.2d 151 (1984). There we observed that the relevant inquiry under the Washington Constitution for determining whether a search has occurred is "whether the State unreasonably intruded into the defendant's 'private affairs.' " See also State v. Simpson, 95 Wash.2d 170, 622 P.2d 1199 (1980). We believe that this is also the proper inquiry under our constitution to determine whether an investigative stop is permissible. We note that the United States Supreme Court has approached the investigative stop from a similar perspective. Therefore our analysis begins based on the premise that we should focus on the reasonableness of the officer's activities with respect to the privacy rights thereby invaded.

In Terry v. Ohio, supra, the Supreme Court framed the inquiry with regard to an investigative stop as whether the officer had "specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880. Terry, however, involved first hand observation by police of suspicious activity. In the case at bench, Officer Adams saw no suspicious activity prior to signaling Kennedy to pull over. He derived the facts from which he based his conclusion of a drug buy on informant tips and his own experience.

It is generally recognized that crime prevention and crime detection are legitimate purposes for investigative stops or detentions. See Terry v. Ohio, supra; Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); 3 W. LaFave, Search and Seizure § 9.2 (1978). While there has been some dispute among critics, courts have not required the crime suspected or under investigation to be a felony or serious offense. See e.g., United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Less than probable cause is required because the stop is significantly less intrusive than an arrest. Although some have argued otherwise, the level of articulable suspicion required for a car stop is no greater than required for a pedestrian stop. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Because article 1, section 7 requires us to examine the reasonableness of the officer's actions in view of the facts he knew, this same analysis describes our inquiry under that provision.

As with many legal terms, although difficult to describe, articulable suspicion does have a definition developed by use of the term through application to various situations. The United States Supreme Court has suggested one must look at the totality of the circumstances. United States v. Cortez, supra. The Cortez court described articulable suspicion as the ability to reasonably surmise from the information at hand that a crime was in progress or had occurred. Hence, the degree of probability required for the police conclusion is less in a stop situation than in an arrest. 3 W. LaFave, at 65. LaFave suggests that the standard is a substantial possibility that criminal conduct has occurred or is about to occur. We believe this to be the preferred definition. It maintains the ability of law enforcement to deter criminal conduct and yet reasonably safeguards "private affairs." When the activity is consistent with criminal activity, although also consistent with noncriminal activity, it may justify a brief detention.

The Supreme Court reached the issue of a stop based on an informant tip rather than on police observation in Adams v. Williams, supra. There a police officer, acting on a tip received at the scene of the stop, approached a suspect sitting in a car and asked him to open the door. When the suspect instead rolled down the window, the officer reached to where the informant had said a gun would be, withdrew the gun and subsequently arrested the suspect. The court found the initial approach lawful because the informant possessed the necessary indicia of reliability to justify a reasonable suspicion Adams had a gun. Several jurisdictions have adopted this analysis. See Stone v. Patterson, 468 F.2d 558 (10th Cir.1972); State v. Love, 169 Conn. 596, 363 A.2d 1035 (1975); State v. Brown, 195 Neb. 321, 237 N.W.2d 861 (1976); State v. McZorn, 288 N.C. 417, 219 S.E.2d 201 (1975), judgment vacated in part, 428 U.S. 904, 96 S.Ct. 3210, 49 L.Ed.2d 1210 (1976).

Two Washington cases have also addressed the issue of a stop of a suspect based on informant tips. State v. Sieler, 95 Wash.2d 43, 621 P.2d 1272 (1980) and State v. Lesnick, supra. These cases follow an analysis similar to that of the United States Supreme Court, permitting police to detain an individual only if the officer has a well founded suspicion, based on objective facts, that the person is connected to potential or actual criminal activity. Sieler held that a tip may justify a detention if it possesses sufficient indicia of reliability, i.e., the circumstances suggest the informant's reliability or there is some corroborative observation which suggests the presence of criminal...