State v. Kennedy

• Decision Date: 03 July 1984
• Docket Number: No. 5775-III-5,5775-III-5
• Parties: STATE of Washington, Respondent, v. Michael KENNEDY, Appellant.
• Court: Washington Court of Appeals

Page 41

38 Wn.App. 41

684 P.2d 1326

STATE of Washington, Respondent, v. Michael KENNEDY, Appellant.

No. 5775-III-5.

Court of Appeals of Washington, Division 3,

Panel Two.

July 3, 1984.

Review Granted Oct. 5, 1984.

James L. Nagle, Makus & Makus, Walla Walla, for appellant.

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

MUNSON, Chief Judge.

Michael Kennedy appeals his conviction for unlawful possession of marijuana. ¹ He contends: (1) the evidence of marijuana and his statement to the police officer should have been suppressed as the fruit of an unlawful investigative stop; (2) the challenged evidence should have been suppressed as derived from a warrantless search which could not be justified under the plain view doctrine; and (3) his statement regarding where he purchased the marijuana was subject to exclusion because the officer's question exceeded the permissible scope of the investigative stop. We affirm.

At approximately 2:30 p.m. on September 17, 1982, Officer Leonard Adams investigated a complaint received that day by the Walla Walla police department about possible drug activity at a local residence. Neighbors had complained about heavy pedestrian traffic in and out of the house, and that the individuals involved stayed only for brief periods of time. Information available to Officer Adams indicated Rob Smith and his family resided at that address. Officer Adams had information from a police informant that Mr. Kennedy was purchasing marijuana on a regular basis at the Smith residence. The informant had been providing him with drug related information since May or June of 1982. The informant had further advised Officer Adams that Mr. Kennedy did not make a habit of socializing with the Smiths, but visited the residence for the sole purpose of purchasing drugs. Additionally, the informant stated Mr. Kennedy would normally drive a light green pickup truck or Sue Sison's maroon Oldsmobile.

Upon driving past the Smith residence, Officer Adams observed a red or maroon Oldsmobile with Idaho license plates parked in front of the house. He also noticed a woman, whom he did not recognize, seated on the passenger side of the vehicle. Officer Adams parked at a vantage point where he could observe the residence and the Oldsmobile. A few minutes later, he saw Mr. Kennedy leave the Smith residence and enter the parked Oldsmobile. Mr. Kennedy and his female passenger then drove away.

Officer Adams recognized Mr. Kennedy, having known him since 1969 or 1970, and believed he did not reside at that address. Officer Adams was also aware the owner/operator of the Oldsmobile was Sue Sison, Mr. Kennedy's girl friend.

Shortly after Mr. Kennedy and his female companion left the residence, Officer Adams proceeded to stop the Oldsmobile. There had been no traffic violation; the sole reason for the stop was Officer Adams' suspicion Mr. Kennedy had just completed a drug transaction.

As Officer Adams approached the Oldsmobile, he observed Mr. Kennedy leaning forward in the seat. It was his impression Mr. Kennedy was depositing something under the front seat. Officer Adams asked Mr. Kennedy to step out of the vehicle. Mr. Kennedy complied and moved to the rear of the vehicle.

While the driver's door remained open, Officer Adams looked into the vehicle and recognized the woman passenger as Ms. Sison. At the same time, Officer Adams observed the top portion of a plastic baggie protruding from underneath the driver's seat. This was the same general vicinity where he had seen Mr. Kennedy lean forward. The contents of the baggie were not within Officer Adams' view but he recognized the baggie as a common container for marijuana.

Officer Adams then reached into the vehicle and retrieved the baggie which appeared to contain marijuana. He asked Mr. Kennedy where he had obtained the marijuana; Mr. Kennedy stated he had purchased it shortly before at the Smith residence. Officer Adams released Mr. Kennedy and Ms. Sison without taking them into custody. The entire investigative stop occurred within a period of 5 or 6 minutes.

Mr. Kennedy was later charged with unlawful possession of marijuana. He moved to suppress the marijuana seized from the Oldsmobile. At the hearing on the motion, Officer Adams testified (a) he had been with the Walla Walla police department 21 years, including 11 years in the detective division; (b) he had been involved in over 100 drug-related investigations over the past 5 years; (c) his previous experience indicated plastic baggies are common receptacles for marijuana; and (d) heavy pedestrian traffic as described by Mr. Smith's neighbors was indicative of drug traffic. When questioned as to the reliability of the police informant who advised him of Mr. Kennedy's previous drug purchases, Officer Adams stated the information supplied by the informant had resulted in the issuance of a search warrant on at least one previous occasion. When the warrant was executed, drugs were discovered at the location described therein.

Officer Adams also stated the information with respect to Mr. Kennedy's activities had apparently been derived from personal conversations the informant had had with Mr Kennedy. Officer Adams did not indicate how recent the information was with respect to Mr. Kennedy. However, he did state he had not anticipated seeing Mr. Kennedy at the Smith residence when he was investigating the neighbors' complaints. The trial court denied the motion to suppress. Following entry of findings of fact, conclusions of law, and judgment and sentence, Mr. Kennedy appealed.

Mr. Kennedy initially contends the challenged evidence should have been suppressed as the fruit of an unlawful investigative stop. The fourth amendment to the United States Constitution and article 1, section 7, of the Washington State Constitution require all seizures to be reasonable. Whether a particular seizure is reasonable depends upon a balancing of the public interest in law enforcement against the severity of the interference with the individual's liberty and privacy. Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); State v. Hobart, 94 Wash.2d 437, 442-43, 617 P.2d 429 (1980); State v. Tocki, 32 Wash.App. 457, 461, 648 P.2d 99, rev. denied, 98 Wash.2d 1004 (1982); State v. Stroud, 30 Wash.App. 392, 397, 634 P.2d 316 (1981), rev. denied, 96 Wash.2d 1025 (1982).

Applying this criterion, it is generally acknowledged that under some circumstances a person may be detained briefly for questioning, even though probable cause for arrest may be absent; such a detention must be supported by a reasonable suspicion, based upon objective facts, that the individual accosted is engaged in criminal conduct. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. White, 97 Wash.2d 92, 105, 640 P.2d 1061 (1982); State v. Gluck, 83 Wash.2d 424, 426, 518 P.2d 703 (1974); State v. Tocki, supra 32 Wash.App. at 460, 648 P.2d 99. In effect, an assessment of the circumstances in existence immediately prior to the detention must yield a particularized suspicion of wrongdoing. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); State v. Larson, 93 Wash.2d 638, 644, 611 P.2d 771 (1980).

The requisite factual basis for the detention is not limited to the police officer's personal observations, but may include information supplied by another if it has some indicia of reliability, not necessarily amounting to probable cause. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); State v. Lesnick, 10 Wash.App. 281, 283, 518 P.2d 199 (1973), aff'd, 84 Wash.2d 940, 530 P.2d 243, cert. denied, 423 U.S. 891, 96 S.Ct. 187, 46 L.Ed.2d 122 (1975). When the informant's tip incorporates detailed predictive information about a suspect's movements which, upon corroboration, demonstrates the informant was privy to the suspect's activities, an inference that the information is reliable is fully justified. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. Friederick, 34 Wash.App. 537, 542, 663 P.2d 122 (1983); State v. Sykes, 27 Wash.App. 111, 115-16, 615 P.2d 1345 (1980); State v. Lesnick, supra 10 Wash.App. at 285, 518 P.2d 199.

In the present case, there can be no doubt a seizure occurred. The stopping of an automobile and the detention of its occupants, however brief, constitutes a seizure which must be reasonable under the circumstances. State v. Larson, supra 93 Wash.2d at 641, 611 P.2d 771. Therefore, the determinative issue is whether the investigative stop was premised upon a reasonable suspicion the occupants of the Oldsmobile were engaged in criminal activity. In the absence of such suspicion, the evidence obtained during the stop would be subject to exclusion. See Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

In determining whether a well-founded suspicion existed, the circumstances must be considered in their totality. United States v. Cortez, supra; State v. Tocki, supra 32 Wash.App. at 461, 648 P.2d 99. Moreover, the special experience or knowledge of the police officer involved may be taken into account. Brown v. Texas, supra; State v. Cottrell, 86 Wash.2d 130, 132, 542 P.2d 771 (1975).

When the facts are considered as a whole, it was reasonable for Officer Adams to conclude Mr. Kennedy had just completed a drug transaction. Both the neighbors' complaints and the officer's personal observations, when coupled with his previous knowledge and experience, corroborated the information supplied by the informant. That information possessed the necessary indicia of reliability to justify a reasonable suspicion Mr. Kennedy was engaged in wrongdoing. Adams v. Williams, supra.

Officer Adams' asking Mr. Kennedy to step out of the vehicle did not transform an otherwise valid stop into an...