State v. Kinzy

• Citation: 5 P.3d 668,141 Wash.2d 373
• Decision Date: 27 July 2000
• Docket Number: No. 68239-9.,68239-9.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent v. Loreal Monique KINZY, Petitioner.

5 P.3d 668

141 Wash.2d 373

STATE of Washington, Respondent v. Loreal Monique KINZY, Petitioner.

No. 68239-9.

Supreme Court of Washington, En Banc.

Argued March 1, 2000.

Decided July 27, 2000.

As Corrected August 22, 2000.

Perkins, Coie, Kevin C. Osborn, Seattle, for Amicus Curiae on Behalf of American Civil Liberties Union.

Nana M. Nelson, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, Ann Marie Summers, Deputy King County Prosecutor, Seattle, for Respondent.

SMITH, J.

Petitioner Loreal Monique Kinzy seeks review of a decision of the Court of Appeals, Division I, which affirmed her conviction in the King County Superior Court, Juvenile Division, for possession of cocaine in violation of the Uniform Controlled Substances Act under RCW 69.50.401(d) and an order denying her motion to suppress evidence of cocaine.¹ The Court of Appeals concluded the cocaine was not the fruit of an illegal "search and seizure" because Respondent, acting under its community caretaking function, was lawfully entitled to "seize" Petitioner, a 16-year-old minor.² This Court granted review. We reverse.

QUESTION PRESENTED

The question presented in this case is whether, under the Fourth Amendment to the United States Constitution, the "community caretaking function" exception permits police officers to lawfully "seize" a 16-year-old minor without a warrant when the officers have no reason to believe the minor has committed a criminal offense, but the minor is standing on a public sidewalk in a high narcotics trafficking area on a school night with several others, including an older person believed by the officers to be associated with narcotics.

STATEMENT OF FACTS

Petitioner Loreal Monique Kinzy, a minor born May 2, 1981, was charged by information in the Juvenile Department of the King County Superior Court on March 6, 1998 with possession of cocaine in violation of the Uniform Controlled Substances Act under RCW 69.50.401(d).³ During a fact-finding hearing on May 7, 1998, Petitioner filed a motion to suppress evidence of cocaine.⁴ The Honorable Liem E. Tuai, judge pro tempore, denied the motion and on July 30, 1998 signed "Written Findings of Fact and Conclusions of Law to Comply with CrR 3.6," which recited:⁵

I. THE UNDISPUTED FACTS:

1. On [Tuesday] March 3, 1998, Seattle Police Officers M.B. Jennings and D.K. Kim were working as uniformed bicycle patrol officers. At 2210 hours (10:10 p.m.) the officers encountered [Ms. Loreal Monique Kinzy] at the NorthWest [sic] corner of Third Avenue and Stewart Street in downtown Seattle. It was a school night. This area is known to the officers as a high narcotics trafficking area. [Ms. Kinzy] appeared to the officers to be between 11 and 13 years old. [She] was in the company of two other girls and an older male. The older male was familiar to the officers due to previous narcotics contacts.

2. When the officers hailed [Ms. Kinzy], she put her head down and continued to walk away. [She] was restrained by the officers and asked her age and name. At some point in time [Ms. Kinzy] told the officers that she was 16 years old. The officers did not believe that [she] was 16 due to her very youthful appearance. [Ms. Kinzy] acted nervous and kept putting her hands into her coat. She was patted down for weapons by Officer Jennings.

3. Officer [sic] felt a hard object in [Ms. Kinzy's] coat. When it was examined it turned out to be a comb/brush. Officer Jennings had [Ms. Kinzy] keep her coat open after discovering the comb, again for officer safety.

4. Officer Jennings saw what he suspected to be white/creme flecks of rock cocaine on the black lining of [Ms. Kinzy's] coat.

5. This suspicion was based on the officers [sic] experience with narcotics and his many narcotics related arrests.

6. Officer Jennings testified that the flecks were not "lint' [sic] nor crumbs of food. By color and consistency, Officer Jennings identified the flecks as being possible rock cocaine.

7. The flecks field tested positive for cocaine.

8. Officer[s] Jennings and Kim testified that they perceived [Ms. Kinzy] to be a "youth at risk" when they approached her.

9. Because of the high drug area, the hour, the fact that it was a school night, that [Ms. Kinzy] appeared so young in age, and due to one of her companions being associated with narcotics, [Ms. Kinzy] stood out.

10. After the field test came back positive for cocaine, [Ms. Kinzy] admitted she had more cocaine in her "bra."

11. After Miranda and arrest, additional cocaine was recovered from [Ms. Kinzy's] "bra" when she was searched by Officer Kim at the SPD West Precinct.

II. REASONS FOR THE ADMISSIBILITY OF THE EVIDENCE SOUGHT TO BE SUPPRESSED:

1. The court finds that the Officers had a reasonable basis for approaching and questioning [Ms. Kinzy] to determine her age and whether she [sic] a youth at risk.

2. The court finds that due to [Ms. Kinzy's] perceived height of 4'9" (verified as 5'1" at fact finding), perceived age of between 11 and 13, the late hour, her presence in a high narcotics area, the fact that she was in the company of a person associated with narcotics, all added to provide the officers with proper grounds to approach [Ms. Kinzy] as a youth at risk.

3. The court finds that due to her furtive movements, bulky clothing and refusal to keep her hands in view, there was a reasonable and grounded concern for officer safety which prompts and justifies a pat-down for weapons.

4. The court finds that Officer Jennings acted reasonably when he requested [Ms. Kinzy] to keep her jacket open so he could see where her hands were.

5. The court finds that the Officers were lawfully engaging [Ms. Kinzy] based on their concerns for her safety as a potential youth at risk.

6. The court finds that [O]fficer Jennings saw, in plain view, what he thought to be particles of rock cocaine on the black lining of [Ms. Kinzy's] coat.

7. The court finds that Officer Jennings could differentiate between the suspected narcotics and other items such as lint or food crumbs because of his experience, both on the street and formal training, in the area of narcotics.

8. Relevant factors considered by the court, were taken in light of the circumstances at hand and the officers [sic] training and experience.

9. The court finds the testimony of the officers credible.

In addition to the above-written findings and conclusions, the Court incorporates by reference its oral findings and conclusions.[⁶]

Officer M.B. Jennings testified on direct and cross examination consistent with the written findings of fact:

A. I approached and we stopped and said, you know: Could you come here. She ignored us. We talked directly to her and said, you know: Young lady, could you please stop and come here. And she kept her hand [sic] down with her hands in her pockets and attempted to walk away. The rest of the group stopped. She was the only one that continued to walk away from us.

. . . .

Q. Did she ever stop walking?

A. We actually had to hold her arm to stop her from walking.

Q. Well, what did you ask her, what questions?

A. At that point we wanted to identify her. She looked young. We wanted to find out how old she was and to do a check for her safety and question her why she was downtown, what her purpose was, who she was with, was she with family, was she by herself, does she know these people, those kind of questions.

Q. Did you have any suspicions of drug activity regarding her?

A. Regarding her, no. We stopped her for her safety.

. . . .

Q. So your initial reason for contacting Loreal was not because you suspected her of any criminal activity; is that correct?

A. That's correct.

. . . .

Q. If she were to say to you: I'm 16, I'm fine, I don't need your help, would that have been sufficient for you to let her go?

A. No.

Q. So you wanted very specific details about her plans?

A. No, I wanted proof of her age. Because of her visual appearance, she did not look to be 16 years old.[⁷]

After hearing further testimony, Judge Tuai on May 7, 1998 found Petitioner "guilty" of violation of the Uniform Controlled Substances Act under RCW 69.50.401(d).⁸ During a disposition hearing on June 4, 1998, the Honorable Deborah D. Fleck imposed upon Petitioner a "manifest injustice" sentence of 32 weeks.⁹ Petitioner on that date filed a notice of appeal to the Court of Appeals, Division I.¹⁰

The Court of Appeals, Division I, the Honorable Susan R. Agid writing, in a majority opinion affirmed Petitioner's conviction and the order denying her motion to suppress evidence of cocaine.¹¹ Petitioner claimed the cocaine was the fruit of an illegal search and seizure.¹² The court disagreed and concluded that (1) the initial "seizure" of Petitioner was reasonable under the "community caretaking function" exception to the warrant requirement, (2) the protective frisk of Petitioner was valid under Terry v. Ohio¹³ and (3) the plain view observation and simultaneous "seizure" of cocaine flecks was valid under the "plain view" exception to the warrant requirement.¹⁴

Petitioner then sought review in this Court. In her supplemental brief and petition for review, she raised only the issue of the validity of her "seizure" under the community caretaking function exception.¹⁵ Review was granted on November 2, 1999.¹⁶

DISCUSSION

STANDARD OF REVIEW

On May 7, 1998, Petitioner filed in the King County Superior Court, Juvenile Division, a motion to suppress evidence of cocaine. The court denied the motion and on July 30, 1998 signed findings of fact and conclusions of law to comply with CrR 3.6. "[I]n reviewing findings of fact entered under a motion to suppress, [this Court] will review only those facts to which error has been assigned."¹⁷ Petitioner did not challenge the findings of fact on appeal to this Court.¹⁸ We must then treat them as verities.¹⁹

The findings of fact provide a chronology of five significant events on March 3, 1998, the date of Petitioner's arrest. First, Seattle Police Officers M.B....