State v. Larson

Decision Date29 May 1980
Docket NumberNo. 45908,45908
Citation93 Wn.2d 638,611 P.2d 771
PartiesSTATE of Washington, Respondent, v. Louanne Marie LARSON, Petitioner.
CourtWashington Supreme Court

Lawrence W. Moore, Tacoma, for petitioner.

Don Herron, Pros. Atty., Joseph D. Mladinov, Sr. Deputy Pros. Atty., Tacoma, for respondent.

WILLIAMS, Justice.

Petitioner Louanne Larson was charged in three counts with forgery, possession of a controlled substance, and possession of marijuana. At a pretrial hearing the trial court granted her motion to suppress the evidence and entered an order dismissing the case. The State appealed, and the Court of Appeals reversed holding that the investigative stop and questioning by the police were proper and the evidence obtained thereby was admissible at the trial. We reverse the Court of Appeals.

The facts giving rise to this appeal are as follows:

In the early morning hours of March 2, 1977, police officers Roberts and Johnson were on routine patrol on "G" Street, which borders Wright Park in the City of Tacoma. It was approximately 3 a. m., a time when use of the park was prohibited. As they proceeded in a southerly direction, they noticed a Volkswagen (VW) stopped on the west side of the street next to the park. Their attention was directed to the car because it was more than 1 foot from the curb in violation of a city parking ordinance, and it was the only car on that side of the street. The officers were aware that in the past several burglaries had been committed in the neighborhood, the most recent being 3 weeks previously, and they considered it a high crime area. They thought it unusual that the car would be parked on that side if its occupants intended to visit someone in the apartments located across the street. Accordingly, they decided to question the persons in the car to find out who they were and why they were sitting in an illegally parked car next to a closed park at 3 o'clock in the morning.

As the police officers drove up behind the VW, the driver started the car and began to pull away, but stopped when the officers flashed the blue emergency light.

Officer Johnson approached the car on the driver's side while Officer Roberts approached on the passenger's side. Petitioner was a passenger in the front seat. Officer Roberts asked her for identification while Officer Johnson asked the two male occupants in the car for their identification. In order to comply with the officer's request, petitioner opened her purse and reached into it to get her wallet. As she did so, Officer Roberts shone his flashlight into the purse. He testified this was done in order to make sure she was not reaching for a weapon. The light revealed a small plastic bag containing what appeared to be marijuana in her purse. After she produced her identification, the officer ordered her out of the car, visually checked her outer clothing for weapons, required her to give him the marijuana, and placed her under arrest for possession of marijuana.

Meanwhile, the two male occupants of the car produced their identification, and Officer Johnson radioed for a check on them. Officer Roberts then searched the car, including the trunk, for narcotics, but discovered none. The officers learned from the radio check that the two male occupants of the car were not wanted by the police, so they were released. A search of petitioner's purse yielded evidence of the crimes of forgery, possession of phendimetrazine, a controlled substance, and possession of marijuana. Petitioner was subsequently charged by information with each of these crimes.

Petitioner moved to suppress all the evidence seized from her purse and certain incriminating statements on the ground that the investigative stop, the request for identification, and the seizure of marijuana, which was the basis for the arrest and search of her purse, violated her Fourth Amendment right to protection against unreasonable search and seizure.

The trial judge granted petitioner's motion to suppress, and in doing so concluded (T)he search of (petitioner) was unlawful because there was no well-founded suspicion for the officers to stop the vehicle in question, and there was no well-founded suspicion for the officers to search the contents of (petitioner's) purse or to require her to produce her identification.

The State appealed, and the Court of Appeals unanimously reversed. State v. Larson, 21 Wash.App. 506, 587 P.2d 171 (1978).

The State contends that the automobile stop was proper for two reasons: (1) because it was parked illegally late at night in a high crime area next to a closed park; and (2) because the driver began to pull away as the officers approached. It then concludes that since the stop was lawful, the officers properly asked the petitioner, a passenger in the vehicle, to provide identification. We disagree.

The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, (88 S.Ct. 1868, 1877-1878,) 20 L.Ed.2d 889 (1968). "(W) henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person," id., at 16, 88 S.Ct., at 1877, and the Fourth Amendment requires that the seizure be "reasonable."

United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). See Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). This rule applies to the stopping of an automobile and the detention of its occupants. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). The present case poses the question of whether it was reasonable under the circumstances for police to stop the vehicle in which petitioner was a passenger and to demand that she provide identification.

Where the driver of an automobile commits a traffic offense, the stopping of the automobile and detention of the driver in order to check his driver's license and automobile registration are not unreasonable under the Fourth Amendment. Delaware v. Prouse, supra at 1401. The record indicates that the police believed the automobile in this case was improperly parked when they first noticed it. Assuming arguendo that a parking violation can be characterized as a traffic offense, as contemplated in Prouse, then the police officers would have acted properly in stopping the car and questioning the driver on the ground that it had been illegally parked. 1 However, a stop based on a parking violation committed by the driver does not reasonably provide an officer with grounds to require identification of individuals in the car other than the driver, unless other circumstances give the police independent cause to question passengers. To hold otherwise would restrict the Fourth Amendment rights of passengers beyond the perimeters of existing case law.

Since in our opinion the parking violation served as a basis for stopping and questioning the driver only, the court must examine the grounds for the stop independently of the ground that the car was illegally parked and determine whether those grounds provide a sufficient basis for stopping the car and asking passengers for identification. Apart from the parking violation, the remaining grounds asserted for the stop were that the car was parked in a high crime area near a closed park late at night and that it started to pull away as the police car approached. Nothing in the record indicates that the persons in the car acted in a suspicious manner; indeed, the officers apparently neither asked what they were doing nor gave them a chance to say what they were doing before identification was demanded. Moreover, the officers had received no report of criminal activity in the area that night. In fact, according to the testimony of one of the officers, the last such report had been some 3 weeks earlier. They likewise had no indication the occupants had been cruising the area in contemplation of a criminal act or that the car had been stopped in the street other than momentarily. 2 Thus, as far as the officers knew, the car could have been stopped there only long enough to discharge a passenger or for any other of many legitimate reasons.

By the officers' own testimony, the decision to stop the car was made when it was first observed and before the officers approached it and flashed the blue light. Thus, the fact that thereafter the driver started the car and began to drive away had no part in the decision to stop it. In any event, the driver did not attempt to elude the police but stopped immediately when the light was flashed.

When considered in totality, therefore, the circumstances known to the officers at the time they decided to stop the car did not give rise to a reasonable and articulable suspicion that the occupants were engaged or had engaged in criminal conduct, Brown v. Texas, supra, but at best amounted to nothing more substantial than an inarticulate hunch. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This does not meet the constitutional criteria of reasonableness for stopping a vehicle and questioning its occupants.

In Brown v. Texas, supra, the United States Supreme Court sheds light on the limits of "reasonableness" in the context of the situation where a police officer stops an individual and requires that the individual provide identification on the ground that the officer suspects the individual is engaged in criminal activity. In Brown, the Court set aside a conviction for refusing to comply with a policeman's demand that defendant identify himself pursuant to a Texas statute making it a crime to refuse such identification on request. Texas Penal Code Ann. § 38.02. Two officers observed Brown and another individual walk away from each other in an alley in an area of El Paso noted for a high incidence of drug traffic. Both...

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