State v. Martin
| Decision Date | 31 August 2020 |
| Docket Number | No. 78958-9-I,78958-9-I |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Kristopher Charles MARTIN, Appellant. |
Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.
Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201, Mary Kathleen Webber, Snohomish County Prosecutors Office, 3000 Rockefeller Ave., Everett, WA, 98201-4061, for Respondent.
PUBLISHED OPINION
Mann, C.J. ¶ 1 Absent an applicable exception, warrantless searches and seizures are per se unreasonable and violate both the United States and Washington Constitutions. While asleep in a Starbucks store, Kristopher Martin was subjected to a warrantless search. Based on the search, Martin was charged with and found guilty of possession of a controlled substance.
¶ 2 Martin appeals his conviction and contends that the trial court erred by denying his motion to suppress because the search did not meet either the Terry 1 stop or community caretaking exceptions to the warrant requirement. We agree, vacate Martin's conviction, and remand to the trial court for further proceedings consistent with this opinion.
¶ 3 On December 11, 2017, at 8:27 a.m., Officer Nicholas Bickar responded to a 911 call from a Starbucks employee, requesting assistance with the removal of a sleeping person inside the store. When Bickar arrived, he saw Martin sleeping in a chair. Bickar gestured to the Starbucks employee and received a responsive gesture from the employee that Martin was the person identified in the 911 call.
¶ 4 When Bickar approached Martin, he noticed Martin was wearing multiple jackets that had pockets. Bickar attempted to wake Martin, first by raising his voice and then by squeezing and shaking his left shoulder. Martin remained unresponsive. Trying not to startle Martin, Bickar then performed a "light sternum rub," using his knuckles to rub Martin's sternum. While Bickar attempted to wake Martin, he would briefly gain consciousness, but quickly lose consciousness before Bickar could communicate with him.
¶ 5 Bickar began to suspect that Martin was under the influence of drugs. Bickar determined that he would need to use a "hard sternum rub," but feared Martin might react violently because hard sternum rubs can be painful and startling for a person sleeping. During this encounter, Bickar noted that there were Starbucks customers sitting within four feet of Bickar and Martin and there were between seven and eight people, not including staff, in Starbucks.
¶ 6 Before Bickar proceeded with the hard sternum rub, Bickar noticed the end of a metal utensil sticking out of Martin's pocket. Bickar worried that the metal utensil could be a knife or another utensil sharpened into a weapon. Bickar also expressed concerns about sharp needles. Without feeling the outside of the pocket, Bickar removed the utensil. The utensil was a cook spoon, had burn marks on the bottom, and a dark brown residue on the inside. At that point, Bickar determined that he had probable cause to arrest Martin for possession of drug paraphernalia and continued searching Martin. While searching Martin, Bickar found methamphetamine, heroin, cocaine, and other drug paraphernalia.
¶ 7 After removing the drugs from Martin, Bickar conducted a hard sternum rub. Once Martin woke up, Bickar told him that he was under arrest, proceeded to handcuff him, and brought him to an aid car. Because Martin did not wake up easily, he was transported to the hospital. Bickar called the aid car sometime prior to waking up Martin.
¶ 8 Martin moved to suppress all evidence collected as a result of the unlawful detention and search. The court heard testimony from Officer Bickar and denied Martin's motion to suppress concluding,
¶ 9 Martin proceeded to a stipulated bench trial on the charge of unlawful possession of a controlled substance. The court found Martin guilty. The court sentenced Martin to 30 days of confinement. Martin appeals.
¶ 10 The Washington Constitution commands: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Wash. Const. art. I, § 7. The United States Constitution also protects people from unreasonable searches and seizures. U.S. Const. amend. IV. Absent an applicable exception, warrantless searches and seizures are per se unreasonable, and violate these provisions. State v. Russell, 180 Wash.2d 860, 867, 330 P.3d 151 (2014). "The State bears a heavy burden to prove by clear and convincing evidence that a warrantless search falls within one of those exceptions." Russell, 180 Wash.2d at 867, 330 P.3d 151.
¶ 11 When reviewing the denial of a motion to suppress, the appellate court determines whether substantial evidence supports the trial court's findings of fact and whether the findings of fact support the trial court's conclusions of law. State v. Boisselle, 194 Wash.2d 1, 14, 448 P.3d 19 (2019). We review the trial court's conclusions of law de novo. Boisselle, 194 Wash.2d at 14, 448 P.3d 19.
¶ 12 Martin first contends that the trial court erred in finding the search permissible under Terry because
¶ 13 The State argued before the trial court and in its brief before this court, that the search was lawful under Terry. At oral argument, however, the State conceded that the search was not lawful under Terry because Bickar did not testify that he was conducting a criminal trespass investigation.
¶ 14 We accept the State's concession that the search was not valid as a Terry stop. Terry stops are an exception to the warrant requirement. In a Terry stop, "[o]fficers may briefly, and without warrant, stop and detain a person they reasonably suspect is, or is about to be, engaged in criminal conduct." State v. Day, 161 Wash.2d 889, 895, 168 P.3d 1265 (2007). "While Terry does not authorize a search for evidence of a crime, officers are allowed to make a brief, nonintrusive search for weapons if, after a lawful Terry stop, ‘a reasonable safety concern exists to justify the protective frisk for weapons’ so long as the search goes no further than necessary for protective purposes." Day, 161 Wash.2d at 895, 168 P.3d 1265. In making this determination, "we consider the totality of the circumstances, including the officer's subjective belief." Day, 161 Wash.2d at 896, 168 P.3d 1265.
¶ 15 A protective frisk does not violate a defendant's rights when (1) the initial stop is legitimate, (2) a reasonable safety concern exists to justify a protective frisk for weapons, and (3) the scope of the frisk is limited to the protective purpose. State v. Collins, 121 Wash.2d 168, 173, 847 P.2d 919 (1993). "The failure of any of these makes the frisk unlawful and the evidence seized inadmissible." State v. Setterstrom, 163 Wash.2d 621, 626, 183 P.3d 1075 (2008). "A reasonable safety concern exists, and a protective frisk for weapons is justified, when an officer can point to ‘specific and articulable facts’ which create an objectively reasonable belief that a suspect is ‘armed and presently dangerous.’ " Collins, 121 Wash.2d at 173, 847 P.2d 919. Further, "[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent person in the circumstances would be warranted in the belief that his or her safety or that of others was in danger." Collins, 121 Wash.2d at 173, 847 P.2d 919.
¶ 16 This search fails to meet the requirements under Terry. Starbucks is open to the public. The record does not support the trial court's finding that Bickar was conducting a criminal investigation for trespass because there is no evidence in the record that Starbucks had trespassed Martin from the premises. Also absent from the record is evidence supporting Bickar's claim that Martin sleeping created a reasonable safety concern. Bickar performed a hard sternum rub with several people seated in close proximity to Martin. While Bickar stated that, based on his training and experience as an officer, he feared Martin would react violently once awake, Bickar's actions do not support his attestation. Bickar did not ask patrons sitting less than three feet from Martin to move away before using a hard sternum rub to wake Martin.
¶ 17 Finally, even if Bickar were conducting a criminal investigation for trespass, the search exceeded the scope of a frisk under Terry. An officer may "conduct a limited pat-down of the outer clothing of a person in an attempt to discover weapons that could cause harm." State v. Russell, 180 Wash.2d 860, 867, 330 P.3d 151 (2014). State v. Garvin, 166 Wash.2d 242, 251, 207 P.3d 1266 (2009). Bickar did not pat-down the outside of Martin's pocket where the utensil handle was protruding. Instead, Bickar removed the utensil because he thought it could have been a knife or a metal utensil that had been sharpened into a weapon. Had Bickar felt the outside of Martin's pocket, he would have learned it was a spoon and not a sharp object. Removing the spoon without a pat down exceeded the scope of a Terry frisk.
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