State v. Mendez, 66318-1

• Court: United States State Supreme Court of Washington
• Writing for the Court: TALMADGE; GUY, C.J., and DURHAM, SMITH, JOHNSON, MADSEN, ALEXANDER, SANDERS, JJ., and DOLLIVER
• Citation: 970 P.2d 722,137 Wn.2d 208
• Parties: STATE of Washington, Respondent, v. Efrain MENDEZ, Petitioner.
• Docket Number: No. 66318-1,66318-1
• Decision Date: 28 January 1999

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137 Wn.2d 208 970 P.2d 722 STATE of Washington, Respondent,
v.
Efrain MENDEZ, Petitioner. No. 66318-1. Supreme Court of Washington,
En Banc. Argued Sept. 23, 1998.
Decided Jan. 28, 1999.

[970 P.2d 723]

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Hugh Spall, Jr., Ellensburg, for Petitioner.

Jeffrey Sullivan, Yakima County Prosecutor, Lauri Boyd, Deputy, Yakima, for Respondent.

TALMADGE, J.

In a case where police officers had probable cause to detain a driver of an automobile for a traffic infraction, we must decide the scope of the officers' authority over the passengers of that automobile. Under art. I, § 7

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of the Washington Constitution with its more extensive protection of private affairs than the federal constitution, we hold an [970 P.2d 724] officer has the authority to order the driver of a vehicle detained for a traffic infraction to remain in the vehicle or to leave the vehicle in furtherance of the officers' need to control the scene of the traffic stop. With respect to the passengers, however, an officer must have an articulable rationale predicated upon safety considerations to order the passengers out of the car or to remain in the car.

Under the facts of this case where the officers could articulate no reason for ordering Mendez, a passenger, to remain in the vehicle during the traffic stop, we hold the evidence generated from Mendez's detention and search should have been suppressed. We reverse the judgment of the trial court and the order denying the motion to suppress, and remand the case to the trial court for proceedings consistent with this opinion.

ISSUE

Does WASH. CONST. art. I, § 7 permit the police to detain a passenger in an automobile at the scene of a traffic infraction if the passenger wishes to depart, the police lack reasonable suspicion the person is engaged in criminal activity, and the person poses no apparent danger to the officer?

FACTS

On February 6, 1996, at approximately 12:50 in the afternoon, one of two Yakima police officers in a patrol car on routine patrol observed a vehicle fail to stop at a stop sign. The officers activated the patrol car's overhead lights, and stopped the car that ran the stop sign. Both officers exited the patrol car and approached the stopped vehicle. Efrain Mendez, 16, was a passenger in the front seat of the stopped vehicle. Both he and the driver got out of the vehicle as soon as it came to a stop. Both officers testified Mendez then began walking away. One of the officers told Mendez

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to get back into the vehicle, but Mendez turned, fumbled with his shirt and reached inside his clothes more than once, and continued walking away. He then ran, even after a subsequent command to return to the vehicle.

Officer Hartman chased Mendez on foot, caught him, and placed him under arrest. Although the trial court described the chase as "brief," Hartman testified:

He ran south through Lions Park, and then he crossed eastbound across Fifth Avenue, and then he went south to Tieton, and then when he went east on Tieton towards Fourth Avenue I lost sight of him behind the credit union building. I was about a--I was back at Pine, so I just paralleled him east on Pine, and picked him up again over by the trolley barns.

Report of Proceedings at 10. Upon arresting Mendez, the officer searched him and found a pipe the officer believed was used to smoke marijuana.

The Yakima County Prosecutor charged Mendez with violation of RCW 9A.76.020(1), obstructing a public servant, alleging he

did knowingly hinder, delay, obstruct, a public servant, in the discharge of his/her official powers and duties as a police officer, to-wit: ran from officers during a traffic stop.

Clerk's Papers at 2. ¹ Count II of the information charged Mendez with possession of drug paraphernalia.

Mendez moved to suppress evidence of the marijuana pipe. The juvenile division of the trial court combined the motion to suppress with a bench trial on the merits on the same day. The court commissioner, the Honorable Michael E. Schwab, denied the motion to suppress and found Mendez guilty of both counts, concluding as a matter of law:

Efrain Mendez hindered, delayed and obstructed the officers in their investigation of the traffic stop by running away from the scene. Mendez' actions in reaching inside his clothing and

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disobeying the officer's commands to stop were also specific, articulable facts which properly aroused the officers' suspicion and distracted their traffic stop.

[970 P.2d 725] Clerk's Papers at 11. Mendez appealed his adjudication from juvenile court and the Court of Appeals affirmed the judgment, adopting the rationale of the United States Supreme Court in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), and Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), that ordering a passenger to stay in a vehicle was a de minimis intrusion under the Fourth Amendment. Judge Schultheis dissented, believing such an order must comply with the standards of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and the order did not do so here. State v. Mendez, 88 Wash.App. 785, 947 P.2d 256 (1997). Mendez sought review by this Court, which we granted.

ANALYSIS

We review findings of fact on a motion to suppress under the substantial evidence standard. State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. Id. at 644, 870 P.2d 313. We review conclusions of law in an order pertaining to suppression of evidence de novo. State v. Johnson, 128 Wash.2d 431, 443, 909 P.2d 293 (1996).

A. FOURTH AMENDMENT ANALYSIS ²

The United States Supreme Court has developed a strong

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policy in its Fourth Amendment jurisprudence conferring considerable authority upon police officers at the scene of a traffic stop. In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the United States Supreme Court approved of a police order to the driver of a car stopped for a traffic infraction to get out of the car. Balancing the public interest--in this case, officer safety--against "the individual's right to personal security free from arbitrary interference by law officers," the Court held the intrusion into the driver's right to privacy was "de minimis." Not only is this not a serious intrusion on the sanctity of the person, the Court held, but it "hardly rises to the level of a 'petty indignity.' " Id. at 109, 111, 98 S.Ct. 330. The Mimms holding thus allows a limited police intrusion into a person's freedom from interference in order to preserve officer safety even in the absence of circumstances that would justify an investigatory Terry stop. As the Ohio Supreme Court put it:

Mimms merely dispenses with the requirement that the police officer possess reasonable suspicion of criminal activity [the Terry standard] before the officer may order the driver out of an already lawfully stopped vehicle. Accordingly, the ordering of defendant to get out of his car was proper even if the officers were unable to articulate a reasonable suspicion which prompted this action.

... It is so minimal and insignificant an intrusion that the Mimms court refused to apply the requirements for an investigatory stop. Unlike an investigatory stop, where the police officer involved "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion," Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906, a Mimms order does not have to be justified by any constitutional quantum of suspicion.

State v. Evans, 67 Ohio St.3d 405, 618 N.E.2d 162, 166 (1993), cert. denied, 510 U.S. 1166, 114 S.Ct. 1195, 127 L.Ed.2d 544 (1994).

Just last year, the United States Supreme Court extended

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the Mimms holding to [970 P.2d 726] include passengers as well as drivers in Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (police officer may order passenger of lawfully stopped vehicle to exit for safety purposes). Numerous courts have followed Wilson. ³

The State argues we should now extend Wilson and hold that after a valid traffic stop an officer may, for the purpose of officer safety, order a passenger to remain inside the stopped vehicle even in the absence of factors justifying a Terry stop. Mendez correctly argues Wilson expressly did not consider the validity of an order to remain inside a vehicle. Wilson, at ---- n. 3, 117 S.Ct. at 886 n. 3. He also argues his situation was different from Wilson because he was leaving the scene and neither did anything to arouse suspicion nor constituted a threat to officer safety.

But we do not resolve this case on Fourth Amendment principles, believing we should first attempt to resolve the case on the principles of WASH. CONST. art. I, § 7. State v. Hendrickson, 129 Wash.2d 61, 69, 917 P.2d 563 (1996); State v. Johnson, 128 Wash.2d 431, 909 P.2d 293 (1996); State v. Young, 123 Wash.2d 173, 178-79, 867 P.2d 593 (1994).

B. ARTICLE I, § 7 ANALYSIS

After we granted the petition for review in this case, the State filed a motion asking us to strike Mendez's argument regarding art. I, § 7 because it was not raised in the Court of Appeals. The State also asserted that because Mendez failed to discuss the six independent state constitutional analysis factors set forth in State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986), we should not reach the State constitutional issue. We disagree. Mendez

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articulated the pertinent Gunwall factors in his petition for review. We deny the State's motion because Mendez raised the Gunwall factors, albeit late in the appellate process, and the core issue is not new; only the application of the State constitution to these facts is new. Given the preeminence of our State constitution in matters of...