State v. Mote

• Decision Date: 29 August 2005
• Docket Number: No. 54338-5-I.,54338-5-I.
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Curtis Eugene MOTE, Appellant.

120 P.3d 596

129 Wn. App. 276

STATE of Washington, Respondent, v. Curtis Eugene MOTE, Appellant.

No. 54338-5-I.

Court of Appeals of Washington, Division 1.

August 29, 2005.

Christopher H. Gibson, Nielsen Broman & Koch, Seattle, WA, for Appellant.

David M. Seaver, King County Prosecutor's Office, Seattle, WA, for Respondent.

APPELWICK, J.

¶ 1 A police officer pulled his patrol car up behind an occupied car that was legally parked on a residential street with its tail and dome lights on. He walked up to the driver's side window and requested identifying information from both occupants, who complied. A warrant check revealed that Curtis Mote, who was in the front passenger seat, had an outstanding warrant. The officer arrested and searched Mote, and found a small baggie of methamphetamine. Mote moved to suppress the evidence on the ground that he was illegally seized when the officer asked for his identification. The trial court denied his motion and held that Mote was not seized until he was arrested. Mote was subsequently convicted of possession of methamphetamine and appeals. We affirm.

FACTS

¶ 2 At about 11:45 pm on June 14, 2003, King County Sheriff's Office Deputy Steve Cox was patrolling the White Center neighborhood, which was experiencing drug activity problems. Cox was wearing a standard police uniform. He wore his badge and gun belt, which held his gun and handcuffs. He was driving a marked police vehicle that had push bumpers, official markings, an overhead red, white, and blue light bar, and two spotlights, one on each side.

¶ 3 Near an intersection, Cox drove by a legally parked car. There were two people seated inside, and the car's rear and dome lights were on.¹ Concerned about drug activity and frequent vehicle prowls in the area, Cox turned his police car around and parked behind the other vehicle. He testified that the fact that it was late at night in a residential area with no traffic or people around made two people in a car with tail and dome lights on stand out.

¶ 4 Cox had not pulled the car over for a traffic infraction or noticed any expired tabs or other infraction. Mote testified that he and the driver had entered the car just "two seconds" before Cox pulled up behind them, and the car was still parked. Although Cox agreed that the situation was not consistent with criminal activity, Cox found criminal activity about half the time in such circumstances, so he had a "hunch" and was suspicious. Making a social contact in such circumstances was routine practice for Cox.

¶ 5 Cox had on his headlights, but not his overhead lights. Mote testified that he was certain that the spotlight was on the car when Cox drove up, although Cox was not sure about this. Cox approached the driver's side of the car and asked the occupants "what they were up to." He noticed that they seemed nervous and startled by his presence. Cox testified that at that point, the contact was merely social and the occupants were free to go, because he had no "Terry stop material"² or reason to stop them.

¶ 6 Cox asked the driver for his identification, and the driver gave Cox his license. Cox wrote down his name. Cox then asked Mote "What is your name and date of birth?" Mote gave Cox this information, which Cox also wrote down. Cox testified that he spoke to the occupants politely and respectfully, that the encounter was fairly casual, that he was not being hostile, and that he did not demand any information. Mote agreed that Cox did not demand but only asked him for the identifying information. The court found that Cox was not harsh and did not suggest that Mote or the driver were under arrest or in custody.

¶ 7 Cox did not tell Mote that he did not have to answer the question, or that he was free to leave and not under arrest. Mote knew Cox was a policeman because of his police car, his uniform, and the spotlight. Mote knew there was a warrant out for his arrest and that he would be arrested after Cox found the warrant. Mote did not think he was free to leave when Cox approached the car, and did not consider opening the door and walking away. He thought it was general practice to give the police identifying information on request, and that compliance was required. He had a prior contact with police during which he alleged he was beaten for failing to comply with a police request.

¶ 8 Cox returned to his patrol car to check the driver's driving status and both the occupants for warrants. Cox testified that prior to the check, the occupants were still free to leave and the contact remained social. While Cox was running the check, he noticed that the occupants were moving around in the car and became concerned that they were trying to hide drugs or a weapon. The warrant check disclosed Mote's outstanding warrant. After calling for backup, Cox went up to the passenger side, asked Mote to step out of the car, and arrested him on the outstanding warrant. Cox then searched Mote and found a plastic baggie in his pocket that had "a little bit" of white powder. At that point Mote said "Oh, I found it." The powder field tested positive for methamphetamine. Cox subsequently arrested Mote for possession in addition to the outstanding warrant and read Mote his Miranda³ rights.

¶ 9 Mote moved to suppress the evidence seized during the search. He argued that he was unlawfully seized when Cox asked him for his name and birth date. The court held that Mote was free to leave and was seized only after Cox found the outstanding warrant. Mote was convicted as charged and appeals the trial court's denial of his suppression motion.

ANALYSIS

¶ 10 Under the Washington Constitution, "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Const. art. I, § 7. It is well settled that article I, section 7 provides greater protection of a person's right to privacy than the Fourth Amendment. State v. O'Neill, 148 Wash.2d 564, 584, 62 P.3d 489 (2003); State v. Jones, 146 Wash.2d 328, 332, 45 P.3d 1062 (2002). The right to be free of unreasonable governmental intrusion into an individual's private affairs encompasses automobiles. O'Neill, 148 Wash.2d at 584, 62 P.3d 489. The individual asserting a seizure in violation of article I, section 7 bears the burden of proving that there was a seizure. State v. Young, 135 Wash.2d 498, 510, 957 P.2d 681 (1998). Where the facts are undisputed, the determination of whether there is a violation of article I, section 7 is a question of law reviewed de novo. State v. Rankin, 151 Wash.2d 689, 694, 92 P.3d 202 (2004).

¶ 11 Not every encounter between a police officer and a private individual constitutes an official intrusion requiring objective justification. United States v. Mendenhall, 446 U.S. 544, 551-55, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Article I, section 7 permits social contacts between police and citizens. Young, 135 Wash.2d at 511, 957 P.2d 681. An officer's mere social contact with an individual in a public place with a request for identifying information, without more, is not a seizure or an investigative detention. Young, 135 Wash.2d at 511, 957 P.2d 681; Mendenhall, 446 U.S. at 555, 100 S.Ct. 1870; State v. Armenta, 134 Wash.2d 1, 11, 948 P.2d 1280 (1997). This is true even when the officer subjectively suspects the possibility of criminal activity, but does not have suspicion justifying a Terry stop. O'Neill, 148 Wash.2d at 574-75, 62 P.3d 489. Police officers must be able to approach citizens and permissively inquire into whether they will answer questions as part of their "community caretaking" function. State v. Nettles, 70 Wash.App. 706, 712, 855 P.2d 699 (1993).

¶ 12 A seizure under article I, section 7 occurs only when an individual's freedom of movement is restrained and the individual would not believe that she is free to leave, or decline a request, due to an officer's use of physical force or display of authority. O'Neill, 148 Wash.2d at 574, 62 P.3d 489. This determination is made by looking objectively at the actions of the law enforcement officer. Young, 135 Wash.2d at 501, 504-05, 510, 957 P.2d 681 (rejecting the mixed objective/subjective test adopted in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), to determine whether a Fourth Amendment seizure occurred). The relevant question is whether a reasonable person in the individual's position would feel he or she was being detained. O'Neill, 148 Wash.2d at 581, 62 P.3d 489. "The reasonable person standard does not mean that when a uniformed law enforcement officer, with holstered weapon and official vehicle, approaches and asks questions, he has made such a show of authority as to rise to the level of a Terry stop." O'Neill, 148 Wash.2d at 581, 62 P.3d 489.

¶ 13 Examples of circumstances that might indicate a show of authority constituting a seizure would be:

the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

Young, 135 Wash.2d at 512, 957 P.2d 681 (quoting Mendenhall, 446 U.S. at 554-55, 100 S.Ct. 1870). Absent such circumstances, inoffensive contact between the police and a private citizen cannot, as a matter of law, amount to a seizure of that person. Young, 135 Wash.2d at 512, 957 P.2d 681 (quoting Mendenhall, 446 U.S. at 554-55, 100 S.Ct. 1870).

¶ 14 Mote argues that under Rankin, he was seized in violation of article I, section 7 when Cox asked him for his name and date of birth. Because a warrantless seizure is per se unconstitutional unless it falls within one of the few exceptions to the warrant requirement, the first step is to determine whether there was a seizure. Rankin, 151 Wash.2d at 695, 92 P.3d 202. The next step would be to determine if a warrant exception justified the seizure. Rankin, 151 Wash.2d at 695, 92 P.3d 202....