State v. Nettles

• Decision Date: 26 July 1993
• Docket Number: No. 30293-1-I,30293-1-I
• Citation: 855 P.2d 699,70 Wn.App. 706
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Terry Milton NETTLES, Appellant. Division 1

Page 706

70 Wn.App. 706

855 P.2d 699

STATE of Washington, Respondent, v. Terry Milton NETTLES, Appellant.

No. 30293-1-I.

Court of Appeals of Washington,

Division 1.

July 26, 1993.

Washington Appellate Defender, Suzanne Lee Elliott, Seattle, for appellant.

Norm Maleng, Pros. Atty., and John L. Belatti, Deputy Pros. Atty., Seattle, for respondent.

COLEMAN, Judge.

Terry Nettles appeals the trial court's denial of his motion to suppress evidence pursuant to CrR 3.6. Nettles argues that the trial court erred by admitting unlawfully seized evidence. We affirm.

On June 14, 1991, on her way to investigate reported narcotics activity at Rainier Avenue South and South Ferdinand Street, Seattle Police Officer Susan Wong passed Nettles and two other men at the corner of Rainier Avenue South and South Hudson Street. When the three saw Wong's car, they looked at each other and hurriedly began walking away. Nettles and one of the two others began walking south.

Wong found the intersection of Rainier and Ferdinand clear of people and narcotics activity and turned south again on Rainier. Wong testified that when she passed Nettles and his companion a second time, they quickened their pace and repeatedly turned to stare at her car. Wong pulled over and parked on Hudson Street, exited her car, and called out to the two, "Gentlemen, I'd like to speak with you, could you come to my car?" Nettles turned around; the other man continued walking. Wong told Nettles to remove his hands from his pockets and come towards her car. She testified that as Nettles withdrew one hand from his pocket, he threw a plastic bag under her car which she suspected contained a controlled substance. The court found that Nettles "dropped" the baggie. Wong then ordered Nettles to place his hands on her patrol car and seized the baggie of suspected cocaine. Nettles was subsequently arrested and charged with unlawful possession of a controlled substance. Nettles agreed to a stipulated trial and moved to suppress the cocaine seized prior to his arrest. The trial court denied the motion and found Nettles guilty of the charge, imposing a standard range sentence of 2 months' confinement and 12 months' community supervision.

Police may generally retrieve voluntarily abandoned property without violating Fourth Amendment rights. State v. Whitaker, 58 Wash.App. 851, 853, 795 P.2d 182 (1990). Property is not voluntarily abandoned where the defendant shows (1) unlawful police conduct and (2) a causal nexus between the unlawful conduct and the abandonment. Property abandoned prior to a seizure is not the product of any illegal police conduct. ¹ Whitaker, at 856, 795 P.2d 182.

In the present case, Officer Wong retrieved the cocaine dropped by Nettles after first asking if she could speak with him and then, when he returned to do so, asking him to remove his hands from his pockets. Thus, we first determine whether Nettles was seized prior to the discovery of the cocaine.

Both the Fourth Amendment to the U.S. Constitution and article 1, section 7 to the Washington Constitution prohibit unreasonable seizures of an individual. Evidence produced as the result of an unlawful seizure is not admissible against an accused. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961).

Not every encounter between an officer and an individual amounts to a seizure. In Washington, a police officer has not seized an individual merely by approaching him in a public place and asking him questions, as long as the individual need not answer and may simply walk away. State v. Richardson, 64 Wash.App. 693, 696, 825 P.2d 754 (1992) ²; State v. Aranguren, 42 Wash.App. 452, 455, 711 P.2d 1096 (1985) ³; State v. Belanger, 36 Wash.App. 818, 820, 677 P.2d 781 (1984) ⁴. However, once the officer restrains the individual's freedom to walk away, he has seized that person. ⁵ Richardson, 64 Wash.App. at 696, 825 P.2d 754; State v. White, 97 Wash.2d 92, 105, 640 P.2d 1061 (1982) (citing Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968)). Restraint amounting to a seizure occurs if, " 'in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " Richardson, 64 Wash.App. at 696, 825 P.2d 754; (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)); see also State v. Mennegar, 114 Wash.2d 304, 310-311, 787 P.2d 1347 (1990). In general, however, no seizure occurs when a police officer merely asks an individual whether they will answer questions or when the officer makes some further request that falls short of immobilizing the individual. ⁶

We now turn to an analysis of the facts of this case. Officer Wong did not approach Nettles and his companion with either siren or patrol lights. When exiting her car she did not draw her gun. She addressed Nettles and his companion in a normal voice when requesting to speak with them. Until Nettles voluntarily discarded a plastic baggie of cocaine, Wong made no attempt to stop Nettles' companion, who continued to walk away after she asked to speak with both men. This alone is a forceful indication that neither individual was required to or felt compelled by the circumstances to stop. Officer Wong made no attempt to immobilize Nettles--she did not request and retain his identification and she did not direct him to place his person in any particular location or position, such as hands on the patrol car, that would have implied a loss of freedom to a reasonable person. There is nothing to indicate that he could not have declined to speak to her or approach her car.

Second, although not dispositive, nothing in the record indicates that Nettles himself perceived the encounter as other than permissive in nature. Nettles had seen Officer Wong at least three times before she parked and approached him and his companion. He testified that Officer Wong was polite when she asked him to come over to her car to talk.

Q: She didn't say, get over to the car, did she?

A: No.

Q: Okay. She just asked you if you'd come over so that she could ask you some questions, isn't that right?

A: Something like that, yes.

Nettles stated that he did not feel threatened by Officer Wong, that he assumed she just wanted to talk, and that he did not think he was under arrest or that he was going to be arrested. When asked on re-direct examination why he didn't just walk away, he replied, "I had no reason to."

Furthermore, the facts of this case are very similar to those of the initial encounters in Richardson, Aranguren, and Belanger, which also did not amount to seizures. The officers in all four cases were on foot, and the requests of each to speak with the respective defendants were all permissive in nature. Like the officer in Belanger, Officer Wong made no attempt to stop Nettles' companion, who, like the defendant's companion in Belanger, declined to stop to answer any questions. Finally, Officer Wong's request that Nettles remove his hands from his pockets after he voluntarily returned to answer her questions was less intrusive and no more immobilizing than the request in Aranguren to examine the defendant's identification.

Moreover, in the interest of promoting public safety, the encounter between Nettles and Officer Wong should not be characterized as a seizure. As a part of their "community caretaking" function, police officers must be able to approach citizens and permissively inquire as to whether they will answer questions. In furtherance of this function, it is not unreasonable to permit a police officer in the course of an otherwise permissive encounter to ask an individual to make his hands visible, particularly under the circumstances of this case. ⁷ Such a request, by itself, does not immobilize an individual who has voluntarily agreed to speak with a police officer, does not produce property which an officer's possession of would immobilize the individual, and does not produce any incriminating evidence. Thus, the trial court properly concluded that the encounter between Officer Wong and Nettles never rose to the level of a seizure. ⁸

Therefore, because Nettles' own actions resulted in the abandonment of the evidence prior to any seizure of his person, it was lawfully retrieved by Officer Wong and properly admitted against him.

The order of the trial court is affirmed.

WEBSTER, C.J., concurs.

BAKER, J., dissents.

BAKER, Judge (dissenting).

I respectfully dissent.

The defendant was walking on a city sidewalk on an early summer evening. He had his hands in his pockets. A uniformed officer turned on her yellow wig-wag lights, stopped her patrol car near him, and asked him and his companion to step over to her car. The defendant turned toward her; his companion continued slowly walking away.

The officer had been responding to a radio dispatch to "check for narcotics activity" at a nearby intersection. Her suspicions were aroused because three men, including the defendant, split up and began walking when they saw her police car go by. It was her stated intent to stop the men and determine their identification and reason for being there.

The officer's tone was nonthreatening, but we indulge in impractical legal theorizing when we conclude that a reasonable person would feel free to ignore the officer's initial request to come over to her car to talk with her. The encounter continued, moreover, by the officer directing the defendant to remove his hands from his pockets. When he neither came toward the police car nor removed his hands from his pockets, the officer ordered him to "take your hands out of your pocket and come towards my car."

By this point, the encounter had progressively intruded upon the defendant's privacy to such an extent that a reasonable person would clearly not feel free to walk away. State v. Soto-Garcia, 68 Wash.App. 20, 841 P.2d 1271 (1992). In my opinion, to hold...