State v. Pressley

• Decision Date: 09 May 1972
• Citation: 64 Wn.App. 591,825 P.2d 749
• Parties: STATE of Washington, Respondent, v. Carsha Elexis PRESSLEY, B.D. 0
• Court: Washington Court of Appeals

Page 591

64 Wn.App. 591

825 P.2d 749

STATE of Washington, Respondent, v. Carsha Elexis PRESSLEY B.D. 05-09-72, Appellant.

No. 26401-0-I.

Court of Appeals of Washington Division 1.

March 9, 1992.

Suzanne Lee Elliott of Washington Appellate Defenders, Seattle, for appellant.

Norm Maleng, Pros. Atty. and Ellen O'Neill-Stephens, Deputy Pros. Atty., Seattle, for respondent.

AGID, Judge.

Carsha Elexis Pressley appeals her conviction of one count of possession of cocaine. She contends that the trial court erred in denying her motion to suppress the evidence offered against her as the product of an illegal stop and seizure. We affirm.

Pressley was charged with one count of possession of a controlled substance in violation of the Uniform Controlled Substances Act, RCW 69.50.401(d). Before trial the court heard and denied a CrR 3.6 motion to suppress the cocaine seized by the arresting officer. At issue were two questions: whether the initial stop was a valid Terry ¹ stop and whether the subsequent seizure exceeded the scope of the investigative stop. The trial court's findings of fact are unchallenged by either party and effectively summarize the testimony:

1. Carsha Elexis Pressley was born on May 9, 1972. At the time of the hearing she is 18 years of age. Jurisdiction has been extended to May 9, 1991.

2. On December 5, 1989 at about 5:45 p.m., Seattle Police Officer Mike Korner was on routine patrol near the vicinity of 20th and Yesler in Seattle, King County, Washington.

3. That location is well-known to the police for narcotics transactions and gang activity. Officer Korner has training in the identification of narcotics, and is familiar with the packaging of narcotics and how they are hidden, sloughed and destroyed. He has been trained to watch the hands of people suspected of being engaged in narcotics transactions. Officer Korner has participated in buy/bust operations at Yesler and 20th. Citizens have also requested the police to patrol the area because of the number of narcotics transactions at that location.

4. As Officer Korner approached 20th and Yesler he saw the respondent standing next to a building beside another young female. Their hands were chest high and the respondent appeared to be pointing to an object in her hand or counting objects in her hand. The other female was intently looking at the objects in the respondent's hand.

5. Officer Korner thought that he was witnessing a narcotics transaction because of the location, the fact that the respondent and her companion were huddled together, and because the respondent was pointing to an object in her hand which could be a narcotic such as rock cocaine. When Officer Korner has observed drug transactions he has commonly seen the seller and buyer examine the drugs before the transaction is completed.

6. Officer Korner drove up to the respondent in his marked patrol car. The respondent looked up at him, said "Oh Shit" and immediately closed the hand that contained the objects. The respondent and her companion then separated and walked off in different directions.

7. When Officer Korner saw the respondent react to his presence, close her hand and walk away from her companion he had further reason to believe he had interrupted a narcotics transaction.

8. As Officer Korner approached the respondent he saw something yellow sticking out of the respondent's hand. The respondent put that hand in her coat pocket.

9. Officer Korner thought the respondent was trying to hide the object in her hand. In his experience he has seen people in possession of narcotics try to conceal the drugs in the tear of a coat pocket. It also occurred to Officer Korner that the respondent could be going for some type of weapon in her pocket.

10. Because the respondent could have a weapon in her pocket or be in the process of concealing or destroying evidence, Officer Korner asked the respondent to remove her hand from her pocket and asked her what was in her hand.

11. The respondent said nothing was in her hand. Officer Korner motioned to the respondent to give him what was in her hand. The respondent gave Officer Korner a clear cellophane wrapper which contained a crumpled yellow tissue.

12. Officer Korner had seen rock cocaine packaged and concealed in this fashion on prior occasions. Officer Korner squeezed the tissue to feel the objects inside and felt several hard objects that he believed to be rock cocaine. Officer Korner opened up the tissue and saw what appeared to be about twenty rocks of cocaine and cocaine powder.

13. Officer Korner arrested the respondent because he believed she was in possession of narcotics. Only a few minutes passed from the time Officer Korner got out of his patrol car to the time he opened up the tissue.

14. The respondent testified that she had just left a food market carrying a bag full of junk food in her left hand and rock cocaine in her right hand. She said that when the police officer approached her she was eating a candy bar with her left hand and sharing it with her sister and holding the rock cocaine in her right hand. The respondent's testimony was not believable.

15. The substance found by Officer Korner was analyzed by forensic drug analyst Jeffrey Lew and found to be 2.6 grams of cocaine.

We note that the time of these events--5:45 p.m. in December--is after dark.

Based on the findings above, the trial court concluded that, because Officer Korner stated specific articulable facts on which he based his belief that there was a substantial possibility that criminal conduct had occurred or was about to occur, the stop was proper. The trial court also concluded that the officer's request that Pressley remove her hand from her pocket and open it was reasonable both for reasons of officer safety and because there was a possibility that evidence might be concealed or destroyed.

I. THE TERRY STOP

We first address the question of whether there was reasonable suspicion sufficient to justify the initial investigative stop of the appellant. In the absence of probable cause to arrest, police may briefly detain and question an individual if they have " 'a well founded suspicion based on objective facts that [she] is connected to actual or potential criminal activity.' " State v. Tarica, 59 Wash.App. 368, 375, 798 P.2d 296 (1990), quoting State v. Sieler, 95 Wash.2d 43, 46, 621 P.2d 1272 (1980); Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889 (1968); State v. Glover, 116 Wash.2d 509, 513, 806 P.2d 760 (1991). A "reasonable" or "well founded" suspicion exists if the officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21, 88 S.Ct. at 1880; Glover, 116 Wash.2d at 514, 806 P.2d 760. The Fourth Amendment and article 1, section 7 of the Washington State Constitution require that the stop, which constitutes the seizure of a person, be reasonable. Terry, 392 U.S at 16-19, 88 S.Ct. at 1877-78; Glover, 116 Wash.2d at 513, 806 P.2d 760; see also State v. Dorsey, 40 Wash.App. 459, 471 n. 7, 698 P.2d 1109, review denied, 104 Wash.2d 1010 (1985); State v. Samsel, 39 Wash.App. 564, 571, 694 P.2d 670 (1985) (the ultimate criterion is that the stop be reasonable under the circumstances).

In evaluating the reasonableness of an investigative stop, courts may take into account the totality of the circumstances presented to the investigating officer. Glover, 116 Wash.2d at 514, 806 P.2d 760, citing United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). While "the circumstances must be more consistent with criminal than innocent conduct, 'reasonableness is measured not by exactitudes, but by probabilities.' " State v. Mercer, 45 Wash.App. 769, 774, 727 P.2d 676 (1986), quoting Samsel, 39 Wash.App. at 571, 694 P.2d 670. In reviewing those circumstances, courts may consider such factors as the officer's training and experience, the location of the stop, and the conduct of the person detained. Glover, 116 Wash.2d at 514, 806 P.2d 760; Samsel, 39 Wash.App. at 570-571, 694 P.2d 670 ("While an inchoate hunch is insufficient to justify a stop, circumstances which appear innocuous to the average person may appear incriminating to a police officer in light of past experience. The officer is not required to ignore that experience."); Mercer, 45 Wash.App. at 774, 727 P.2d 676. Other factors that may be considered in the context of determining whether a stop was reasonable include " 'the purpose of the stop, the amount of physical intrusion upon the suspect's liberty, and the length of time the suspect is detained.' " Samsel, 39 Wash.App. at 572, 694 P.2d 670, quoting State v. Williams, 102 Wash.2d 733, 740, 689 P.2d 1065 (1984). If the initial stop was unlawful, the evidence obtained in the course of any subsequent search is inadmissible under the exclusionary rule. State v. Kennedy, 107 Wash.2d 1, 4, 726 P.2d 445 (1986), citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Analysis of an investigatory stop is a 2-step process, asking (1) whether the initial detention was justified, and (2) whether the detention was reasonably related in scope to the reason for the detention. Tarica, 59 Wash.App. at 375, 798 P.2d 296; State v. Ortiz, 52 Wash.App. 523, 762 P.2d 12 (1988). The scope of an investigatory stop may be enlarged if the stop itself confirms existing suspicions or arouses further suspicions. State v. Smith, 115 Wash.2d 775, 785, 801 P.2d 975 (1990), quoting State v. Guzman-Cuellar, 47 Wash.App. 326, 332, 734 P.2d 966, review denied, 108 Wash.2d 1027 (1987).

Here, the trial court correctly concluded that there were sufficient articulable facts to reasonably justify the stop. As Officer Korner indicated, his attention was initially drawn to the two girls by the manner in which they were huddling together and examining an item in...