State v. Russell

• Decision Date: 10 July 2014
• Docket Number: No. 89253–9.,89253–9.
• Citation: 180 Wash.2d 860,330 P.3d 151
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Tanner Zachary Roy RUSSELL, Petitioner.

180 Wash.2d 860

330 P.3d 151

STATE of Washington, Respondent,

v.Tanner Zachary Roy RUSSELL, Petitioner.

No. 89253–9.

Supreme Court of Washington, En Banc.

July 10, 2014.

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Petitioner.

Sara I. Beigh, Lewis County Prosecutors Office, Chehalis, WA, for Respondent.

OWENS, J.

¶ 1 In certain situations, a police officer may briefly frisk a person to search for weapons that might pose a risk to officer and bystander safety. When justified, these protective frisks do not violate the constitutional prohibition against unreasonable invasions of individual privacy. In this case, we are asked to further define the permissible scope of these protective frisks. An officer stopped Tanner Zachary Roy Russell for violating several minor traffic laws. The officer recognized Russell from a previous encounter where Russell had told officers he was not armed, when in fact he had a small gun in his pocket. Fearing for his safety, the officer frisked Russell for weapons and felt a small box in Russell's pants pocket. The officer removed the box, opened it, and found a syringe filled with methamphetamine. We hold that the initial protective frisk was justified to protect officer safety, but the warrantless search of the container was not because it exceeded the permissible scope of a protective frisk.

FACTS

¶ 2 At 11:00 p.m. on September 5, 2011, Officer Derrick Makein was on patrol in Centralia when he observed a person riding a bicycle without a headlight, in violation of traffic laws. SeeRCW 46.61.780. Officer Makein saw the cyclist change into the left lane and travel for several blocks in the direction of oncoming traffic, another traffic violation. Officer Makein pulled the cyclist over at a nearby gas station.

¶ 3 After pulling the cyclist over, Officer Makein recognized him as Russell, a passenger in a traffic stop that the officer made a week earlier. During the prior stop, Officer Makein asked Russell if he had any weapons on him of any kind and Russell said no. But during the course of the stop, another officer found a loaded .22 caliber, derringer-style handgun in Russell's pocket. The gun was a very small and easily concealable weapon meant for close-range shooting. The officers confiscated the gun and issued Russell a citation.

¶ 4 Because of that previous encounter, Officer Makein feared that Russell might have a weapon and decided to frisk him. He was especially suspicious because Russell had lied about the gun during the previous stop and because the gun was so concealable. During the frisk Officer Makein felt a small, hard container in Russell's pants pocket. He testified that the container was approximately six inches long, four inches wide, and “an inch or two” deep. Verbatim Report of Proceedings (VRP) at 18.

¶ 5 Officer Makein testified to what happened next:

A. ... I know that box was not a gun, but based on how big the box or that container was and the fact that he hid a very small caliber weapon in his front pocket the previous contact, I still felt that I needed to check what's in that box for my safety.

Q. Okay. So how did you go about doing that?

A. Once I felt that to make sure everything matches as far as how big and remember how big the other weapon was, I asked him, What's this. He says, It's a box. Do you mind if I take it out? He says, Okay.

Q. So you did ask him for consent to search the box?

A. (Witness nods head.)

Q. Did he appear to have any problem with that?

A. No.

Id. at 18–19. Based on that testimony, the trial court made a finding of fact that Russell consented to the search of the container. Officer Makein opened the container and found one syringe containing methamphetamine. Though he testified that he performed the search to ensure that the box did not contain a gun, Officer Makein admitted “that the syringe weighed only a fraction of what the pistol weighed.” Clerk's Papers at 75.

¶ 6 The State charged Russell with possession of a controlled substance; the syringe was the only evidence against him. Russell moved to suppress the evidence, arguing that the search was unlawful, and the trial court granted his motion and dismissed the case. The trial court found that although the initial stop was justified, the frisk was not because the stop occurred in a well-lit area and Russell did not verbally threaten the officer, nor did he make any threatening gestures or movements. The court also found that even if the frisk was justified, the search of the container was not because it posed no threat once it was in the control of the officer.

¶ 7 In a split, unpublished opinion, the Court of Appeals reversed the suppression order and remanded the case for trial. State v. Russell, noted at 175 Wash.App. 1064, 2013 WL 3967169, at *7–9. The majority held that the initial protective frisk and the subsequent removal and search of the container were reasonable. 175 Wash.App. 1064, 2013 WL 3967169, at *7–9. The dissent agreed that the initial frisk was reasonable but concluded that the officer exceeded his authority when he searched the container. Id. at *11 (Quinn–Brintnall, J., dissenting in part). We granted review. State v. Russell, 179 Wash.2d 1001, 315 P.3d 530 (2013).

ISSUES

¶ 8 1. Was the officer's initial protective frisk justified by concerns of officer safety?

¶ 9 2. Was the officer's warrantless search of the container discovered during the search also justified by concerns of officer safety?

¶ 10 3. Was the search otherwise permissible because the petitioner validly consented to it?

STANDARD OF REVIEW

¶ 11 When reviewing a trial court's ruling on a motion to suppress, we determine 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. Garvin, 166 Wash.2d 242, 249, 207 P.3d 1266 (2009). “Evidence is substantial when it is enough ‘to persuade a fair-minded person of the truth of the stated premise.’ ” Id. (quoting State v. Reid, 98 Wash.App. 152, 156, 988 P.2d 1038 (1999)). We review conclusions of law de novo. Id.

ANALYSIS

1. The Initial Protective Frisk Was Justified

¶ 12 “As a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution.” ¹Id. There are several narrowly drawn exceptions to that rule, and the State bears a heavy burden to prove by clear and convincing evidence that a warrantless search falls within one of those exceptions. Id. at 249–50, 207 P.3d 1266.

¶ 13 One exception to the warrant requirement is the so-called Terry stop and frisk that was first articulated by the Supreme Court of the United States in Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It allows an officer to conduct a limited pat-down of the outer clothing of a person in an attempt to discover weapons that could cause harm. Id. at 30–31, 88 S.Ct. 1868. A protective frisk 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.’ ” State v. Collins, 121 Wash.2d 168, 173, 847 P.2d 919 (1993) (quoting Terry, 392 U.S. at 21–24, 88 S.Ct. 1868). For example, if an officer has information that an individual could have a gun, that information, “when combined with other circumstances that contribute to a reasonable safety concern, ... could lead a reasonably careful officer to believe that a protective frisk should be conducted to protect his or her own safety and the safety of others.” Id. at 177, 847 P.2d 919. “[C]ourts are reluctant to substitute their judgment for that of police officers in the field. ‘A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.’ ” State v. Belieu, 112 Wash.2d 587, 601–02, 773 P.2d 46 (1989) (emphasis omitted) (quoting Wilson v. Porter, 361 F.2d 412, 415 (9th Cir.1966)).

¶ 14 In this case, the stop and frisk was justified because Officer Makein could point to specific and articulable facts that supported a belief that Russell could be armed and dangerous. After legitimately stopping Russell for traffic violations, Officer Makein immediately recognized him from a stop one week prior. At that prior encounter, Russell denied having a weapon when he in fact possessed a small derringer-style gun. Officer Makein testified that this specific and articulable fact made him fear for his safety. In addition, the encounter was late at night and Officer Makein was the only officer making the stop. These circumstances contribute to a reasonable safety concern. Nothing about the initial stop and frisk was arbitrary or harassing. We hold that the officer was justified in performing the initial protective frisk.

¶ 15 This case is similar to Collins, where this court upheld the warrantless stop and frisk of a suspect whom the officer recognized from an encounter two months prior. 121 Wash.2d at 177, 847 P.2d 919. During the previous encounter, the officer found “ ‘a large amount of either .38 or .357’ ammunition, a holster, and a set of handcuffs” in the suspect's truck. Id. at 171, 847 P.2d 919. That fact, along with the timing of the latter stop (it was at 4:00 a.m.) and the officer's knowledge that the suspect had a prior felony arrest, led the court to conclude that the frisk was reasonable. Id. at 176–77, 847 P.2d 919.

¶ 16 The justification for the initial frisk is stronger in this case than in Collins. First, the prior encounter occurred just one week before the stop in question rather than two months. Second, the officer actually found a gun in the prior encounter rather than ammunition and a holster. Third, Russell lied about the gun in the prior encounter while the suspect in Collins voluntarily revealed the ammunition. Id. at 171, 847 P.2d 919....