State v. Sum

• Decision Date: 09 June 2022
• Docket Number: 99730-6
• Citation: 511 P.3d 92
• Parties: STATE of Washington, Respondent, v. Palla SUM, a/k/a Pallo Sum, a/k/a San Kim Sum, Petitioner.
• Court: Washington Supreme Court

511 P.3d 92

STATE of Washington, Respondent,

v.Palla SUM, a/k/a Pallo Sum, a/k/a San Kim Sum, Petitioner.

No. 99730-6

Supreme Court of Washington.

Argued March 8, 2022

Filed June 9, 2022

Jennifer M. Winkler, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Petitioner.

Britta Ann Halverson, Pierce County Prosecuting Attorney, Anne Elizabeth Egeler, Pierce County Prosecutor's Office, 930 Tacoma Ave. S. Rm. 946, Tacoma, WA, 98402-2171, for Respondent.

Brian Richard Flaherty, La Rond Baker, Katherine Elizabeth Hurley, King County Department of Public Defense, 710 2nd Ave. Ste. 200, Seattle, WA, 98104-1703, for Amicus Curiae King County Department of Public Defense.

Julia Mizutani, Attorney at Law, Nancy Lynn Talner, ACLU-WA, P. O. Box 2728, Seattle, WA, 98111-2728, for Amicus Curiae American Civil Liberties Union of Washington.

Jessica Levin, Robert S. Chang, Melissa R. Lee, Seattle University School of Law, 901 12th Ave., Korematsu Center For Law & Equality, Seattle, WA, 98122-4411, for Amicus Curiae Fred T. Korematsu Center for Law and Equality.

Alexandria Marie Hohman, The Washington Defender Association, 110 Prefontaine Pl. S. Ste. 610, Seattle, WA, 98104-2626, for Amicus Curiae Washington Defender Association.

YU, J.

¶1 This case concerns the analysis that courts must apply to determine whether a person has been seized by law enforcement for purposes of article I, section 7 of the Washington Constitution. It is well established that an encounter with law enforcement rises to the level of a seizure if "considering all the circumstances, an individual's freedom of movement is restrained and the individual would not believe [they are] free to leave or decline a request due to an officer's use of force or display of authority." State v. Rankin , 151 Wash.2d 689, 695, 92 P.3d 202 (2004). Today, we are asked whether "all the circumstances" of the encounter includes the race and ethnicity of the allegedly seized person.

¶2 As the parties correctly agree, the answer is yes. Our precedent has always required that the seizure inquiry be made in light of the totality of the circumstances, and we have never stated that race and ethnicity cannot be relevant circumstances. However, we have not explicitly held that in interactions with law enforcement, race and ethnicity matter. We do so today. Furthermore, to ensure that all the circumstances of a law enforcement encounter are properly considered, including race and ethnicity, we take this opportunity to clarify the seizure inquiry as a matter of independent state law, taking guidance from GR 37.

¶3 As set forth in this court's precedent, the seizure inquiry is an objective test in which the allegedly seized person has the burden to show that a seizure occurred. To aid courts in the application of this test, we now clarify that a person is seized for purposes of article I, section 7 if, based on the totality of the circumstances, an objective observer could conclude that the person was not free to leave, to refuse a request, or to otherwise terminate the encounter due to law enforcement's display of authority or use of physical force. For purposes of this analysis, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against Black, Indigenous, and other People of Color (BIPOC) in Washington. Finally, in accordance with our precedent, if the person shows there was a seizure, then the burden shifts to the State to prove that the seizure was lawfully justified by a warrant or an applicable exception to the warrant requirement.

¶4 Based on the totality of the circumstances presented in this case, we hold that petitioner Palla Sum was seized when a sheriff's deputy requested Sum's identification while implying that Sum was under investigation for car theft. As the State properly concedes, at that time, the deputy did not have a warrant, reasonable suspicion, or any other lawful authority to seize Sum. As a result, Sum was unlawfully seized, and the false name and birth date he gave to the deputy must be suppressed. We therefore reverse the Court of Appeals and remand to the trial court for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual background

¶5 On April 9, 2019, Pierce County Sheriff's Deputy Mark Rickerson was on patrol, driving an unmarked police vehicle through an area where there were "some problem houses" that Deputy Rickerson liked to "keep an eye on." 1 Verbatim Report of Proceedings (VRP) (Aug. 6, 2019) at 10. At 9:15 a.m., the deputy noticed a Honda Civic parked near the entry gate to a church parking lot.

¶6 The Honda was not blocking the entry gate, and there is no indication that it was parked illegally. Nevertheless, the car attracted the deputy's attention because "it was parked there." Id. at 17. The location was significant to Deputy Rickerson because "four or five months before ... another deputy in [his] unit arrested another subject there in a stolen vehicle." Id. at 13. Within that same four- to five-month time frame, an unnamed person approached Deputy Rickerson in a nearby grocery store parking lot to tell the deputy that they were "concerned about all the vehicles that were parking there that didn't belong in the area." Id.

¶7 As Deputy Rickerson observed the Honda, he saw Sum, who "was slumped over and appeared to be unconscious in the driver's seat." Suppl. Clerk's Papers (CP) at 86. At that point, the deputy decided to conduct "a social contact" and parked nearby, "making sure to leave enough room so as not to block the Honda Civic or prevent it from leaving." 1 VRP (Aug. 6, 2019) at 20; Suppl. CP at 86. Before getting out of his police vehicle, Deputy Rickerson conducted a records check of the Honda's license plate and discovered a report of sale, although it was not clear when the sale had occurred. The records check also showed that the car had not been reported stolen, but the records did not state the name of the current owner. Deputy Rickerson noted the last four digits of the Vehicle Identification Number (VIN) associated with the Honda's license plate, then approached the driver's side of the car on foot, wearing his full uniform.

¶8 As he approached, Deputy Rickerson noticed another man in the car, who was in the front passenger seat. Both Sum and the passenger "appeared to be unconscious and did not notice Rickerson approach." Suppl. CP at 86. Before attempting to wake them, Deputy Rickerson checked the Honda's public VIN to confirm that it matched the license plates. The deputy then knocked on the driver's side window. After "seven to eight seconds," Sum "slowly woke up" and "rolled the window down slightly." 1 VRP (Aug. 6, 2019) at 22-23.

¶9 Deputy Rickerson asked Sum what he and his passenger were doing there, and Sum responded that they "were waiting for a friend." Id. at 23. The deputy then asked Sum who owned the Honda. Sum said the Honda was not his, and he identified the owner "with the given name, but not the surname, of an individual." Suppl. CP at 86. At the suppression hearing, Deputy Rickerson could not recall the name Sum provided.

¶10 Deputy Rickerson next asked Sum and his passenger for identification, and Sum "asked him why he wanted it." Id. The deputy responded "that the two men were sitting in an area known for stolen vehicles and that [Sum] did not appear to know to whom the vehicle he was sitting in belonged." Id. at 87. Sum provided a false name and date of birth. The passenger gave his true name and birth date.

¶11 Deputy Rickerson walked back to his patrol vehicle to check the names Sum and his passenger provided. While the deputy was in his vehicle, Sum started the Honda's engine, "backed up quickly, and then took off," driving partially on the sidewalk and over some grass. 1 VRP (Aug. 6, 2019) at 29. Deputy Rickerson activated his emergency lights and started pursuing the Honda, soon joined by another deputy in a separate vehicle. Sum drove at a high rate of speed through a stop sign and multiple red lights before ultimately crashing in someone's front yard. Deputy Rickerson handcuffed Sum and read him the Miranda¹ warnings.

¶12 A search of Sum's person incident to arrest turned up the Honda's title and registration, which showed that the car did, in fact, belong to Palla Sum. He had purchased it two weeks earlier. The search of Sum's person also uncovered a small holster in his pants, and when the Honda was later searched pursuant to a warrant, police discovered a pistol.

B. Procedural history

¶13 Sum was charged by amended information with unlawful possession of a firearm in the first degree, attempting to elude a pursuing police vehicle, and making a false or misleading statement to a public servant. See RCW 9.41.040(1)(a) ; RCW 46.61.024(1) ; RCW 9A.76.175. The original and amended charging documents both specify that Sum's race is "ASIAN/PACIFIC ISLAND[ER]." CP at 4, 23.

¶14 Sum filed a pretrial motion to suppress pursuant to CrR 3.6, contending that he was unlawfully seized without reasonable suspicion when Deputy Rickerson requested Sum's identification while implying that Sum was under investigation for car theft. The court denied Sum's motion to suppress, ruling that "[b]ecause Rickerson did not retain [Sum]’s physical identification to conduct his records check, [Sum] was not seized when Rickerson asked him to identify himself." Suppl. CP at 89. Sum was convicted of all three charges by a jury. Like the charging documents, Sum's felony judgment and sentence states that his race is "Asian/Pacific Islander." CP at 65. His ethnicity is listed as "Non-Hispanic." Id.

¶15 Sum appealed, and the Court of Appeals affirmed in an unpublished opinion, holding that Sum was not seized by the deputy's request for identification because "merely asking for identification is properly characterized as a social...