State v. Tocki

• Decision Date: 06 July 1982
• Docket Number: No. 4442-III-4,4442-III-4
• Parties: STATE of Washington, Appellant, v. William James TOCKI, Respondent.
• Court: Washington Court of Appeals

Page 457

32 Wn.App. 457

648 P.2d 99

STATE of Washington, Appellant, v. William James TOCKI, Respondent.

No. 4442-III-4.

Court of Appeals of Washington, Division 3 Panel Four.

July 6, 1982.

Rehearing Denied Aug. 20, 1982.

Donald C. Brockett, Pros. Atty., Robert P. Kingsley, Deputy Pros. Atty., Spokane, for appellant.

Roger A. Felice, Felice & Clayton, Spokane, for respondent.

GREEN, Judge.

The State appeals from an order suppressing a gun and dismissing its charge against the defendant William James Tocki for being a felon in possession of a firearm. Error is assigned to (1) the court's failure to adopt certain proposed findings, and (2) its conclusion defendant's Fourth Amendment rights were violated when he was detained for questioning and searched. We affirm.

The court's findings reflect that on January 24, 1981, between 2 and 3 o'clock in the morning, Deputies Ruetsch and Mulvey of the Spokane County Sheriff's Office were patrolling an area on east Sprague in a marked patrol car. Deputy Mulvey noticed movement in an automobile parked in front of the New Haven Apartments. They stopped and parked their patrol car behind the vehicle. Deputy Ruetsch approached the vehicle and peered through the windows. He saw defendant in the passenger side of the vehicle, slumped over toward the door. He opened the unlocked car door and defendant sat up. Upon being asked to identify himself, defendant produced a valid driver's license. Deputy Mulvey then initiated a radio check on defendant's background while Deputy Ruetsch asked him if he had a gun, to which he responded, "No." Nevertheless, the deputy told defendant to get out of the car.

The court further found a pat-down search of defendant's clothing was conducted. A pocketknife was removed from the left front pocket, and a small baggie of marijuana dropped to the ground. Defendant was then placed in the back seat of the patrol car while the officers continued the radio check.

At this point, the owner of the automobile approached the deputies from the apartment. She told them although defendant was an unwanted passenger, she knew he was in the car and had left him there to sleep when she went into her apartment. She also stated he had a gun in his boot and was carrying marijuana. Deputy Mulvey conducted a second pat-down search and felt a gap in defendant's boot. Upon searching the back seat of the patrol car, where defendant had been sitting, he recovered a .38 caliber revolver. The radio check revealed defendant had a criminal record.

Defendant was charged with being a felon in possession of a firearm, RCW 9.41.040. He moved to suppress the gun, claiming the investigative stop violated his Fourth Amendment rights. He testified he fell asleep in a woman's car after meeting her at a bar, was disoriented when awakened by Deputy Ruetsch, and consequently thought the car belonged to him.

The court granted defendant's motion. It found the deputies stopped and investigated defendant because: (1) the area had a high incidence of crime; (2) the deputies initially suspected defendant was a person for whom a bench warrant had been issued, and who earlier that evening had fled into the apartments from a vehicle they stopped for a traffic violation; and (3) upon approaching the vehicle, Deputy Ruetsch recognized defendant from an incident which occurred a week earlier when defendant was detained by other officers for a suspected traffic violation. Those officers advised Deputy Ruetsch that at one time defendant had carried a firearm. The court also found, however, the evidence did not establish that defendant attempted to conceal himself from the officers.

On these facts, the court concluded that although the movement in the vehicle warranted the officers' initial stop to look into the vehicle, there were no facts which would create a reasonable suspicion of criminal activity to justify detaining defendant for questioning. The gun was ordered suppressed and the charge dismissed. The State appeals.

The State's contentions must be reviewed against the backdrop of the Fourth Amendment, which applies whenever a person is "seized"; i.e., his freedom of movement is restrained by police officers and he believes he is not free to leave. State v. Stroud, 30 Wash.App. 392, 394-95, 634 P.2d 316 (1981). The Fourth Amendment requires that such seizures be reasonable. Although the touchstone of reasonableness is probable cause, police officers may briefly detain a person in order to investigate his or her activities if prior to such detention, they have a well founded suspicion, not amounting to probable cause, that the person is engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. White, 97 Wash.2d 92, 105, 640 P.2d 1061 (1982); State v. Gluck, 83 Wash.2d 424, 426, 518 P.2d 703 (1974); State v. Freeman, 17 Wash.App. 377, 380, 563 P.2d 1283 (1977). However, investigative stops are carefully circumscribed-the officer's suspicion must be based on specific, objective facts, State v. White, supra at 97, 640 P.2d 1061; State v. Stroud, supra at 398 n.5, 634 P.2d 316; and the more significant the intrusion, the more cause they must have to justify their suspicion. State v. Byers, 85 Wash.2d 783, 787, 539 P.2d 833 (1975), rev'd on reh'g on other grounds, 88 Wash.2d 1, 559 P.2d 1334 (1977). The totality of the circumstances must be taken into account in balancing the degree to which the intrusion advances public concern, and the severity of the interference with individual liberty. State v. Hobart, 94 Wash.2d 437, 443, 617 P.2d 429 (1980); State v. Stroud, supra at 397, 634 P.2d 316.

The State challenges the failure of the trial court to enter findings that (1) the officers suspected vehicle prowling, and (2) Officer Ruetsch recognized defendant as having a criminal record for burglary or theft. ¹ It is conceded there is no fundamental constitutional right involved here requiring independent review of the record by this court because the State and not the defendant has appealed. Compare State v. Byers, supra, with State v. Carner, 28 Wash.App. 439, 441, 624 P.2d 204 (1981). It is argued, however, the officers' testimony was undisputed and those facts, added to the totality of the circumstances, justified the officers' actions.

Since the evidence which the State claims supports a reasonable suspicion of criminal activity on the officers' part before they awakened and questioned defendant is based purely on their testimony, the officers' credibility is crucial. Questions involving credibility are peculiarly for the trial court. This rule applies even where the testimony is uncontradicted, unless it is arbitrarily rejected. The court, however, is entitled to draw from the evidence all inferences which are fairly deducible therefrom and does not act arbitrarily in refusing to base a finding on testimony which is inherently improbable or unpersuasive or which contains discrepancies or inconsistencies. See Brewer v. Copeland 86 Wash.2d 58, 74, 542 P.2d 445 (1975); In re Watson, 25 Wash.App. 508, 512, 610 P.2d 367 (1979); Dempsey v. Joe Pignataro Chevrolet, Inc., 22 Wash.App. 384, 390, 589 P.2d 1265 (1979); Meeker v. Howard, 7 Wash.App. 169, 171, 499 P.2d 53 (1972).

Deputy Mulvey testified he decided to make the investigative stop when he saw movement in the parked automobile. Although the officers testified they initially thought defendant may have been a vehicle prowler, or the person for whom they had an arrest warrant and who had earlier eluded them in the vicinity of the New Haven Apartments, they also stated those facts were not in their investigative report. They agreed their report normally included all significant considerations. Officer Mulvey testified they had received no reports of criminal activity in the area that evening, and nothing indicated there were ever problems in that area with vehicle prowling. He stated the automobile was readily observable, legally parked under adequate lighting, the engine was not running, and defendant was not seated behind the steering wheel.

Deputy Ruetsch testified when he approached the vehicle, there was no movement by defendant, no evidence the car had been entered illegally, and no evidence inconsistent with the possibility defendant was sleeping-in short, nothing reflecting criminal activity. Although Deputy Ruetsch received accurate identification from defendant, without asking him to explain his activities, the deputy asked defendant if he had a gun. ² And, even though defendant replied, "No", the officer told him to get out of the car and conducted a pat-down search which the officer testified was based solely on the knowledge defendant had previously carried a gun.

From this testimony, the court could have concluded there was no substantial evidence to support a finding the officers investigated because they suspected defendant, who had a criminal record, was engaged in vehicle prowling. Hence,...