State v. Vandover

• Decision Date: 15 January 1992
• Docket Number: No. 13631-7-II,13631-7-II
• Citation: 63 Wn.App. 754,822 P.2d 784
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Donald Eugene VANDOVER, Appellant.

Page 754

63 Wn.App. 754

822 P.2d 784

The STATE of Washington, Respondent, v. Donald Eugene VANDOVER, Appellant.

No. 13631-7-II.

Court of Appeals of Washington, Division 2.

Jan. 15, 1992.

John F. Hayden, Clallam-Jefferson Public Defender, Port Angeles (Court-appointed), for appellant.

Deborah S. Kelly, Deputy Pros. Atty., Port Angeles, for respondent.

PETRICH, Chief Judge.

Donald Vandover appeals his conviction of the crime of unlawful possession of a controlled substance with intent to deliver. He argues that his conviction should be overturned because the arresting officers discovered the cocaine following an unlawful investigatory stop. Mr. Vandover's motion to suppress the evidence was denied following a suppression hearing held pursuant to Criminal Rule 3.6. The appellant was found guilty by the trial judge after a bench trial held on stipulated facts. We reverse.

At about 9:52 p.m. on April 13, 1989, Officers Thomas and Schilke of the Port Angeles police department responded to a radio report that "a man in a gold colored Maverick was brandishing a sawed-off shotgun" in front of a restaurant in downtown Port Angeles. This report was issued in response to an anonymous telephone tip. The record did not indicate whether the informant's tip was based on an eyewitness account.

Both officers, travelling in separate vehicles, arrived at the restaurant and spotted the appellant getting into a green Maverick. The green Maverick drove away and the police officers continued to look for a gold Maverick. Some time later, officer Thomas spotted the green Maverick and proceeded to follow it with the intention of pulling it over. The officer then turned on his emergency lights, the Maverick came to a stop, and the defendant came out of his car and began walking back to meet the police officer. Officer Thomas told Vandover about the anonymous report that a man with a gold Maverick was brandishing a sawed-off shotgun in downtown Port Angeles. When asked if he had a shotgun in his car Vandover replied that he had a friend's shotgun in the trunk of the Maverick. He opened the trunk at the officer's request and the officer spotted a full size 12-gauge shotgun covered with a gray denim jacket. After directing Vandover to stand away from the vehicle, the officer discovered that the weapon was loaded.

Officer Schilke, who arrived at the scene later, looked into the car and spotted what appeared to be a firearm sticking out from under the seat. He then opened the car door, reached under the seat, and pulled out a handgun. Vandover was placed under arrest and officer Schilke searched the rest of the car. During the course of this search he discovered 11 folded paper bindles containing what was later determined to be 13 grams of cocaine.

At a pretrial suppression hearing, the court held that the detention was justified because it was based on a reasonable suspicion of criminal activity and therefore the evidence gathered incident to it was admissible.

INVESTIGATORY DETENTION

The appellant argues that the initial stop by officer Thomas was unlawful, thus the arrest was unlawful and all of the evidence subsequently gathered was inadmissible. Under the Fourth Amendment to the United States Constitution, which proscribes unreasonable searches and seizures, an investigatory stop is unlawful where the stop constitutes a seizure and the stop is not based on a reasonable suspicion of criminal conduct. State v. Larson, 93 Wash.2d 638, 611 P.2d 771 (1980); State v. Stroud, 30 Wash.App. 392, 396-97, 634 P.2d 316 (1981), review denied, 96 Wash.2d 1025 (1982). A seizure takes place where, under the totality of the circumstances, a reasonable person would not consider departure a realistic alternative. United States v. Palmer, 603 F.2d 1286, 1289 (8th Cir.1979). A seizure occurred when Officer Thomas turned on the emergency lights with the intent of pulling Vandover over and in response Vandover stopped. State v. Stroud, supra (under totality of circumstances the use of emergency lights by the police "constituted a show of force sufficient to convey to any reasonable person that voluntary departure from the scene was not a realistic alternative"); State v. DeArman, 54 Wash.App. 621, 624, 774 P.2d 1247 (1989) (use of emergency lights by a police officer constitutes a seizure of the motorist).

The remaining question is whether this seizure was reasonable. A seizure is reasonable only if an officer has a "reasonable suspicion, based on objective facts, that the individual is involved in criminal activity." Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979); Larson, supra 93 Wash.2d at 644, 611 P.2d 771. A number of Washington cases have dealt specifically with the situation presented by the case at bench; namely, whether an anonymous informant's tip is sufficient to establish a reasonable suspicion of criminal conduct.

In State v. Lesnick, 84 Wash.2d 940, 941, 530 P.2d 243 (1975), cert. denied 423 U.S. 891, 96 S.Ct. 187, 46 L.Ed.2d 122 (1975), the Washington Supreme Court considered a case where an anonymous caller informed the police that a van with a certain license plate number was carrying illegal gambling equipment. Lesnick 84 Wash.2d at 941, 530 P.2d 243. The police followed the van for a block and a half and pulled it over, even though the driver of the van committed no traffic violations and there were no other indications of criminal activity. Lesnick at 942, 530 P.2d 243. The court held that in order for an investigative stop to be reasonable based on information supplied by another person, the informant's tip must demonstrate some indicia of reliability. Lesnick at 943, 530 P.2d 243. This anonymous tip was deemed insufficient to establish a well-founded suspicion. State v. Lesnick, supra. The Supreme Court in Lesnick quoted the appellate court's opinion in the same case with approval:

While the police may have a duty to investigate tips which sound reasonable, absent circumstances suggesting the informant's reliability, or some corroborative observation which suggests either the presence of criminal activity or that the informer's information was obtained in a reliable fashion, a forcible stop based solely upon such information is not permissible.

Lesnick at 944, 530 P.2d 243, quoting State v. Lesnick, 10 Wash.App. 281, 285, 518 P.2d 199 (1973). The Lesnick court held that the evidence obtained should have been suppressed because there was nothing tending to demonstrate that the informant was reliable or that the informant obtained the information in a reliable fashion.

The principles set out in Lesnick were applied in Campbell v. Department of Licensing, 31 Wash.App. 833, 835, 644 P.2d 1219 (1982), where a driver appealed the revocation of his license by the Department of Licensing, contending that the arresting officer did not have a reasonable suspicion to make the initial stop. The arresting officer stopped Mr. Campbell after a motorist had pulled up beside his police vehicle, announced that a drunk driver was travelling in the opposite direction, and gave a description of the car. Campbell at 834, 644 P.2d 1219. The officer stopped Mr. Campbell after following him for some distance without observing any indication of Mr. Campbell's drunkenness.

The Campbell court stated that in order for an informant's uncorroborated tip to validly form the sole basis for an...