State v. Walker

• Decision Date: 27 July 1992
• Docket Number: No. 26258-1-I,26258-1-I
• Citation: 834 P.2d 41,66 Wn.App. 622
• Parties: STATE of Washington, Respondent, v. Robert Lewis WALKER, Appellant.
• Court: Washington Court of Appeals

Page 622

66 Wn.App. 622

834 P.2d 41

STATE of Washington, Respondent, v. Robert Lewis WALKER, Appellant.

No. 26258-1-I.

Court of Appeals of Washington,

Division 1.

July 27, 1992.

Washington Appellate Defender Mary Jane Ferguson, Seattle, for appellant.

Norm Maleng, Pros. Atty., Donna Wise, Senior Appellate Atty., Seattle, for respondent.

BAKER, Judge.

Robert Lewis Walker appeals his second degree burglary conviction, contending that (1) the investigatory stop was illegal because the police lacked a reasonable articulable suspicion of criminal activity; and (2) the subsequent frisk was illegal because the police had no grounds for believing that he was armed and presently dangerous. We reverse.

FACTS

Seattle Police Sergeant Tyrone Sheffey was on patrol on a Sunday afternoon when a radio dispatcher reported two individuals going door-to-door asking for people who did not live in the area. The report described the two individuals by race, gender, and clothing. Sergeant Sheffey proceeded to the area and observed the defendant, who matched the general description given.

Sergeant Sheffey testified that when this individual noticed him, he appeared startled and turned abruptly onto a dead-end street to avoid the officer. The sergeant approached the man, who stopped on request, and explained that he was investigating a report of suspicious activity in the neighborhood. The defendant told the officer that he was going door-to-door looking for an apartment to rent.

Sergeant Sheffey testified that he started to frisk the outside of the defendant's pockets and then stopped to ask the defendant if he had any sharp objects on him:

I then started to pat him down basically for, oh, my own safety to see if he have [sic] any weapons on him.

And I remember at that time asking him, "Before I start patting you down, do you have any sharp objects on you?"

He stuck his hand in his pocket and said, "The only thing I have is this knife."

When the defendant pulled the knife out of his pocket, he also pulled out several pieces of women's jewelry.

The sergeant testified that he asked the defendant about sharp objects because he was concerned about the possibility of being stuck with a needle and contracting a disease. When asked why he frisked the defendant, the sergeant responded, "For officer's safety, to see if he had any type of weapons on him or anything like that." The sergeant also indicated that he was concerned for his safety because he was alone in an isolated area.

Officer Kennedy also responded to the dispatch. He recalled the report stating two suspicious individuals were going door-to-door asking about places to rent in a location where no "for rent" signs were posted. Officer Kennedy testified that the dispatch did not identify the informant. He did not know what time the dispatcher had received the information. Although the officer assumed that the call had come from someone living in the neighborhood where the suspicious activity was reported, he did not know specifically where the call originated. In his report of the incident, the officer did identify the informant, but testified at the suppression hearing that he believed he had obtained the informant's identity later from another officer.

The court denied defendant's motion to suppress the evidence, concluding that the State had the requisite reasonable suspicion to conduct an investigatory stop and frisk. Pursuant to CrR 3.5(c) and CrR 3.6, the trial court entered findings of fact and conclusions of law. Following a jury trial, the defendant was found guilty of second degree burglary.

I. INVESTIGATORY STOP

In reviewing a trial court's decision following a suppression hearing, the findings of the trial court are of great significance. See, e.g., State v. Mennegar, 114 Wash.2d 304, 787 P.2d 1347 (1990); State v. Daugherty, 94 Wash.2d 263, 616 P.2d 649 (1980), cert. denied, 450 U.S. 958, 101 S.Ct. 1417, 67 L.Ed.2d 382 (1981); State v. Rogers, 44 Wash.App. 510, 722 P.2d 1349 (1986). However the constitutional rights at issue require an appellate court to make an independent evaluation of the record. Mennegar, 114 Wash.2d at 310, 787 P.2d 1347. ¹

Police may conduct an investigatory stop if the officer has a reasonable and articulable suspicion that the individual is involved in criminal activity. State v. Sieler, 95 Wash.2d 43, 46, 621 P.2d 1272 (1980). A reasonable suspicion is the "substantial possibility that criminal conduct has occurred or is about to occur." State v. Kennedy, 107 Wash.2d 1, 6, 726 P.2d 445 (1986).

An officer's suspicion of criminal activity must be based on facts that are objective, specific, and articulable. Utter, Survey of Washington Search & Seizure Law: 1988 Update, 11 U. Puget Sound L.Rev. 411 § 4.6(a), at 515 (1988); State v. DeArman, 54 Wash.App. 621, 774 P.2d 1247 (1989). "The reasonableness of the officer's suspicion is determined by the totality of the circumstances known to the officer at the inception of the stop." State v. Rowe, 63 Wash.App. 750, 753, 822 P.2d 290 (1991). The court considers the officer's knowledge and experience in determining the validity of an investigatory stop. State v. Glover, 116 Wash.2d 509, 806 P.2d 760 (1991).

A reasonable suspicion justifying an investigatory stop may be based on an informant's tip if the tip possesses sufficient indicia of reliability, i.e., if (1) the circumstances suggest the informant's reliability; and (2) there is some corroborative observation suggesting the presence of criminal activity or that the information was obtained in a reliable manner. State v. Hart, 66 Wash.App. 1, 830 P.2d 696 (1992). Kennedy, 107 Wash.2d at 7, 726 P.2d 445; State v. Lesnick, 84 Wash.2d 940, 530 P.2d 243, cert. denied, 423 U.S. 891, 96 S.Ct. 187, 46 L.Ed.2d 122 (1975); Sieler, 95 Wash.2d at 47, 621 P.2d 1272.

In Kennedy, the police received a tip from an informant who had previously provided reliable information. This tip was corroborated by complaints from neighbors regarding drug activity at a certain residence and by the officer's subsequent observation of the defendant's conduct, which was consistent with drug activity. The Supreme Court held that these factors, combined with the officer's extensive experience in drug trafficking, constituted sufficient reasonable suspicion justifying an investigatory stop of the defendant's vehicle. Kennedy, 107 Wash.2d at 8, 726 P.2d 445.

In Sieler, a school secretary received information from a parent that a drug transaction may have taken place in a vehicle parked in the school parking lot. Sieler, 95 Wash.2d at 44-45, 621 P.2d 1272. The secretary called the police and reported the incident. The radio dispatch indicated that a drug transaction may have occurred in a certain make of car and the license plate number was given. No other details were provided. On his way to the school, the officer radioed for additional information regarding the manner in which the information was obtained and the identity of the informant. Sieler, 95 Wash.2d at 45, 621 P.2d 1272. The officer was told that a Mr. Tuntland had concluded that a drug transaction had occurred but that he was unavailable.

The court held that the officer lacked the requisite reasonable suspicion to conduct an investigatory stop of the occupants of the vehicle because the officer had no information about the informant except his name and only had a description of the vehicle. Sieler, 95 Wash.2d at 50, 621 P.2d 1272. In addition, when the police arrived, the vice-principal told them he had just spoken with the occupants of the car and had observed nothing unusual. The court concluded as follows:

Given the informant's uncertain trustworthiness, the absence of any facts known to the police supporting his allegation, and the unusual circumstance that his allegation was in effect challenged by a presumably very reliable person who had an excellent opportunity to view the defendants immediately before the officers' arrival, the police simply could not have formed a well founded suspicion of criminal activity by the defendants.

Sieler, 95 Wash.2d at 50, 621 P.2d 1272.

In State v. Conner, 58 Wash.App. 90, 791 P.2d 261, review denied, 115 Wash.2d 1020, 802 P.2d 126 (1990), the police received a report from a Budget Rent-a-Car employee that an individual had stolen the wallet of a coworker. The informant told the police that the suspect was being detained at a nearby sales lot and provided a specific and detailed description of the suspect.

In considering whether the tip possessed adequate indicia of reliability, this court noted that "it might initially appear that the factor concerning reliability of the informant is not satisfied, because the facts are so similar to those in Sieler, concerning a telephone informant." Conner, 58 Wash.App. at 96, 791 P.2d 261. We distinguished Sieler, however, on grounds that Sieler involved a report of suspicious activity, whereas the Budget employee reported a specific crime. ² In addition, the court found that the amount of detail given suggested that the information was obtained in a reliable fashion, i.e., from the victim himself. Conner, 58 Wash.App. at 97, 791 P.2d 261.

In this case, the tip lacked sufficient indicia of reliability to justify an investigatory stop. First, the trustworthiness of the informant was unknown. The radio broadcast did not indicate the identity of the informant, the time of the report, where the call originated, or the basis of the informant's information. ³ The dispatch merely stated that there had been a report of two suspicious individuals going door-to-door, and included a general description of the individuals. ⁴

In addition, the tip lacked other indicia of reliability. The only corroborative observation made by the officer was that the defendant appeared startled when he saw the officer and attempted to evade him by turning onto a dead-end street. Flight from, or an obvious attempt to avoid police officers...