State v. Wheeler

• Decision Date: 24 March 1986
• Docket Number: No. 13323-3-I,13323-3-I
• Citation: 43 Wn.App. 191,716 P.2d 902
• Parties: STATE of Washington, Respondent, v. Keith Bryan WHEELER, Appellant.
• Court: Washington Court of Appeals

Page 191

43 Wn.App. 191

716 P.2d 902

STATE of Washington, Respondent, v. Keith Bryan WHEELER, Appellant.

No. 13323-3-I.

Court of Appeals of Washington Division 1.

March 24, 1986.

Review Granted June 3, 1986.

Washington Appellate Defenders Paris K. Kallas, Seattle (court-appointed), for appellant.

Norm Maleng, King County Pros. Atty., Roland Nikles, Deputy Pros. Atty., Seattle, for respondent.

SWANSON, Judge.

Keith Bryan Wheeler appeals his conviction for second degree burglary. Two probation revocations arising from that burglary conviction have been consolidated with this appeal.

Wheeler contends that police exceeded the permissible scope of a valid Terry investigatory stop when they frisked and handcuffed him and then transported him two blocks for a show-up at the scene of a burglary. Wheeler also claims that admission of a statement made to police during questioning for a Personal Investigation Report (PIR) violated his right to remain silent. Finally, Wheeler assigns error to a cautionary jury instruction given over defense objections and to a jury instruction that failed to specify the underlying crime for the burglary charge. We affirm.

On the afternoon of October 7, 1981, Seattle Police officers Donald Smith and Tim Moellendorf responded to a possible burglary on Cloverdale Street. Two residents had called 911 after observing suspicious circumstances. Beatrice Snyder had observed a man twice walk by on the street as though he were "checking out" the neighbor's house. A short time later, the same man returned with another man in a green and white car. Ms. Snyder watched as the two parked the car, got out, and darted into a neighbor's yard. Mary Dahlen, another neighbor, also called 911 at approximately the same time after seeing a man run past her window. As he ran, the man tossed some gloves into the yard and threw his jacket into the garbage can. He was then wearing a blue shirt with stripes.

Officers Smith and Moellendorf received a description of the suspects over the radio. Upon arriving at the scene, the officers were told that one of the suspects was several blocks away on Rainier Avenue. The officers drove several blocks and spotted a man, subsequently identified as the defendant in this case, Keith Bryan Wheeler, wearing a blue shirt with stripes. The man was perspiring and out of breath, as though he had been running.

The officers did not question Wheeler at this time, but advised him that he was being held on suspicion of burglary. He was frisked, handcuffed, and transported approximately two blocks in the police car to the scene on Cloverdale Street. As the officers returned with Wheeler, they were informed by officers at the scene that a burglary had taken place in the Aquino residence on Cloverdale. Ms. Dahlen identified Wheeler and his clothing. Wheeler was then arrested and informed of his rights.

Police at the scene detained Tony Smith, the driver of the green and white car, as he attempted to leave and then discovered the ransacked Aquino house. Although the owner of the house indicated that numerous items were missing, none of the items were found in Wheeler's possession. Police found various items stacked up by the door of the house as though ready to be picked up.

The following day, Det. Hill approached Wheeler and advised him again of his Miranda rights. Wheeler refused to initial the rights sheets but indicated that he understood his rights. Det. Hill then gathered information for the PIR, telling Wheeler that the information was necessary for arraignment. During the course of this questioning, Hill asked Wheeler if he knew Tony Smith, the co-defendant. Wheeler denied knowing Smith. After completion of the PIR, Wheeler was asked whether he would make a statement and he refused.

The State charged Wheeler by information filed February 9, 1982, with second degree burglary. A jury trial commenced on May 25, 1982. Sometime during the first day of trial, Wheeler left the courtroom to go to the bathroom and never returned. The trial continued, and the jury returned a guilty verdict. Wheeler's explanation at trial, as given by his probation officer, was that he had accepted a ride to work from Smith and that Smith made a detour along the way to contact a drug dealer. When Wheeler discovered that the ostensible drug deal actually involved a burglary, he fled.

Sentencing was delayed until May 19, 1983, when Wheeler was again in custody. The judge imposed a ten-year sentence. At the same time, the court also revoked Wheeler's suspended sentence and probation in two prior cases because of the burglary conviction and because he had left the burglary trial.

I.

When evaluating a Terry investigatory stop, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a court must make two inquiries: "First, was the initial interference with the suspect's freedom of movement justified at its inception? Second, was it reasonably related in scope to the circumstances which justified the interference in the first place?" State v. Williams, 102 Wash.2d 733, 739, 689 P.2d 1065 (1984). Wheeler concedes that the initial investigative stop by police was proper. We therefore must determine whether police exceeded the proper scope of the detention by frisking and handcuffing Wheeler and transporting him approximately two blocks to the scene of a possible crime for identification by a witness.

The permissive scope of a valid Terry investigatory stop depends on the facts of the specific case.

This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.

Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983).

Relying on federal law as well as on independent state constitutional grounds, our Supreme Court set forth three factors for a court to consider in assessing the scope of the intrusion: (1) the purpose of the stop; (2) the amount of physical intrusion upon the suspect's liberty; and (3) the length of time the suspect is detained. Williams, supra, 102 Wash.2d at 740, 689 P.2d 1065. If police actions exceed the proper scope of a valid Terry stop, they can be justified only if supported by probable cause to arrest. Williams, supra, at 741, 689 P.2d 1065.

Courts in several jurisdictions have approved the transportation of suspects a short distance for purposes of identification. See 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.2, at 44 n. 93 (1975) and cases cited therein. Courts in this state have not yet applied the Williams factors to the removal of a suspect from the location of an investigatory detention for purposes of a showup. However, this court on at least two occasions has found removal of a suspect from the location of an investigatory stop or continued detention for a showup to be consistent with the purposes of an investigatory stop. See State v. Gardner, 28 Wash.App. 721, 626 P.2d 56 (1981) (suspect taken six blocks to stolen vehicle); State v. Walker, 24 Wash.App. 823, 604 P.2d 514 (1979) (suspect detained in police car while victim came to identify). Application of the Williams guidelines to the case at bar supports the trial court's decision upholding the validity of the detention.

Purpose of the Stop. In Williams, police stopped a vehicle leaving the location of a silent burglar alarm. The police frisked the suspect, advised him of his rights, and sequestered him in the police car before determining whether an actual burglary had occurred. The Supreme Court noted that the purpose of the stop was not related to the detention, because the police did not question the suspect but held him while additional evidence was collected. Williams, supra 102 Wash.2d at 740, 689 P.2d 1065.

In the instant case, the police unit that detained Wheeler had not itself confirmed the existence of a crime at the time it transported him. However, the police unit at the scene confirmed the burglary virtually simultaneously with Wheeler's detention. The police transporting Wheeler to the scene were told of the confirmed burglary immediately upon their return. Moreover, in the present case, police suspicion had already focused on Wheeler, a circumstance termed "essential" in Williams. The police had been given eyewitness accounts of several suspicious activities. One witness had provided a specific description of the suspect and his clothing, and that description matched Wheeler.

Amount of Intrusion. Although police did not draw their guns as did the officer in Williams, the amount of intrusion in the present case was significant. The police frisked and handcuffed Wheeler for the ride back to the burglary scene.

The Court in Williams observed that in the context of an investigatory detention "[d]rawn guns and handcuffs, generally, are permissible only when the police have a legitimate fear of danger." Williams, supra at 740 n. 2, 689 P.2d 1065. In a typical street encounter Terry does not permit a frisk based simply on a "generalized suspicion" that a suspect is dangerous. See State v. Smith, 102 Wash.2d 449, 453, 688 P.2d 146 (1984). This court has also observed that "[a]lthough, normally, handcuffing an individual is not within the scope of an investigative stop and Terry frisk, in appropriate cases handcuffing may be 'reasonable, as a corollary of the lawful stop.' " State v. Wakeley, 29 Wash.App. 238, 243 n. 1, 628 P.2d 835 (1981) (quoting United States v. Purry, 545 F.2d 217, 220 (D.C.Cir.1976)). Additional considerations arise, however, when a suspect is transported within the confines of a police car. Wheeler was frisked and handcuffed not because police believed Wheeler was dangerous but because such actions are standard procedure when a suspect is transp...