State v. Wheeler

• Decision Date: 04 June 1987
• Docket Number: No. 52679-6,52679-6
• Citation: 737 P.2d 1005,108 Wn.2d 230
• Court: Washington Supreme Court
• Parties: , 56 USLW 2026 The STATE of Washington, Respondent, v. Keith Bryan WHEELER, Petitioner.

Page 230

108 Wn.2d 230

737 P.2d 1005, 56 USLW 2026

The STATE of Washington, Respondent, v. Keith Bryan WHEELER, Petitioner.

No. 52679-6.

Supreme Court of Washington En Banc.

June 4, 1987.

Washington Appellate Defender, Paris K. Kallas, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Deborah J. Phillips, Sr. Appellate Atty., Seattle, for respondent.

DOLLIVER, Justice.

Defendant challenges a Court of Appeals decision affirming his conviction for second degree burglary. We affirm.

On October 7, 1981, during the afternoon, two residents of Cloverdale Street in Seattle called 911 to report suspicious circumstances. The first caller, Beatrice Snyder, reported seeing a man walk by twice as if he were "checking out" a nearby house. A short time later, the man returned with a second man in a green and white car. Snyder watched the two park the car, get out, and dart into a neighbor's yard. The second caller, Mary Grace Dahlen, reported at about the same time seeing a man run past her window. As he ran, the man tossed a pair of gloves into the yard and threw his jacket into a garbage can. He was wearing a bright blue shirt with white stripes.

Seattle police officers Donald R. Smith and Tim Louis Moellendorf received this information and a description of the two suspects over the police radio. They were advised there was a burglary in progress. When the officers arrived at the scene, a witness told them one of the suspects was a few blocks away on Rainier Avenue. The officers drove the indicated distance and saw a man, later identified as the defendant in this case, Keith Bryan Wheeler, wearing a bright blue shirt with white stripes. The man was sweating and out of breath, as if he had been running.

The officers asked Wheeler no questions except his name. They told him he was being held in custody on suspicion of burglary. The officers frisked him and found nothing. They handcuffed him and placed him in the patrol car. They then drove him the two blocks back to Cloverdale Street, where Dahlen identified him as the man she saw outside her window. The time from detention to identification was from 5 to 10 minutes. The officers learned upon return to the scene that a burglary had in fact taken place at the Aquino residence, next door to the Dahlen residence on Cloverdale. Wheeler was then arrested and informed of his rights.

Other officers who had remained on the scene arrested Tony Smith, driver of the green and white car, as he attempted to leave. The officers found various items stacked up by the door of the Aquino house as if to be picked up. Although the owner of the house indicated numerous items were missing, none of the items were found in Wheeler's possession.

The following day, Detective P.L. Hill approached Wheeler in jail and again advised him of his Miranda rights. Wheeler stated he understood his rights and refused to waive them. Hill then began to complete a Personal Investigation Report, telling Wheeler the information was necessary for arraignment. During the course of this questioning, Hill asked Wheeler if he knew Tony Smith. Wheeler denied knowing Smith. Hill knew the information was not necessary to fill out the report. After completing the report, Hill asked Wheeler whether he would make a statement and he refused.

Both Wheeler and Smith were charged with second degree burglary. The two cases were severed for trial. Wheeler's motions to suppress the eyewitness identification and the clothing he was wearing at the time of the arrest were denied.

During the first morning of the jury trial, Wheeler left the courtroom to go to the restroom and never returned. The trial continued in his absence. The trial court instructed the jury on the elements of second degree burglary and the lesser included offenses of attempted burglary and criminal trespass. Over defense counsel's objection, the court also cautioned the jury not to draw any adverse inferences from Wheeler's failure to testify. The jury returned a guilty verdict.

Sentencing occurred approximately 1 year later, when Wheeler was back in custody. The judge imposed a 10-year sentence. At the same time, the court also revoked Wheeler's suspended sentence and probation in two prior convictions because of the burglary conviction and because he had left the burglary trial.

The Court of Appeals affirmed in a 2-to-1 decision. State v. Wheeler, 43 Wash.App. 191, 716 P.2d 902 (1986). Wheeler's petition for review was granted by this court. Three issues are presented for review: (1) whether the police exceeded the permissible scope of conduct during a Terry stop of defendant under either the Fourth Amendment or Const. art. 1, § 7; (2) whether the trial court erred by admitting a statement made by defendant in response to questioning on his Personal Investigation Report; and (3) whether the giving of a cautionary instruction, over the objection of defense counsel, that the jury was not to consider the fact that defendant failed to testify in reaching its verdict was in error.

I

Defendant concedes the police had sufficient grounds for an investigative detention, or Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Nevertheless, defendant contends the investigation methods used exceeded the scope of a Terry stop and therefore the evidence obtained after his detention was improperly admitted.

The State concedes there was no probable cause for arrest at the time of the initial detention, but argues no arrest was made until after the eyewitness identification. The State contends the police conduct prior to the formal arrest was all within the permissible scope of a Terry stop.

In State v. Williams, 102 Wash.2d 733, 689 P.2d 1065 (1984), we enunciated three factors to be considered in determining whether an intrusion on an individual is permissible under Terry or must be supported by probable cause: (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. State v. Williams, at 740, 689 P.2d 1065. Further, the degree of intrusion must also be appropriate to the type of crime under investigation and to the probable dangerousness of the suspect. State v. Williams, at 740, 689 P.2d 1065.

The purpose of a stop must be related to an investigation focused on the defendant. State v. Williams, at 740-41, 689 P.2d 1065. At the time of the stop, the officers had been informed by police radio that a burglary was in progress and given an identification which matched that of defendant. Although the officers asked no other information of defendant, except his name, after the frisk (which revealed no weapon), he was immediately handcuffed, placed in the back seat of the patrol car, and transported a few blocks to the scene of the crime.

We agree with the Court of Appeals that the amount of physical intrusion in the present case was "significant". State v. Wheeler, supra, 43 Wash.App. at 197, 716 P.2d 902. We also concur with the Court of Appeals that the degree of intrusion was not excessive and was permissible under a Terry stop. There was no violation of either the Fourth Amendment or Const. art. 1, § 7.

First, as the Court of Appeals points out, the purpose of stopping Wheeler was to detain a person whose description specifically matched that of a witness to several suspicious activities. This is in marked contrast to Williams where no investigation had been focused on the person detained.

Second, we agree with the Court of Appeals that frisking and handcuffing defendant for the two block ride back to the scene of the burglary was not impermissibly intrusive. While in State v. Williams, supra, 102 Wash.2d at 740 n. 2, 689 P.2d 1065, the court stated that in the context of a Terry stop "[d]rawn guns and handcuffs, generally, are permissible only when the police have a legitimate fear of danger ...", the circumstances here were such as to justify handcuffing and placing defendant in the back seat of the patrol car. Such actions are standard, and we believe appropriate, procedures with the Seattle Police Department when a suspect is confined in a police car. Furthermore, the police car here had no screen separating the front and back seats. Given the legitimate concern for police safety when a suspect is being transported in a police car, the actions of the police were consistent with good police practice and common sense. State v. Walker, 24 Wash.App. 823, 828, 604 P.2d 514 (1979).

Finally, courts disagree as to whether transporting a suspect away from the place the suspect is stopped necessarily transforms a Terry stop into an arrest. Many courts, including the Washington Court of Appeals, have concluded it is reasonable to transport a suspect a short distance in order for a witness to make an identification. State v. Gardner, 28 Wash.App. 721, 626 P.2d 56, review denied, 95 Wash.2d 1027 (1981) (suspect driven six blocks). Many of these cases, however, have involved some additional factor making transportation acceptable. See, e.g., State v. Bell, 395 So.2d 805 (La.1981); Wilkerson v. United States, 427 A.2d 923 (D.C.1981), cert. denied, 454 U.S. 852, 102 S.Ct. 295, 70 L.Ed.2d 143 (1981) (defendants consented to the transportation); People v. Lippert, 89 Ill.2d 171, 59 Ill.Dec. 819, 432 N.E.2d 605, cert. denied, 459 U.S. 841, 103 S.Ct. 92, 74 L.Ed.2d 85 (1982) (probable cause already satisfied). Other courts have prohibited virtually any transportation without probable cause for arrest. People v. Cobbin, 692 P.2d 1069 (Colo.1984); People v. Harris, 15 Cal.3d 384, 391, 124 Cal.Rptr. 536, 540 P.2d 632 (1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1664, 48 L.Ed.2d 175 (1976).

Professor LaFave proposes a middle ground between forbidding any transportation during a Terry stop and allowing it freely:

More appealing is the conclusion that because transportation of the suspect even a short distance is more intrusive than a...