State v. Wilkinson

• Decision Date: 03 January 1990
• Docket Number: No. 22846-3-I,22846-3-I
• Citation: 56 Wn.App. 812,785 P.2d 1139
• Parties: STATE of Washington, Appellant, v. David Lee WILKINSON, aka David Lee Wilkerson, Respondent.
• Court: Washington Court of Appeals

Page 812

56 Wn.App. 812

785 P.2d 1139

STATE of Washington, Appellant, v. David Lee WILKINSON, aka David Lee Wilkerson, Respondent.

No. 22846-3-I.

Court of Appeals of Washington Division One.

Jan. 3, 1990.

Publication Ordered Feb. 1, 1990.

Review Denied March 27, 1990.

Norm Maleng, King County Pros. Atty., James M. Cline, Deputy, Seattle, for appellant.

Bernadette Foley, Public Defender, Seattle, for respondent.

WEBSTER, Judge.

The State appeals an order granting David Lee Wilkinson's motion to suppress. Wilkinson surrendered a controlled substance to a police officer in response to a question during a frisk for weapons. He was a passenger in a car stopped because its driver had a suspended license.

FACTS

The officer came in contact with Wilkinson on the night of January 23, 1988. Wilkinson was in a car driven by James Blair Jr. Blair admitted a month earlier to the same officer that his license was suspended. The admission came during an investigation by the officer which led to Blair's arrest for possession of stolen property at 2827 Southwest Yancy Street, Seattle, Washington. Between that time and the night of January 23, the officer had several contacts with Blair. On the night of January 23, the officer saw him standing next to a blue compact station wagon at the Yancy Street address. The officer stopped and spoke with Blair and another individual who was inside the car. Blair assured the officer he was not going to drive. The officer drove approximately one block East and parked in a Pay'N'Save parking lot to do some paperwork.

About 10 minutes later, the officer observed the blue station wagon drive by. Blair was driving. The officer proceeded behind, actuated his emergency overhead lighting, and shined his spotlight on the car--first at full intensity to get Blair's attention, then at a lower intensity. When the car did not immediately pull over, the officer increased his spotlight to full intensity. Blair proceeded eastbound to the intersection of Delridge Way Southwest and Southwest Andover, turned left, and continued northbound a quarter to a half a block before pulling to the curb. The blocks were extra long. According to the officer, "It wasn't as if they were trying to get away ... it's just that they weren't pulling over immediately as they should have."

With his spotlight on, the officer could see into the car before it stopped. There were three individuals: Blair driving, Wilkinson beside him in the passenger seat, and, in the back, the person who earlier was sitting inside the car at the Yancy address. The last person "wasn't doing anything" although his head would turn, talk to Blair and Wilkinson, and then look back at the officer. Wilkinson "was moving around considerably, and it appeared as though he was trying to hide something under the seat. He kept leaning forward down near the front of the seat."

The officer exited his car and advised the three over his PA system to make their hands visible by putting them on the dash or seat in front of them. He was concerned for his safety because he was by himself and another patrol unit was not nearby. Also, it was dark, and he remembered arresting the person in the back seat for a controlled substance violation and for possession of stolen property when he arrested Blair. He recalled seeing Wilkinson, too, at the Yancy Street address when he arrested Blair. The officer approached the passenger side of the car and asked Wilkinson to get out, which he did. The officer was concerned that "if [Wilkinson] was attempting to hide a weapon or something, ... it would be most readily accessible to him". The officer told Wilkinson to put his hands on top of the car and began a patdown search.

Either immediately before or during the patdown, the officer asked, according to Wilkinson,

I'm not going to get stuck with any sharp objects or syringes or anything like that? And I says: No. And then I reached into my pocket and I says: Well, I do have a syringe in my pocket, and I pulled it out and handed it to him.

The officer asked about sharp objects and syringes because he knew several fellow officers who had frisked suspects and had accidentally been stabbed by hypodermic needles. He was concerned about contracting AIDS or hepatitis. He had inquired about sharp objects and syringes in the past, and was wearing gloves at the time.

The officer examined the syringe with a flashlight. It contained blood, which appeared brownish red. Based on years of experience with controlled substance violations, he knew of a practice whereby drug users inject a syringe into their veins and work the plunger up and down. According to the officer,

They call it jacking off, and what it does is it brings blood back into the syringe, mixes it with the narcotic, and they just keep doing it back and forth, back and forth. I'm advised, although I have no personal experience in it, that it creates a more intensive high for them.

The officer suspected recent drug use, "probably heroin, something of that nature". He removed the cap and discovered fresh blood on the needle.

At this point, the officer placed Wilkinson under arrest and advised him of his Miranda rights. In a search incident to the arrest, the officer discovered another syringe with clear liquid in it and two white tablets, which he confiscated as evidence. Laboratory analysis revealed that the tablets did not contain a controlled substance, although the syringes did.

At the suppression hearing from which the State appeals, Wilkinson, who is 6 feet 5 inches tall, said he was trying to move his seat back for leg room and that he did not notice the police car until after Blair turned the corner. Moments earlier, he testified that Blair said, "Oh, shit, the cops are pulling us over," before turning the corner.

BASIS FOR PATDOWN

An officer who properly stops a car may conduct a search for weapons within the immediate control of the driver and passengers when one of the persons in the car moves as if to hide a weapon. State v. Kennedy, 107 Wash.2d 1, 726 P.2d 445 (1986). This is a "bright-line rule". State v. Patterson, 112 Wash.2d 731, 734, 774 P.2d 10 (1989). It is exactly what occurred in Wilkinson's case.

In Kennedy, the defendant was convicted of possessing over 40 grams of marijuana. He moved to suppress the discovery of marijuana on the ground that it was obtained as a After he signaled Kennedy to pull over, Adams observed Kennedy lean forward as if to put something under the seat. Once they both stopped, Adams approached the car and asked Kennedy to get out. Kennedy complied and moved to the rear of his car. Adams looked into the car to identify the passenger and reached under the front seat. A plastic bag was found which he suspected contained marijuana and he removed it from the car.

                result of an illegal stop and search of the car he was driving.   Our Supreme Court disagreed.   After an introductory paragraph, the court listed in the next two paragraphs the facts which justified the stop.   Then the court identified the fact which justified a search for weapons
                

(Emphasis added). Kennedy, 107 Wash.2d at 3, 726 P.2d 445. The court's analysis began with the stop.

If the initial stop was unlawful, the subsequent search and fruits of that search are inadmissible as fruits of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963); State v. Larson, 93 Wn.2d 638, 611 P.2d 771 (1980).

Kennedy, 107 Wash.2d at 4, 726 P.2d 445. After determining that the stop was lawful and that the officer could require Kennedy to exit the car, the court addressed the search of the area under the driver's seat where Kennedy had been sitting. Id. at 9, 726 P.2d 445. The court rejected the idea that the marijuana found there was in "plain view" or "open view." Instead, the court applied another exception to the warrant requirement: "The same concern that justifies [a] frisk under ... Fourth Amendment analysis, possible danger to the officer, justifies it under article 1, section 7." (Emphasis added). Id. at 10, 726 P.2d 445.

Turning to the facts of the present case, Adams saw a furtive gesture sufficient to give him an objective suspicion that Kennedy was secreting something under the front seat of the car. From his vantage, in his own car behind Kennedy's, he had no way of knowing what Kennedy was hiding. When he had Kennedy outside the car, he did not frisk him, as he could have had he suspected Kennedy might be armed. However, there remained the gesture, the unknown object under the front seat, and the passenger inside the car who had easy access to the object.

(Emphasis added). Id. at 11, 726 P.2d 445. This language assumes the officer had reason to believe Kennedy was armed. Just as Kennedy could have hid a gun under the driver's seat, he could have picked one up from that location and put it on his person. In the course of attempting to hide a gun, he could have changed his mind and kept it on his person. Here, too, the officer had no way of knowing whether Wilkinson picked up a gun from under the seat or whether he had put one there. Wilkinson could have attempted to hide a gun, only to abandon the effort because of the apparent difficulty he was having. If the officer had simply reached under the front seat, he could have been shot in the back.

The suspicion of a marijuana purchase in Kennedy did not create a suspicion that the defendant was armed. See 3 W. LaFave, Search & Seizure § 9.4(a), at 507 & nn. 34, 35 (2d ed. 1987). Nor did the court in Kennedy suggest otherwise. The court observed that the State's interest in preserving evidence did not factor into its analysis as it would in the case of a search incident to arrest. Kennedy, at 11-12, 726 P.2d 445. This distinguished State v. Stroud, 106 Wash.2d 144, 720 P.2d 436 (1986), which upheld a car search incident to arrest based on the dual interests of officer safety and preserving evidence.

The trial court noted...