State v. Williams, 10845-0-I

• Decision Date: 16 May 1983
• Docket Number: No. 10845-0-I,10845-0-I
• Citation: 663 P.2d 1368,34 Wn.App. 662
• Parties: STATE of Washington, Respondent, v. John L. WILLIAMS, Appellant.
• Court: Washington Court of Appeals

Page 662

34 Wn.App. 662

663 P.2d 1368

STATE of Washington, Respondent, v. John L. WILLIAMS, Appellant.

No. 10845-0-I.

Court of Appeals of Washington Division 1.

May 16, 1983.

[663 P.2d 1369] David Wohl, Washington Appellate Defender Ass'n, Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., Thomas R. Cherry, Deputy Pros. Atty., Seattle, for respondent.

ANDERSEN, Chief Judge.

FACTS OF CASE

The defendant, John L. Williams, appeals the judgment and sentence entered following a jury verdict finding him guilty of burglary in the second degree and theft in the first degree.

On the night of April 7, 1981, a lone officer in a marked police car was patrolling an unlighted residential neighborhood which had experienced approximately 15 burglaries within the preceding 2 months. The officer was within two blocks of a residence that was being burglarized when he received a radio report informing him that the silent alarm at the residence had been activated. The officer responded immediately.

As the officer approached the residence, and within 2 minutes of his having received the call, he saw an apparently unoccupied automobile parked on the street in front of it. As the officer drove up, and within roughly 100 feet from the residence, the headlights of the automobile came on and it began to drive off. The officer promptly pulled the vehicle over to the curb and ordered the driver (the defendant) to turn off the ignition. Within seconds, a backup officer arrived. With guns unholstered, the defendant was ordered out of his car. He was then handcuffed and placed in the back seat of one of the patrol cars.

The two officers then proceeded to investigate the premises and were aided by a canine unit which arrived shortly thereafter. The residence was found to be open, and its contents ransacked. A television set was found just outside the home in the rain. Approximately 10 minutes elapsed from the time the defendant was stopped and the time the officers verified the burglary.

The defendant, who had thus been caught in the act of leaving the scene of a burglary he was in the process of committing when interrupted by the officer's timely arrival was then placed under arrest. The defendant's automobile was impounded and following that, it was searched. Jewelry taken from the burglarized home was found under the driver's seat.

Prior to defendant's jury trial, he moved to suppress certain statements and physical evidence alleging that they were the fruits of an unlawful detention, arrest or impound. The trial court denied the motion. Subsequently, the jury returned its verdict finding the defendant guilty of both burglary in the second degree and theft in the first degree.

The defendant's appeal presents three issues. ¹

ISSUES

ISSUE ONE. Did the trial court err when it denied the defendant's motion to suppress evidence based on the claim that it resulted from an unlawful detention or arrest?

ISSUE TWO. Was the impound and inventory of the defendant's automobile proper?

ISSUE THREE. Did the trial court err when at trial it admitted into evidence the defendant's custodial statements, without having first conducted a CrR 3.5 hearing?

DECISION

ISSUE ONE.

CONCLUSION. The trial court did not err by denying the defendant's motion to suppress evidence. The brief investigative stop of the defendant was proper since it was based on a well-founded suspicion that he was involved in criminal activity. Under the circumstances presented, the stop was conducted reasonably and the defendant's subsequent arrest was also proper since it was based on ample probable cause.

The defendant's principal contention is that his initial detention at the scene of the burglary was an illegal arrest not supported by probable cause that a crime had been committed. We disagree.

It is settled law that a police officer who has a reasonable suspicion based on objective articulable facts that an individual has committed or is committing a crime may make a brief investigatory stop of that person even though probable cause for an arrest may be lacking. E.g., State v. Thompson, 93 Wash.2d 838, 840-43, 613 P.2d 525 (1980); State v. Selvidge, 30 Wash.App. 406, 409, 635 P.2d 736 (1981). Although such a stop constitutes a "seizure" under the Fourth Amendment, the fact that a suspect's freedom to move is completely restricted does not transform a valid investigative detention into a traditional arrest with its requirement of probable cause. State v. Wakeley, 29 Wash.App. 238, 240, 628 P.2d 835 (1981); State v. Gardner, 28 Wash.2d 721, 725-26, 626 P.2d 56 (1981). As in other areas of constitutional jurisprudence, the reasonableness of such seizures depends " 'on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.' " State v. White, 97 Wash.2d 92, 105, 640 P.2d 1061 (1982), quoting Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977).

With respect to the grounds justifying the initial stop in the present case, our opinion in State v. Clark, 13 Wash.App. 21, 533 P.2d 387, review denied, 85 Wash.2d 1018 (1975) is instructive. In Clark, two Seattle police officers responded at night to a silent alarm triggered at a neighborhood residence. When they were 300 yards from the home, they observed the defendant on the sidewalk walking towards the residence. Suspecting his involvement in the possible burglary, the officers stopped the defendant, briefly questioned him, placed him in their patrol car and drove to the residence where they checked out the scene of the burglary. Their investigation showed that the house had indeed been burglarized and the defendant was then placed under arrest. State v. Clark, supra, 13 Wash.App. at 22, 533 P.2d 387.

In upholding the initial detention and subsequent arrest in Clark, we ruled as follows:

We hold that the officers in this case acted reasonably in detaining [the defendant] while they investigated the source of the alarm. The signal from the silent alarm device was a substantial indication that someone was forcing entry into the house. [The defendant's] appearance, conduct, and presence in the vicinity pointed directly toward his participation in the activation of the alarm. The police, acting for the citizenry, had the duty to investigate. This required [the defendant's] detention and an examination of the house. There was probable cause to arrest [the defendant] as soon as the fact of the burglary had been established.

It appears from the evidence that sometimes silent alarm-type devices give a signal even though there has not been an illegal entry. If that occurred in this case, the blame for [the defendant's] temporary detention could properly be attributed to his being where he was under suspicious circumstances, rather than upon an unwarranted intrusion upon his freedom by the police.

State v. Clark, supra at 23-24, 533 P.2d 387. Accord, Seattle v. Urban, 32 Wash.App. 634, 635-36, 648 P.2d 922 (1982).

Here, within some 120 seconds of the radio report, the patrolling officer observed the defendant's automobile parked on the street immediately in front of a private residence where a silent alarm had just been triggered. This was at night, in an unlighted area of a neighborhood in which some 15 residential burglaries had occurred during the preceding 2 months. There were no business establishments of any kind in the area and apparently no other vehicles on the street at the time. As the officer approached the scene in his marked patrol car, the headlights of the defendant's automobile suddenly flashed on and it began to drive off. At this point, the officer blocked the path of the departing vehicle.

When viewed in a commonsense fashion, as we must, these facts and circumstances clearly demonstrate that the officer had a well-founded suspicion that the driver of the automobile may well have been involved in a burglary and, upon recognizing the officer's marked patrol car arriving on the scene, sought to flee.

As we have previously quoted with approval:

[I]n such circumstances, where a crime may have been committed and a suspect or important witness is about to disappear, it seems irrational to deprive the officer of the opportunity to "freeze" the situation for a short time, so that he may make inquiry and arrive at a considered judgment about further action to be taken. To deny the police such a power would be to pay a high price in effective policing and in the police's respect for the good sense of the rules that govern them.

ALI Model Code of Pre-Arraignment Procedure, Commentary at 272 (Proposed Official Draft, 1975) (ALI Model Code ) quoted with approval in State v. Gardner, supra, 28 Wash.2d at 727, 626 P.2d 56. Accord, Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1922-23, 32 L.Ed.2d 612 (1972). We hold that the officer's stop of the defendant for investigative purposes was reasonable and proper. State v. Clark, supra; Seattle v. Urban, supra.

When the defendant stopped his automobile, the lone officer exited, unholstered his service revolver and ordered the defendant to turn the ignition off. Within 30 to 45 seconds, another officer arrived as a backup. The defendant, who was advised that he was being detained for suspicion of burglary, was then handcuffed and placed in the back seat of a patrol car while the two officers immediately checked out the scene. The fact of the burglary was verified within minutes (the record suggests a total elapsed time of some 10 minutes). It is the defendant's contention that the officers' show of force coupled with the complete restriction of his freedom transcended an investigative detention and constituted a formal arrest with its attendant requirement of probable cause.

In disposing of contentions similar to the one at hand, this court in State v. Gardner, supra, distinguished the State Supreme Court's decision in State v....