State v. Young

• Decision Date: 11 June 1998
• Docket Number: No. 65475-1,65475-1
• Citation: 135 Wn.2d 498,957 P.2d 681
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Kevin YOUNG, Petitioner.

Page 498

135 Wn.2d 498

957 P.2d 681

STATE of Washington, Respondent, v. Kevin YOUNG, Petitioner.

No. 65475-1.

Supreme Court of Washington En Banc.

June 11, 1998.

Dept. of Assigned Counsel, Dino G. Sepe, Tacoma, David Zuckerman, Seattle, amicus curiae on Behalf of Washington Ass'n of Criminal Defense Attorneys.

Dept. of Assigned Counsel, Lise Ellner, Tacoma, for petitioner.

John Ladenburg, Pierce County Prosecutor, Barbara Corey-Boulet, Donna Masumoto, Deputy County Prosecutors, for respondent.

TALMADGE, Justice.

We are asked in this case to determine if a police action constituted a disturbance of a person's private affairs without lawful authority under article I, section 7 of the Washington Constitution. We hold the test for a disturbance of a person's private affairs under article I, section 7 is a purely objective one, looking to the actions of the law enforcement officer, thus rejecting the test for a seizure under the Fourth Amendment articulated by the United States Supreme Court in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Applying our objective test, we hold, under the totality of the circumstances here, the officer did not disturb Young's private affairs and affirm the decision of the Court of Appeals.

ISSUE

Was Young "disturbed in his private affairs ... without authority of law" under article I, section 7 of the Washington Constitution when the police approached him at night in a patrol car while he was on a public street, shining a spotlight on him?

FACTS

Deputy Sheriff Robert Carpenter, who had been a patrol officer for nearly all of his 12 years of service with the Pierce County Sheriff, was assigned to the Lakewood precinct and University Place. ¹ On August 24, 1994, he was working a swing shift in an area (Tillicum, McChord gate area, Ponder's Corner, and the south end of South Tacoma Way) considered to have a high incidence of narcotics activity. He said during the summer of 1994, the incidence of open narcotics activity in that area was so high, he made at least two or three narcotics arrests during every shift, predominantly for possession or sale of crack cocaine and methamphetamine.

At 9:40 p.m., Carpenter was on Lincoln Avenue in the vicinity of the McChord Air Force Base gate. He spotted Kevin Young standing on the corner of Lincoln and Chicago, talking to a young woman, but did not observe anything relating to Young that aroused his suspicions. Carpenter testified he did not recognize Young, and, because he tries to get to know the people in his area of responsibility, he stopped his patrol car, exited the vehicle, and talked to Young. He asked how Young was doing, learned Young's name was Kevin Young, and returned to his patrol car. He testified he did not recall any other details of his conversation with Young. He did not search Young, or ask to search him. He described the meeting as a social contact.

After Carpenter returned to his car, he drove off northbound on Lincoln, down a hill. He stopped his car and radioed for a criminal history records check on Kevin Young. Carpenter asked for the criminal records check because he did not know Young and because the area had a high incidence of narcotics activity. The check revealed Young had a very extensive background in narcotics sales with prior narcotics arrests.

By this time, Carpenter had parked a half block downhill on Lincoln, away from Young. After he received the criminal history information, he resumed driving. While looking in his rear view mirror, Carpenter saw Young out in the middle of the street, apparently watching to see where Carpenter was driving--"it appeared to me that he was looking to see if I was leaving the area." Report of Proceedings at 12, 14. Because Carpenter had proceeded down Lincoln, the crest of the hill would have prevented him from seeing Young had Young not mounted the crest in an apparent attempt to see where Carpenter had gone.

Carpenter then turned his vehicle around and, at a normal speed, headed back up Lincoln toward Young. Young, walking at a fast pace, began moving toward a bushy area near an apartment complex. Carpenter then speeded up. As Carpenter drove up the hill, he shined the patrol vehicle spotlight on Young when Young was about three or four feet from a tree. He saw Young walk behind the tree, crouch down, and toss something about the size of a small package into the area near the tree. Young continued walking, now away from the tree, and at a very fast pace. After he was away from the tree, he "stopped running" and began walking. Report of Proceedings at 12.

Carpenter drove to the opposite side of the street, stopped his patrol car close to the tree, and exited the vehicle. He asked Young to stop. Then he retrieved the object he saw Young dispose of behind the tree. Carpenter described the object as half a Coke can with a charred bottom, containing a rock-like substance that appeared to be crack cocaine.

In answering the question as to why he stopped Young after he had seen Young dispose of the package, Carpenter said: "I believed he was trying to dispose of some type of contraband, narcotics or something, that he didn't want me to find on his possession at the time, and I believed that his actions were suspicious enough for me to check and see what that was." Report of Proceedings at 17. After retrieving the can, he arrested Young for possession of a controlled substance. Carpenter testified Young was not free to leave after he told him to stop, but he did not direct Young to stop at any time other than the single instance after he saw him throw the object behind the tree.

The State charged Young with unlawful manufacturing of an imitation controlled substance, pursuant to RCW 69.52.030(1).² Young moved to suppress the evidence, consisting of the half Coke can and its contents, pursuant to CrR 3.6. At the conclusion of the hearing, the trial court granted Young's motion to suppress:

The defendant is deemed to have been seized at the point the deputy illuminated the defendant with the spotlight. At that point, the deputy had no reasonable articulable suspicion to believe the defendant was involved in criminal activity, and therefore was not entitled to detain him. Any evidence discovered as a result of such detention is inadmissible.

Clerk's Papers at 33. The trial court entered findings of fact and conclusions of law on the suppression. As a result of the suppression of the evidence, the State moved for an order of dismissal without prejudice, and the trial court granted the motion.

The State appealed. Division Two reversed the trial court in a published opinion. State v. Young, 86 Wash.App. 194, 935 P.2d 1372 (1997). The Court of Appeals held Young was not seized within the meaning of the Fourth Amendment when Carpenter shone the spotlight on him, citing Hodari D. ³ The Court of Appeals applied the analysis of Hodari D. to WASH. CONST. art. I, § 7 as well. On Young's petition, we granted review.

ANALYSIS

This case presents an important issue of search and seizure law. The Court of Appeals, holding California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), comports with article I, section 7, found no seizure occurred. Young, 86 Wash.App. at 203, 935 P.2d 1372. We must decide first whether the Fourth Amendment analysis in Hodari D. is consistent with article I, section 7 of the Washington Constitution.

A. The Hodari D. Test for "Seizure"

The United States Supreme Court held in Hodari D. that a seizure within the meaning of the Fourth Amendment is a mixed objective/subjective test. In that case, an officer driving an unmarked patrol car in a high-crime area of Oakland, California, encountered four or five youths on the street. When the youths saw the patrol car approach, they apparently panicked and took flight. Hodari D., 499 U.S. at 622-23, 111 S.Ct. at 1548. Suspicious, the police gave chase. One of the youths, Hodari, discarded what appeared to be a small rock moments before an officer tackled him. The officer recovered the rock, which was later identified as crack cocaine. Id. at 623, 111 S.Ct. at 1548.

The juvenile court denied Hodari's motion to suppress the evidence. The California Court of Appeal reversed, holding Hodari had been "seized" when he saw the officer running toward him. The court found the seizure unreasonable, and suppressed the evidence as the fruit of the illegal seizure. Id.

The United States Supreme Court addressed only the issue of whether a seizure of Hodari had occurred before or after the physical apprehension by the officer. If no seizure occurred before Hodari discarded the cocaine, that is, if no seizure occurred simply as a result of the officer's running toward Hodari, then Hodari simply abandoned the contraband, the police lawfully recovered it, and it was not the fruit of an illegal seizure. On the other hand, if the fact of the officer's running toward Hodari in and of itself constituted a seizure, then it was unreasonable and in violation of the Fourth Amendment because Hodari's behavior did not give the officers probable cause to detain him; all he had done was run from the approaching patrol car.

The Supreme Court in Hodari D. formulated the question narrowly: can a seizure occur even though the subject does not yield? The Court held in the negative. Id. at 626, 111 S.Ct. at 1550. Citing Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968), the Court identified two ways in which a seizure may occur: a seizure occurs "when the officer, by means of physical force or a show of authority, has in some way restrained the liberty of the citizen." In Hodari D., as in the present case, there was no application of physical force at the time both defendants assert the seizure occurred, so the threshold question in both cases is whether the actions of the officer constituted a show of authority that in some way restrained the...