State v. Kennedy

16, 1986.] 50848-8. En Banc. October [No. Respondent, State of Washington, Michael Kennedy, Petitioner. Makus, Makus, Nagle, L. and Makus &

Jerry M. James petitioner. for

Arthur R. Eggers, Prosecuting Attorney, Donald W. Schacht, Deputy, for respondent. J. Michael Kennedyappeals the Court Utter,

Appeals possession affirmance of his over conviction for grams of marijuana. urges He reversal his conviction because the initial he driving of the car was subsequent its search was a violation of article section of the Washington Constitution and the fourth amendment to the such, United States he Constitution. As contends the subsequent discovery of have marijuana should been suppressed at trial. We affirm the con disagree and viction.

At about 2:30 p.m. September Officer by Leonard Adams drove Rob house Walla Smith's complaints Walla. He investigating from Smith's neighbors heavy pedestrian there was out traffic stayed Smith house and that individuals involved only few moments. As he drove he saw maroon car, side, with passenger someone seated on the parked near the Smith house.

Adams had information from received informant Kennedy Michael regularly purchased marijuana from Smith, that Kennedy only went to Smith's house to buy drugs, and Kennedy usually light drove either a green pickup truck or a maroon Oldsmobile belonging to Sue Sisón. He had the license checked and found out the car belonged car, to Sue Sisón. As he sat his he observed Kennedy house, get come out of the Smith into the car and ofp. drive Kennedy's He saw hands nor sus- nothing any picious activity to stop Kennedy but nevertheless decided investigate to Kennedy he purchased because believed had marijuana. some over,

After he signaled pull to Adams observed Kennedy Kennedy lean put forward as if to under something seat. Once they both Adams car stopped, approached the and asked Kennedy Kennedy complied out. and get moved rear of his car. Adams looked into the car to 4 A under the front seat. and reached passenger

identify contained mari- suspected which he bag was found plastic Kennedy the car. was it from he removed juana and he in which he stated had conversation released after a Kennedy was the Smith house. marijuana purchased marijuana possession with charged subsequently seized from the car. The marijuana suppress moved to appealed, he He was convicted. denied motion was conviction. upheld the Appeals the Court I begins with the were violated rights

Whether defendant's unlawful, the subse- If car. the initial stop of the are as of that search inadmissible search and fruits quent States, Wong Sun tree. poisonous fruits of the (1963); 441, 471, S. Ct. 407 U.S. 9 L. Ed. 2d 83 371 Larson, 93 638, 611 P.2d 771 Wn.2d stop, although Kennedy agree that Both State and arrest, seizure and less intrusive than an is nevertheless Amendment must reasonable under the Fourth therefore 1, Constitution. Washington section 7 of the and article Ohio, 889, Terry v. 1, 88 S. Ct. U.S. 20 L. Ed. 2d Lesnick, 84 Wn.2d 940, P.2d (1968); if not an (restraint even of an individual the police, denied, cert. 891, L. Ed. 2d seizure), arrest 721, Mississippi, Davis v. (1975); 96 S. Ct. (the 22 L. 2d Fourth Ed. 89 S. Ct. involuntary Amendment at the inves applies to detention Washington 7 of the Con tigative stage). Article section in his provides, person stitution shall be disturbed ".No affairs, invaded, authority of or his home without private regarding article the concern law." Under section in his "private defendant been disturbed whether has inqui similar questions many ways raises affairs" to be stop required of the regarding ries reasonableness under Terry. examined term to include found "private affairs" has been Gibbons, State v. and their contents.

automobiles (1922). Nevertheless, P. Wash. that does not altogether preclude the warrantless or search of an automobile. There nois historical evidence that the framers constitution, of they contemplated our had of the existence automobile, from a completely exempted would have it of Nothing reasonable search or seizure. our language Furthermore, compels constitution a different result. arrest, court recognized, has albeit the context of that article permits pas- section warrantless search Stroud, State v. senger compartment an automobile. (1986). Wn.2d 720 P.2d 436

Our is approach analysis further reflected our Myrick, 7 in State v. article section 102 Wn.2d (1984). P.2d There we observed that the relevant inquiry under Washington determining Constitution for whether search has occurred "whether the State unrea sonably intruded into the defendant's 'private affairs."' See also Simpson, 95 Wn.2d 622 P.2d 1199 We believe that this is proper inquiry also the under our constitution to determine whether an investigative stop permissible. Supreme We note the United States Court approached has the investigative stop from similar perspective. analysis Therefore our begins based premise that we should focus on the reasonableness officer's respect privacy activities with to the rights thereby invaded. Ohio, Terry supra, Supreme Court framed the

inquiry regard with to an investigative stop as whether the officer had "specific which, and articulable facts taken together facts, with rational inferences from those reason- Ohio, ably warrant intrusion." 21. 392 U.S. at Terry, however, involved firsthand by police observation suspicious activity. bench, In the case at Officer Adams saw suspicious activity no prior signaling Kennedy pull over. He derived the from facts which he based his conclu- buy sion a drug tips on informant his own experi- ence.

It is generally recognized prevention that crime 6 purposes investiga- legitimate

and crime detection are Ohio, See Adams supra; or stops tive detentions. 612, Williams, 143, 2d S. Ct. 1921 407 U.S. 32 L. Ed. 92 (1978). LaFave, Search and Seizure 9.2 (1972); W. § critics, among courts dispute While there has been some investiga- crime or under required suspected have not the See, e.g., United offense. felony tion to a or serious Cortez, S. Ct. States v. L. Ed. 2d (1981). required cause is because probable Less than than an arrest. less intrusive stop the is significantly otherwise, the level articula- argued have Although some stop greater for a car no than suspicion required ble Prouse, stop. Delaware v. required pedestrian for a L. 2d 99 S. Ct. 1391 Because Ed. us to examine reasonable- requires article section knew, he in view of facts ness of officer's actions provi- that inquiry our under analysis this same describes sion. describe, terms, to although difficult many legal

As with developed a definition does have suspicion articulable various situations. through application use of the term has one must suggested Court Supreme States The United States v. totality of the circumstances. look at the Cortez, Cortez Court described articulable sus- supra. infor- reasonably surmise from the ability picion as progress in or had a crime was mation at hand that for the Hence, required probability degree occurred. than is less situation police conclusion LaFave, the stand- suggests LaFave arrest. 3 W. at 65. criminal conduct has possibility is a substantial ard We this to be to occur. believe or is about occurred ability of law enforce- It maintains the definition. preferred yet reasonably safe- ment to deter criminal conduct is consistent activity affairs." When "private guards noncri- with also consistent activity, although with criminal may a brief detention. activity, justify minal it of a Court reached the issue Supreme than on observation tip an informant rather based on Williams, Adams v. supra. police officer, There acting tip on a stop, approached received at scene of the suspect sitting a car and him to door. open asked suspect window, When the instead rolled down the offi- cer reached where the informant had said a would gun be, withdrew the sus- gun subsequently arrested the pect. The Court found initial lawful approach because possessed necessary reliability the informant indicia to justify suspicion a reasonable Adams had gun. Several See Stone Pat- v. jurisdictions adopted have analysis. terson, (10th Love, State v. 1972); Cir. 468 F.2d 558 Brown, State v. 596, (1975); Conn. 363 A.2d 1035 195 Neb. 321, McZorn, State v. (1976); 417, N.W.2d 288 N.C. vacated in part, (1975), 219 S.E.2d 201 49 L. (1976). Ed. 2d 96 S. Ct. 3210 Two cases Washington have also addressed the of a issue Sieler, State v. suspect based on informant tips. Lesnick, and State v. 95 Wn.2d P.2d 1272 supra. analysis These cases follow an similar that of the Court, Supreme States permitting police to detain an if only individual the officer a well suspi- has founded cion, facts, on objective person based connected potential or Sieler held that a activity. actual criminal tip may justify possesses detention if it sufficient indicia i.e., reliability, suggest circumstances the informant's reliability or there is some corroborative observation which suggests presence activity of criminal or that the infor- mation in was obtained a reliable fashion.

The Lesnick applied court a similar analysis holding if detention lawful based an informant's tip which reliability demonstrates some indicia of providing objec- tive measure of reasonableness. The court was careful emphasize "no rule single every can be fashioned to meet conceivable confrontation police between the and citizen. police Evaluating reasonableness action and the intrusion, extent of the case must each be considered particular of the circumstances light facing the law enforce- Lesnick, ment officer." 944. This is Wn.2d at g section which to article approach

consistent with our of the officer's reasonableness us to look at the requires dis- "private whether affairs" were determine actions to turbed. Adams squarely within case at bench falls Lesnick

Williams, Officer supra, Sieler analyses. he had suppression hearing Adams testified at for several months tips police from the informant received reliable. He further testified and that the informant was sub- tip of a warrant and that one resulted the issuance reliability" This the "indicia of sequent conviction. satisfies Adams, Lesnick. However, Sieler test set forth two addition, Adams had firsthand corroboration for Officer Kennedy He saw come out of the informant's facts. the informant. and enter a car described Smith house Moreover, source information— had another foot traffic to complaints frequent about neighbors' information does not neighbors' house. Smith reliability as degree of the same showing require than it from "citizen" rather since comes tip informant's Chatmon, State v. See 9 Wn. informants. "professional" Riley, (1973); P.2d 530 34 Wn. App. addition, 532-33, Officer 663 P.2d App. Police Department the Walla Walla Adams had been with years drug-related for involved in over and had been his extensive previous years. Given investigations over this trafficking, experience regarding drug of and knowledge tip. of the other seen as corroboration tip can be pro- each sources of information independent The two of the On the basis veracity. the other's support vide drug investigations, with experience the officer's tips, two infor- of the corroboration some eyewitness his own suspicion mation, had sufficient articulable Officer Adams house. from the Smith away he drove Kennedy to as stop 1, article reasonable under Kennedy was stop Adams' the United and under the fourth amendment section 7 intrusive, lim- was stop, although States Constitution. Adams and known to the facts was warranted ited and he from reasonable conclusions drew them. II No can be if the search reasonable initial detention is However, unlawful. the mere lawfulness of a detention does automatically a subsequent render search reasonable 1, under article section and the Fourth Amendment. Kennedy Because Adams' was based upon articula- ble suspicion, proper, question therefore of whether his subsequent Kennedy's intrusion into car was also lawful must be examined. lawful,

Given that was here, as it was Offi cer Adams' request Kennedy step that out of the car did not unjustifiably Kennedy's intrude on expecta reasonable privacy. tion of circumstances, Under similar the United States Supreme Court has found such an intrusion de min Pennsylvania Mimms, imis. 106, 54 L. Ed. 2d 331, (1977). S. 98 Ct. 330 Washington courts have also sub See, analysis. e.g., scribed Sykes, 27 Wn. App. 115-16, (1980). 615 P.2d 1345 We see no reason to do otherwise this case.

The Court of Appeals upheld search of Kennedy's car on a "plain analysis. view" believe, however, We doctrine incorrectly applied in this instance without further analysis. explained As we have past cases, "plain view" applies to a situation where an officer inadvertently sees an item immediately recognizable contraband, as after legitimately entering area respect with to which a sus- pect legitimate has a expectation privacy. State v. Sea- gull, (1981). 95 Wn.2d 632 P.2d 44 The "plain doctrine, however, view" justify does not the initial intru- sion into the protected Seagull, area. State v. supra; accord, Chrisman, 100 Wn.2d 676 P.2d (1984); Coolidge v. New Hampshire, L. Ed. 2d 91 S. Ct. 2022 The officer's to seize right "must evidence turn legality intrusion perceive enable and physically seize the [d him] question." Brown, 730, Texas v. property 737, 460 U.S. Payton See also Ct. 1535 L. 2d 103 S. Ed. L. Ed. 2d 100 S. Ct. New York, (an cannot be seized on view object plain premises to alone, private if it is "situated that basis for the offi- seizing available which access is not otherwise cer"). justify does not validity initial the seizure is plain exception, a view intrusion. Absent the context of another it occurred within invalid unless exception requirement. warrant to the this opportunity we take some confusion

Because there is view" and "plain "open the difference between to note involves an officer view" situation "plain view." Whereas into a constitu- intrusion viewing an item lawful after an observa- area, "open view” involves tionally protected nonconstitutionally protected area. tion from a (1981). Hence, 898, 901-02, 632 P.2d Seagull, 95 Wn.2d into a car officer, stop, lawful looks making if an after contraband in the weapon from or the outside and sees there has been no car, the car. Because he has not searched Once there is search, implicated. is not article section 7 area, article constitutionally protected an intrusion into the justified must be the intrusion implicated section 7 is "open the terms if it is without a warrant. While made interpreting in cases adopted were "plain view" and view" States of the fourth amendment the demands our state specifically addressed to and not Constitution constitution, they appropriate address are also the concerns in their may "pri- disturbed discussing persons when as the view" situation "open This was not an vate affairs." car. from outside the contraband was not visible excep- a number of under justified Here the search was requirements. same tions to the traditional warrant Amendment the frisk under a Fourth that justifies concern it officer, justifies under to the analysis, danger possible person, First, stops a when an officer section 7. article under certain him, may, the officer question if even just self-protec- a matter of circumstances, suspect as frisk adopted first analysis was "stop This and frisk" tion. Ohio, Terry supra. fact, In most the cases developing on the have focused the frisk rather than reasoning stop the of the portion analysis. questions raised with regard to frisk much suspicion the concern how the officer suspect must have that is armed and dangerous, or objective subjective, whether the test is to what may extent suspect, officer search the containers and area. surrounding An may officer conducting investigative by endangered only suspect but companions of suspect as well. Some courts have held that an officer may frisk companion may if the officer lawfully frisk the v. Berryhill, (9th United States driver, 445 F.2d 1189 Cir. 1971), especially companion where the is in suspect's United States car, (2d Vigo, 1973). 487 F.2d Cir. to Turning case, present facts of the Adams saw a gesture furtive sufficient give to him an objective suspicion that Kennedy secreting something under the front seat of the car. From his vantage, his own car behind Ken- nedy's, he no way had of knowing what Kennedy was hid- ing. When he Kennedy car, had outside the he did not frisk him, as he suspected could have had he Kennedy might be However, armed. there remained the gesture, the unknown object seat, under the front passenger and the inside the car easy who had access to the object.

Recently, parameters this court set out the of a search Stroud, incident In arrest. Wn.2d P.2d (1986), we articulated a rule to aid law enforce- ment officers having scope determine the of an automo- bile search incident to arrest. weighed We the safety of the officers, the State's legitimate interest evi- preserving crime, dence of a heightened privacy interests afforded Washington citizens under our state's constitution. Because an officer luxury street does not have the time necessary to interests, evaluate these disparate we opted for arrest, a clearer rule: upon an an officer may search for weapons or destructible evidence in the vehicle's compartment passenger as well as in any unlocked contain- Wn.2d at 152. compartments. ers glove or unlocked Stroud policy not all the provides guidance, some While present in the case. there exist concerns we addressed Hence, scope search somewhat dif- we must view the Terry arrest, does not to an ferently. contrast or to evidence present officer dangers the same lost, because, without of a crime. evidence could be No be seized. no evidence could predicate, some further suspect less substantially risk Because the to a Stroud arrestee, risk to the offi- presented than that Given the absence of a state cer reduced. correspondingly officer, risk to the interest in evidence and this reduced admittedly private into an area—the degree of intrusion To be reduced. passenger compartment a car—should Terry stop of a coter- scope hold make otherwise would arrest, unsup- a conclusion we find minous with that of an Washington 7 of the portable under article section stop Moreover, the stakes of a raising Constitution. police- in that volatility increase the unnecessarily would citizen encounter.

Hence, context, find Professor LaFave's in this we scope of the search guidelines appropriate. to be safety. This the officer's to assure should be sufficient weapons within the may search for means that officer recognize We also that immediate control. investigatee's in the car any companion applies limited such a search danger similar to the person presents that because in the of the The front seat car approaching officer. next to driver. passenger of a seated immediate control to discover whether in that area Consequently, search the front seat hid under weapon suspect's gesture furtive may frisk sus frisk where an officer to a similar danger. himself from pect protect that it was reason- agree we light principles, of these weapons for a limited search conduct able for Adams to unrea- so. It would be doing objective his reasons given safety. his own ability to assure limit an officer's sonable to 7 of article section behind policy reasons apparent

^3 Stroud Constitution, as well as our recent Washington make a decision, an officer to limited search allow suspect person to assure a passenger compartment weapon suspect's to a within the or car does not have access argument There is no area of control. made passenger's "private affairs" of a driver protected this intrudes on the passenger. or legitimately

Once the officer here was within the within the area of the front legitimately automobile and fell within the seat, discovery "plain of the contraband prior justification The officer had to have a view" doctrine. intrusion; discovery of the contraband had to be for the immediately had to the item recognize inadvertent and he Coolidge Hampshire, v. New supra; as contraband. Lair, 95 Wn.2d 630 P.2d 427 requirement

The first was met inasmuch as the officer's intrusion the car reasonable under article into sec- analysis. Second, tion 7 and its attendant and frisk since Adams came discovery upon was inadvertent the con- looking weapon traband while for a under the front seat. Third, hand, once he in his bag had Adams could conclude, immediately prior based on his own experience narcotics and the information he had about investigating Kennedy, bag Smith household and about Hence, justified contained contraband. the seizure was under doctrine. "plain view" Kennedy

Officer Adams' was reasonable under 1, Washington article section 7 of the Constitution and the fourth amendment to the United States Constitution. His subsequent weapon search for a under the front seat was provisions. also reasonable under those His inadvertent discovery marijuana of was therefore lawful and the subse- quent possession marijuana conviction for of affirmed. Andersen, Goodloe, Durham, JJ., Brachtenbach, concur.

Dore, J., dissents.

14 majority holds the sei (dissenting)—The C.J.

Dolliver, Kennedy zure of Michael did violate defendant narrowly exception warrantless search seizure drawn Ohio, v. Terry 1, 20 889, L. Ed. 2d 88 in set forth (1968). S. Ct. The also holds the informant's majority 1868 was was predicated upon on which the seizure based tip my has suspicion. opinion, majority articulable Terry scope permissible incorrectly perceived our well established unnecessarily relaxes standards I suspicion tips. for informant there governing articulable on the the seizure of defendant grounds fore dissent Kennedy fourth to the violated the amendment Washing and article section 7 of the States Constitution of Michael ton State Constitution. Since the seizure Ken unlawful, evidence seized under nedy plain Lesnick, 84 view doctrine must be excluded. Wn.2d denied, cert. (1975). P.2d 891 I court. would reverse the trial

I Henry Friendly prophetically Fifteen J. years ago, Judge exception and frisk to the Fourth warned that Terry potential had the for abuse grave Amendment Adams, crimes. Williams F.2d the case of possessory on (2d 1970) rev'd J., (Friendly, dissenting), Cir. (1971), rev'd, (1972). rehearing, 441 F.2d U.S. 143 present case is such a situation. The facts of just analysis. The majority case are not amenable to which, seizure approval its seal regrettably puts doctrine, although plain fruitful result due to the view Terry for which was envi- purpose inconsistent with the sioned. roots in "Terry-type stop” principle has its Search and Seizure 9.2, LaFave, prevention.

crime W. § Supreme As the United States stated officer Court, was to enable "a purpose ... and in an appropriate circumstances appropriate approach person purposes investigating manner [to]

15 probable though is no even there possibly criminal behavior Terry, at 22. an arrest." to make cause Terry, has been a since there In two decades the almost of crime purpose limited original of its gradual expansion W. investigation. to crime detection prevention Williams, Adams 407 U.S. In 9.2, at LaFave § (1972), for example, 2d S. Ct. L. Ed. Terry of who was a search an individual upheld the Court weapon of a contra- being possession in of suspected Adams as a may be characterized case Although band. detection, Terry stops sphere into the of crime expanding nevertheless noted rationale the Court stop: in order deter- individual, suspicious of a stop

A brief identity quo to maintain the status momen- his or mine obtaining information, may more tarily while most the officer at light of the facts known to reasonable time.

(Italics mine.) Adams, 146. at rationale quo" status runs "maintaining Cortez, United States cases. post-Terry throughout (1981), L. 2d Ct. 690 for Ed. S. patrol tracking officers had been example, border wore shoes which left a distinctive unknown individual who near the mark the earth Mexico-United States chevron "Chevron", individual, to as was sus- border. The referred he service which would pected operating guide a into the United States from Mexico. illegal aliens smuggle police work led the officers to believe Chevron Elaborate group time and with a place certain appear would stopped up The officers set stakeout and aliens. illegal At particular which area. only leaving vehicle Chevron's opinion upholding of its outset car, Court stated: in this case was to purpose

The limited about their citizen- vehicle question occupants status and the reasons immigration ship deserted trip timespan virtually in a short round area.

Cortez, at 421. 873, v. 422 L. Brignoni-Ponce,

In States U.S. 45 United (1975), 607, upheld Ct. 2574 the Court the Ed. 2d 95 S. patrol randomly to cars which rea right stop of the border suspicious purpose for the limited of sonably appear to citizenship. occupants granting as to their questioning the purpose stop the Court stressed the of right, again "question the car but was to the driver was not to search and passengers citizenship immigration and about their status, patrol] may and he member border ask [a Brignoni- explain suspicious circumstances ..." them to Ponce, Accord, Hensley, States v. 469 at 881-82. (1985) 604, 221, 227-29, 83 L. Ed. 2d 105 S. Ct. 675 U.S. may Terry stop conduct of individual sus (police officers 2 earlier based on pected participating robbery of weeks purpose questions and flyer" asking "wanted for identification). securing the Fourth Amendment and interpreting

Our cases arti- 1, Washington 7 State Constitution simi- cle section Terry of a larly purpose stop the limited be for confirm Williams, In State v. 102 Wn.2d stopping questioning. 733, (1984), example, for which led 689 P.2d 1065 one factor Terry person seizure of a who the court to invalidate that he had the area of a was fact been burglary gather so could questioning police detained not for but White, Similarly, him. State v. 97 against evidence 92, (1982), "stop P.2d we invalidated a Wn.2d 640 1061 gave police it more grounds statute on the identify" detain, citizens than was stop, question authority Terry. provided by is Terry stop investiga-

That of a for limited purpose principle is tory further demonstrated questioning identity has ascertained the stopping once the officer conduct, his that officer suspect and the nature of question suspect exploratory may continue to is that the war- principle manner. The rationale for this

\q question rantless becomes when the "unreasonable" no longer founded on a See United suspicion. reasonable (9th States v. Kenney, 1978); Common- 573 F.2d Cir. Ferrara, (1978); wealth 502, 376 Mass. 381 N.E.2d State, Madison v. N.E.2d 911 App. Ind. (1976); People 429 N.E.2d Carrasquillo, N.Y.2d 445 N.Y.S.2d 97 purpose minimally Terry stop, intrusive therefore, allow to make an intermediate response to probable a situation for which no cause there is to arrest which investigation. but calls for further As the noted, Court must temporary seizure be "reason ably in scope related to the initiation." justification for [its] Terry, Accord, Williams, at 29. ("purpose the stop detention"); petitioner's related to Dun [must be] away York, v. New 60 L. Ed. 2d 99 S. Ct. (concept of is not enough broad to encom arrest). pass all detentions short of The logical corollary if, to this is at its inception, that there is nothing which reasonably and in faith can good during ascertained Terry stop, a A unreasonable. Terry stop was never fishing expedition envisioned be a for evidence. The must seizure relate and further purpose for which the seizure was created: originally pre- crime, venting a ascertaining information, identifying the suspect, or otherwise See maintaining quo. status v. Williams, 738. at

The reason it is necessary to limit of strictly number circumstances under which Terry stop may a be used as an investigative tool is it is an exception general because to the rule search requiring probable warrants and cause. See Williamson, The Concepts Dimensions Seizure: The of of Arrest", (1982). "Stop 43 Ohio St. L.J. always clear, Although separating there is a line a legit- Terry Terry imate detention an arrest. A from detention becomes unlawful when justification no exists its incep- tion or it procure when becomes a method to self-incrimi- In nating event, in a a interrogation setting. custodial of "pre as means Terry justified is no a longer detention (Dim Williams, at 745 serving quo". the status Summers, Michigan U.S. mick, J., dissenting) (citing (1981)). See 701-02, L. 101 S. Ct. 2587 Ed. 2d Seizure, at 813. Dimensions also The Williamson, of Terry example striking The case is present in furtherance to have been made appear which does not L. Leonard Sergeant its Since Detective purpose. allowable for several the defendant investigating Adams had been defendant Terry stop, had known the prior months to the who he unmistakably knew years, approximately 13 function "identification" stop, was at the time of the by the sei- Terry have been furthered possibly could not information addition, Adams had received zure. since pur- the defendant suggesting at least two sources from function Smith, "explanation" marijuana chased from furthered. similarly could not have been Kennedy properly The cannot be characterized seizure rather, stop; it arrest. as a was warrantless to have been the fortuitous appears for the seizure motive view, appear plain contraband would possibility that or the would a furtive defendant gesture, there would be seizures on This court should not condone guilt. confess his fortuity. has in the instant case asserts search majority Williams, L. in Adams v. Ed. 2d

support In Adams officer 612, 92 S. Ct. from a received information reliable informant defendant, car, in his was armed and sitting who was thereafter, possession Immediately of heroin. the officer sitting car in which the defendant was approached the Terry stop I majority and frisk. believe performed Adams too only police broadly. gives It reads unexpectedly arise to situations which authority respond response. The police which immediate require Adams in information the defendant was officer in received exi- substance. No such possession actual unlawful acting not Adams was gency Sergeant exists here. Detective

jg or was committing was that the defendant tip on a "hot" Rather, upon infor- acting a crime. he was about to commit committing pattern mation that defendant had Accord, People a crime. would at some future time commit Tooks, (1978) (police 403 Mich. 271 N.W.2d 503 immediately receipt after of infor- investigation followed weapon). mation that defendant carried a case, Terry I do not disapproving from acting intend to law enforcement officers discourage which, to their train- reports suspicious activity due approve, I ing, criminal conduct is afoot. do suggest Terry however, in a in which there of the use of a case a crime would be committed only was information future, does not witness the com- personally the officer crime, "suspect" police, mission is known to the immediate exigency justifying suspect's and no exists detention. investigation under and his Kennedy

Defendant chan- through proper police arrest could have been secured e.g., nels, A ripe. when the time was procedure, warrant stop is a tool. investigatory preventative limited It was never intended be a substitute for a search for which is no to obtain a warrant. probable there cause

II I majority's likewise dissent to the conclusion on an articulable Kennedy seizure of defendant was based An have a "sufficient 'indi suspicion. tip informant's must Sieler, State v. 43, 47, reliability.'" cia of 95 Wn.2d Williams, Adams v. supra; (citing P.2d 1272 denied, Lesnick, cert. P.2d 84 Wn.2d (1975)). Reliability 2-pronged is resolved reliable or there must be analysis. The informant must be which either suggests some corroborative observation infor activity or that the informant's of criminal presence Sieler, reliable fashion. at 47. was obtained some mation informants, who neighbors involves two This case home, and the at the Smith pedestrian traffic complained not a reliability usually informant. While unidentified information offered tips, with to citizen the regard concern by facts. other supported citizens must nevertheless by Chatmon, 741, 746-47, 515 P.2d 530 App. 9 Wn. (1973). case, not the In the record does contain present the complained. when neighbors they names of or the the neighbors does indicate the saw record defendant Furthermore, reports by the the leaving the Smith home. the Smith home high pedestrian traffic into neighbors by police were not observation. independently corroborated the eye to the trained may, high While traffic pedestrian police, activity, complaints by citizens drug dealing indicate by police of innocuous conduct must be corroborated Searches and W. observation seizure. prior Ringel, Seizures, 13.4(b) (1984). Arrests § Confessions analysis reliability the infor- majority's tip Admittedly, mant's the informant misplaced. is likewise person apparently provided known Adams in past as to different defendant. reliable information the Thus, "veracity" test prong suspicion reasonable Nevertheless, tip is satisfied. the informant's must be based States specific Hensley, and articulable on facts. (1985); 83 L. 2d S. Ct. Ed. Sieler, Jackson, 48; at Wn.2d Hensley, In example, P.2d Court held officer, acting poster" a dif- by a "wanted issued police department, suspicion ferent had per- reasonable form a on an matched person individual who in In poster. stop, contained how- upholding ever, the Court noted numerous times the wanted poster, based on an informant was issued on the though tip, Hensley, specific basis of and articulable facts. at 232-33. Hensley Specifically, Court stated that informant robbery" possessed concerning "wealth detail Hensley, participated tangentially robbery. had 234. Sieler we held

Furthermore, informant, tipa named, though suspicion even did not establish reasonable merely that a transac- reported drug informant when the place the car which the taken and identified just tion had place. took We noted that the infor- allegedly transaction indepen- he nor the police not state what saw did mant did Sieler, at dently corroborate the informant's observations. 49. case, present partici- the informant did not admit only the crime. The con-

pation information record to how tains as the informant arrived at the conclusion the regularly purchased defendant from Smith contraband the him hearsay may defendant told so. While under certain satisfy circumstances credibility the of the prong Texas, Aguilar-Spinelli (Aguilar 108, test v. 12 378 U.S. L. 723, Ed. (1964); States, 2d S. Spinelli 84 Ct. 1509 v. United 410, 637, (1969)), L. Ed. 2d 89 S. Ct. 584 the hearsay must be by knowledge corroborated of the essential facts connecting the defendant with the v. crime. State Jackson, (citing Carmichael, at 437-38 United States v. (7th 983, 1973); 489 F.2d 986-87 Cir. State Yaw, v. (1977)). Hawaii 572 P.2d 856 Hearsay is not corrobo- by rated mere evidence the informant has some knowledge suspect's affairs. only The "facts" supporting hearsay are that (1) regularly purchased drugs defendant Smith; (2) from (3) pickups; used a certain car for never socialized with Smith. These "facts" do constitute detail", "wealth of Hensley, they at nor do personal evince knowledge of the defendant's role this crime. On the contrary, they details', constitute "'innocuous commonly known facts or easily predictable events ..." State v. Jackson, 438; at Sieler, Furthermore, at 50. the tip was not corrob- by personal orated Adams' observation since he did not see the defendant leave Smith's home with in his anything hands. He observed only the act nonincriminating into his car. getting Sieler, defendant at 50. See also People Tooks, 403 Mich. 271 N.W.2d 503 C.J., (Kavanagh, dissenting). Finally, we do not know when tip was received. It very well may have been stale at the State v. Higby, App. 26 Wn. it at which was executed. time (1980). of infor- only The real evidence 613 P.2d that his Adams' assertion credibility appears mant to him past in the and was known informant was correct credibility prong This personally. dangerously reduces See 3 W. Aguilar nothing nonanonymity. more than LaFave, Search and Seizure 9.3, at 97-98 § suspicion impliedly acknowledging Although required of that which the was based falls short Lesnick, P.2d by Sieler Wn.2d denied, (1975), cert. nevertheless majority 423 U.S. 891 tip there was corrobora holds that reliable because evidence cited ting primary corroborating evidence. had been neighbors the "fact" that Smith's majority Majority area. traffic in the complaining high pedestrian at 8. opinion, holding corroborated neighbors' complaints merely applying it is tip, majority

informant states unlaw- discern whether an possibility” test "substantial W. place. Majority opinion, (citing at ful act has taken 65). LaFave, 9.3, majority seems to suggest § stops on informant LaFave's tips, based area of replaces the Aguilar-Spinelli test possibility" "substantial tip is The by judged. major- which the as standard test of the sub- application commentator's misread this ity has possibility test. stantial proposed by LaFave test was possibility

The substantial a Terry's language allowing satisfies which as a standard reasonably Terry if he initiate a officer to police i.e., occurred, "may afoot", a crime has crime believes a 9.3, at 65. LaFave occurring or is about to occur. 3 W. § aas commentator, suggested As I this the test was read in which react to situations by police standard which could conduct; never it was personally unlawful they observed as Aguilar-Spinelli test by replace intended LaFave to solely which are based applies suspicions test which to a involve by cited LaFave all tips. examples informant Further- taking place. crimes observation of police direct Terry stops based on informant more, in his discussion of the relaxation tips, questions Supreme LaFave Aguilar-Spinelli test Court of the and frisk 9.3, erroneously 3 W. LaFave at 98. The majority context. § possibility" LaFave's "substantial test to applies analyze reliability of the informant's information when the test rather to be set forth as a standard to measure a appears officer's belief police just that a crime had occurred. Although it, not conceding majority rejects use Aguilar-Spinelli test in actuality and is applying "totality of the analyze circumstances" test to sus- level of Terry picion necessary justify stop. con- text, Williams, in Adams v. appeared "test" first (1972), 32 L. Ed. 2d S. Ct. 1921 which the Court held that Terry stops could be based on hearsay informant tips long so as the gener- circumstances ally corroborated the hearsay tip. Court noted:

But some example, situations—for when the victim of a street crime seeks immediate aid gives description assailant, of his or when a credible informant warns of the response. specific impending crime—the subtleties of

hearsay rule should not thwart an appropriate police There apparently exists a split authority federal on the Aguilar-Spinelli question of whether applies test stops. States Compare Gorin, v. 564 F.2d (4th 1977) Cir. ("[t]he high standard for informant Aguilar and Spinelli simply does reliability established apply when the detectives needed only 'reasonable sus rather picion,' 'probable cause,' than to justify their denied, cert. actions"), (1978) 434 U.S. 1080 and United Hernandez, v. States (7th 1973) F.2d 614 (same), Cir. denied, cert. with United 415 U.S. 959 States (5th McLeroy, 1978) 584 F.2d Cir. (anonymous informant tip does not create reasonable suspicion) Robinson, United States (9th 1976) 536 F.2d 1298 Cir. (same). The United States Supreme not, date, Court has question reviewed the although there exist two dissents presenting of cases from the Court's denial review (D.C. Cir.), White, See United States v. 648 F.2d issue. (1981) (White, denied, J., cert. dissenting) (La. 1979), denied, Jernigan, State v. So. 2d 1222 cert. (1980) v. (White, J., State dissenting). 446 U.S. 958 Cf. (court (1984) refuses Jackson, 102 P.2d 136 Wn.2d in the Aguilar-Spinelli requirements to relax the stringent warrant). case a search one, cases, tip as an informant such which hearsay, unsupported by specific and articulable

based on facts, by nor corroborated informant's neither based details, and not knowledge incriminating of the intimate police observation of unlawful con- corroborated direct duct, Aguilar-Spinelli should be relaxed strict test of the test. Under "totality circumstances" nebulous cases, circumstances, possession generally these tip by hindsight risk of a fabricated informant bolstered 102. I great. 9.3, too See 3 W. LaFave at believe simply § Sieler, rejected totality the circumstances test we approval McLeroy leading with both and a where we cited by Adams v. criticizing the abandonment commentator Terry stop test in the Aguilar-Spinelli Williams Sieler, 621 P.2d 1272 context. 95 Wn.2d 99-100). 9.3, See also 3 W. LaFave (citing § (an Hensley, infor- supra States unidentified United reliable and since the informant was tip mant's credible in the a "wealth of possessed crime and participant both a crime). details" about the the serious

Furthermore, past we have noted in the question is a ness of the crime consideration reliability informant requirements the strict whether 940, 944-45, v. Lesnick, 84 Wn.2d should be relaxed. (1975), denied, in 3 quoted cert. 530 P.2d 423 U.S. 891 (informant gam 9.3, tip illegal LaFave at 103 about W. § and sei bling principle This in search games). reflects the of our privacy into the zure law a warrantless intrusion gov importance becomes as the justified citizens less States See interest diminishes. ernmental Hensley, 83 L. Ed. 2d 105 S. Ct. 675 (1985) in crime (governmental stronger interest preventing crime, already in and completed than interest investigating thus, warrantless former). in justifiable seizure more case, in not possession marijuana, crime issue this is so serious as to warrant a seizure. warrantless

However, if totality even a the test is circumstances Terry seizures, I appropriate analyzing disagree with majority's complaints by conclusion the neighbors that satisfactorily tip. neigh corroborate the informant's complaints reliably bors' do the tip not corroborate because the neighbors' complaints specifically do not mention the defendant, is there no indication were complaints when the made, and complaints were independently corrobo Sieler, by People rated police. at 48-49. Cf. Tooks, (1978) 403 Mich. 271 N.W.2d 503 anon (tip by ymous citizen for Terry purposes neighbor sufficient since described specificity with suspect information scene). independently by police verified on the Without casting Adams, doubt the integrity Sergeant Detective there is simply too much risk of fabrication this evi dence. See 3 W. LaFave 9.3, at 102. §

Ill In the interest of articulating clearly search and seizure laws under our which law enforcement may guide officers actions, their I I summarize what gov- believe are the rules a such erning seizure as the one in the present case. Infor- mation from an received unidentified a stating source person committed, has is will committing, or commit a crime, reliability must meet the credibility set criteria forth part II of opinion. criteria, Summarizing these specific information must be based on and articulable (1) facts which by are a corroborated wealth of details describing conduct, noninnocuous or by corroborated independent police. observation If these criteria are met, stop. may an officer initiate a

Even Terry though may satisfied, above criteria a In the case of an intrusion. stop always permissible is not for whom there exists person of a ongoing investigation in an unlaw- suspicion regularly engaged person only activity, may perform officer ful if the officer circumstances: person following under the provide will reasonably and in faith believes good person's currently possessed regarding information not initi- may not be suspected Terry stops in the crime. role prob- upon suspicion, opposed officer's mere as ated of an belief, person possession able cause that a where present as the one substance. cases such unlawful his allegedly the nature of identity the defendant's officer, Terry stop conduct are known to illegal Rather, appropriate may not be conducted. or otherwise investi- personally response to corroborate develops which suffi- until evidence gate suspicion a search or arrest warrant. procure cient Callow, JJ., Dolliver, concur with C.J. Pearson and Callow, requiring hold that (dissenting)—I J. would car for searching from his seat and to move defendant proper purposes plain beyond view went items not stop. 51398-8, 16, 1986.] 51399-6. EnBanc. October [Nos. Electric, & Olsen Drake, Molvik Appellant, Richard Housing Inc., al, Defendants, et Seattle Authority, Respondent. & Olsen al, Molvik Hillman, Appellants, et

Edward al, Seattle Electric, Inc., Defendants, et Housing Authority, Respondent.

Case Details

Case Name: State v. Kennedy

Court Name: Washington Supreme Court

Date Published: Oct 16, 1986

Citation: 726 P.2d 445

Docket Number: 50848-8

Court Abbreviation: Wash.