State v. Miller

May 22, 1998

21183-1-II

Versions:955 P.2d 810

91 Wash. App. 181

Seinfeld, J.

— Daniel James Miller appeals his conviction in Lewis County Superior Court of possession of methamphetamine with intent to deliver and рossession of marijuana with intent to deliver. RCW 69.50.401(a). Miller contends that the arresting officer lacked a reasonable suspicion necеssary to justify a stop-and-frisk search and that the scope of the search was unlawfully broad. He also contends that the evidence is insufficient to support the convictions. We affirm.

FACTS

At approximately 3:45 a.m. on August 17, 1994, Officer Michael McCroskey of the Centraba Police Department was on patrol in downtown Centraba in a high crime area when he observed Miller and Tony Hickman arguing. He said that MiUer and Hickman were yelbng and screaming at each other, that Hickman’s back was against a wall, and that Miller’s finger was pointing in Hickman’s face. Mc-Croskey and Reserve Officer Scott Megeysi approached Miller and Hickman to make sure the argument did not escalate into “something physical.”

As the officers approached, MiUer attempted to leave and enter a nearby apartment buüding. Hickmаn walked away in a different direction. McCroskey, who followed Miller, told MiUer to stop, that he needed to speak with him. MiUer did not stop. Instead, he attempted to open ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the locked entrance to the apartment buüding. McCroskey then told MiUer to turn around so that he could see his hands. In response, MiUer put his hands in his coat pockets. McCroskey then “assisted” MiUer in placing his hands on the waU, and frisked him for weаpons.

During the frisk, McCroskey felt what he bebeved to be a knife on Miller’s waist. Because MiUer tried to turn around, McCroskey handcuffed him as a safety measure before removing the knife for inspection. A continued patdown produced a tin canister, about three inches by four inches and a half-inch deep. Concerned that the canister might contain a weapon, the officer opened it. Inside there were ten small plastic bindles of suspected methamphetamine and some marijuana. In his search of MUler’s person, Me Croskey also found $96 and a notebook containing names and what the officer termed “monetary marks.”

I. Justification to Approach and Subsequently Detain Miller

Under the Fourth Amendment and Article 1, Section 7 оf the Washington Constitution, warrantless searches and seizures are per se unreasonable. State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984). But there are a few “jealously and cаrefully drawn exceptions” to the warrant requirement that apply where the societal costs of obtaining a warrant outweigh the rеasons for prior recourse to a neutral magistrate. Id. at 736; State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980); Arkansas v. Sanders, 442 U.S. 753, 759, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991). The burden is on the State to show that the particular search or seizure fаlls within one of these exceptions. Williams, 102 Wn.2d at 736; Houser, 95 Wn.2d at 149.

In this instance, the State relies primarily upon the “Terry stop” exception to the Fourth Amendment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍warrant requirement. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). This exception allows an officer to stop-and-frisk when: (1) the initial stop is legitimate, (2) a reasonable safety concern exists to justify a protective frisk for weaрons, and (3) the scope of the frisk is limited to the protective purpose. State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993) (citing Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972)).

Under the first prong, an officer may briefly stop an individual basеd upon reasonable suspicion of criminal activity if necessary to maintain the status quo while obtaining more information. Adams, 407 U.S. at 146. The Terry court reсognized that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause tо make an arrest.” 392 U.S. at 22. In this case, McCroskey’s contact of Miller was appropriate; McCroskey was seeking to maintain the status quо while he determined whether or not violence was about to erupt between Miller and Hickman.

Under the second prong, “[a] reasоnable safety concern exists, and a protective frisk for weapons is justified, when an officer can point ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to ‘specific and articulable facts’ which create an objectively reasonable belief that a suspect is ‘armed and presently dangerоus.’ ” Collins, 121 Wn.2d at 173 (citing Terry, 392 U.S. at 21-24). The Washington Supreme Court has stated that “ ‘[cjourts are reluctant to substitute their judgment for that of police officers in the field. “A founded suspicion is all that is necessary, some basis from which the court can determine that the [frisk] was not arbitrary or harassing.” ’ ” Id. at 173 (emphasis omitted) (quoting State v. Belieu, 112 Wn.2d 587, 601-02, 773 P.2d 46 (1989) (quoting Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966))). Here, the officer’s frisk wаs prudent. McCroskey had a founded, reasonable suspicion that Miller was armed and dangerous. McCroskey’s suspicion was based upon Miller’s attempt to flee the area, his refusal to turn around and to remove his hands from his pockets, the time of night, and the high crime area in which the incident was occurring.

The third prong of the test limits the scope of the frisk to that necessary to preserve officer safеty. Collins, 121 Wn.2d at 173. The search must be limited to a frisk for weapons. If an officer feels an object that may be a weapon, he or she may withdraw it fоr examination. State v. Hudson, 124 Wn.2d 107, 113, 874 P.2d 160 (1994). Here, the frisk was a valid protective search as McCroskey, already suspicious ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of Miller for the reasons desсribed above, had cause to fear for his safety.

Further, McCroskey testified that he has seen, in training, containers similar to that on Miller’s person capable of holding a .22 caliber Derringer pistol. This allowed Mc-Croskey to examine the container’s contents under the auspices of a protective search. Collins, 121 Wn.2d at 171. Based upon these considerations, we conclude McCroskey did not exceed the proper scope of a Terry stop when he opened the canister to check for a weapon. See Collins, 121 Wn.2d at 173; Belieu, 112 Wn.2d at 601-02.

Thus, the drugs discovered on Miller were the fruits of a legal stop-and-frisk. The trial court did not err when it denied Miller’s motion to suppress the knife and the canister as evidence.

II. Sufficiency of the Evidence

The standards by which we review challenges to the sufficiency of thе evidence are set forth in State v. Camarillo, 115 Wn.2d 60, 794 P.2d 850 (1990); State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980); State v. Delmarter, 94 Wn.2d 634, 618 P.2d 99 (1980). We do not need to repeat them here.

Under RCW 69.50.401(a), it is unlawful for any person to possess a controlled substance with intent to deliver. It is clear in this case that Miller had possession ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of marijuana and methamphetamine. He argues, however, that the evidence was insufficient to prove his intent to deal the substances.

Viewing the evidence in the light most favorable to the State, and drawing all reasonable inferences therefrom, there is sufficient evidence to prove beyond a reasonable doubt that Miller had intent to deliver the drugs. McCroskey found drugs paсkaged in amounts appropriate for individual use, approximately 25 empty plastic bindles, a list with names, numbers and “monetary marks” on it, $96, and a knife. When considered along with McCroskey’s testimony on the significance of such items, this evidence is sufficient to establish, beyond a reasonable doubt, Miller’s intent to deliver drugs.

Thus, the trial court did not err in convicting Miller of possession of marijuana and methamphetamine with intent to distribute.

We affirm.

Houghton, C.J., and Hunt, J., concur.

Review denied at 136 Wn.2d 1016 (1998).