State v. Whitaker
795 P.2d 182
Wash. Ct. App.
1990
Check Treatment

*1 20, 1990.] August One. Division 23557-5-I. [No. Respondent, v. Kenneth S. Washington, The State Whitaker, Appellant. Washington Appellate

Rita Associ- Griffith Defender ation, for appellant. Maleng,

Norm Jeanette Prosecuting Attorney, Dal- ton, Deputy, respondent. for J. —Kenneth S. appeals convic-

Webster, possession tion of of a arguing controlled substance affirm. unlawfully evidence was obtained from him. We Facts knew Department Two Police the Seattle encountering members of his other area, Seattle, as gang which had claimed the Garfield Park territory. regularly patrolled The officers *2 in occurring high gang because of a incidence of violence times, At shootings per night and around it. two or three of reports received taking place; police the "constant the the offi- By simply through park, shots fired." sawed-off shot- weapons (handguns, cers would uncover clubs) bats, knives, places such as garbage stashed guns, where Whitaker his would gang cans and bushes near police The to "hang regularly out". would talk Whitaker he intelligence gang activities because gather concerning the as that had police was known to the leader territory. time Nearly every claimed Garfield Park as its him Whitaker, they patted police the officers encountered weapons person. down for found none on his a.m., 26, 1988, at 12:30 the two police On June car, in uni- in a marked patrolled the table, at the people form. After several spotting group. the car toward the patrol officers exited and walked identify flashlight carried a and could One the officers When offi- among companions. his the Whitaker the neared, dropped plastic a red bottle on cers Whitaker found of the officers confiscated the bottle and ground. One it rock cocaine. The officers arrested Whitaker contained pocket. from his and retrieved more cocaine 22, 1988, with August Whitaker on charged State Whitaker On November possession cocaine. him. Whitaker suppress moved the evidence seized from he he cocaine when saw claimed that discarded the expected he because police approaching looking past. He further them to frisk as had done leave, attempted felt that had found him. The court have and searched reasonably believed that he would although saw the officers searched when he have been detained and

853 such that drugs abandoned the approaching, court lawfully ground. retrieved them from charged. denied motion and convicted Whitaker Discussion aban Generally, police may voluntarily retrieve Fourth Amendment property violating doned without Serrano, State 462, 464, 470, v. App. rights. Swaite, State see also v. (1975); App. 33 Wn. P.2d Tidwell, State n.5, (1982); argues 597 P.2d 434 involuntarily illegal police the cocaine due abandoned jurisdictions conduct. Courts of other announced in response illegal if a suspect property rule discards conduct, retrieve police may property suspect's rights. without Fourth Amendment invading See, Tolbert, e.g., United States v. 1041, 1045 692 F.2d 1982) ownership property disclaimer of (suspect's involuntary deemed to unconstitu done cert. arrest), tional seizure or 464 U.S. 933 *3 Fletcher v. (5th 1968) (invol Wainwright, 399 F.2d 62 Cir. untary occurred into motel illegal entry abandonment when stolen out prompted occupants jettison room jewelry window). (1) Involuntary requires abandonment unlawful (2) conduct a causal nexus between the States v. See United conduct and the abandonment. Roman, 1988). 920, 849 923 F.2d argues engaged unlawful conduct abandonment the cocaine. Specifically, Whitaker maintains him, they the park illegally drove into and walked toward him. is merit. argument seized This without " occurred, if a has analyzing When seizure [t]he whether, circumstances, essential is under person he was not free to leave." would believe Machado, 775, State v. 771, P.2d 997 App. 54 Wn. 775 Del & Naturalization Serv. v. (citing Immigration (1989) 247, 216, L. 104 1758 gado, 210, 466 U.S. 80 Ed. 2d S. Ct. 854 Mendenhall, 554, States v. United

(1984); 446 U.S. denied, review (1980)), Ct. 1870 L. Ed. 2d 100 S. seizure, (1990). In what constitutes a deciding Wn.2d 1009 conduct consistently required more intrusive we suspect toward a simple act of an officer than DeArman, see, e.g., State v. App. 54 Wn. park: (1989) (seizure police pull 774 P.2d 1247 occurs when emergency lights); and activate another vehicle behind (1988) Ellwood, 70, 73, State v. App. 757 P.2d 547 52 Wn. (seizure suspect, right tell occurs when "'[w]ait Sweet, 721 P.2d 560 here'"); App. Wn. out, Police!"'), (seizure '"Halt! occurs when officer calls also State v. see review 107 Wn.2d 1001 (1981), Stroud, 634 P.2d 316 App. 30 Wn. (1982). It is denied, Wn.2d 1025 settled that a mere well State not constitute a seizure. request for information does 775; Ellwood, Machado, App. at 52 Wn. App. 54 Wn. 452, 455-56, Aranguren, also State v. see 73; App. (1985) (no sus- signaled seizure where officer 711 P.2d 1096 min- for a you guys I talk to pects saying, '"can bikes was ute'"). would believe he "Whether sur- objective facts depends particular, on the detained (cit- Ellwood, at 73 the encounter." rounding 554). Mendenhall, Contrary to Whitaker's 446 U.S. at ing not standard does person" "reasonable position, perceptions suspect. subjective depend (2d 9.2(h), ed. LaFave, Search and Seizure at 407 W. § 1987). when the of cocaine dropped the container They him. away feet were several

police officers any gestures, made him nor had yet said a word to weapons. drawing such as hand movements by the same officers he was seized that because believes *4 in his situations, any reasonable identical previous, leaving. feel restricted position would are past experiences that Whitaker's We conclude His argument situation. present from the entirely different encounters previous that necessarily presupposes However, failed to illegal police involved action. not based on rea- demonstrate these encounters were the suspicion. testimony elicited sonable times, and frisked numerous police stopped police the acted the evidence failed to establish examination, unlawfully. On cross defense counsel failed questions give explain— ask to elicit —to them a chance to what facts to the each time suspicious were known they performed "illegal stops". sug- these Little evidence gested suspicious activity the officers had not observed past in the justify investigative stop. which would an opposite likely seems more true: the officers would walk through park weapons and find stashed near Whitaker and his or the officers would gang, investigate case, to a call of fired. In gunshots being Whitaker, police approach the leader of the gang that occupied park territory, briefly perform an investigative stop satisfy suspicions perform their patdown protect themselves. We cannot assume that police always usually law; violated the the absence of evidence to contrary, police we believe the had articu- If, suspicion past lable encounters with him. as argues, he had done on June nothing police perceived suspicious, that the could have he would have no reason to him. stop believe the intended to Presumably there no of shots reports being had been recent fired, weapons and the had not uncovered stashed immediately before table. perform Whitaker concluded the were about an stop, and the trial court found this belief to be sincere. But this conclusion does not follow because unlike been reports gunfire occasions where there had weapons, suspicious or the had found none of these Therefore, warranting stop present. facts our person previously is limited to whether by on several occasions certain officers based on being would believe he or she was merely near a stopped by the same officers for *5 park. in Common sense answers this picnic public table Therefore, in had question negative. in prior unlawful conduct Whitaker's aban- engaged drugs. donment unlawfully stopped,

Because Whitaker had not been drop container of as a result of chose cocaine not misconduct, his free will. The but as result of own pick voluntarily were free to abandoned up officers contents, examining they probable After had property. quantity cause to arrest Whitaker and seize the additional on This seizure was a valid search person. of cocaine White, to lawful arrest. See Wn. App. incident denied, 107 Wn.2d 1006 is affirmed. judgment The and sentence J., concurs. Swanson, In (dissenting) respectfully my J. dissent.

Winsor, —I as he stood when the officers opinion, approached table, Whitaker had a reasonable basis for near detain him. His aban- they unlawfully would believing was, therefore, involuntary. donment the cocaine I unlawfully hold the evidence to be Accordingly, would obtained, and reverse the conviction. issue here is whether Whitaker discarded dispositive

The E.g., in conduct. illegal the cocaine Tolbert, (6th States v. 1982), United F.2d 1041 Cir. Morin, States v. cert. United 464 U.S. 933 1982). majority recognizes, F.2d 765 As the whether, turns under the circum of this issue on resolution stances, or would believed at 853. was free to leave. she record leads A the facts contained reading fair person in inescapable conclusion that a reasonable to the free to leave. would not have felt Whitaker's circumstances before the testified that for month arresting park where Whit- they patrolled had question night conduct a night" or times a aker was arrested "two three weap- "simple premise were no check to insure that there activity place park". illegal taking ons they in the also testified that had encountered Whitaker they occasions; on had night during talked to him once or twice a the summer nearly months; and that all of these occasions patted Whitaker down. One of the officers admitted that it you pretty procedure that, "was much standard approached somebody people and talked to one of the you park, pat down", in the them and that Whitaker exception Significantly, "was no rule". there is *6 absolutely indicating no evidence the record that prior approached occasions when the him officers and patted acting suspicious down, him Whitaker had been majority recognizes, only Instead, manner. testimony as even the is that the officers Whitaker "to gather intelligence concerning gang activities." 852. only reasonable conclusions to be drawn from this testimony particular practice are that these officers made a detaining they of Whitaker whenever and wherever they him; encountered detained him not because of a suspicion activity, simply reasonable of criminal to talk gang activities; with him about and that their detention usually pat-down suggests included a search. No evidence night arrest, that on the of his Whitaker had reason to expect scenario; thus, a different it was reasonable for anticipate although doing suspi- nothing he was approaching cious, officers would act in accord with procedure their usual In and detain and search him. other particular began walking words, once these toward him, it was reasonable for Whitaker to conclude that his freedom to leave was restricted. majority analysis, avoids this evidence-based how- presumptions justify

ever, and instead relies on its own holding that a reasonable in Whitaker's situation leaving. Specifically, would not have felt restricted from lack of contrary from an evi- majority alleged concludes nightly dence the record that officers' once or twice of upon detentions Whitaker must been based activity; of criminal "that Whitaker's entirely present sit- past experiences are different from 854; therefore, uation", a reasonable majority, at and felt to leave when the officers person would have free approached. wholly unpersuasive.

I to be majority's approach find the First, police presumed perform are their duties contrary. only evidence to properly legally and absent Hodge, Department Irwin v. 84 Wn.2d Vehicles, Motor App. 369, P.2d 619 Here, testimony any presump- the officers' own contradicts daily investigations tion Whitaker were based suspicion, proper and thus were routinely Instead, lawful. the officers testified that to talk with patted simply down Whitaker Second, suggest majority activities. seems to a lack prove evidence that the defense had the burden of cause to search: examination, questions ask failed to On cross defense counsel explain suspicious give them a

to elicit—or to chance —what they performed each facts known to the officers time stops". *7 "illegal these authority any imposing at 855. I am unaware Majority, upon defendants.1 such burden ample burden, is evidence that 1Even if there were such a there requisite suspicion of articulable were not based on Whitaker detentions 889, Ohio, 1, activity. Terry L. Ct. 1868 Ed. 2d S. criminal v. U.S. (1968). stopped arresting Whit an occasion when One officers described street, put hands them walked aker and his brother the two down car, weapons. patted officer admitted them down for on the and intelligence gathering purposes, solely stopped and his brother for committing crimes the time. that neither detainee had been analysis, presumption-based As a result of their majority inquiry limits the focus person previously to whether a reasonable on several by occasions certain officers based on reasonable by being stopped would believe he or she was for the same officers merely standing picnic public park. near a table at 855-56. An inquiry precisely statement based more on the undis- puted facts would instead be:

Whether a reasonable person previously stopped patted by down certain police officers one or two times day for questioning activity about would believe officers, him, the same who are toward stop or her a patdown and conduct search observing near a table public park. only fair answer to is that a reasonable

person would have believed he she was to once again patted be detained and down. The trial made judge just finding.

Based on his prior experiences, Whitaker could not rea- sonably have felt free to leave once the officers began approach companions. July On had no articulable suspicion subjecting for to an Ohio, See generally Terry investigatory stop. 392 U.S. L. Ed. 2d 88 S. Ct. Consequently, Whitaker's abandonment in response of the cocaine was involuntary. conduct and was therefore E.g., Morin, United States v. supra.

The abandoned cocaine against should be used Whitaker. His conviction should be reversed.

Reconsideration 1990. denied December by Supreme pending Review Court March 1991.