THE STATE OF WASHINGTON, Respondent, v. JOHN L. WILLIAMS, Petitioner.
No. 49749-4
En Banc.
October 18, 1984.
Reconsideration denied November 20, 1984.
102 Wn.2d 733 | 689 P.2d 1065
Norm Maleng, Prosecuting Attorney, and Barbara Corey-Boulet, Deputy, for respondent.
ROSELLINI, J.- Petitioner, John L. Williams, was convicted of second degree burglary and first degree theft. The charges were based, in part, on evidence found in the course of a search of petitioner‘s vehicle following his detention by police for questioning. The trial judge denied petitioner‘s motion to suppress the evidence, and the Court of Appeals, Division One, аffirmed (State v. Williams, 34 Wn. App. 662, 663 P.2d 1368 (1983)). We reverse.
On April 7, 1981, Kirkland Police Officer Bruce Johnson responded to a radio dispatch request to investigate a burglar alarm sounding1 in a nearby residence. As Officer Johnson approached the house in his vehicle, he spotted a car parked in front of it. The car appeared to be empty but as the officer drove closer, the headlights went on and the car started to move.
Officer Johnson called for a backup and pulled his squad
Officer Johnson next advanced toward the house and noted that the front door was closed but unlocked. He then returned to his car and requested a canine unit.
Officer Johnson then turned to the petitioner, who was still being held in the other squad car, and asked him what he was doing in the area. The petitioner informed Johnson that he was looking for a friend‘s house. Whеn Officer Johnson asked for the address, petitioner stated that he didn‘t know it. Responding to Officer Johnson‘s question concerning why he left when Johnson approached, petitioner stated that he had had problems with his headlights and was just pulling away.
Upon arrival of the canine unit, the police searched the interior of the house. They discovered that the master bedroom had been ransacked, the rear sliding door had been left ajar and the kitchen window left opened. Outside the house, the police discovered a portable television left sitting near the carport.
Police Officer Ivy “inventoried” the car for valuables and discovered a black jewelry box underneath the driver‘s seat. He opened the box, saw it contained jewelry, and returned the box to its original place. The car was then sealed and transported to Redmond Yard for safekeeping until a search warrant could be obtained. Petitioner was taken to the police station.
Prior to trial, petitioner moved to suppress evidence seized from the car. This motion was denied. Petitioner was convicted of second degree burglary and first degree theft.
Division One of the Court of Appeals affirmed the conviction. This court granted review to decide whether the evidence found in petitioner‘s car was the product of an illegal search or seizure. For the reasons stated below, we
We start with the basic principles governing the
In the present case, the State relied on two different exceptions to the warrant requirement: the Terry investigative stop, and the search incident to arrest doctrine. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The State‘s argument can be summarized as follows: the police initially engaged in an investigative stop which matured into a valid arrest when petitioner was unable to account for his presence in an area where a burglary had recently occurred. Evidence seized as a result of this arrest, concludes the State, was seized pursuant to a valid search incident to arrest or, alternatively, pursuant to a routine inventory search.
The Court of Appeals agreed; we do not. We find that the initial investigative stop, although properly initiated by suspicion of illegal activity, exceeded both the scope and purpose of such detentions permitted under
We turn first to the issue of whether petitioner‘s initial detention was a valid investigative stop.
Prior to Terry v. Ohio, supra, it was generally under-
Under Terry, the Court has generally аpproved pat-down searches for weapons, and brief, on-the-spot questioning, see, e.g., Adams v. Williams, supra, but disapproved of more intensive seizures without consent. For instance, in Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979), the Court held that the police had illegally seized a murder suspect when, after getting a “lead” from a police informant, they brought him to the station for questioning. In finding that the subsequent interrogation of the defendant was illegal, the Court rejected a balancing analysis and concluded that
detention for custodial interrogation-regardless of its label-intrudes so severely on interests protected by the
Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest.
Three recent United States Supreme Court cases highlight the parameters of the federal Terry-stop rule.
First, in Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983), airport police stopped an individual
In rejecting the State‘s contention that Royer‘s stop was not an arrest without probable cause, the Court emphasized that the temporary seizure of the defendant must relate to the purpose of the investigation.
The second recent decision involving the permissible scope of Terry stops is Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983). In Long, the Court emphasized that a major concern underlying Terry itself was the dangers presented to officers who must make quick decisions whether or not to search for weapons. The Court therefore held that a Terry frisk for weapons may extend to the passenger compartment of the detained person‘s vehicle. The Court apparently concluded that the extension of the “frisk” into the car is reasonable in view of the risk presented to the officer. The Court specified, however, that such a search must be premised upon a reasonable suspicion that the suspect is dangerous and may gain access to a
The Court‘s third decision was United States v. Place, 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983). The Court first held that Terry permits investigative detentions of luggage as well as of persons. The Court then held, however, that the detention of the luggage in that case-for 90 minutes-exceeded the permissible limits of a Terry stop. The Court stated that
the brevity of the invasion of the individual‘s
Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion. Moreover, . . . we take into account whether the police diligently pursue their investigation.
Place, 103 S. Ct. at 2645. The Court declined to adopt any “outside time limitation for a permissible Terry stop...“. 103 S. Ct. at 2646. It also specifically questioned the “wisdom” of the ALI Model Code recommendation of 20 minutes as the maximum permissible period. 103 S. Ct. at 2646 n.10. The Court nonetheless concluded that the 90-minute detention “alone precludes the conclusion that the seizure was reasonable in the absence of probable cause.” 103 S. Ct. at 2645.
The foregoing cases demonstrate that, in evaluating investigative stops, a court must make several inquiries. First, was the initial interference with the suspect‘s freedom of movement justified at its inception? Second, was it reasonably related in scope to the circumstances which justified the interference in the first place? Terry v. Ohio, supra at 19-20. To justify an intrusion, the police officer must be able to рoint to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, at 21.
Our disagreement with the Court of Appeals is not over the initial interference with petitioner‘s freedom. We assume that that intrusion was valid under the facts of this case. It is the intensity and scope of the intrusion which we find improper.
The above cited factors, pertaining to the scope of the intrusion, weigh against the Court of Appeals holding that this was a valid Terry stop. To begin with, here, the purpose of the stop was not related to petitioner‘s detention. The police did not question petitioner but detained him until they collected evidence from the house. The police did not ask petitioner why he was in the vicinity until after they ordered him out of the car, frisked him, handcuffed him, placed him in the squad car, investigated the house, and called for the canine unit. Finally, it was not until petitioner was arrested and taken to the police station that the police inquired about his name and address.
Next, the amount of intrusion was significant, especially when considered in the light of the alleged crime. Under certain circumstances, any one of the responses, i.e., handcuffing, seclusion of defendant or drawn guns, may be appropriate.2 Under extreme circumstances, this partiсular combination of responses may be appropriate. But those circumstances do not exist here. The police did not and could not articulate a reason for believing that petitioner was dangerous. He made no furtive gestures or violent responses. He did not threaten the police nor did the facts of the alleged crime justify assuming that the suspect was armed or likely to harm the police. The facts simply do not support an inference that petitioner was dangerous.
Also, the detention was not related to an investigation
Finally, the length of time involved here appears to approach excessiveness. Although the Court of Appeals characterized the stop as lasting 10 minutes, that conclusion is not supported by the record.4
We therefore conclude the police actions so exceeded the proper purpose and scope of a Terry stop as to be justified only if supported by probable cause sufficient to arrest petitioner.5 Moreover, our conclusion is independently required by
This provision differs from the federal constitution
The Court of Appeals also recognized that at some point the police actions constituted an arrest, but concluded that this took place after the police acquired sufficient evidence for probable cause to make an arrest. We disagree. As evident from the facts recited above, from the outset of this police/citizen encounter, the police actions exceeded those permitted under Terry. Since, as respondent admits, no probable сause existed when petitioner was first detained, the detention was illegal. As the evidence admitted in petitioner‘s trial was a fruit of this illegal detention, it must be suppressed. See State v. White, 97 Wn.2d 92, 101, 640 P.2d 1061 (1982).6
Likewise, the State‘s argument that this was a valid inventory search pursuant to a routine impoundment must be rejected. The criteria for impoundment was recently set out in State v. Simpson, 95 Wn.2d 170, 189, 622 P.2d 1199 (1980). There, we noted:
A motor vehicle may be lawfully impounded in certain specific circumstances: (1) as evidence of a crime, if the officer has probable cause to believe that it was stolen or
used in the commission of a fеlony; (2) as part of the police “community caretaking function,” if the removal of the vehicle is necessary (in that it is abandoned, or impedes traffic, or poses a threat to public safety and convenience, or is itself threatened by vandalism or theft of its contents), and neither the defendant nor his spouse or friends are available to move the vehicle; and (3) as part of the police function of enforcing traffic regulations, if the driver has committed one of the traffic offenses for which the legislature has specifically authorizеd impoundment.
(Citations omitted.) These criteria do not apply here. First, the vehicle was not needed as evidence of a crime; it was neither stolen nor used in the commission of a felony. Second, because alternatives to impoundment existed, impoundment was not justified as part of the community caretaking functions. The vehicle could have been moved to the side of the street, parked and locked. Third, because petitioner had not committed a traffic offense for which impoundment is authorized, the vehicle could not have beеn impounded as part of the police function of enforcing traffic regulations.
However, even if impoundment had been authorized, it is doubtful that the police could have conducted a routine inventory search without asking petitioner if he wanted one done. The purpose of an inventory search is to protect the police from lawsuits arising from mishandling of personal property of a defendant. Clearly, a defendant may reject this protection, preferring to take the chance that no loss will occur. See generally United States v. Lyons, 706 F.2d 321, 335 n.23 (D.C. Cir. 1983).
Fоr these reasons and those discussed above, we find that evidence taken from petitioner‘s vehicle was illegally seized. We therefore reverse.
WILLIAMS, C.J., UTTER and PEARSON, JJ., and CUNNINGHAM, J. Pro Tem., concur.
DIMMICK, J. (dissenting)-The lesson the majority teaches today is that detaining a burglar leaving the scene
It is firmly established that a police officer lacking probable cause to arrest is not required to ignore suspicious circumstances and allow a suspect to pursue criminal activity unimpeded. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982). A reasоnable “seizure” of the suspected person is constitutionally permitted to maintain the status quo momentarily and allow the officer to resolve the matter, one way or the other, by obtaining more information. See Adams v. Williams, 407 U.S. 143, 146, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972).
Just as firmly established is the requirement that such seizures of the suspected person be based on specific, articulable facts which warrant a reasonable belief that criminal activity is under way. Terry. Without an articulable, objective basis for the detention, police discretion to stop would be unfettered. At the very least, the
To assess whether criminal activity was objectively manifested so as to justify an investigative detention, the totality of the circumstances confronting the officer must be taken into account. This includes information given the officer, observations the officer makes, and inferences and deductions drawn from his or her training and experience.
The majority finds objectionable the manner of making the stop and its length. I think that the majority has not appropriately assessed the reasonableness of the officer‘s actions “under the circumstances taking into consideration the seriousness of the offense suspected, the consequences of delay on the part of officers, the likelihood of the detainee‘s involvement in the offense, and the extent of the intrusion.” White, at 106.
Our test, in White, is based on a reasonableness test articulated by the United States Supreme Court in Terry. The Terry Court balanced the gоvernmental interest in the seizure against the invasion the seizure entails to the constitutionally protected interest of the private citizen. Terry, 392 U.S. at 21. On occasion, a more than momentary detention or a rather intrusive search has been upheld by the Court as reasonable under the circumstances and in view of the governmental interests at stake. Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983); Michigan v. Summers, 452 U.S. 692, 69 L. Ed. 2d 340, 101 S. Ct. 2587 (1981). In these cases, the detention was collateral to the investigation being undertaken. The seizure merely enabled the officers to “freeze” the situation until further investigation resolved the matter with respect tо the detained person.
To be distinguished are those situations in which the detention itself was the investigative tool. E.g., Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979); Davis v. Mississippi, 394 U.S. 721, 22 L. Ed. 2d 676, 89 S. Ct. 1394 (1969). As the Summers Court recognized, when the detention becomes a method to procure self-incriminating interrogation in a custodial setting, the detention is no longer justified as a means of merely preserving the status quo. Summers, 452 U.S. at 701-02.
The majority also suggests that at no time during the detention did the officers have probable cause to arrest petitioner, hinting that until petitioner‘s presence in the house was established, there was not probable cause to arrest him. I disagree.
Probable cause must be determined from the totality of facts and circumstances within the knowledge of the arresting officer, taking into consideration that officer‘s sрecial experience and expertise. State v. Fricks, 91 Wn.2d 391, 588 P.2d 1328 (1979). It is applied in light of everyday experiences, considering the time, the place, and the pertinent circumstances. There must be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. State v. Scott, 93 Wn.2d 7, 604 P.2d 943, cert. denied, 446 U.S. 920 (1980).
The officers concluded a thorough search of the burglarized residence, finding ransacked rooms, a television sitting outside in the rain, and no other suspects. The arrest of petitioner was reasonable in light of these circumstances. It
I also disagree with the majority that the impoundment of the car being driven by petitioner was unlawful. This court has recognized that if an officer has probable cause to believe that a vehicle is used in the commission of a felony it may be impounded. State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980). Transporting stolen goods from a burglary site must surely qualify as “used in the commission of a felony.” See State v. Glasper, 84 Wn.2d 17, 22, 523 P.2d 937 (1974). After the officers had determined that the house had been burglarized, with strong indication that some missing items had been placed outside, it was reasonable to conclude that the stolen items were to be taken away in the vehicle.
Moreover, petitioner had stated that the vehicle belonged to a third person. Since it was likely, under all the circumstances, that the vehicle contained stolen property, the prudent course was to impound thе vehicle, thus preventing destruction of evidence, until the owner could be contacted and a search warrant obtained.
I also cannot agree with the majority‘s assertion that this routine inventory search made pursuant to standard police procedures would have been permissible only if petitioner had consented. Petitioner had no interest in determining, on behalf of the registered owner, what steps should be taken to best protect the owner‘s property. Furthermore, the purpose of an inventory search is not merely to protect the owner from suffering loss during the period of detention. An inventory also alerts the officers to any potential danger to themselves or the public from items the car may contain. South Dakota v. Opperman, 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976). Even if the officers have probable cause to believe the car contains stolen property, they should not be precluded from determining prior to impoundment whether the vehicle may be safely moved away. See United States v. Laing, 708 F.2d 1568 (11th Cir. 1983); State v. Glenn, 649 S.W.2d 584 (Tenn. 1983).
The inventory search in this case took place after petitioner was transported to police headquarters. Nothing in the record indicates that the inventory was a pretext to conduct a full search for evidence. The officer in charge of the inventory testified that he conducted a routine inventory search, during which he noticed a jewelry box protruding from under the driver‘s seat. In my view, the officer was obligated to determine whether the box‘s contents were innocuous or valuable before returning it to its place. Following completion of the inventory, the vehicle was sealed and transported to the impoundment yard. A full evidentiary search was later conducted by department detectives pursuant to a search warrant. Prior to this search, the vehicle‘s registered owner had given consent to the search.
The majority ignores another issue that merits discussion. Would the jewelry box found in the vehicle have been “inevitably discovered” in any case, when the officer entered the car to verify the registered owner‘s name or when the search, pursuant to the owner‘s consent and a search warrant, was conducted? If so, admission of the jewelry box at trial was not error. See Nix v. Williams, 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984).
The circumstances of this case justified the investigation the police officers conducted. I would affirm the courts below. Therefore, I dissent.
BRACHTENBACH, DOLLIVER, and DORE, JJ., concur with DIMMICK, J.
Reconsideration denied November 20, 1984.