State Of Washington v. Jean Paul Kirkpatrick ( 2017 )

FILED
COURT Cr: All'EPL:-.; 'Dr! I
2017 SEP 18 L11: O7
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 75255-3-1
Respondent,
V. DIVISION ONE
JEAN PAUL KIRKPATRICK, UNPUBLISHED OPINION
Appellant. FILED: September 18, 2017
LEACH, J. — Jean Paul Kirkpatrick appeals his conviction for first degree theft. He
challenges the admission of evidence seized after a Terry' stop and a trial court decision
about the admissibility of his statements made after this stop. Because the police had a
reasonable suspicion, grounded in specific and articulable facts, that Kirkpatrick had been
involved in criminal activity, the initial stop was reasonable and the subsequent actions of
the police were within the proper scope of a Terry stop. Kirkpatrick's spontaneous and
voluntary statements did not require Miranda2 warnings. We affirm.
BACKGROUND
On January 8, 2016, in a downtown Seattle coffee shop located in a building lobby,
Jean Paul Kirkpatrick asked Avdikadir Ali for the time. When Ali took out his cell phone
to look at the time, Kirkpatrick grabbed it and ran away. Ali ran after him, shouting that
Kirkpatrick stole his phone. Cole, the security guard in the lobby, took up the chase.
Kirkpatrick ran into a cordoned off construction site. There, off duty police officers first
1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889(1968).
2 Miranda v.'Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 75255-3-1 /2
detained him. They later arrested him after All identified his phone and Kirkpatrick as the
one who took it.
The State charged Kirkpatrick with first degree theft. A jury convicted Kirkpatrick
as charged. He timely appealed.
ANALYSIS
Kirkpatrick challenges his initial detention and the police actions taken afterward.
He claims that the police lacked authority to detain him because they did not have a
reasonable suspicion that he was involved in criminal activity at the time. He also
contends that the officers had no basis to search him and exceeded the permissible scope
of a Terry stop. Kirkpatrick further contends that the court erred in concluding that his
statements made to police were admissible.
Terry Stop
Kirkpatrick challenges the sufficiency of the evidence to support two of the trial
court's findings of fact made after a CrR 3.6 suppression hearing. We review these
findings of fact for substantial evidence.3 "Substantial evidence is 'evidence sufficient to
persuade a fair-minded, rational person of the truth of the finding."4 We do not review
the trial court's credibility determinations.5 We review conclusions of law from a
suppression hearing de novo.6
Kirkpatrick assigns error to these two findings:
v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313(1994).
3 State
State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006) (quoting State v.
4
Mendez, 137 Wn.2d 208, 214, 970 P.2d 722(1999)).
5 State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970(2004).
6 State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
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No. 75255-3-1 / 3
b. Smith was facing southbound away from the zone, when he heard
people yelling behind him. Upon turning, he observed a retired
officer who was also working the traffic assignment waiving his hands
at him a block up. He then heard construction horns honk, and at
least one person yelling "hey, hey, hey." Almost simultaneously, the
defendant ran around the construction vehicles, in what Smith
described as a "dead sprint" directly towards Smith. There were
traffic cones and tape around Smith. Moments later, Smith heard
someone yell "stop him, he stole a phone." At the same time the
defendant was running at Smith, Smith said "Seattle Police, stop."
c. The defendant slowed, and Smith grabbed his arm. Almost
immediately thereafter, an individual, who was chasing the
defendant, came upon the scene. Referring to that individual,(who
was later identified as Jamaal Cole) the Defendant said "that guy is
chasing me, he has a gun." Based upon the individual's dress and
the pin on his lapel, the officer thought Cole to be a security officer
from the nearby old Federal Building. Cole then identified himself as
a security guard. Smith ordered the defendant to sit down in an
attempt to sort out what was going on. Because the defendant had
been running, Smith felt that by having Kirkpatrick sit down, he would
not immediately run away. Cole informed Smith that he was working
the front desk of a building with a Starbucks [in the] lobby, that the
defendant came sprinting out of the Starbucks, with someone
chasing him, yelling "he stole my phone," that Cole chased
Kirkpatrick, telling him to put the phone down, but that he continued
to run away.
Kirkpatrick argues that he stopped on his own and that Officer Smith first saw Cole,
the security guard, after Kirkpatrick was seated. Kirkpatrick claims that Officer Smith first
learned a phone was stolen from Cole. Thus, he argues that Officer Smith forced
Kirkpatrick to sit down before he could have suspected that Kirkpatrick had taken a phone,
making the stop illegal.
Kirkpatrick has cherry-picked the facts, ignoring those that support the trial court's
findings. At the suppression hearing, Officer Smith testified that he heard people yelling
behind him and when he turned he saw a retired officer waving his hands trying to get his
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No. 75255-3-1 /4
attention. Officer Smith heard multiple horns start honking in the construction area.
Officer Smith testified he was in the middle of the road, when he heard someone yell,
"Hey stop him. He stole a phone." Smith did not know who yelled it out, a construction
worker, the retired officer, or the security guard. Moments later, Kirkpatrick ran right at
him. Smith said, "Seattle Police stop." Smith testified that Kirkpatrick slowed down,
coming to a stop, and that he grabbed Kirkpatrick's arm.
Simultaneously, Officer Grayson, about a block away from Smith, heard the retired
officer shouting, "hey, hey." Grayson turned and saw the retired officer running toward
Smith. Grayson then also ran toward Smith. Seconds before he arrived, Grayson saw
Smith holding Kirkpatrick by his left arm. Gary, the retired officer, arrived and took control
of Kirkpatrick's right hand. At this point, Kirkpatrick complied with Smith's request to sit
down. Grayson testified that Smith told him there was a robbery. Grayson then placed
Kirkpatrick in handcuffs. Grayson told Kirkpatrick that he was not under arrest; but, in
accordance with Seattle police policy, he read Kirkpatrick his Miranda rights in case a
court later considered the detention a de facto arrest.
Grayson testified that while he was detaining Kirkpatrick, he heard Officer Smith
ask Kirkpatrick where the phone was and heard Kirkpatrick respond that it was in his
pocket. Grayson further testified that Kirkpatrick then told him that "he regretted taking
the phone—that he shouldn't have done so."
Cole, the security guard who chased Kirkpatrick, testified that he remembered
Kirkpatrick running out of the coffee shop, "fleeing the scene," and being chased by a
man saying that Kirkpatrick had taken his phone. When Cole caught up with Kirkpatrick,
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No. 75255-3-1 / 5
he asked him to stop, telling him that he just wanted the phone back. Kirkpatrick ran
again. At the next corner, Cole saw Kirkpatrick run into the construction site. Cole
testified that when the police saw him chasing Kirkpatrick, they stopped Kirkpatrick. Cole
was about 30 feet behind Kirkpatrick. Cole testified that everything was happening so
fast. He estimated that he yelled "stop" at least 10 times.
This testimony provides substantial evidence supporting the trial court's findings.
Kirkpatrick next challenges the trial court's conclusion that the police had
justification for stopping Kirkpatrick. We review de novo the court's conclusions of law
following a motion to suppress.7
As a general rule, warrantless searches and seizures are per se unreasonable
under the Fourth Amendment of the United Sates Constitutional and article 2, section 7
of the Washington Constitution.8 Courts recognize a few narrow exceptions to this
general rule. Unless a.seizure falls within one of these exceptions, evidence found during
a search after a warrantless seizure must be suppressed as fruit of the poisonous tree.8
The United States Supreme Court has identified a Terry stop as one of the narrowly
drawn exceptions to the warrant requirement. It allows officers to briefly seize a person
if specific articulable facts, in light of the officers' training and experience, give rise to
reasonable suspicion that the person stopped is involved in criminal activity." A court
7 State v. Acrey, 148 Wn.2d 738, 745,64 P.3d 594(2003).
8 State v. Kinzy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000); State v. Ladson, 138
Wn.2d 343, 349, 979 P.2d 833(1999).
9 State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986) (citing Wong Sun v.
United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)).
19 Terry, 392 U.S. at 21, 30.
11 State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760(1991).
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No. 75255-3-1 /6
may consider factors like the officer's training and experience, the location of the stop,
and the conduct of the person detained.12 When a suspect's activity is consistent with
both criminal and noncriminal activity, officers may still make a brief detention under Terry
without first ruling out all possibilities of innocent behavior.13
Here, the trial court concluded the following facts justified the Terry stop: (1)
Kirkpatrick was running at a dead sprint through a cordoned off construction zone,(2)
chased by what appeared to be a security guard,(3) honking horns and yelling, and (4)
someone yelling to stop the runner because he stole a phone. Under the totality of the
circumstances, the officers had a reasonable suspicion that Kirkpatrick had stolen a cell
phone. The investigatory stop was reasonable.
Kirkpatrick's claim that the officers exceeded the scope of the Terry stop by
grabbing his arms and making him sit down and then handcuffing him has no merit.
Because Kirkpatrick had been running, Smith thought having him sit down would prevent
him from running away before he had a chance to sort things out. Officer Grayson had
observed Kirkpatrick with his hand cocked back as though he were going to strike Officer
Smith. The security guard was there when Officer Smith told Officer Grayson that a
robbery had taken place. The police did not exceed the scope of the Terry stop.
Miranda Warnings
Kirkpatrick also challenges the trial court's decision about the admissibility of the
statements he made while detained. The court made the following two conclusions:
12 State v. Pressley, 64 Wn. App. 591, 596, 825 P.2d 749(1992).
13 Kennedy, 107 Wn.2d at 6.
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No. 75255-3-1/ 7
b. The pre-Miranda statement by the defendant that he was being
chased by a man with a gun was spontaneous, resulting without
interrogation, thus Miranda requirements were not invoked.
c. The pre-Miranda question to the defendant by Smith as to whether
he stole a phone was made when Kirkpatrick was not yet in custody,
thus Miranda requirements were not invoked.
But the State did not offer these 'statements at trial. Thus, the trial court's decision
did not prejudice Kirkpatrick. In addition, neither statement required a Miranda warning.
The first statement was spontaneous and voluntarily given. The second statement was
made in the context of the Terry stop. A person is not in custody for purposes of Miranda
simply because the police have detained and questioned that person. Statements made
during a Terry stop are noncustodial even though the suspect may not be free to leave
when the statements are made.14
Ineffective Assistance of Counsel
Kirkpatrick claims his attorney provided ineffective assistance of counsel by failing
to challenge the scope of the Terry stop. To prevail on a claim of ineffective assistance
of counsel, a defendant must show both deficient performance and a resulting prejudice.15
Counsel's performance is deficient if it falls below an objective standard of
reasonableness.16 Failure on either prong of the test defeats a claim of ineffective
assistance of counse1.17 "Counsel may legitimately decline to move for suppression on a
14 State v. Walton, 67 Wn. App. 127, 130, 834 P.2d 624 (1992)(statements were
noncustodial even though police officer testified that he would have arrested the
defendant if he attempted to leave).
15 Strickland v. Washington, 466 U.S. 668,687, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
16 State v. McFarland, 127 Wn.2d 322, 334, 899 P.2d 1251 (1995).
17 Strickland, 466 U.S. at 697.
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No. 75255-3-1 / 8
particular ground if the motion is unfounded."18 Because the stop did not exceed the
scope of a Terry stop, Kirkpatrick's attorney was not ineffective for not moving to suppress
on that basis.
Appellate Costs
Finally, Kirkpatrick asks this court to deny the State appellate costs based on his
indigency. We generally award appellate costs to the substantially prevailing party on
review. However, when a trial court makes a finding of indigency, that finding continues
throughout review "unless the commissioner or clerk determines by a preponderance of
the evidence that the offender's financial circumstances have significantly improved since
the last determination of indigency."19 Here, the trial court found Kirkpatrick indigent. If
the State has evidence indicating significant improvement in Kirkpatrick's financial
circumstances since the trial court's finding, it may file a motion for costs with the
commissioner.
CONCLUSION
We affirm the judgment and sentence.
WE CONCUR:
IY c.AA yi
18State v. Nichols, 161 Wn.2d 1, 14, 162 P.3d 1122(2007).
19 RAP 14.2.
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