State Of Washington v. Mark Wade Alexander, Jr. , 425 P.3d 920 ( 2018 )

FiLED
tOURT OF APPEALS DiV ~
STATE OF WASHINGTON
2OI8SEP—~ AM 9:30
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 76506-0-I
Appellant, )
) DIVISION ONE
v. )
) PUBLISHED OPINION
MARK WADE ALEXANDER, JR., )
)
Respondent. ) FILED: September 4, 2018
_________________________________________________________________________________ )
LEACH, J. — The State appeals the trial court’s decision to suppress
evidence of no-contact orders discovered by police during a Terry1 stop. The
State challenges the court’s findings and conclusions related to the scope of the
Terry stop. Because we agree that the investigating officer did not exceed the
scope of the Terry stop, we reverse and remand.
FACTS
On October 24, 2016, at about 6:44 p.m., a motorist driving on Aurora
Avenue called 911. The motorist identified herself and reported that she saw a
man punch a woman at North 85th Street and Aurora Avenue North. She
described the man as a white male, 20 to 30 years old, thin, wearing a baseball
cap and a red hooded sweatshirt. She described the victim as a white female, 20
1 Terrqv. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968).
No. 76506-0-I /2
to 30 years old, five feet seven, slender, with long, dark, curly hair in a ponytail,
wearing a red sweatshirt with plaid pajama pants. She reported they were
traveling northbound.
A dispatcher relayed the information provided by the 911 caller to Officer
Nathan Lemberg. Officer Lemberg saw a man and woman matching this
information walking northbound near 88th and Aurora. After following them for a
short while, he stopped them. When he first saw them, they were walking and
talking together. When Officer Lemberg started to follow them, the man began to
walk in front of the woman.
Officer Lemberg saw no assault or struggle between the man and the
woman. He pulled his car off the road and detained the man and woman.
The man identified himself as Mark Alexander. The man admitted to
getting “into the face of the woman” and arguing with her but denied assaulting
her. He also denied having any relationship with the woman. Officer Lemberg
ran the name through the law enforcement database. The search confirmed
Alexander’s identity. The search revealed no outstanding warrants but did reveal
two active domestic violence no-contact orders. The orders prohibited Alexander
from contacting a person named Danyail Carison.
At that time, Officer Lemberg did not know the identity of the woman with
Alexander. While Officer Lemberg searched the law enforcement database, the
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No. 76506-0-I I 3
other officers spoke to the woman. She denied that she had been assaulted.
When the officers asked her name, she gave a false name. Almost immediately,
the officers discovered this after learning the woman’s true identity as Carlson by
looking at a booking photo.
Officer Lemberg arrested Alexander for violating the domestic violence no-
contact orders. The State charged Alexander with domestic violence felony
violation of a court order. Alexander asked the court to suppress evidence of the
no-contact orders, claiming that Officer Lemberg did not have the required
reasonable suspicion needed to justify the initial stop.
After a joint CrR 3.5/3.6 hearing, the trial court suppressed the no-contact
orders on a different ground. It found that Officer Lemberg was justified in
detaining Alexander but exceeded the scope of the initial Terry stop when (1) he
ran Alexander’s name through a law enforcement database and (2) he conducted
a second round of questioning of the woman about her identity and the no-
contact orders.
The State appeals.
ANALYSIS
The State challenges one of the trial court’s findings of fact and two
conclusions of law. When reviewing a trial court’s suppression decision, this
court examines whether substantial evidence supports the challenged findings
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No. 76506-0-I /4
and whether those findings support the conclusions of law.2 Substantial
evidence is enough evidence to persuade a fair-minded person of the truth of the
finding.3 This court treats unchallenged findings as true for purposes of the
appeal and reviews the trial court’s conclusions of law de novo.4 Whether a
warrantless stop is constitutional presents a question of law this court also
reviews de novo.5
Both the federal and Washington constitutions bar warrantless searches
unless they fall within one of several narrow exceptions.6 A Terry investigatory
stop is one exception to the warrant requirement.7 A Terry stop allows officers to
seize a person briefly if specific articulable facts give rise to a reasonable
suspicion that the person stopped is or has been involved in criminal activity.8 “A
reasonable, articulable suspicion means that there ‘is a substantial possibility that
criminal conduct has occurred or is about to occur.”9 When reviewing a Terry
stop’s validity, courts consider the totality of the circumstances,1° delicately
2 State v. Ross, 106 Wash. App. 876, 880, 26 P.3d 298 (2001).
~ State v. Vickers, 148 Wash. 2d 91, 116, 59 P.3d 58 (2002).
~ Ross, 106 Wash. App. at 880.
~ State v. Gatewood, 163 Wash. 2d 534, 539, 182 P.3d 426 (2008).
6 u~s• CONST. amend. IV; WASH. CONST. art. 1, § 7; State v. Doughty, 170
Wash. 2d 57, 61, 239 P.3d 573 (2010).
~ Terry, 392 U.S. at 21, 30.
8 State v. Glover, 116 Wash. 2d 509, 514, 806 P.2d 760 (1991).
~ State v. Snapp, 174 Wash. 2d 177, 197-98, 275 P.3d 289 (2012) (quoting
State v. Kennedy, 107 Wash. 2d 1, 6, 726 P.2d 445 (1986)).
10 Glover, 116 Wash. 2d at 514.
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No. 76506-0-I / 5
“balancing the interest of society in the enforcement of its laws against the
individual’s right to protection against unreasonable searches and seizures.”11
“[T]he determination of reasonable suspicion must be based on
commonsense judgments and inferences about human behavior.”12 Courts
consider factors such as the officer’s training and experience, the location of the
stop, the conduct of the person detained, the purpose of the stop, the amount of
physical intrusion upon the suspect’s liberty, and the length of time the suspect is
detained.13 Our Supreme Court has acknowledged that officers must be given
some leeway when a stop involves a serious crime or potential danger.14
“A lawful Terry stop is limited in scope and duration to fulfilling the
investigative purpose of the stop.”15 Similar to the analysis for determining the
validity of the stop, the proper scope of a Terry stop depends on “the purpose of
the stop, the amount of physical intrusion upon the suspect’s liberty, and the
length of time the suspect is detained.”16 If the initial investigation dispels the
11State v. Lesnick, 84 Wash. 2d 940, 942, 530 P.2d 243 (1975).
12 State v. Saggers, 182 Wash. App. 832, 840, 332 P.3d 1034 (2014)
(quoting Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 145 L. Ed. 2d 570
(2000)).
13 State v. Acrey, 148 Wash. 2d 738, 747, 64 P.3d 594 (2003).
14 State v. Z.U.E., 183 Wash. 2d 610, 623, 352 P.3d 796 (2015).
15 Acrey, 148 Wash. 2d at 747; see also Terry, 392 U.S. at 20 (stating that
determining the reasonableness of a seizure involves a dual inquiry about
“whether the officer’s action was justified at its inception, and whether it was
reasonably related in scope to the circumstances which justified the interference
in the first place”).
16 State v. Williams, 102 Wash. 2d 733, 740, 689 P.2d 1065 (1984).
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No. 76506-0-I / 6
officer’s suspicions, the stop must end.17 But if it confirms or further arouses the
officer’s suspicions, the officer may lawfully extend the scope and duration of the
stop 18
Challenge to Finding of Fact
The State first challenges the trial court’s finding that Officer Lemberg
concluded that no assault had occurred. The trial court made the following
finding of fact:
Officer Lemberg observed no struggle between the man and
woman or assault occurring prior to the stop. The defendant, Mark
Alexander, and the woman denied an assault had occurred. Officer
Lemberg inspected the woman’s face for injury but did not observe
any signs of injury. Officer Lemberg did not take any photographs
of the woman’s face. The defendant Alexander denied any
relationship with the woman. Based on this, Officer Lemberg
concluded that no assault had occurred.
The trial court relied on this finding to conclude that at this point, the purpose of
the stop—to investigate an assault—was satisfied and Officer Lemberg no longer
had authority to detain Alexander.
The State contends that the record does not support a finding that Officer
Lemberg concluded that no assault occurred. The State notes that when the trial
court made its oral ruling, the prosecuting attorney asked the court to clarify
whether it was finding that Officer Lemberg testified that he concluded that no
17Acrey 148 Wash. 2d at 747.
18Acrey, 148 Wash. 2d at 747.
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No. 76506-0-I / 7
assault had taken place. The court clarified that it “did not hear the officer state
that he determined an assault had occurred; that he determined that there were
no signs of injury at the time, after inspecting her for an injury, and that there
were no statements from the victim . . . that . . . there had been physical contact
with Mr. Alexander.” The court accurately characterized Officer Lemberg’s
testimony. He never stated that he concluded that no assault had occurred.
Alexander argues that the court was entitled to draw this inference from
the facts presented. We disagree. Evidence that the officer found no additional
evidence to corroborate the assault described in the 911 call does not show that
the officer concluded that no assault occurred. The court’s finding that Officer
Lemberg concluded no assault occurred is not supported by substantial
evidence.
In addition, the State points out in its reply brief that the court based its
inference on a misstatement of the facts. The court found that Officer Lemberg
concluded that no assault occurred after he inspected Carlson’s face. But he
only interacted with Carlson after he ran Alexander’s name. Thus, Officer
Lemberg could not have determined that no assault occurred based on the lack
of visible injury until after he searched for and found Alexander’s records.
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No. 76506-0-I I 8
Challenges to Conclusions of Law (b)
Next, the State challenges the trial court’s conclusion that Officer Lemberg
exceeded the scope of the Terry stop when he ran Alexander’s name through the
law enforcement database. The trial court reasoned,
The scope of the Terry stop was exceeded when Officer Lemberg
ran the defendant Alexander’s name though a law enforcement
database. At this point, Officer Lemberg had conducted an
investigation of the allegation of assault and determined no assault
had occurred. The purpose of the Terry stop to investigate and
determine whether an assault had likely occurred was satisfied.
Determining there was not probable cause to arrest for assault,
Officer Lemberg no longer had the authority to detain the defendant
Alexander.[19J
Washington courts have often held that police may check for outstanding
warrants during valid criminal investigatory stops.2° These checks are
This finding conflicts with the trial court’s statement at the hearing that
19
“through the process of the investigatory stop, [Officer Lemberg] was entitled to
run . .Mr. Alexander’s information.”
.
20 State v. Williams, 50 Wash. App. 696, 700, 700 n.1, 750 P.2d 278 (1988)
(citing State v. Kerens, 9 Wash. App. 449, 513 P.2d 63 (1973); State v. Thompson,
24 Wash. App. 321, 601 P.2d 1284 (1979), rev’d on other grounds, 93 Wash. 2d 838,
613 P.2d 525 (1980)); see also State v. Chelly, 94 Wash. App. 254, 261, 970 P.2d
376 (1999) (“Checking for outstanding warrants during a valid criminal
investigatory stop is a reasonable routine police practice, and warrant checks are
permissible as long as the duration of the check does not unreasonably extend
the initially valid contact.”); State v. Madrigal, 65 Wash. App. 279, 283, 827 P.2d
1105 (1992) (holding that checking for outstanding warrant checks during valid
criminal investigatory stop which took only about two minutes was not an
unreasonable extension of the initial contact); State v. Reeb, 63 Wash. App. 678,
681-82, 821 P.2d 84 (1992); ct State v. Rife, 133 Wash. 2d 140, 146, 150, 943 P.2d
266 (1997) (holding that law enforcement had no statutory authority to run a
warrant check after stopping someone for a routine traffic infraction without
reaching the constitutional issues).
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No. 76506-0-I I 9
reasonable routine police procedures as long as they do not unreasonably
extend the initial valid stop.21 Federal courts have also held that law enforcement
may run warrant checks during Terry stops.22
Here, the trial court concluded that the initial stop was a valid investigatory
stop. Our legislature has directed that “[t]he primary duty of peace officers, when
responding to a domestic violence situation, is to enforce the laws allegedly
violated and to protect the complaining party.”23 A report of a man assaulting a
woman along the roadway presents a potential domestic violence situation. The
history of domestic violence in our society informs police officers about the risk of
serious harm to its victims.
After stopping Alexander, Officer Lemberg questioned him for about two
minutes before returning to his car to run the name. The computer search that
revealed the no-contact orders took approximately two minutes. The other
21 Williams, 50 Wash. App. at 700.
22 ~ United States v. Young, 707 F.3d 598, 606 (6th Cir. 2012) (holding
that the officers did not exceed the scope of a Terry stop by running a warrant
check); Klaucke v. Daly, 595 F.3d 20, 26 (1st Cir. 2010) (noting that “most
circuits have held that an officer does not impermissibly expand the scope of a
Terry stop by performing a background and warrant check, even where that
search is unrelated to the circumstances that initially drew the officer’s
attention”); United States v. Villagrana-Flores, 467 F.3d 1269, 1275 (10th Cir.
2006) (holding that a police officer did not violate the Fourth Amendment by
obtaining a suspect’s identity and performing a warrants check while conducting
a valid investigative stop where the suspect was detained for a relatively short
period).
23 RCW 10.99.030(5).
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No. 76506-0-I /10
officers then questioned Carison about her identity. Within a few more minutes,
they discovered Carison’s identity by looking up her picture. Officer Lemberg
then arrested Alexander for violating a protection order approximately nine
minutes after the initial stop.
When an officer conducts a valid investigatory stop to determine whether
an assault occurred following a reliable informant tip, that officer may check for
outstanding warrants. Under these facts, Officer Lemberg properly ran
Alexander’s name through the law enforcement database during the investigative
stop.
The State also challenges the trial court’s conclusion that Officer Lemberg
exceeded the scope of the Terry stop when he questioned Carison about her
identity. The court reasoned,
[TJhe scope of the stop was certainly exceeded when Officer
Lemberg, with the defendant Alexander still detained, conducted a
second round of questioning of the woman regarding her identity
and the no contact orders. Officer Lemberg provided no articulable
facts that supported his hunch that the woman was the subject of
the no contact orders. At no point during her interaction with Officer
Lemberg or the other officers did she say anything or act in a
manner that would indicate there was an active no contact order
with the defendant Alexander. Nor was her giving of a false name
without more, reason to believe she was the subject of the no
contact orders. Her reluctance to give her true name to the police
could reasonably have been attributed to her having a criminal
record.
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No. 76506-0-I / 11
Two cases provide help in deciding whether Officer Lemberg had sufficient
articulable facts to continue his search. The State compares the facts of this
case to State v. Pettit.24 Alexander distinguishes Pettit and claims this case is
more like State v. Allen.25 From our comparison of these two cases, we conclude
that the facts here gave Officer Lemberg reasonable suspicion that Alexander
was violating a no-contact order and justified an inquiry into the identity of the
woman with him.
In Pettit, a sheriff’s deputy stopped Pettit because his car had a loud
exhaust.26 A record check revealed that no-contact orders restrained him from
contacting a 16-year-old girl, Michelle Whitmarsh.27 A female passenger in the
front seat appeared to be about 16.28 The passenger gave the deputy the name
Samantha Wright and a birth date.29 He ran that name and found no record.3°
Dispatch also provided him information about Michelle Whitmarsh.31 The
passenger matched the description from dispatch.32 The deputy arrested Pettit
24160 Wash. App. 716, 251 P.3d 896 (2011).
25 138 Wash. App. 463, 157 P.3d 893 (2007).
26 Pettit 160 Wash. App. at 718.
27 Pettit, 160 Wash. App. at 718.
28 Pettit, 160 Wash. App. at 718.
29 Pettit, 160 Wash. App. at 719.
30 Pettit, 160 Wash. App. at 719.
31 Pettit, 160 Wash. App. at 719.
32 Pettit, 160 Wash. App. at 719.
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No. 76506-0-I /12
for violating the no-contact order. Division Two affirmed the trial court’s decision
to deny Pettit’s motion to suppress Whitmarsh’s identity.33 The court reasoned,
Deputy Watson knew that the no-contact order protected a 16-year-
old girl named Michelle Whitmarsh from Pettit and that Pettit’s front
seat female passenger appeared to be 16. These facts were
sufficient to support a rational inference warranting the officer’s
initial request for the passenger’s identification to determine
whether she was the person whom the no-contact order sought to
protect. Pettit’s female passenger provided a birth date that was
not consistent with her apparent age, justifying the subsequent
records check, which then led to the corroborating physical
description, including the identifying tattoo on her left hand. The
additional investigation was brief and did not significantly extend
the duration beyond that of a typical traffic stop.~34~
The court also noted that Whitmarsh’s status as a minor who had been reported
missing presented exigent circumstances warranting the brief detention.35
In Allen, police stopped a car for failure to have a working license plate
light.36 Allen was a passenger in the car.37 The officer checked the driver’s
information and discovered that she was “a [petitioner] in a protection order.”38
The officer also learned that the restrained party was named Allen but did not
know the gender or have a description.39 The officer asked for Allen’s identity;
~ Pettit, 160 Wash. App. at 719, 722.
~ Pettit, 160 Wash. App. at 720-21.
~ Pettit, 160 Wash. App. at 721-22.
36Allen, 138 Wn. App. at465-66.
~ Allen, 138 Wash. App. at 465.
38 Allen, 138 Wash. App. at 466.
39Allen, 138 Wn. App. at466.
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No. 76506-0-I /13
both Allen and the driver gave a false name.4° After checking the given name
with dispatch and discovering it was false, the officer questioned the driver
further about the passenger’s identity.41 The driver eventually identified the
passenger as Allen.42 Division Two decided that the trial court should have
suppressed the identification of Alien.43 It reasoned, in part, that “[w]ithout
knowledge that the passenger provided a false name, [the officer] did not
possess reasonable articulabie facts to believe that the no-contact order referred
to the passenger.”44
This case differs from Pettit because Officer Lemberg had no description
of the protected person. But unlike in Allen, he had other articulable facts to
suggest that the woman with Alexander was the protected party. Officer
Lemberg was following up on a reliable informant tip reporting an assault when
he discovered the domestic violence no-contact orders. Although he found no
corroborating evidence to support the assault, based on his experience
investigating assaults and domestic violence incidents, he knew that victims often
stay with the assaulter. In addition, Alexander denied any relationship with the
woman with whom he had been walking and talking, admitted that the two had
40 Allen, 138 Wn. App. at 466.
41 Allen, 138 Wn. App. at 466-67.
42 Allen, 138 Wn. App. at 467.
~ Allen, 138 Wn. App. at 472.
44Allen, 138Wn. App. at 471.
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No. 76506-0-I /14
been arguing, and that he had gotten into her face. And both Alexander and the
woman demonstrated unwillingness to reveal her identity. Thus, unlike in Allen,
but like in Pettit, Officer Lemberg had enough facts to raise a reasonable
suspicion that a no-contact order was being violated.
Unlike in Pettit, this case does not involve a missing child. But it does
involve an alleged recent assault, admitted quarreling, and a domestic violence
no-contact order, thus warranting Officer Lemberg’s investigation into the
woman’s identity.45
Here, the Terry stop involved detention of an alleged assailant and victim,
a very recent assault, a warrant check disclosing a protection order, admitted
quarreling, and unwillingness to disclose the alleged victim’s identity. These
facts provided Officer Lemberg with sufficient reasonable suspicion to investigate
whether the woman with Alexander was the protected person. Indeed, the public
policy expressed by our legislature in RCW 10.99.030(5) makes the protection of
that victim a primary duty of the officer. Officer Lemberg did not exceed the
proper scope of the Terry stop.
CONCLUSION
The trial court erred in concluding that Officer Lemberg exceeded the
See State v. Jacobs, 101 Wash. App. 80, 89 n.3, 2 P.3d 974 (2000)
(where the existence of a domestic violence no-contact order was relevant to the
court finding exigent circumstances justified a warrantless search of a home).
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No. 76506-0-I /15
scope of the Terry stop. It should not have suppressed the evidence of the no-
contact orders. We reverse and remand for further proceedings consistent with
this opinion.
WE CONCUR:
I -~:~~i ~\-. ~QAJr~Qe~
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