State Of Washington v. Christopher Withers ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
DIVISION II
STATE OF WASHINGTON, No. 46395 -4 -II .
Respondent,
V.
CHRISTOPHER LOUIS WITHERS, UNPUBLISHED OPINION
LEE, J. — Christopher Louis Withers appeals his convictions of unlawful possession of a
controlled substance ( methamphetamine) and making a false or misleading statement to a public
servant. Withers contends that the trial court erred in denying his motion to suppress because the
evidence leading to his convictions resulted from an unlawful seizure. We hold that the interaction
between Withers and the officers was a social contact that did not amount to a seizure. We uphold
the trial court' s suppression ruling and affirm the convictions.
FACTS
Cowlitz County Deputy Sheriff Derrick Baker was driving in Kelso when he heard a radio
report from the Kelso Police Department. An off-duty deputy reported a possible bicycle theft
after seeing two men riding bicycles and pulling a third bicycle with them. Baker was not
dispatched to investigate the call, but he looked for individuals fitting the men' s descriptions
because he was in the area.
No. 46395 -4 -II
Baker, soon saw two men riding bicycles and wheeling a third bicycle. Withers was one of
those men. Baker drove past them and pulled into a parking lot. Baker' s patrol car did not impede
or block the men' s travel, and Baker did not turn on the car' s lights or siren. Baker was in uniform,
but he did not draw his weapon as he approached the men on foot.
Baker initiated contact by asking the men how they were doing and whether he could speak
with them. Both men stopped and spoke to Baker while remaining on their bicycles. Baker spoke
to the men for a few minutes about the Kelso report concerning the third bicycle. During that
questioning, Withers put his hands in his pockets, and Baker instructed him to keep his hands
visible. When Baker asked the men for their names, Withers identified himself as Jamey Leeroy
Withers but had trouble remembering his birthdate. Baker looked up Jamey Leeroy Withers in his
computer system and noticed that Withers did not match Jamey Withers' physical description.
Shortly thereafter, Kelso Police Officer.Tim Gower arrived at the scene. Gower saw that
the two men were not handcuffed and that they were seated on their bicycles while Withers talked
with Baker. Baker advised Gower of the discrepancy in the physical descriptions of Withers and
Jamey Withers. Gower checked additional computer records and found that Withers had
previously used Jamey Withers' name and that there was an outstanding warrant for Withers'
arrest. Gower arrested Withers and his companion left the scene. During a search incident to
arrest, Gower found a.vial of methamphetamine in Withers' shirt pocket.
The State charged Withers with unlawful possession of a controlled substance and first
degree criminal impersonation. Withers moved to suppress the methamphetamine and his
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misidentification statement, arguing that both resulted from an unlawful Terry stop.' The State
conceded that Deputy Baker did not have the legal basis for a Terry stop but argued that Baker' s
encounter with Withers was a social contact that did not amount to an unlawful seizure. During
the suppression hearing, the officers and Withers testified to the facts set forth above, and Withers
admitted that he had lied about his identity.
The trial court denied the motion to suppress after concluding that the interaction between
the officers and the men was a permissible social contact rather than a seizure, and the court entered
written findings of fact and conclusions of law to support its ruling. The State then filed an
amended information charging Withers with unlawful possession of a controlled substance and
making a false or misleading statement to a public servant., After Withers agreed to a bench trial
on stipulated facts, the trial court found him guilty as charged. Withers appeals the denial of his
suppression motion.
ANALYSIS
A. CHALLENGED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Withers argues that the evidence does not support some of the trial court' s factual findings.
Following the denial of a suppression ruling, we review challenged findings of fact for substantial
evidence. State v. Garvin, 166 Wash. 2d 242, 249, 207 P.3d 1266 ( 2009). Evidence is substantial
when it is sufficient " to persuade a fair- minded person of the truth of the stated premise." Id. We
review conclusions of law de novo, but when a conclusion contains an assertion of fact, it functions
A Terry stop allows a police officer to briefly detain and question an individual if the officer has
a reasonable and articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 20 L.
Ed. 2d 889, 88 S. Ct. 1868 ( 1. 968).
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as a finding of fact and is reviewed under the substantial evidence rule. Id.; State v. Luther, 157
Wash. 2d 63, 78, 134 P.3d 305, cert. denied, 549 U.S. 978 ( 2006). Unchallenged findings of fact are
verities on appeal. State v. Pierce, 169 Wash. App. 533, 544, 280 P.3d 1158, review denied, 175
Wash. 2d 1025 ( 2012).
Withers challenges the factual support for parts of two findings of fact and one conclusion
of law. First, he challenges finding of fact 6:
Deputy Baker approached both subjects and asked to speak to them. Both subjects
voluntarily stopped and talked to Deputy Baker. Neither subjects were detained,
cuffed, or placed under arrest. Both subjects remained with their bicycles. The
defendant was one of the two subjects contacted by Deputy Baker.
Clerk' s Papers ( CP) at 36- 37 ( emphasis added). Withers argues that the evidence does not support
a finding that he and his friend voluntarily stopped.
Deputy Baker testified that when he got out of his car and approached Withers and his
companion, the two men stopped. He testified that he did not order them to stop or stay and that
he did not block their path. He added that Withers never indicated that he wanted to leave or did
not want to talk. Withers testified that Baker sought permission to ask some questions before
talking to him and his friend about the report concerning the stolen bike. Substantial evidence
supports the statement in finding of fact 6 that Withers and his friend voluntarily stopped before
talking with the deputy.
Second, Withers challenges finding of fact 9:
Deputy Baker thought it was suspicious that the defendant had trouble remembering
the correct date of birth and looked up Jamey Leeroy Withers in his computer
system. The defendant did not match the physical descriptions for Jamey Leeroy
Withers.
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CP at 37 ( emphasis added). Withers argues that the evidence does not support the finding that he
did not match the physical descriptions of Jamey Leeroy Withers.
Deputy Baker testified that when he checked his computer for information about Jamey
Withers, "[ t] he physicals saw -- they didn' t quite match up either." Verbatim Report of Proceedings
VRP) at 10. Officer Gower testified that he checked other computer records " and looked at the
record of the name he gave and the picture was kind of close but wasn' t him."' VRP at 48.
Substantial evidence supports the statement in finding of fact 9 that Withers did not match the
physical descriptions for Jamey Withers.
Third, Withers challenges conclusion of law 3:
Deputy Baker' s actions had all the hallmark[ s] of a social contact, except for his
instruction for the defendant to keep his hands visible. Deputy Baker was justified
in instructing the defendant to keep his hands visible for officer safety reasons and
the instruction did not transform a social contact into a seizure.
CP at 38 ( emphasis added). Withers argues that the factual findings do not support this conclusion.
Withers' criticism of this conclusion is based partly on the principle that it contains a
factual finding and should be scrutinized for substantial evidence. Withers argues that there was
no factual justification for Deputy Baker' s instruction to Withers to keep his hands visible.2 He
adds that this conclusion contradicts the State' s claim that the interaction amounted only to a social
contact.
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Withers does not assign error to finding of fact 8, which states in part that "[ d] uring the course
of the initial 5 minutes [ sic] conversation, the defendant placed his hands in his pockets and was
by Deputy Baker to keep his hands out of his pockets for officer safety reasons."
instructed CP at
37. Unchallenged findings of fact are verities on appeal. Pierce, 169 Wash. App. at 544.
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When defense counsel asked Withers why Baker asked him to keep his hands visible,
Withers testified as follows: " Because there was— there was two of us, you know what I mean?
So, I' m— I' m pretty sure for his personal rights he didn' t want— he didn' t want us— our
safety
hands where he could see them." VRP at 32. This testimony supports the statement in conclusion
of law 3 that Baker instructed Withers to keep his hands out of his pockets for safety reasons.
Withers' additional complaint about this conclusion focuses on his assertion that the
deputy' s instruction converted the contact into a seizure. We address this question of law below.
B. SOCIAL CONTACT OR SEIZURE?
Whether police have seized a person is a mixed question of law and fact. State v.
Harrington, 167 Wash. 2d 656, 662, 222 P.3d 92 ( 2009). The trial court' s factual findings are entitled
to great deference, but the ultimate determination of whether those facts constitute a seizure is a
question of law that we review de novo. Id. at 662- 63.
The Fourth Amendment to the United States Constitution and article I, section 7 of the
Washington Constitution protect a citizen' s right to be free from unreasonable search and seizure.
State v. Fortun- Cebada, 158 Wn. App. 158, 168, 241 P.3d 800 ( 2010). A seizure occurs when an
individual' s freedom of movement is restrained and the individual would not believe that he is free
to leave or decline a request due to an officer' s use of force or display of authority. State v. O' Neill,
148 Wash. 2d 564, 574, 62 P.3d 489 ( 2003). This determination is made objectively by looking at
the officer' s actions. State v. Rankin, 151 Wash. 2d 689, 695, 92 P.3d 202 ( 2004). The relevant
question is whether a reasonable person in the individual' s position would feel he or she was being
detained. Harrington, 167 Wash. 2d at 663.
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A " social contact" is not a seizure. State v. Guevara, 172 Wn. A0p. 184, 188, 288 P.3d
1167 ( 2012). Where an officer suspects the possibility of criminal activity, he may question an
individual and ask for identification without effecting a seizure. O' Neill, 148 Wash. 2d at 577; State
v. Mote, 129 Wn. App. 276, 282, 120 P.3d 596 ( 2005). A social contact rests " someplace between
an officer' s saying `hello' to a stranger on the street" and an investigative detention. Harrington,
167 Wash. 2d at 664. Police actions likely to trigger a seizure rather than social contact include the
presence of several officers, an officer' s display of a weapon, some physical touching of the
citizen, or the use of language or tone of voice indicating that compliance with the officer' s request
might be compelled. Guevara, 172 Wash. App. at 188.
Withers argues that several facts show that his interaction with Deputy Baker amounted to
a seizure rather than mere social contact: Baker approached without any reason to believe Withers
had acted illegally, Baker explained that he was investigating a possible theft, Baker instructed
Withers to take his hands out of his pockets, Baker asked for identification, and a second officer
arrived at the scene.
The fact that Baker approached the two men after hearing of a possible crime in the vicinity
did not make his contact a seizure. Nor did the contact turn into a seizure after Baker explained
that he was investigating a possible theft. An officer' s suspicions regarding the possibility of
criminal activity do not convert a social contact into a seizure. O' Neill, 148 Wash. 2d at 574- 75; see
also Mote, 129 Wash. App. at 282 ( officers must be able to approach citizens, and inquire into
whether they will answer questions as part of their community caretaking functions). Whether a
person has been restrained by an officer must be determined by their interaction rather than the
officer' s motives. O' Neill, 148 Wash. 2d at 575.
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We have already explained that Deputy Baker' s request for identification was a permissible
part of the social contact. Id. at 577. As for the arrival of a second officer, Officer Gower came
to the scene voluntarily after hearing the dispatch report, and he helped Baker check the
identification that Withers provided. This assistance did not transform the contact into a seizure.
See Harrington, 167 Wash. 2d at 669- 70 ( arrival of second officer did not convert contact into
seizure).
As the trial court recognized, the key issue is whether Deputy Baker' s instruction to
Withers to keep his hands out of his pockets rendered the contact a seizure. Our Supreme Court
addressed this issue in Harrington, where the defendant was walking in public when officers
stopped and questioned him. Id. at 661- 62. The officer asked the defendant to remove his hands
from his pockets and to consent to a search as another officer arrived. Id. at 662.
The Harrington court noted that lower Washington courts have found that an officer' s
request to keep hands out of one' s pockets does not independently rise to the level of a seizure.
Id. at 666- 67 ( citing State v. Nettles, 70 Wn. App. 706, 712, 855 P.2d 699 ( 1993), review denied,
123 Wash. 2d 1010 ( 1994)). The Harrington court then cited cases from other jurisdictions holding
that an officer' s direction to a defendant to remove hands from pockets falls short of a seizure. Id.
at 667 ( citing Duhart v. United States, 589 A.2d 895, 898 ( D.C. App. 199 1) and United States v. .
Barnes, 496 A.2d 1040, 1044- 45 ( D. C. App. 1985)). Nevertheless, asking a person to remove
hands from pockets adds to the officer' s progressive intrusion and moves the interaction further
from a valid social contact. Id. The interaction in Harrington did not mature into a seizure,
however, until the officers made the request to frisk. Id. at 669- 70; see also Guevara, 172 Wn.
App. at 190 ( request to search is inconsistent with social contact).
M.
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Other cases. support the conclusion that without additional coercive measures, a request to
keep hands visible does not convert a contact into a seizure. In Nettles, the officer called out to
the defendant as he was walking away that she would like to speak with him. .70 Wn. App. at 708.
When he stopped and turned around, the officer told him to remove his hands from his pockets
and come toward the patrol car. Id. As he did so, he threw a baggie under the patrol car. Id. The
Nettles court affirmed the denial of the motion to suppress, holding that a seizure does not occur
when a police officer merely asks an individual whether he or she will answer questions or when
the officer makes some further request that falls short of immobilizing the individual." Id. at 71.0.
The court concluded that telling the defendant to remove his hands from his pockets did not convert
the encounter into a seizure. Id. at 712.
The Fortun-Cebada court cited Nettles in holding that an officer' s instruction to an
individual to remove his hands from a pocket did not turn the contact into a seizure. 158 Wash. App.
at 169. In Fortun-Cebada, the officer asked a suspected drug buyer for permission to speak to him
before telling the buyer to take his hands out of his sweatshirt pocket. Id. It was otherwise
undisputed that the buyer was under no obligation to talk to the officer and could have walked
away. Id. In Fortun- Cebada, as in Nettles, the direction to remove hands from a pocket did not
convert a permissible social contact into a seizure. Id. at 169- 70.
We reach the same result here. Deputy Baker' s instruction to Withers to keep his hands
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visible did not transform a social contact into a seizure. We uphold the trial court' s denial of
Withers' suppression motion and affirm his convictions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
Lee, J..
We concur:
Maxi P. J.
Su n— —.,
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