State Of Washington v. Anthony Earl Burr ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 70056-1-1
Respondent, DIVISION ONE
v.
ANTHONY EARL BURR, UNPUBLISHED
Appellant. FILED: April 28. 2014
Cox, J. - Anthony Burr appeals his judgment and sentence, claiming that
the trial court erred when it denied his motion to suppress a gun found in his car
because the search "flowed from an unlawful frisk for weapons." Because this
search was supported by a reasonable beliefthat Burr was armed and presently
dangerous, we disagree and affirm.
The State charged Burr with unlawful possession of a firearm in the
second degree. The charge was based on an incident that occurred in 2010.
The trial court's findings of fact provide context.
On February 9, 2010, at around 10:18 p.m., Marcus Dill, a deputy sheriff
with the Snohomish County Sheriff's Office, saw two males standing near a
parked car in an apartment complex parking lot. The door was open for this
parked car and a wheel was leaning against the driver's door.
Deputy Dill immediately recognized Burr and the other male, Jason
Cobbs, from previous encounters with each man. He was aware that neither
No. 70056-1-1/2
man lived at the apartment complex. He also knew that both Burr and Cobbs
were convicted felons with a history of possessing weapons.
Earlier that day, Deputy Dill had received an anonymous tip that Cobbs
had been attempting to sell firearms to juveniles.
He frisked Burr and Cobbs for weapons. Burr told Deputy Dill that he had
a marijuana pipe in his pocket.
He detected the odor of burnt marijuana coming from the area near the
car where Burr had been standing. He requested permission to search the car
but they refused. A K-9 dog responded, sniffed outside the vehicle, and gave a
positive response. Deputy Dill impounded the car.
He obtained a warrant and searched the car a week later. He found a
loaded handgun in the glove compartment. Burr later admitted that the handgun
was his.
Burr moved to suppress the marijuana pipe and the handgun. He made
several arguments to support his motion, one of which was that Deputy Dill's
search was not supported by a reasonable belief that Burr was armed and
dangerous at the time of the frisk.
At a hearing on this motion, the court heard testimony from Deputy Dill.
The court concluded that there was a sufficient basis to pat down Burr, and it
denied his motion to suppress. The court later entered its written findings of fact
and conclusions of law for the suppression hearing.
No. 70056-1-1/3
In February 2013, the trial court entered a guilty finding after a stipulated
bench trial. The court later entered findings of fact and conclusions of law for the
trial.
Burr appeals.
MOTION TO SUPPRESS
Burr argues that the frisk was unlawful and that the trial court erred when it
concluded that Deputy Dill reasonably believed his safety or that of others was at
risk when he frisked Burr for weapons. We disagree.
"The Constitution does not require an officer to wager his physical safety
against the odds that a suspected assailant is actually unarmed.'"1 "A
reasonable safety concern exists, and a protective frisk for weapons is justified,
when an officer can point to 'specific and articulable facts' which create an
objectively reasonable belief that a suspect is 'armed and presently dangerous.'"2
"The officer need not be absolutely certain that the individual is armed; the issue
is whether a reasonably prudent [person] in the circumstances would be
warranted in the belief that his [or her] safety or that of others was in danger.'"3
"'Courts are reluctant to substitute their judgment for that of police officers
in the field. A founded suspicion is all that is necessary, some basis from which
1 State v. Belieu, 112 Wash. 2d 587, 602 n.3, 773 P.2d 46 (1989) (quoting
State v. Serrano, 14 Wash. App. 462, 469-70, 544 P.2d 101 (1975)).
2 State v. Collins, 121 Wash. 2d 168, 173, 847 P.2d 919 (1993) (quoting
Terry v. Ohio, 392 U.S. 1, 21-24, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).
3]d at 173 (alterations in original) (quoting Terry, 392 U.S. at 27).
No. 70056-1-1/4
the court can determine that the [frisk] was not arbitrary or harassing.'"4 We must
consider the entirety of the circumstances in determining the validity of a
protective search.5
In State v. Holbrook, this court held that an officer was justified in
conducting a protective search based on "the fact that th[e] stop was made at
night, Holbrook had a passenger in the car, and the officer had information
indicating there might be a gun in the car, even though obtained from a source
whose reliability had not been established . .. ."6
In State v. Collins, the supreme court upheld a protective frisk based on
the reliable fact of Collins's apparent prior access to a weapon, combined with
the fact that the stop occurred at 4 a.m. and the fact that Collins had a prior
felony arrest.7
We review a trial court's ruling on a motion to suppress to determine
whether substantial evidence supports the trial court's factual findings and
whether its factual findings support its conclusions of law.8 "Evidence is
substantial when it is enough 'to persuade a fair-minded person of the truth of the
4 Id. (alteration in original) (internal quotation marks omitted) (quoting
Belieu, 112 Wash. 2d at 601-02).
5 State v. Glossbrener, 146 Wash. 2d 670, 679, 49 P.3d 128 (2002).
6 33 Wash. App. 692, 695, 657 P.2d 797 (1983).
7 121 Wash. 2d 168, 174-78, 847 P.2d 919 (1993).
8 State v. Garvin, 166 Wash. 2d 242, 249, 207 P.3d 1266 (2009).
No. 70056-1-1/5
stated premise.'"9 Unchallenged findings of fact are verities on appeal.10 This
court may look to the trial court's oral findings to aid its review if the written
findings are incomplete.11 We review conclusions of law de novo.12
Here, the unchallenged written findings, as well as the factors cited by the
trial court in its oral ruling, support its conclusion that the frisk was lawful. The
court, in its oral ruling, stated:
[l]t's clear to me based on the information that the officer had that
night, the [anonymous tip], the fact that the individuals had their
hands in their pockets, had knowledge that they had possessed
weapons before, it is at night, there were issues in relation to officer
safety, so I do believe it was reasonable for him on the totality of
the circumstances here. And I think a significant portion of that is,
one, the [anonymous tip]. Two, the fact that the officer saw Mr.
Burr enter and exit the vehicle, that that was sufficient basis for him
to do the pat down search.[13]
These facts are supported by Deputy Dill's testimony at the evidentiary
hearing. Deputy Dill testified that there was a "significant amount of criminal
activity in that area."14 He explained that he had been advised of an anonymous
tip that Cobbs had been trafficking firearms to some juveniles at the Hampton
Court Apartments. Further, he testified that he believed that this incident with
Burr and Cobbs occurred at these same apartments.
9 Id. (quoting State v. Reid, 98 Wash. App. 152, 156, 988 P.2d 1038(1999)).
10 State v. Valdez, 167 Wash. 2d 761, 767, 224 P.3d 751 (2009).
11 State v. Robertson, 88 Wash. App. 836, 843, 947 P.2d 765 (1997).
12 Garvin, 166 Wash. 2d at 249.
13 Report of Proceedings (Aug. 2, 2012) at 46-47.
14 Id. at 7.
No. 70056-1-1/6
Deputy Dill also testified that Burr had been involved in stolen vehicles
and drug trafficking, and that Deputy Dill's partner had previously removed a
firearm from Burr. He said that he observed Burr get into the car briefly and then
get back out as Deputy Dill approached.
Deputy Dill stated that his primary reason for the pat-down was "his own
safety." He explained that he was by himself, it was dark, he did not know if they
were stealing the car or why they were there and that they had a history of
possessing weapons.
The unchallenged written findings, along with the circumstances that the
trial court highlighted at the hearing, show specific and articulable facts that
created an objectively reasonable belief that Burr was armed and presently
dangerous. Under these circumstances, such information could lead a
reasonably careful officer to believe that a protective frisk should be conducted to
protect his safety and the safety of others.
In sum, the trial court did not err when it concluded that the frisk was
lawful.
Burr argues that "neither he nor Cobbs said or did anything threatening to
Dill," that "neither man attempted to flee or ignored Dill's directions," that "neither
made furtive movements," and that "neither grabbed a tool to use against Dill."
But these factors are not required to justify a protective search. Ifsuch evidence
is present, it may justify a protective search, but its absence does not mean that
the frisk was not justified. Burr cites no authority to the contrary.
No. 70056-1-1/7
Burr also argues that Deputy Dill could have taken other actions, such as
moving Burr and Cobbs away from the car to alleviate any concern. But there is
nothing that requires Deputy Dill to take other action before conducting a frisk.
Burr's argument is not persuasive.
We affirm the judgment and sentence.
Czx.J
WE CONCUR:
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