State Of Washington, V Pavel F. Zalozh ( 2014 )

FILED
COURT OF APPEALS
D! VtSIQ 11
20 APR 22 PM 8: 37
AS; TON.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON,
Appellant, No. 44107 -1 - II
v. UNPUBLISHED OPINION
PAVEL F. ZALOZH,
Respondent.
MAxA, J. — The State appeals a trial court order suppressing all evidence from the
investigative stop of a vehicle in which Pavel Zalozh was a passenger and dismissing the charges
against Zalozh on which the suppressed evidence depended. We hold that the stop was justified
because the law enforcement officers reasonably suspected that Zalozh, whom they had probable
cause to arrest, was the person they saw hiding in the back seat of the vehicle. Accordingly, we
reverse the trial court' s order suppressing the evidence seized during the stop and its dismissal of
the related charges against Zalozh, and remand for trial.
No. 44107 -1 - II
FACTS
On the morning of June 11, 2012, a team of officers was attempting to locate Zalozh
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because he allegedly had violated a no contact order with his girl friend, Oleysa Maksimenko,
and because he was a suspect in a recent burglary. The officers had probable cause to arrest
Zalozh. The officers suspected that Zalozh might be at Maksimenko' s house because ( 1) he had
lived with her in the past, (2) officers previously had located him there in violation of a no
contact order, ( 3) a person who recently had paid Zalozh' s bail told officers that Zalozh often
was with Maksimenko, and (4) Zalozh' s parents stated that he might be staying with
Maksimenko. However, the officers did not have any actual evidence that Zalozh was at
Maksimenko' s house on June 11.
In an attempt to locate Zalozh, one officer conducted surveillance of Maksimenko' s
house. The officer saw an unidentified adult female open the front door and watch two children
walk to the bus stop. Later, the officer observed a silver car back out of the garage. As the car
drove by him, he saw that it was driven by the same unidentified female. The officer also
noticed an adult person wearing a hooded sweatshirt lying down in the back seat of the car. The
officer, who had experience apprehending fugitives in the past, concluded that the person in the
back seat was attempting to hide.
The officer relayed his observations to other officers who were several blocks away
conducting an unrelated arrest and advised them that the silver car was heading toward their
location. As the car matching the first officer' s description approached, an officer stepped into
the roadway and put his hand out to stop it. The female driver, who officers later identified as
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We note that Oleysa Maksimenko' s name is spelled three different ways in the record. For this
opinion we opt to use the spelling from the trial court' s findings of fact and conclusions of law.
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No. 44107 -1 - II
Maksimenko, complied with the officer' s directive. When the car came to a stop, the back -seat
passenger sat up. Officers making the stop immediately recognized the person as Zalozh and
arrested him. Prior to this stop, none of the officers had identified the driver, the back -seat
passenger, or the registered owner of the car.
Maksimenko consented to a search of the car. During the search officers located a
backpack and jewelry from burglaries in which Zalozh was a suspect.
The State charged Zalozh with one count first degree burglary, two counts theft of a
firearm, and two counts second degree possession of stolen property. Zalozh moved to suppress
the evidence seized from the car. The trial court concluded that officers lacked a reasonable
articulable suspicion to stop the car. Therefore, the trial court granted Zalozh' s motion to
suppress the evidence obtained as a result of the unlawful seizure. The trial court then dismissed
the charges against Zalozh. The State appeals.
ANALYSIS
A. STANDARD OF REVIEW
When reviewing the trial court' s grant of a CrR 3. 6 suppression motion, we determine
whether substantial evidence supports the challenged findings of fact and whether the findings of
fact support the conclusions of law. State v. Garvin, 166 Wash. 2d 242, 249, 207 P.3d 1266 ( 2009).
Evidence is substantial when it is enough `to persuade a fair -
minded person of the truth of the
stated premise.' " Garvin, 166 Wash. 2d at 249 ( quoting State v. Reid, 98 Wash. App. 152, 156, 988
P.2d 1038 ( 1999)). Unchallenged findings of fact are considered verities on appeal. State v.
Lohr, 164 Wn. App. 414, 418, 263 P.3d 1287 ( 2011). We review de novo the trial court' s
conclusions of law pertaining to the suppression of evidence. Garvin, 166 Wash. 2d at 249.
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No. 44107 -1 - I1
Findings of fact mislabeled as conclusions of law are treated as findings of fact on review. State
v. Marcum, 24 Wash. App. 441, 445, 601 P.2d 975 ( 1979).
B. JUSTIFICATION FOR INVESTIGATIVE STOP
The trial court concluded that there were no articulable facts that would justify the stop of
Maksimenko' s car. We disagree. Although the officers did not have actual knowledge that
Zalozh and Maksimenko were riding together in the car they stopped, the officers did have a
reasonable suspicion based on the totality of the circumstances that both Zalozh and
Maksimenko were in the car. Accordingly, the investigatory stop was justified, and the trial
court erred in suppressing the evidence discovered following the stop.
Terry2
1. Standards for Stop
Under the Fourth Amendment to the United States Constitution and article I, section 7 of
the Washington State Constitution, a police officer generally cannot seize a person without a
warrant supported by probable cause. Garvin, 166 Wash. 2d at 249; State v. Acrey, 148 Wash. 2d 738,
745 -46, 64 P.3d 594 ( 2003) ( addressing only Fourth Amendment). A warrantless seizure is
considered per se unconstitutional unless it falls within an exception to the warrant requirement.
State v. Rankin, 151 Wash. 2d 689, 695, 92 P.3d 202 ( 2004); Acrey, 148 Wash. 2d at 746.
One established exception is a brief investigatory detention of a person, commonly called
a Terry stop. Acrey, 148 Wash. 2d at 746. A police officer may conduct a warrantless investigative
stop based upon less evidence than is needed to establish probable cause to make an arrest.
Acrey, 148 Wash. 2d at 746 -47. But the officer must have " a reasonable suspicion, grounded in
specific and articulable facts, that the person stopped has been or is about to be involved in a
crime." Acrey, 148 Wash. 2d at 747. " A reasonable, articulable suspicion means that there ` is a
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Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968).
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No. 44107 -1 - II
substantial possibility that criminal conduct has occurred or is about to occur.' " State v. Snapp,
174 Wash. 2d 177, 197 -98, 275 P. 3d289 ( 2012) ( quoting State v. Kennedy, 107 Wash. 2d 1, 6, 726
P.2d 445 ( 1986)). The officer' s suspicion must relate to a particular crime rather than a
generalized suspicion that the person detained is " up to no good." State v. Bliss, 153 Wash. App.
197, 204, 222 P.3d 107 ( 2009). A mere hunch not supported by articulable facts that the person
has committed a crime is not enough to justify a stop. State v. Doughty, 170 Wash. 2d 57, 63, 239
P.3d 573 ( 2010).
We determine the propriety of an investigative stop —the reasonableness of the officer' s
suspicion —based on the " totality of the circumstances." Snapp, 174 Wash. 2d at 198. We must
base our evaluation of reasonable suspicion on " ` commonsense judgments and inferences about
human behavior.' " State v. Lee, 147 Wn. App. 912, 917, 199 P.3d 445 ( 2008) ( quoting Illinois
v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 145 L. Ed. 2d 570 ( 2000)). The focus is on what
the officer knew at the time of the stop. Lee, 147 Wash. App. at 917. No subsequent events or
circumstances can retroactively justify a stop. State v. Mendez, 137 Wash. 2d 208, 224, 970 P.2d
722 ( 1999), abrogated on other grounds by Brendlin v. California, 551 U.S. 249, 255, 259 n. 5,
127 S. Ct. 2400, 168 L. Ed. 2d 132 ( 2007). Specifically, the fact that the officer' s suspicion
turned out to be correct is irrelevant. See Mendez, 137 Wash. 2d at 224, 226.
Whether a warrantless investigative stop was justified or represented a constitutional
violation is a question of law, which we review de novo. State v. Bailey, 154 Wash. App. 295,
299, 224 P.3d 852 ( 2010). The State bears the burden of showing the propriety of an
investigative stop. Acrey, 148 Wash. 2d at 746. If the initial stop was unlawful, the items seized
from that stop are inadmissible as fruits of the poisonous tree. Kennedy, 107 Wash. 2d at 4.
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No. 44107 -1 - II
2. Challenged Findings of Fact
The State assigns error to three findings of fact included within the trial court' s
conclusions of law section. The trial court found that at the time of the stop ( 1) officers did not
know that Zalozh was in the vehicle and there was no evidence that he had been at
Maksimenko' s house before the stop, ( 2) the officers did not have any information that
Maksimenko was at risk, and ( 3) the officers did not know that Zalozh was currently violating
the no contact order with Maksimenko.
We hold that these findings of fact (which were mislabeled as conclusions of law) were
supported by substantial evidence. None of the officers testified that they had actual knowledge
that Zalozh had been at Maksimenko' s house on the day of the stop or that they had identified
Zalozh as being a passenger in the car before the stop. One of the officers testified that she was
concerned about Maksimenko' s safety because of the possible restraining order violation, but the
officer' s concern was not based on any actual knowledge. And the officers had no actual
knowledge that Zalozh was violating the no contact order because they did not know that he was
at Maksimenko' s house or in the car with her.
However, these findings of fact do not compel the legal conclusion that the stop was
unjustified. In order for an investigatory stop to be lawful, officers must have only a reasonable
suspicion that criminal conduct has occurred. Acrey, 148 Wash. 2d at 747. Actual knowledge is
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not required. See Snapp, 174 Wash. 2d at 198. As a result, despite the trial court' s factual
findings, we must evaluate whether the officers' suspicion that Zalozh and Maksimenko were in
3 In Snapp, the court held that an officer' s observance of a vehicle driving without lights in dark,
cold, and icy conditions justified an investigatory stop based on the officer' s rational belief that
the driver was violating a statute requiring that headlights be on beginning one -half hour after
sunset despite not having actual knowledge of the exact time of sunset. 174 Wash. 2d at 198 -99.
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No. 44107 -1 - II
the car together was reasonable under the " totality of the circumstances." Snapp, 174 Wash. 2d at
198.
3. Reasonable Suspicion
If Zalozh and Maksimenko were in the car together, Zalozh was engaged in criminal
activity —violation of the no contact order. As a result, whether the officers here had a
reasonable suspicion that a crime was being committed depended on whether it was reasonable
driving4
to suspect that Maksimenko was and that Zalozh was the hooded person hiding in the
back seat. As noted above, the standard is substantial possibility. Snapp, 174 Wash. 2d at 197 -98.
First, there was strong evidence supporting the officers' suspicion that Maksimenko was
driving the vehicle they stopped. An officer was conducting surveillance at Maksimenko' s
known address, where the team of officers knew she lived with her two children. Based on
review of past law enforcement reports, the officers also reasonably concluded that she was the
only adult living there. In the morning, an officer observed a woman leave the house briefly to
watch two children walk to a bus stop and then go back into the house. The officer later
observed the same woman driving a car out of the house' s garage. Based on these facts, there
was a substantial possibility that the woman driving the car was Maksimenko.
Second, there was evidence supporting the officers' suspicion that Zalozh was at
Maksimenko' s house. The trial court made unchallenged findings of fact that ( 1) Zalozh had
been located at Maksimenko' s house when he previously had violated no contact orders, ( 2)
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Even if Maksimenko had not been driving, officers could have stopped the car if they knew
Zalozh was in the back seat because they already had probable cause to arrest him for other
offenses. See State v. Quezadas- Gomez, 165 Wash. App. 593, 602 -03, 267 P.3d 1036 ( 2011)
investigatory stop to inquire of defendant' s name and address was legally justified where officer
already had probable cause to arrest him). However, whether there was a reasonable suspicion
that Maksimenko was driving is relevant to the identity of the passenger. It is more likely that
Zalozh would be riding with his girl friend rather than some unidentified female.
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No. 44107 -1 - II
Zalozh had lived there in the past, ( 3) Zalozh' s parents told police that Zalozh would be at
Maksimenko' s house despite the no contact order, and ( 4) another person told police that Zalozh
spent most of his time with Maksimenko. This evidence established that there was a strong
possibility that Zalozh was at Maksimenko' s house that day.
Third, there was a legitimate reason the officers suspected that Zalozh rather than
someone else was in back seat of the car driving away from Maksimenko' s house. Instead of
simply sitting in the car, the person was lying down in the back seat. And the crucial fact is the
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officer' s testimony that based on his experience, the passenger was hiding. If Zalozh was that
passenger, he would have a reason to hide because he was violating the no contact order. There
would be no known reason that someone other than Zalozh would be hiding in the back of
Maksimenko' s car. In light of the other circumstances, the fact that the passenger was hiding
created a strong possibility that the passenger was Zalozh.
Standing alone, each of these groups of facts would not be enough to conclude that the
officers' suspicion that Zalozh and Maksimenko were in the car together was reasonable. The
officers had no actual knowledge regarding the identity of the people in the car. The driver could
have been someone other than Maksimenko. Zalozh might not have been at Maksimenko' s
house. The person hiding in the back of the car might have been someone other than Zalozh.
However, we must evaluate the reasonableness of the officers' suspicion based on the
totality of the circumstances. Snapp, 174 Wash. 2d at 198. And certainty —or even probability —is
not required to justify an investigatory stop. See Snapp, 174 Wash. 2d at 198; State v. Young, 167
Wn. App. 922, 929, 275 P. 3d 1150 ( 2012). Considering all the evidence, we conclude that there
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In the context of an investigatory stop, an officer may rely on his experience to identify
seemingly innocuous facts as suspicious. State v. Moreno, 173 Wash. App. 479, 492 -93, 294 P.3d
812, review denied, 177 Wash. 2d 1021 ( 2013).
No. 44107 -1 - II
was a substantial possibility that Zalozh was the person hiding in the back of the car and
Maksimenko was the person driving. As a result, we hold that the officers had a reasonable
suspicion based on articulable facts that a crime was being committed, and that they were
justified in making an investigatory stop.
We hold that the trial court erred in concluding that the investigatory stop was unlawful,
suppressing the evidence discovered in the search following that stop, and dismissing the charges
against Zalozh. Accordingly, we reverse the trial court' s ruling suppressing the evidence from
the investigative stop, reverse its order dismissing the charges against Zalozh, and remand for
trial.
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 pursuant to RCW 2.06. 040, it is
so ordered.
We concur:
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