State Of Washington v. Steven Paul Sandoz ( 2014 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 69913-0-1
CZ>
Respondent,
DIVISION ONE
v.
ro
STEVEN SANDOZ, UNPUBLISHED OPINION o>r'-<\
Appellant. FILED: April 21. 2014 V> =5S
Spearman, C.J. — Steven Sandoz was charged with a violation of the Uniform
Controlled Substance Act, possession of cocaine. Prior to trial he moved to suppress
evidence of his incriminating statements and the cocaine found in his possession during
a search incident to his arrest. He argued that his initial detention was unlawful because
the arresting officer lacked the reasonable and articulable grounds to believe he was
engaged in criminal activity and therefore, any evidence obtained subsequentlywas
inadmissible at his trial. The trial court denied the motion and after a bench trial on
stipulated facts, he was found guilty as charged. Sandoz appeals, contending that the
trial court erred in denying his motion to suppress. We conclude his claim lacks merit
and affirm.
No. 69913-0-1/2
FACTS
Late in the evening on May 23, 2012, King County Sheriff Deputy Christopher
Przygocki observed a white Jeep illegally parked in front of an apartment building
known for an unusually high number of documented criminal incidents. As a result of the
frequent criminal activity at the location, the owner of the building had authorized police
officers to cite anyone for trespass if they did not belong on the property, and the
building had been designated as part of a problem solver project for added emphasis to
stop crime in the area. Przygocki knew the vehicles owned by each of the tenants and
did not recognize the Jeep. When he drove by, the driver of the Jeep "slumped down"
so he parked in a nearby cul-de-sac 20 yards away for further observation. Verbatim
Report of Proceeding (VRP) (1/3/13RP) at 18.
When nobody entered or exited the vehicle for 15 minutes, Deputy Przygocki
exited his patrol car and contacted the driver. Przygocki asked the driver what he was
doing, and the driver responded that his friend had called him for a ride. The driver did
not answer Przygocki's question about why he slumped down. Then Przygocki walked
around to the passenger side of the vehicle and noticed Steven Sandoz walking out of
an apartment toward the Jeep with his eyes down and his hands in his pocket.
Przygocki knew from previous experience that the tenant of the apartment Sandoz
exited had a history of convictions for possession of controlled substances with intent to
distribute. When Sandoz saw Przygocki, his "eyes got big, and he entered the Jeep."
VRP (1/3/13RP) at 21. Przygocki asked Sandoz what he was doing, and Sandoz stated
the driver gave him a ride to the apartment to collect $20 from the resident of the
No. 69913-0-1/3
apartment. The deputy believed the explanations contradicted each other. Przygocki
also stated that Sandoz was visibly shaking, and his face looked pale and thin.
Based on the information he had obtained, Przygocki asked Sandoz to step out
of the Jeep to talk in private. Sandoz complied, and the two walked to the back of the
Jeep. Had Sandoz declined, Przygocki stated he would have detained him and
investigated for drug-related loitering. Once outside, Sandoz initially told Przygocki that
he was at the apartment to collect $20 from the tenant, but then admitted he had a drug
problem and a crack pipe in his pocket. Przygocki arrested Sandoz for possession of
drug paraphernalia and felt an object in Sandoz's groin area during a search incident to
arrest. Przygocki advised Sandoz of his rights and waited for another officer to arrive
before removing the object, which turned out to be two small envelopes of cocaine.
Sandoz admitted to purchasing narcotics from the tenant and claimed the tenant had
set him up. In transit, Sandoz admitted he had a drug problem, asked for help, and told
Przygocki he would be coming off narcotics.
The State charged Sandoz with possessing cocaine, a violation of the Uniform
Controlled Substance Act.1 In a pretrial motion pursuant to CrR 3.5 and 3.6, Sandoz
argued his initial detention was illegal and, as a result, all of his statements and the
evidence seized from him subsequent to his detention should be suppressed. CP 6-15.
In denying the motion, the trial court concluded as follows:
The deputy had reasonable and articulable suspicion to conduct a
Terry2 stop of the defendant, when he asked to talk to the defendant
privately at the back of the vehicle. The area that this occurred was
an area of extremely high drug activity, known to the officer based
on objective 911 calls reporting drug activity and investigations into
1 RCW 69.50.4013
2Terry v. Ohio. 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 LEd.2d 889 (1968).
No. 69913-0-1/4
drug dealing. The deputy was aware that occupants of the
apartment complex, specifically the one apartment the defendant
exited, was known as a place where drug deals occurred.... The
deputy had express authority from the complex owner people (sic) to
trespass people who were non-occupants loitering at the complex.
The Jeep seen did not belong to any occupants of the complex. The
driver of the Jeep slouched down when the deputy drove past. The
driver and the defendant had conflicting stories as to why they were
in the area. The defendant looked surprised when he saw the
deputy. The defendant was visibly shaken and pale when the deputy
initiated contact with him, At this point, the deputy had reasonable
and articulable suspicion that the defendant was engaging in illegal
drug activities.
Clerk's Papers at 53.
Following the court's ruling on the motion, Sandoz waived his right to a jury trial
and submitted the case to the bench on stipulated facts. The trial court found him guilty.
Sandoz appeals, arguing the trial court erred in denying his motion to suppress. We
affirm.
DISCUSSION
A seizure occurs under the Washington constitution when considering all the
circumstances, an individual's freedom of movement is restrained and the individual
would not believe he or she is free to leave or decline a request due to an officer's use
of force or display of authority. (Citing State v. O'Neill, 148 Wn.2d 564, 574, 62 P.3d 489(2003)). The determination is based on a purely objective look at the actions of the law
enforcement officer. State v. Young. 135 Wn.2d 498, 512, 957 P.2d 681 (1998). The
relevant question is whether a reasonable person in the defendant's position would feel
that he or she was being detained. O'Neill. 148 Wn.2d at 581. On the other hand, if a
reasonable person would feel free to walk away from the officer, the encounter does not
No. 69913-0-1/5
amount to a seizure. United States v. Mendenhall. 446 U.S. 544, 554, 100 S.Ct. 1870,
64LEd.2d497(1980).
A law enforcement officer's request that a person exit a vehicle constitutes a
seizure because a reasonable person in that circumstance would not feel free to decline
the request. See O'Neill. 148 Wn.2d at 581 (finding an officer did not show sufficient
authority for a seizure until he asked the driver to exit a parked car); State v. Johnson.
156 Wn. App. 82, 92, 231 P.3d 225 (2010) review granted 172 Wn.2d 1001, 257 P.3d
1112 (2011) (noting that a seizure did not occur when the officer did not ask a
passenger to step out of a car until the officer knew of the passenger's outstanding
warrants); State v. Watkins. 76 Wn. App. 726, 729, 887 P.2d 492 (1995) (asking the
passenger to exit a car during a traffic stop constituted a seizure). Thus, Sandoz was
seized when Przygocki asked him to exit the vehicle.
Sandoz argues that the seizure was unlawful because Przygocki lacked
reasonable and articulable grounds to believe that Sandoz had engaged or was about
to engage in criminal activity. We disagree. Article 1, section 7 of the Washington
Constitution provides "[n]o person shall be disturbed in his private affairs, or his home
invaded, without authority of law." This language provides more protection than the
Fourth Amendment and creates nearly an absolute bar on warrantless seizures. State v.
Valdez, 167 Wn.2d 761, 772, 224 P.3d 751 (2009). For a warrantless seizure to be
lawful, the State must show by clear and convincing evidence that the seizure was
justified by one of the limited exceptions to the warrant requirement. State v. Doughty,
170 Wn.2d 57, 62, 239 P.3d 573 (2010).
No. 69913-0-1/6
Under Terry, brief investigatory stops are one such exception to the general rule
against warrantless seizures. See also State v. Acrev. 148 Wn.2d 738, 746-47, 64 P.3d
594 (2003). A Terry stop is proper when an officer's reasonable suspicion that the
stopped person has been or is about to be involved in a crime is grounded in specific
and articulable facts, id. at 747. "The reasonableness of the officer's suspicion is
determined by the totality of the circumstances known to the officer at the inception of
the stop." State v. Rowe. 63 Wn. App. 750, 753, 822 P.2d 290 (1991) overruled in part
on other grounds bv State v. Bailev. 109 Wn. App. 1, 3, 34 P.3d 239 (2000). The
officer's training, the location of the stop, the conduct of the person detained, the
purpose of the stop, the amount of physical intrusion, and the length of time the suspect
is detained are all proper to consider in determining the reasonableness of the stop.
Acrev. 148Wn.2dat747.
Deputy Przygocki properly seized Sandoz based on the totality of the
circumstances at the time of the seizure. As the trial court found, Przygocki had
extensive knowledge of frequent drug and other criminal conduct occurring at the
apartment complex, and Sandoz exited the apartment of a convicted drug dealer. For
six months, Przygocki had been working on a problem solver project involving the
complex and had authority from the owner to trespass anyone that did not belong on the
property. Przygocki saw the driver in the Jeep slump down in his seat as the deputy
drove by, and the Jeep was illegally parked in front of the building for 15 minutes. Once
Sandoz exited the apartment, Przygocki noticed that Sandoz appeared nervous at the
sight of the officer and was visibly shaking. His face also looked pale and thin. The
driver and Sandoz offered conflicting stories to explain their presence at the complex...
No. 69913-0-1/7
Considering all the information he had ascertained, Przygocki had reasonable and
articulable grounds to suspect that Sandoz was engaging in illegal drug activities.
Sandoz's reliance on Doughty and Gleason is misplaced. In Doughty, the court
held that a seizure was improper when the defendant left a suspected drug house late
at night after staying for only two minutes. 170 Wn.2d 57, 63, 239 P.3d 573 (2010). But
the arresting officer in Doughty relied on "incomplete observations" and only used
neighbor complaints to identify the residence as a drug house. Jd. at 64. With more
information about why the drug house was designated as such, the officer's conduct
may have been proper, jd. at 65 (Chambers, J., concurring). Here, Przygocki knew the
tenant was a convicted drug dealer and the complex had been a part of the problem
solver project because of the frequent criminal activity. His personal knowledge of the
circumstances provides specific, articulable grounds for his suspicion that Sandoz was
engaged in illegal drug activity.
Likewise, Gleason is distinguishable as well. In Gleason. the arresting officers
relied "solely" on racial incongruity in seizing the defendant. 70 Wn. App. 13, 18, 851
P.2d 731. In fact, "there was no evidence Mr. Gleason was acting suspiciously, he was
not carrying any unusual objects, and the officers admitted there was no basis to arrest
him for loitering." Jd. Here, Przygocki observed Sandoz leave the apartment of a known
drug dealer. Sandoz looked nervous, thin and pale, and was visibly shaking when
Przygocki made contact with him and Sandoz's explanation for being at the apartment
complex contradicted the driver's explanation. Based on the totality of the
No. 69913-0-1/8
circumstances, Deputy Przygocki had reasonable and articulable grounds to believe
that Sandoz was engaged in illegal drug activity.3
Affirmed.
WE CONCUR:
3 Sandoz also contends for the first time on appeal that the Przygocki lacked probable cause to
arrest Sandoz because mere possession of drug paraphernalia is not a crime under the Revised Code of
Washington. As a general rule, appellate courts will not consider a claim of error which was not raised in
the trial court. RAP 2.5(a). An exception to the general rule is where the claimed error is a "manifest error
affecting a constitutional right." RAP 2.5(a)(3). Forthis exception to apply, "[t]he defendant must identify a
constitutional error and show how, in the context of the trial, the alleged error actually affected the
defendant's rights; it is this showing of actual prejudice that makes the error 'manifest', allowing appellate
review." State v. McFarland. 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). Although, Sandoz's claim
arguably affects Sandoz's rights under the Fourth Amendment to the federal constitution and article I,
section 7 of our state constitution, Sandoz makes no argument, and we perceive of none, that the claimed
error is manifest in this case. Accordingly, we decline to consider it.
8