State Of Washington v. Larry Smith, Jr. ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
October 2, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49998-3-II
Respondent,
v.
LARRY EUGENE SMITH, JR., UNPUBLISHED OPINION
Appellant.
LEE, J. — Larry Eugene Smith, Jr. appeals his conviction for unlawful possession of a
stolen vehicle, arguing that the trial court erred in denying his CrR 3.6 motion to suppress evidence
discovered when a police officer stopped him. Because the police officer’s encounter with Smith
was a valid investigative stop, we affirm.
FACTS1
An apartment complex resident called 911 to report a suspicious black and maroon Dodge
Ram truck in the parking lot with three occupants inside who appeared to be casing the complex.
The 911 caller reported that the subjects in the Dodge truck were currently parked in the parking
lot in front of his apartment in Building E. The 911 caller further stated that he believed that the
occupants of the truck were responsible for recent vehicle prowls. The 911 dispatcher verified the
1
The following facts are taken primarily from the trial court’s unchallenged CrR 3.6 findings of
fact, which are verities on appeal. State v. O’Neill, 148 Wash. 2d 564, 571, 62 P.3d 489 (2003).
No. 49998-3-II
caller’s name, which he reported as Jay Johnson; the caller’s location; and the caller’s phone
number. It was later learned that the caller did not use his real name.
Pierce County Sheriff’s Deputy Kohl Stewart responded to the call. He arrived at the
apartment complex approximately 10 minutes after being dispatched. Deputy Stewart was familiar
with the apartment complex because there had been a history of stolen cars and vehicle prowls at
the complex.
When he arrived at the apartment complex, Deputy Stewart located a black and maroon
Dodge Ram truck that had moved from Building E and was backing into a parking spot near
Building H of the apartment complex. The truck matched the description provided by the 911
caller.
Deputy Stewart parked his patrol car approximately 10-15 feet away from the Dodge truck,
but did not activate the emergency lights or siren on his patrol car, and he did not park his patrol
car in a way that would have prevented the driver of the truck from pulling out of the parking spot.
Deputy Stewart got out of his patrol car, walked towards the truck, and saw that there were three
occupants as the 911 caller had reported.
Deputy Stewart approached the driver side of the truck. Because the truck was idling
loudly, Deputy Stewart asked the driver, Smith, to turn off the engine. Deputy Stewart then asked
Smith what he was doing at the complex. Smith told the officer he was there to talk to someone.
Deputy Stewart asked for Smith’s name and then returned to his patrol car. This contact lasted for
approximately two minutes.
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No. 49998-3-II
Deputy Stewart ran Smith’s name and the truck’s license plate number through his
computer system in his patrol car. The deputy learned Smith’s license was suspended and the
truck was previously reported stolen.
Deputy Stewart retuned to the truck and asked Smith to step out of the truck. Smith refused.
A second deputy arrived and assisted Deputy Stewart with removing Smith. Smith actively
resisted the officers and was eventually tased.
The State charged Smith with unlawful possession of a stolen vehicle and resisting arrest.
Smith filed a motion to suppress all evidence, arguing that the initial encounter between him and
Deputy Stewart was unlawful.
The trial court denied the motion, concluding that:
3) A known citizen informant who provided his name, address and phone number,
which was verified by 911 dispatch, provided the basis for the deputy’s contact
with the defendant.
4) This known citizen’s tip regarding suspected criminal activity was
presumptively reliable.
5) The 911 caller provided sufficient facts that allowed the deputy to believe,
based upon a totality of the circumstances, that the defendant and other
occupants of the Dodge Ram truck were engaged in criminal activity.
6) The deputy observed the vehicle in motion, which was consistent with possible
criminal behavior, and was a corroborating factor of criminal activity.
7) The deputy conducted a valid stop of the defendant pursuant Terry v. Ohio,
supra.
8) The defendant’s motion to suppress evidence is denied. That evidence is
admissible at the defendant’s trial.
Clerk’s Papers (CP) at 50-51.
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No. 49998-3-II
The trial court dismissed the resisting arrest charge and the matter proceed to a stipulated
facts trial on the remaining charge. The trial court found Smith guilty of unlawful possession of a
stolen vehicle. Smith appeals.
ANALYSIS
Smith contends the trial court erred when it failed to suppress evidence following an
unconstitutional seizure. He contends Deputy Stewart acted on an unreliable citizen informant tip
and, therefore, seized him without the reasonable suspicion required by Terry.2 We disagree. 3
2
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
3
The State argues that the deputy’s initial contact with Smith would be more analogous to a social
contact than a Terry stop. Our review, however, is focused on the trial court’s conclusions of law.
State v. Roden, 179 Wash. 2d 893, 898, 321 P.3d 1183 (2014). The trial court specifically concluded
the stop was a Terry stop. We analyze the issue accordingly.
Nevertheless, we note that a social contact “occupies an amorphous area in our
jurisprudence, resting someplace between an officer’s saying ‘hello’ to a stranger on the street and,
at the other end of the spectrum, an investigative detention.” State v. Harrington, 167 Wash. 2d 656,
664, 222 P.3d 92 (2009). Police officers may “engage persons in conversation and ask for
identification even in the absence of an articulable suspicion of wrongdoing.” State v. Young, 135
Wash. 2d 498, 511, 957 P.2d 681 (1988). Moreover, police officers may run computer checks of
license plate numbers without any suspicion of criminal activity. State v. McKinney, 148 Wash. 2d
20, 60 P.3d 46 (2002); see also State v. Jorden, 160 Wash. 2d 121, 130, 156 P.3d 893 (2007) (law
enforcement may “randomly run checks of the license plates” of parked vehicles outside motels).
Here, when Deputy Stewart approached the truck, he asked Smith his name and what he
was doing at the apartment complex. The deputy then ran the truck’s license plate and learned the
truck was stolen. These actions alone support admission of evidence that Smith unlawfully
possessed a stolen vehicle. As such, we note that additional grounds exist to affirm. See State v.
Norlin, 134 Wash. 2d 570, 582, 951 P.2d 1131 (1998) (we may affirm a trial court’s decision as to
the admissibility of evidence on any basis supported by the record).
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No. 49998-3-II
A. STANDARD OF REVIEW
We review a trial court’s legal conclusions following a motion to suppress de novo. State
v. Roden, 179 Wash. 2d 893, 898, 321 P.3d 1183 (2014). We also review whether the conclusions
of law flow from the findings of fact. State v. Russell, 180 Wash. 2d 860, 866, 330 P.3d 151 (2014).
B. INVESTIGATIVE STOP
The Fourth Amendment to the United States Constitution and article I, section 7 of the
Washington Constitution prohibit a warrantless search and seizure unless the State demonstrates
that one of the narrow exceptions to the warrant requirement applies. State v. Garvin, 166 Wash. 2d
242, 249, 207 P.3d 1266 (2009). Washington allows a few jealously and carefully drawn
exceptions to the warrant requirement, which includes Terry investigative stops. Garvin, 166
Wash. 2d at 249. The State bears the burden of demonstrating that a warrantless seizure falls into a
narrow exception to the rule. State v. Doughty, 170 Wash. 2d 57, 61, 239 P.3d 573 (2010).
“To conduct a valid Terry stop, an officer must have ‘reasonable suspicion of criminal
activity based on specific and articulable facts known to the officer at the inception of the stop.’ ”
State v. Weyand, 188 Wash. 2d 804, 811, 399 P.3d 530 (2017) (quoting State v. Fuentes, 183 Wash. 2d
149, 158, 352 P.3d 152 (2015)). We look to the totality of circumstances known to the officer in
deciding whether an officer had a reasonable suspicion that criminal conduct has occurred or is
about to occur. Weyand, 188 Wash. 2d at 811. When the activity is consistent with criminal activity,
although also consistent with noncriminal activity, it may justify a brief detention. Id. And “ ‘[t]he
courts have repeatedly encouraged law enforcement officers to investigate suspicious situations.’
” State v. Lee, 147 Wash. App. 912, 918, 199 P.3d 445 (2008) (alterations in original) (quoting State
v. Mercer, 45 Wash. App. 769, 775, 727 P.2d 676 (1986)), review denied, 166 Wash. 2d 1016 (2009).
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No. 49998-3-II
“It is generally recognized that crime prevention and crime detection are legitimate purposes for
investigative stops or detentions.” State v. Kennedy, 107 Wash. 2d 1, 5-6, 726 P.2d 445 (1986).
An informant’s tip can provide police with reasonable suspicion to justify an investigatory
Terry stop if the tip possesses sufficient “ ‘indicia of reliability’ ” under the totality of the
circumstances. State v. Sieler, 95 Wash. 2d 43, 47, 621 P.2d 1272 (1980) (quoting Adams v. Williams,
407 U.S. 143, 147, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972)). When deciding whether this indicia
of reliability exists, the courts will generally consider a showing of (1) the informant’s reliability,
or (2) some corroborative observation made by the officer, that “shows either (a) the presence of
criminal activity or (b) that the informer’s information was obtained in a reliable fashion.” State
v. Z.U.E., 183 Wash. 2d 610, 618, 352 P.3d 796 (2015). If relying on corroboration, the corroboration
must be of more than just innocuous facts such as appearance. Id. at 618-19. The existing standard
does not require all factors to establish indicia of reliability. Id. at 620.
1. Reliability of the Informant
“Citizen informants are deemed presumptively reliable.” State v. Gaddy, 152 Wash. 2d 64,
73, 93 P.3d 872 (2004).4 “[N]eighbors’ information does not require a showing of the same degree
of reliability as the informant’s tip since it comes from ‘citizen’ rather than ‘professional’
informants.” Kennedy, 107 Wash. 2d at 8. Moreover, a citizen informant reporting a crime can be
“inherently reliable for purposes of a Terry stop, even if calling on the telephone rather than
4
The dissent states that the Supreme Court in Gaddy was referring to information obtained from
the Department of Licensing (DOL) and “not a citizen informant.” Dissent at 1. We disagree with
the dissent. The Supreme Court first held that citizen informants are presumptively reliable and
then held that “DOL should be accorded the status of a citizen informant.” Gaddy, 152 Wash. 2d at
73.
6
No. 49998-3-II
speaking to the police in person.” State v. Conner, 58 Wash. App. 90, 96, 791 P.2d 261, review
denied, 115 Wash. 2d 1020 (1990).
Here, the citizen informant called 911 and reported a suspicious black and maroon Dodge
Ram truck with three occupants inside who appeared to be casing the apartment complex where
the informant lived. The 911 caller stated that he believed that the occupants of the truck were
responsible for the recent vehicle prowls. The 911 dispatcher recorded the caller’s name, location,
and phone number. Although the truck was reportedly parked outside the informant’s building
when the informant first called, and had moved by the time Deputy Stewart arrived, the truck was
still in the apartment complex.
We follow our Supreme Court’s guidance in Gaddy and presume the citizen informant in
this case was reliable. Gaddy, 152 Wash. 2d at 73. The 911 caller described the truck outside his
apartment in detail, the number of occupants, and expressed his concern that they were involved
in the recent vehicle prowls. While the 911 caller provided a false name when asked, the caller
still provided his phone number and location, which the 911 dispatcher verified. There is no
evidence that the 911 caller’s information was marred by self-interest. And when Deputy Stewart
arrived, the truck was still in the apartment complex parking lot with the same number of occupants
as reported by the 911 caller. These facts support that the 911 caller’s tip contained sufficient
indicia of reliability.
Smith argues that the 911 caller’s tip lacked sufficient indicia of reliability, relying mainly
on Z.U.E. In Z.U.E., the Court held that an informant’s tip was unreliable because the informant
failed to allege objective facts indicating criminal activity. 183 Wash. 2d at 622-23. The informant
alleged facts suggesting the suspect was a minor in possession of a firearm, but the informant failed
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No. 49998-3-II
to explain how she knew the suspect was a minor, and simply “carrying a gun is not automatically
a crime.” State v. Z.U.E., 178 Wash. App. 769, 786, 315 P.3d 1158 (2014), aff’d, 183 Wash. 2d 610
(2015).
The record here establishes the informant’s reliability. Unlike the informant in Z.U.E., the
caller here provided the 911 dispatcher a detailed description of the truck and specifically stated
that the truck was outside the caller’s Building E. The 911 caller also stated that there were three
occupants in the truck who were acting suspiciously and appeared to be casing the apartment
complex parking lot in an area where there were prior vehicle prowls. These facts present a more
compelling case for reliability than in Z.U.E.
It is well settled that the reasonableness of police action when making an investigatory stop
must be reviewed on a case by case basis. See State v. Lesnick, 84 Wash. 2d 940, 944, 530 P.2d 243
(“Terry . . . emphasize[s] that no single rule can be fashioned to meet every conceivable
confrontation between the police and citizen. Evaluating the reasonableness of the police action
and the extent of the intrusion, each case must be considered in light of the particular circumstances
facing the law enforcement officer.”), cert denied, 423 U.S. 891 (1975). We conclude the 911
caller was a reliable citizen informant under the circumstances here.
2. Corroborative Observation Made By the Officer
While not a required factor, courts also consider whether police corroborated information
from the informant’s tip. Z.U.E., 183 Wash. 2d at 618; Lee, 147 Wash. App. at 918. Officers can
directly corroborate a tip by observing circumstances that suggest criminal activity. State v.
Saggers, 182 Wash. App. 832, 841, 332 P.3d 1034 (2014).
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No. 49998-3-II
Here, the 911 caller reported suspicious behavior by three individuals inside a black and
maroon Dodge Ram truck at the caller’s apartment complex near his building, Building E. The
caller also reported that the individuals appeared to be casing the area and may have been involved
in prior vehicle prowls in the area.
Deputy Stewart arrived at the apartment complex approximately 10 minutes after being
dispatched. When Deputy Stewart arrived, he observed the black and maroon Dodge Ram truck
with three occupants backing into a parking spot near Building H of the apartment complex.
Movement by the vehicle corroborates the caller’s report that the occupants of the vehicle appeared
to be casing the area. Facts that appear innocuous to an average person may appear suspicious to
a police officer in light of past experience. State v. Moreno, 173 Wash. App. 479, 493, 294 P.3d 812
(2013). Also, Deputy Stewart was familiar with the apartment complex because there had been a
history of stolen cars and vehicle prowls at the complex. Accordingly, we conclude sufficient
indicia of reliability is also shown by police corroboration.5
5
We note that courts may also consider whether the information was obtained in a reliable fashion.
Lee, 147 Wash. App. at 918. Here, the informant called 911 from his apartment complex and the
911 dispatcher was able to verify the caller’s phone number and location. Deputy Stewart was
aware the information was reported through a 911 call and he had no reason to doubt the
informant’s reliability. Thus, we conclude the information was obtained by reliable means. See
Navarette v. California, 572 U.S. 393, 134 S. Ct. 1683, 1689-90, 188 L. Ed. 2d 680 (2014) (“[a]
911 call has some features that allow for identifying and tracing callers, and thus provide some
safeguards against making false reports with immunity. . . . Given the foregoing technological and
regulatory developments . . . a reasonable officer could conclude that a false tipster would think
twice before using such a system.”).
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No. 49998-3-II
CONCLUSION
Under the totality of the circumstances, the indicia of reliability in this case demonstrated
sufficient reasonable suspicion to support Deputy Stewart’s investigatory Terry stop of Smith. The
officer’s observations corroborated suspicious activity and the citizen informant’s 911 tip
demonstrated sufficient indicia of reliability. We conclude the trial court did not err in denying
Smith’s CrR 3.6 motion to suppress evidence.6
We affirm.
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.
I concur:
Melnick, J
6
Smith also states, without argument, that there was insufficient evidence to support his conviction
for unlawful possession of a stolen vehicle without the improperly admitted evidence. Because
we hold the trial court did not err in denying Smith’s motion to suppress, we do not address this
argument.
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No. 49998-3-II
MAXA, C.J. (dissenting) – I disagree with the majority opinion’s analysis of the unknown
911 caller’s reliability and the officer’s corroborative observations. A proper analysis shows that
under the totality of the circumstances, the unknown caller’s report and the officer’s observations
were not sufficient to justify a Terry7 stop. Therefore, I dissent.
First, I disagree with the majority’s application of a rule that citizen informants are
presumptively reliable. I do not believe that such a presumption exists for named but otherwise
unknown callers to law enforcement. The Supreme Court in State v. Z.U.E., 183 Wash. 2d 610, 352
P.3d 796 (2015) did not apply such a presumption to a 911 caller who gave her name. Instead,
the court determined whether the totality of the circumstances established her reliability. Id. at
618-23. The court concluded that the citizen informant in that case was not reliable based on the
circumstances surrounding her report that she had observed unlawful activity. Id. at 622-23.
Other courts have not presumed that a named but unknown citizen informant was
presumed to be reliable. The court in Z.U.E. cited with approval State v. Sieler, in which the
court found that the father of a high school student who observed a drug sale in a school parking
lot lacked sufficient indicia of reliability even though he provided his name. 95 Wash. 2d 43, 44-
45, 47-48, 621 P.2d 1272 (1980). The court in Sieler did not apply a presumption of reliability
for a citizen who gave a report in person. See id. Similarly, in State v. Hopkins this court
refused to apply a presumption of reliability to a citizen informant when the State did not
otherwise produce any evidence that the informant was reliable. 128 Wash. App. 855, 863-64, 117
P.3d 377 (2005).
7
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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No. 49998-3-II
The majority cites State v. Gaddy, 152 Wash. 2d 64, 73, 93 P.3d 872 (2004). But that case
involved information that officers received from the Department of Licensing, not an unknown
citizen informant. Id. at 70-73. The majority also cites State v. Kennedy, 107 Wash. 2d 1, 8, 726
P.2d 445 (1986). But the court in Kennedy did not apply a presumption of liability; it stated only
that citizen informants do not require the same degree of reliability as professional informants.
Id.
Second, the majority ignores that even if the caller here had some indicia of reliability, he
provided no factual basis for his allegation that the car was “casing” the apartment complex.
The absence of any factual basis was the key to the court’s holding in Z.U.E. 183 Wash. 2d at 622-
23. In that case, the 911 caller stated that she saw a 17-year-old female hand off a gun to a man.
Id. at 614. The court noted that if the female had been 17 years old, her possession of a gun
would have been unlawful. Id. at 622. But the court emphasized that investigating officers had
no way of evaluating the informant’s statement regarding the female’s age.
[B]ecause the caller did not offer any factual basis in support of that allegation, the
officers could not ascertain how the caller knew the girl was 17 rather than, say, 18
years old. . . . Although we presume that [the informant] reported honestly, the
officers had no basis on which to evaluate the accuracy of her estimation. We
follow our holding in Sieler and conclude that this 911 caller’s assertion cannot
create a sustainable basis for a Terry stop.
Id. at 622-23.
The same problem exists here. The caller stated only that a truck appeared to be “casing”
the apartment complex parking lot and that he believed that the occupants were responsible for
recent vehicle prowls in the complex. But the caller here did not offer any factual basis to
support his allegations. He did not describe what the truck was doing. He did not explain why
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No. 49998-3-II
he believed that the truck’s occupants were vehicle prowlers. Therefore, the officers could not
ascertain how the caller knew that the truck was “casing” rather than simply looking for a
particular apartment or a parking space.
The key fact here, as in Z.U.E., is that the caller was not an eyewitness to an obvious
crime. The analysis would be different if the caller had witnessed the truck’s occupants actually
breaking into another vehicle. In that situation, the factual basis would be his observation of a
crime. But here the caller only observed some ambiguous behavior that he interpreted as a
precursor to criminal activity. Like a person’s age in Z.U.E., whether a vehicle is casing an area
is a very subjective determination. When a caller merely believes that a crime might be
committed based on an ambiguous and subjective observation and there is no information about
the basis for the caller’s belief, under Z.U.E. the caller’s assertion cannot create a sustainable
basis for a Terry stop. Z.U.E., 183 Wash. 2d at 622-23.
The majority emphasizes the fact that the caller here accurately described the truck, the
fact there were three people inside the truck, and the location of a truck in the apartment complex
parking lot. But the fact that an informant accurately described innocuous facts is not sufficient
to provide a factual basis for the informant’s allegation that a crime was being committed. See
id. at 618-19.
Third, I disagree with the majority’s conclusion that the officer sufficiently corroborated
the informant’s tip. To justify a Terry stop when the informant’s reliability has not been
established, the court in Z.U.E. stated that an officer must make some corroborative observation
that shows “the presence of criminal activity.” Id. at 618. “These corroborative observations do
not need to be of particularly blatant criminal activity, but they must corroborate more than just
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No. 49998-3-II
innocuous facts.” Id. Here, the officer’s only observation before making the Terry stop was of
the truck backing into a parking spot. Simply backing into a parking spot does not show or even
suggest the presence of criminal activity, even when the truck had been seen in a different part of
the parking lot. This is the type of innocuous activity that cannot serve as corroboration. See Id.
at 618.
In summary, all the investigating officer knew was that an identified but unknown caller
believed that a truck was “casing” an apartment complex and that he believed that the truck’s
occupants might be responsible for recent vehicle prowls. But the caller’s report was
unsupported by facts; he provided absolutely no basis for his belief. And the officer did not
observe any activity that would suggest that the truck was “casing” as opposed to merely
parking. Under these circumstances, a Terry stop was not justified.
Under the majority’s analysis, any vehicle driving through an apartment complex would
be subject to a Terry stop simply because a caller alleged without any factual basis that the
occupants were up to no good. I do not believe that Z.U.E. supports such a conclusion. I would
hold that the officer’s Terry stop here was unlawful and therefore that the evidence obtained as a
result of that stop should have been suppressed.
Maxa, C.J.
14