State Of Washington, Resp. v. D. B.-h., App. ( 2013 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 68005-6-1
Respondent, )
) DIVISION ONE
v. )
)
D.B.-H., B.D. 10/07/95, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: March 4,2013
)
Becker, J. — Police officers do not exceed the scope of a legitimate
investigatory detention by using a show of force or protective measures where
there are grounds to believe public safety or the officers' personal safety is in
jeopardy. Here, because specific articulable facts supported an objectively
reasonable belief that D.B.-H., a passenger on a crowded King County Metro
bus, could be unlawfully armed and dangerous, the police were justified in
approaching him with a drawn weapon, placing him in handcuffs, and escorting
him from the bus in order to investigate. The juvenile court properly denied the
motion to suppress. We affirm D.B.-H.'s conviction for unlawful possession of a
firearm in the first degree.
68005-6-1/2
FACTS
On July 8, 2011, the City of Federal Way hosted its annual summer
festival, Cornucopia Days. Extra police officers were on duty for the event.
Federal Way police officer Chris Walker was stationed at the Kent Station Transit
Center near the festival grounds. Officer Walker has 20 years' experience in law
enforcement, is a firearms instructor, and has carried a concealed weapon for 20
years.
At around 9:00 p.m., Officer Walker saw D.B.-H. walking toward him. The
officer noticed D.B.-H. because, despite the warm summer weather, he was
wearing a heavy black coat. His right arm was swinging normally, but his left arm
was pressed against his side, and the officer was able to see the outline of a six-
inch long rigid object at the bottom of his left jacket pocket. According to Officer
Walker, the object appeared to be a firearm. The officer observed that D.B.-H.
was "obviously" under 21, the legal age in Washington to obtain a concealed
weapons permit.1 D.B.-H. walked past the officer, started to jaywalk along with
four or five other young males, but then looked back at Officer Walker and
stepped back onto the curb. He then crossed the street at a cross walk, rejoined
the group of teenagers, and disappeared from view.
About 20 minutes later, Officer Walker saw D.B.-H. again back at the
transit center. Officer Walker made eye contact with D.B.-H. and tried to get
closer to him, but before the officer could contact him, D.B.-H. boarded a
crowded bus. Officer Walker recognized an undercover King County detective
1 D.B.-H. was 15 at the time.
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boarding the same bus. Officer Walker then approached a King County Sheriff's
Office supervisor who was standing nearby and told her what he had seen.
In fact, two undercover detectives, Andrew Schwab and Steve Johnson,
were on the bus with D.B-H. Shortly after the bus left the transit center, a
supervisor called Detective Schwab to advise him of Officer Walker's belief that
D.B.-H., who was sitting nearby and appeared to be with a group of friends at the
back of the bus, was armed with a handgun. Detective Schwab decided to
remain on the bus when his partner, Detective Johnson, got off at a
predetermined bus stop. When Detective Johnson called to find out why he
stayed on the bus, Detective Schwab informed him in coded language about the
concern that D.B.-H. was illegally carrying a gun.
Detective Johnson then coordinated a plan with other officers to remove
D.B.-H. from the bus to investigate. First, another undercover officer boarded the
bus and asked the driver to hold the bus at the next stop and open only the back
doors. Then at the next stop, four officers led by Detective Johnson and wearing
police department protective vests got on the bus. Detective Johnson had his
weapon drawn and pointed at D.B.-H. He told D.B.-H. to place his hands on his
head, stand, and turn around. After D.B.-H. complied, Detective Johnson
replaced his gun in its holster, put handcuffs on D.B.-H., and led him off the bus.
The other officers remained on the bus.
Once off the bus, the detective introduced himself to D.B.-H. and
explained why he was removed from the bus. He asked D.B.-H. if he was
carrying a gun, and D.B.-H. replied that he was not. The detective then asked
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D.B.-H. if he could search his pockets, and D.B.-H. said he could. The detective
then clarified that he was asking not merely to pat down outside his clothing, but
to put his hands inside the pockets of D.B.-H.'s clothing. D.B.-H. stated "go
ahead. You're going to do it anyway." Inside the pocket of shorts D.B.-H. was
wearing underneath his trousers, the detective found a fully loaded
semiautomatic handgun.
The State charged D.B.-H. with unlawful possession of a firearm in the
first degree. D.B.-H. moved to suppress the firearm, arguing that the use of force
converted the investigative detention into an arrest without probable cause.
D.B.-H. also argued that his consent to search his person for weapons was not
voluntary because he was not advised that he could refuse and because the
environment was coercive.
The trial court denied the motion. The court concluded that "Officer
Walker, and by extension his fellow officers, had reasonable, articulable
suspicion to believe" that D.B.-H. was "illegally concealing a firearm" and that the
"nature and the scope of the investigatory stop conducted by King County
Sheriffs deputies was reasonable and justified given the nature of the suspected
crime and the potential danger to both deputies and the Respondent, as well as
other Metro passengers." The court further concluded that "considering the
totality of the circumstances, the Respondent's consent to search inside of his
pockets was not the result of duress or coercion but rather was given freely and
voluntarily." The court found D.B.-H. guilty as charged and imposed a standard
range disposition.
68005-6-1/5
USE OF FORCE IN INVESTIGATORY DETENTION
D.B.-H. argues that the trial court improperly denied his motion to
suppress because the police used excessive force in conducting the
investigatory detention.
Upon a trial court's ruling on a suppression motion, we review challenged
findings of fact for substantial evidence, challenged conclusions of law de novo,
and determine whether the findings support the conclusions. State v. Garvin,
166 Wn.2d 242, 249, 207 P.3d 1266 (2009). D.B.-H. assigns error to only one of
the trial court's factual findings, claiming that the evidence does not support the
court's finding that the object in his coat pocket caused the pocket to "sag." But
D.B.-H. relegates this argument to a footnote and, in any event, his own
proposed findings included this language. He has waived the claim of error. See
RAP 2.5(a); RAP 10.3(a). Because D.B.-H. does not otherwise challenge the
court's factual findings, they are verities on appeal. See State v. Gaines, 154
Wn.2d711.716, 116 P.3d 993 (2005).
An investigative detention, or Terry stop, occurs when the police briefly
seize an individual for questioning based on "specific and articulable," objective
facts that give rise to a reasonable suspicion that the individual has been or is
about to be involved in a crime. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868,
20 L. Ed. 2d 889 (1968); State v. Armenta, 134 Wn.2d 1, 10, 948 P.2d 1280(1997). Where, as here, the suspected crime is a firearm violation, an officer
need not be absolutely certain that a suspect is armed. Terry, 392 U.S. at 21-24.
68005-6-1/6
"'A founded suspicion is all that is necessary, some basis from which the court
can determine that the detention was not arbitrary or harassing.'" State v. Belieu,
112 Wn.2d 587, 601-02, 773 P.2d 46 (1989) (emphasis omitted), quoting Wilson
v. Porter, 361 F.2d 412, 415 (9th Cir. 1966).
While not typically part of a Terry stop, police may use intrusive measures
such as drawn weapons and handcuffs in order to accomplish the investigatory
detention under some circumstances. State v. Williams, 102 Wn.2d 733, 740
n.2, 689 P.2d 1065 (1984); State v. Mitchell, 80 Wn. App. 143, 146, 906 P.2d
1013 (1995), review denied, 129Wn.2d 1019(1996). Doing so does not exceed
the scope of a lawful detention if a reasonable person in the same circumstances
would believe he or others are in danger. Belieu, 112 Wn.2d at 602. No hard
and fast rule governs the display or use of force; but several facts may bear on
the issue of reasonableness, including the nature of the crime under
investigation, the degree of suspicion, the physical location of the stop, the time
of day, and the reaction of the suspect to the police. Belieu, 112 Wn.2d at 600.
"The calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments—in circumstances that
are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation." Graham v. Connor, 490 U.S. 386, 396-97,
109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).
D.B.-H. argues that the intrusive measures used by law enforcement to
detain him for investigation were unwarranted because he was in a "safe, well-lit
Metro bus filled with passengers," made no furtive movements when the officers
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approached him, and by all accounts, was cooperative during the detention.2
D.B.-H. contrasts the circumstances here with those present in State v. Belieu.
In Belieu, police officers received a citizen's report describing men he believed
were casing his home for burglary in an area where weapons had been stolen in
a series of previous burglaries. Belieu, 112 Wn.2d at 588-89. When the officers
arrived in the neighborhood, they observed two men, one of whom matched one
of the descriptions of the suspects. The men walked toward a parked, occupied
vehicle, then turned in a different direction. Belieu, 112 Wn.2d at 589-90. A few
minutes later, the men were spotted running back toward the parked car. Belieu,
112 Wn.2d at 590. Police officers had observed occupants of the car make
furtive movements. Belieu, 112 Wn.2d at 590. When the car started down the
street, the officers stopped the vehicle with weapons drawn. Belieu, 112 Wn.2d
at 590-91. The officers ordered the suspects out of the car, handcuffed, and
placed them in patrol cars. Belieu, 112 Wn.2d at 591. The court concluded that
the officers had sufficient information upon which to base reasonable fears for
their own safety, justifying the use of drawn weapons. Belieu, 112 Wn.2d at 605.
The safety considerations presented here were entirely different, but no
less serious, than those presented in Belieu. And nothing in Belieu suggests that
the use of a drawn weapon and handcuffs to accomplish the detention of D.B.-H.
was unreasonable. The facts in Belieu supported a reasonable inference that the
suspects might be armed because weapons were stolen in previous burglaries in
the area and occupants of the car made some suspicious movements in view of
Appellant's Brief at 13.
68005-6-1/8
police. The facts here even more strongly supported the inference that D.B.-H.
might be armed based on Officer Walker's visual observation 20 minutes earlier
of what appeared to be a gun in his pocket. The testimony established that the
police decided that intrusive measures were necessary because they were
investigating a crime involving a weapon, and D.B.-H. was on a crowded public
bus and appeared to be surrounded by a group of friends. We are, and should
be, reluctant to second guess the police officers' determination in the field of how
to safely detain a potentially armed suspect. See Belieu, 112 Wn.2d at 601.
D.B.-H. also relies upon State v. Smith, 67 Wn. App. 81, 834 P.2d 26(1992), affd, 123Wn.2d51,864P.2d 1371 (1993), to argue that even if the
circumstances justified approaching him with a drawn weapon, when the police
used handcuffs and escorted him from the bus, he was effectively under arrest.
In Smith, a police officer stopped the car of a burglary suspect. As the officer
approached the vehicle with a drawn weapon, he could see televisions and other
electronics in the car. The officer handcuffed the suspect, placed him on the
ground and advised him of his Miranda3 rights. This court determined that "by
the time Smith was lying handcuffed on the ground, and being read his Miranda
rights, an arrest had occurred" and probable cause supported the arrest. Smith,
67 Wn. App. at 88-89. Smith does not stand for the proposition that the use of
handcuffs transform a detention into an arrest. In Smith, there were simply no
facts to suggest there was a basis to believe that the suspect was armed or that
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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the forceful measures were employed to accomplish an investigatory detention.
In contrast, the record here establishes that D.B.-H. was placed in handcuffs so
that the police could safely remove him from the crowded bus and investigate the
suspected crime. The trial court's findings support its conclusion that the force
used in conducting the investigatory stop was justified by the circumstances.
CONSENT
Even if his detention were lawful, D.B.-H. argues that the firearm should
have been suppressed because he did not voluntarily consent to be searched.
Whether consent was voluntary is a question of fact to be determined from
the totality of the circumstances. State v. O'Neill, 148Wn.2d 564, 588, 62 P.3d
489 (2003). No single factor is dispositive, but relevant factors include (1)
whether Miranda warnings, if applicable, were given prior to consent, (2) the
education and intelligence of the consenting person, and (3) whether the
consenting person was advised that he or she could refuse to consent. State v.
Reichenbach, 153 Wn.2d 126, 132, 101 P.3d 80 (2004); State v. Shoemaker, 85
Wn.2d 207, 212, 533 P.2d 123 (1975). The court may also weigh express or
implied claims of police authority to search, previous illegal actions ofthe police,
the defendant's cooperation, and police deception as to identity or purpose.
Reichenbach, 153 Wn.2d at 132.
D.B.-H. identifies several factors weighing against a finding of
voluntariness: his age at the time (15), the failure to advise him of his Miranda
rights before requesting to search, and failure to inform him of his right to refuse
68005-6-1/10
consent. But despite D.B.-H.'s youth, the evidence established that it was not his
first encounter with law enforcement, and nothing in the record suggests that he
lacked the intelligence or sophistication to understand that he could refuse
consent. And while both the express advisement of the right to refuse consent
and Miranda rights are relevant, neither is a prerequisite to finding voluntary
consent. O'Neill. 148 Wn.2d at 588; State v. Lyons. 76 Wn.2d 343, 345, 458
P.2d 30 (1969); State v. Flowers. 57 Wn. App. 636, 645-46, 789 P.2d 333, review
denied, 115 Wn.2d 1009 (1990). There is nothing, including D.B.-H.'s own
testimony, to indicate that he was coerced or deceived into giving his consent.
D.B.-H. was cooperating with the police. After he had already agreed to be
searched, Detective Johnson asked a second time, to ensure that D.B.-H.
understood the scope of the request. This clarification implicitly acknowledged
his right to refuse. In sum, we conclude that the totality of the circumstances
support the juvenile court's conclusion that the State met its burden to prove that
D.B.-H. voluntarily consented to the search.
Affirmed.
WE CONCUR:
^v/vrv Ac\
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