IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON No. 70123-1- Respondent DIVISION ONE v. UNPUBLISHED OPINION T.G., DOB 3/12/97,
Appellant. FILED: June 9, 2014
Leach, J. — T.G. appeals his juvenile court adjudication and disposition
for attempted residential burglary. He contends that the court erred in refusing to
suppress the fruits of an unlawful Terry1 stop and that an impermissibly
suggestive showup violated his right to due process. But the specific facts and
circumstances known to the police officers who detained T.G. supported a
reasonable suspicion that he was involved in a recent attempted burglary. The
record also supports the court's determination that the showup procedure was
reliable and did not create a substantial likelihood of misidentification. We affirm.
1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). No. 70123-1-1/2
FACTS
Shortly before 9:50 a.m. on May 3, 2013, Erin Waldon heard "insistent
doorbell ringing" and pounding on the front door of her Kent home. Waldon, who
was home alone, thought her husband might have forgotten his key and walked
toward the front door. Because she noticed the doorknob turning, she looked out
the kitchen window. There she saw two teenaged boys standing outside the
window and facing her. The window screen was gone, and one of the boys was
trying to slide open the window.
Waldon stood about two feet from the window. Although the window
blinds were down, the slats were turned horizontally, and Waldon had "an
unobstructed view" of the boys' faces. Upon seeing Waldon, the boys appeared
surprised, and their eyes widened. Waldon looked at the boys for "[a]t least a
good three seconds, if not longer" before they turned and ran away.
At 9:50 a.m., Waldon called 911 and reported the incident. She described
one of the suspects, later identified as T.G., as "5'8", approximately 14-15 years
old, very thin, reddish brown hair, possibly wearing a backpack, wearing dark
clothing." She described the other suspect, later identified as D.G., as "5'8",
approximately 14-15 years old, very thin, dark black hair, and Asian." Waldon
explained that she had described one of the boys as Asian in response to the
911 operator's suggestion of the "closest nationality." Waldon acknowledged that No. 70123-1-1/3
she "got a better look" at the boy with the darker hair and complexion but
maintained she had a "reasonable identifying look" at the other boy.
Kent Police Officer John Ross arrived at Waldon's home at 9:53 a.m.
After speaking briefly with Waldon, Officer Ross left and searched the immediate
area for the suspects. Waldon thought the boys had fled in a northerly direction,
but Ross thought they might be high school students and drove south toward
Kent-Meridian High School, which was about one-third of a mile from Waldon's
house.
At 10:03 a.m., Ross drove by a bus stop shelter near the school and saw
two teenaged boys who generally matched Waldon's description. One of the
boys was tall and skinny with "possibly reddish hair." The other boy "had [an]
olive type of complexion that could have . .. been an Asian male description."
Both boys were wearing light-colored T-shirts and had backpacks. Ross radioed
that he had found two possible suspects.
Ross parked his patrol car in a nearby parking lot and walked over to the
boys. Because it was raining and cold, Ross thought it unusual that both boys
were wearing only T-shirts. He also noticed that both boys had wet hair but that
their T-shirts were dry. Based on his experience, Ross suspected that they had
recently removed some clothing.
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Ross asked the boys to move a short distance away from the other people
in the bus shelter so that he could speak with them in private. They identified
themselves as T.G. and D.G. and said they attended Kent-Meridian High School.
Ross called the school resource officer and confirmed the information. The boys
said they were on their way to school after retrieving a book that D.G. had left at
a friend's house. Ross found the explanation odd because the boys had been
standing in the bus shelter, even though the school was only a few hundred
yards away.
Ross asked T.G. if he would "mind" opening his backpack "to make sure
there's just school stuff in there." T.G. opened his backpack, revealing a dark
jacket that was wet on one side.
At 10:07 a.m., Officer Jason Jones arrived at Ross's location with Waldon
for a showup identification. Before transporting Waldon, Jones read her the
standard instructions for field identification procedures:
You'll be asked to look at the person or persons we have stopped. The fact that we have this person stopped and may be handcuffed, should not influence your judgment.
You should not conclude or guess a person is the one who committed the crime. You are not obligated to identify anyone. It's just as important to free innocent persons from suspicion, as it is to identify guilty parties.
Waldon responded that she understood. No. 70123-1-1/5
While sitting in the patrol car about 45 feet away, Waldon looked at T.G.
and D.G. through the front passenger window. Waldon told Jones that "they kind
of look like the boys," but she was not 100 percent sure. Waldon testified that
her view was obscured by the distance and the rain on the window and that "I
didn't want to identify someone if it wasn't the actual person that had tried to
break in."
Without any further discussion, Officer Jones got out of the patrol car and
joined the other officers. Jones and another officer spoke with T.G. and D.G.
individually. Jones also photographed the boys.
After about 10 minutes, Jones returned to the patrol car and planned to
transport Waldon back to her home. Waldon asked Jones if he "could bring the
boys closer, so she could get a better look." Officer Ross then brought T.G. and
D.G. to within 25 feet of the front windshield of the patrol car. Waldon
immediately yelled, "That's them." She said that she had not gotten a good look
at the suspects' clothing, but that she would never forget their faces. Waldon
added that she was "100 percent sure."
At 10:25 a.m., Officer Jones informed the other officers of the
identification. The officers then arrested T.G. and D.G.
The State charged T.G. in juvenile court with one count of attempted
residential burglary. T.G. moved to suppress evidence seized following his initial No. 70123-1-1/6
detention, including custodial statements. The juvenile court denied the motion,
concluding that police officers lawfully detained T.G. prior to his arrest. The court
admitted Waldon's out-of-court and in-court identifications of T.G. but excluded
certain custodial statements. At the fact-finding hearing, Dr. Geoffrey Loftus
testified about various factors that affect the reliability of eyewitness
identifications.
The juvenile court found T.G. guilty as charged and imposed a disposition
of 5 days in juvenile detention, 15 days of electronic home monitoring, 6 months
of probation, and 16 hours of community service. T.G. appeals, challenging the
court's denial of his suppression motion
STANDARD OF REVIEW
We review the trial court's decision on a motion to suppress to determine
whether substantial evidence supports the findings of fact and whether those
findings, in turn, support the conclusions of law.2 Here, the majority of the
juvenile court's findings of fact are unchallenged and are therefore verities on
appeal.3 We review challenged conclusions of law de novo.4
2 State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). 3 See State v. Broadawav, 133 Wn.2d 118,131, 942 P.2d 363 (1997). 4 State v. Armenta, 134Wn.2d 1,9, 948 P.2d 1280(1997). No. 70123-1-1/7
ANALYSIS
T.G. contends that Officer Ross lacked an articulable suspicion that he
was involved in the attempted burglary and that his detention was therefore
unlawful from its inception. He further maintains that even if the initial stop was
lawful, the officers exceeded its permissible scope when they continued to detain
him after Waldon failed to identify him during the first showup.
Consistent with the Fourth Amendment and article I, section 7 of the
Washington State Constitution, police officers may conduct an investigatory stop
if the officers have a reasonable and articulable suspicion that an individual is
involved in criminal activity.5 The necessary level of articulable suspicion is "a
substantial possibility that criminal conduct has occurred or is about to occur."6
We review the reasonableness of the officer's suspicions by considering
the totality of the circumstances known to the officer at the time of the stop.7 The
determination of reasonable suspicion "'must be based on commonsense
judgments and inferences about human behavior.'"8
Within 10 minutes of responding to Waldon's 911 call, Officer Ross
noticed the two teenaged boys standing in the bus shelter. The shelter was
5 State v. Sieler, 95 Wn.2d 43, 46, 621 P.2d 1272 (1980): see also Terry. 392 U.S. at 21. 6 State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986). 7 State v. Lee, 147 Wn. App. 912, 917, 199 P.3d 445 (2008). 8 Lee, 147 Wn. App. at 912 (quoting Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)). No. 70123-1-1/8
about one-third of a mile from Waldon's home and within easy walking distance.
The boys also matched several specific details of Waldon's description. T.G.
was 15 with brown hair that Officer Ross thought might be reddish, about 5'10"
tall, and skinny. D.G. was apparently somewhat shorter and, according to Ross,
had an "olive type of complexion that could have, I thought, . .. been an Asian
male description." Both boys were wearing backpacks.
Waldon told the 911 operator that the suspects were wearing dark
clothing. Both T.G. and D.G. were wearing light-colored T-shirts in the bus
shelter. Officer Ross noticed that both boys had wet hair, but their T-shirts were
dry, even though it was raining. Based on his experience, Ross suspected that
the boys had removed some outer clothing.
Considered together and in light of the officer's experience, the suspects'
resemblance to the reported descriptions, the location and time of the encounter,
and the discrepancies between the weather conditions and the suspects' clothing
constituted specific and articulable facts supporting an inference that T.G. may
have been involved in the attempted burglary. The officer's decision to detain the
boys for further investigation was reasonable.
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T.G. contends that even if the initial stop was lawful, the officers exceeded
the permissible scope of an investigatory detention. The scope of a permissible
investigatory stop necessarily depends on the specific facts of each case.9
A lawful Terry stop is limited in scope and duration to fulfilling the investigative purpose of the stop. If the results of the initial stop dispel an officer's suspicions, then the officer must end the investigative stop. If, however, the officer's initial suspicions are confirmed or are further aroused, the scope of the stop may be extended and its duration may be prolonged.[10]
The investigative methods "must be the least intrusive means reasonably
available to verify or dispel the officer's suspicion in a short period of time."11
Relevant factors for determining the permissible scope of an investigatory
detention include "the purpose of the stop, the amount of physical intrusion upon
the suspect's liberty, and the length of time the suspect is detained."12
Here, the officers' detention of T.G. was directly related to their
investigation of an attempted burglary. Although Officer Ross moved T.G. and
D.G. away from the bus shelter to talk to them in private, he did not draw his
weapon, conduct a pat-down, handcuff them, or physically confine them during
the questioning. The investigation was relatively brief, lasting about 20-25
9 State v. Bray, 143 Wn. App. 148, 154, 177 P.3d 154 (2008). 10 State v. Acrev, 148 Wn.2d 738, 747, 64 P.3d 594 (2003) (footnote omitted). 11 State v. Williams. 102 Wn.2d 733, 738, 689 P.2d 1065 (1984). 12 Williams, 102 Wn.2d at 740. No. 70123-1-1/10
minutes from the initial detention until Waldon positively identified T.G. and D.G.
during the second showup.
Significantly, Officer Ross's suspicion was aroused almost immediately
when the boys confirmed they attended Kent-Meridian High School and claimed
they were on their way to the nearby school, even though they had been
standing in the bus shelter. Ross also suspected that the boys had recently
changed their outer clothing because their hair was wet and their T-shirts were
dry. Ross's suspicion was reinforced when T.G. opened his backpack to reveal a
dark jacket that was wet on one side.
Finally, contrary to T.G.'s assertion, Waldon's response to the initial
showup did not automatically require his release. Upon seeing the suspects
initially from a greater distance, Waldon indicated a possible identification but
acknowledged that she was not positive. Given the other circumstances,
Waldon's reaction did not necessarily dispel the officers' suspicions, and the
decision to continue the detention briefly to interview the two suspects separately
was reasonable. That questioning lasted no more than 10 minutes before
Waldon positively identified both suspects.
Under the circumstances, the brief detention was directly related to the
investigation of the attempted burglary and used minimally intrusive means to
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verify or dispel the officers' suspicions in a short period of time. The officers did
not exceed the permissible scope of the investigatory detention.
T.G. contends that the discovery of the wet jacket in his backpack did not
justify his detention because the evidence fails to support the juvenile court's
finding that he voluntarily consented to the search. But T.G. failed to challenge
the search of his backpack either in his written motion to suppress or in argument
to the juvenile court.
Generally, this court will decline to consider a suppression argument that
is raised for the first time on appeal.13 T.G.'s challenge to the voluntariness of
consent does not fall within the limited exceptions to the general rule.14 Nor does
he contend that the issue involved a manifest constitutional error warranting
review for the first time on appeal under RAP 2.5(a).
The voluntariness of a consent to search is a highly fact-specific
determination.15 Because T.G. failed to raise the issue, the juvenile court had no
opportunity to consider all of the relevant circumstances and enter the findings of
fact necessary to permit meaningful appellate review. Accordingly, we decline to
address the issue.
13 State v. Garbaccio, 151 Wn. App. 716, 731, 214 P.3d 168 (2009) (declining to address alleged erroneous statement in search warrant affidavit). 14 See State v. Robinson, 171 Wn.2d 292, 305, 253 P.3d 84 (2011). 15 See State v. O'Neill, 148 Wn.2d 564, 588, 62 P.3d 489 (2003).
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Moreover, even without the evidence in T.G.'s backpack, the
circumstances known to the officers, including the boys' physical appearance,
their explanation for their presence in the bus shelter, and the discrepancies
between the weather and their clothing, justified a brief extension of the initial
stop for further investigation. Consequently, even if the juvenile court had
suppressed the contents of T.G.'s backpack, the investigatory detention did not
exceed its lawful scope.
T.G. next contends that the showup procedures were impermissibly
suggestive, making both Waldon's initial identification and later in-court
identification unreliable and inadmissible. We disagree.
An out-of-court identification procedure violates due process if it is so
impermissibly suggestive as to give rise to "a substantial likelihood of irreparable
misidentification."16 A defendant claiming a due process violation must first
establish that the identification procedure was "unnecessarily suggestive."17 If
the defendant satisfies this threshold burden, the court then assesses whether,
under the totality of the circumstances, the procedure was so suggestive as to
create a substantial likelihood of irreparable misidentification.18
16 State v. Linares, 98 Wn. App. 397, 401, 989 P.2d 591 (1999). 17 State v. Guzman-Cuellar. 47 Wn. App. 326, 335, 734 P.2d 966 (1987); see also State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 58 (2002). 18 Vickers, 148 Wn.2d at 118.
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The key factor in determining admissibility is whether sufficient indicia of
reliability supported the identification despite any suggestiveness.19 In making
this determination, the court considers all relevant factors, including (1) the
opportunity of the witness to view the suspect at the time of the crime, (2) the
witness's degree of attention, (3) the accuracy of the witness's prior description of
the suspect, (4) the level of certainty demonstrated at the confrontation, and (5)
the time between the crime and the confrontation.20
T.G. asserts that the showup was impermissibly suggestive because
officers told Waldon that they had two suspects in custody before the
identification, Waldon viewed the two suspects together, and the officers
continued their interrogation after Waldon failed initially to make a positive
identification. But showup identifications are not per se impermissibly suggestive
merely because the witness understands that the police are holding possible
suspects.21
As the juvenile court noted, Waldon indicated her understanding of Officer
Jones's detailed admonishment that she was not obligated to identify anyone and
19 State v. Rogers, 44 Wn. App. 510, 515-16, 722 P.2d 1349 (1986) (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)). 20 Linares. 98 Wn. App. at 401: Neil v. Biggers, 409 U.S. 188, 198-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). 21 Guzman-Cuellar. 47 Wn. App. at 336 (defendant standing handcuffed and about 15 feet from police car did not render showup unnecessarily suggestive).
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that the showup procedures should not influence her judgment. Waldon
emphasized that she did not want to make a positive identification until she was
certain. Waldon paid no particular attention to Jones's actions after he left the
car. Although she saw that the officers had contact with T.G. and D.G. after
Jones left the car, that interaction was brief and noncoercive. Nothing in the
record suggests that the officers or the circumstances of the investigation exerted
any direct or indirect pressure on Waldon to make the identification.
The evidence also supports the court's determination that the identification
procedure was reliable despite any suggestiveness. First, Waldon was only two
feet away from the kitchen window, where the two suspects stood. The blinds
were down, but the slats were positioned horizontally, giving her a relatively
unobstructed view of both boys' faces.
Second, although Waldon estimated she saw the suspects for only about
three seconds, an estimate that the court found credible, she was able to note
their facial expressions, relative positions, and the attempt to slide open the
window. Waldon acknowledged that she focused on the suspect later identified
as D.G., but she insisted that she also "got a reasonable identifying look" at T.G.
Third, contrary to T.G.'s assertions, Waldon provided a reasonably
accurate description of the suspects, including their age, height, general build,
and complexion. Waldon also observed that at least one of the boys had a
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backpack. Although she erroneously described D.G. as Asian, she explained
that the 911 operator had suggested this as a possibility. Waldon emphasized
that she was attempting to describe the slightly darker complexion of one of the
suspects. Minor discrepancies do not negate the general accuracy of Waldon's
description or preclude admissibility of her identification.22
Fourth, Waldon called 911 at 9:50 a.m., shortly after the boys fled. Officer
Ross contacted T.G. and D.G. at 10:03 a.m. No more than 30-35 minutes
elapsed between Waldon's view of the boys and her identification.23
Finally, when Waldon viewed the suspects at a closer distance through
the cleared windshield, she recognized them immediately and stated that she
was "100 percent sure."
Viewed together, the foregoing circumstances supported the juvenile
court's determination that Waldon's identification was reliable and admissible.
T.G.'s reliance on the testimony of Dr. Loftus is misplaced. Loftus
identified the general circumstances and situations that may render
identifications unreliable, but he did not review or address the specific factors of
Waldon's identification. The juvenile court carefully considered his testimony and
noted that several circumstances here, including the relative safety of Waldon's
22 See Manson, 432 U.S. at 116-17 (weight to be given identifications with some questionable features is for the trier of fact). 23 See Rogers, 44 Wn. App. at 516 (6-hour delay between incident and showup was within permissible range).
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viewing point, the lack of direct physical contact with the suspects, and the
absence of significant post-event memory contamination, differed from those that
Loftus characterized as unreliable. Under the circumstances, the weight to be
accorded his testimony was an issue of credibility that this court cannot review.24
T.G. also suggests that the juvenile court failed to give proper
consideration to the cross-racial aspects of Waldon's identification.25 But
Waldon's identification of T.G. was not a cross-racial identification. Nothing in
the record supports T.G.'s claim that Waldon's view of both suspects together in
the showup made it more "likely that the cross-racial risks of misidentifying D.G.
carried over to T.G."
Affirmed.
WE CONCUR:
CD o o
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24 See State v. Walton. 64 Wn. App. 410, 415-16, 824 P.2d 533 (19 (appellate court defers to trier of fact on issues of conflicting testimony, credibifi of witnesses, and the persuasiveness of the evidence). 25 See generally State v. Allen, 176 Wn.2d 611, 294 P.3d 679 (2013).
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