FILED
MAY 21, 2015 .
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 32233-5-111 Appellant, ) ) v. ) ) CODY RAY FLORES, ) UNPUBLISHED OPINION ) Respondent. )
FEARING, J. - We address under what circumstances and to what extent a law
enforcement officer may detain and search a companion of another engaged in criminal
activity. The trial court suppressed evidence of a gun on the person of Cody Flores, who
accompanied one accused of a crime. Although the law enforcement officer had cause to
detain Flores, the officer lacked reason to order Flores to walk toward him and to search
him. We affirm the trial court.
FACTS
On November 2,2013, Moses Lake police dispatch sent all available patrol
officers to 1120 Alderwood Drive. Dispatch relayed an anonymous report that Giovanni
Powell held a gun to somebody's head at that address. Dispatch also reported an
outstanding warrant for the arrest of Powell. No. 32233-5-II1 State v. Flores
Officer Kyle McCain arrived at 1120 Alderwood Drive first and espied Giovanni
Powell ambling with Cody Flores north of the address. The anonymous caller had not
mentioned Flores. Officer McCain knew Powell to be a member of the "Base Block"
gang. McCain identified Powell from pictures on Facebook, whereon Powell or his
friends held firearms. McCain also knew Powell from the latter's testimony as a material
witness after one of Powell's best friends was shot and killed in a fight at a Spokane
motel. Officer McCain did not recognize or know Cody Flores.
After spotting Giovanni Powell, Officer Kyle McCain exited his car and drew his
gun aimed at the ground or at a low ready position. An officer employs the low ready
position when he has not identified a specific violent threat, but knows that danger may
await in his immediate area. Kyle McCain ordered Giovanni Powell and Cody Flores to
stop walking. Powell and Flores complied. Officer McCain ordered each man to place
his respective hands on his head, face away from McCain, and kneel on the sidewalk.
Powell and Flores obeyed and kneeled about five to seven feet from each other.
Office Kyle McCain stood next to his patrol car and utilized the car as cover,
while he paused for other officers to arrive. Giovanni Powell and Cody Flores spoke to
each other, and McCain ordered them to cease talking. Kyle McCain directed Flores to
move further from Powell, and Flores complied while still on his knees. Another four
officers arrived at the Alderwood address, and each drew his gun. Officer McCain and
other officers ordered Powell to approach them by walking backward with his hands on
No. 32233-5-III State v. Flores
his head. Powell obeyed, and the officers arrested him without harm. Cody Flores never
obstructed in the detaining of Giovanni Powell.
Moses Lake Officer Paul Oiumette was one of the other officers who arrived at the
Alderwood address. Oiumette assumed control over Cody Flores, who remained
kneeling on the street comer with his hands up, facing away from the officers. He had no
knowledge of Cody Flores engaging in criminal activity. Nevertheless,Oiumette
believed Flores to be involved in the gun incident that prompted the anonymous call to
dispatch. Officer Oiumette drew his gun and held it at the low ready position. He
instructed Flores to keep his hands where Oiumette could see them and to walk backward
to the sound of his voice. Cody Flores rose from his knees and complied. As Flores
walked backward, he saw Officer Oiumette's drawn gun.
After Cody Flores walked ten to fifteen feet and neared within twenty feet of
Officer Paul Oiumette, Flores peered over his shoulder and notified the officer that
Giovanni Powell gave him a gun. Oiumette commanded Flores to keep walking
backward. Oiumette asked Flores about the location of the gun, and Flores responded
that he carried the firearm in his pants under his jacket. Flores continued to promenade
backward. When Flores approached within feet of Officer Oiumette, the officer ordered
Flores to kneel, and other officers approached Flores and secured him in handcuffs. With
his gun drawn, Oiumette removed the gun from Cody Flores' pants and detained Flores
in the back of a patrol car.
Ii l j No. 32233-5-111 State v. Flores
II Moses Lake law enforcement officers reviewed Cody Flores' criminal history and
! discovered a conviction in October 2012 for residential burglary, a felony disqualifying
Flores from possessing a firearm.
PROCEDURE
The State of Washington charged Cody Flores with unlawful possession of a
firearm in the first degree, in violation ofRCW 9.41.040(l)(a). Cody Flores filed a CrR
3.6 motion to suppress the gun found on his person as the product of an unlawful seizure.
Flores argued that the Moses Lake officers lacked an articulable suspicion essential to
justify detaining him. At the motion to suppress hearing, Officers Kyle McCain and Paul
Oiumette testified. Thereafter the trial court issued a letter opinion, including findings of
fact and conclusions of law. Among other findings, the trial court found that the officers
lacked individualized articulable suspicion to suspect Cody Flores of criminal activity.
The trial court granted Cody Flores' motion to suppress evidence of the gun found
on his person and dismissed the charge against him without prejudice. In the letter
opinion, the trial court observed that federal law assumes that all arrestee companions are
dangerous and thus are subject to search, The court continued:
In Washington, however, while a reasonable concern for officer safety justifies a brief detention and protective frisk of an arrestee's companion, proximity to the arrestee, even coupled with general circumstances, such as being in a high crime [area], are insufficient to create a reasonable concern. State v. Adams, 144 Wn. App. 100, 106-07, 181 P.3d 37 (2008). Rather, there must be articulable circumstances
No. 32233-5-II1 State v. Flores
particular person in the arrestees company poses a threat to officer safety to justifY that person's detention and frisk. Id. Here, Mr. Flores was compliant, made no furtive movements, and there is no evidence the officers during the relevant time period were aware of any violent propensities the Defendant may have had. There were, therefore, no grounds under Washington law to detain the Defendant. His motion to suppress is granted.
Clerk's Papers at 56.
LAW AND ANALYSIS
We outline the arguments raised by the parties in order to circumscribe our
analysis. The State of Washington argues that a concern for officer safety justified the
detention of Cody Flores and later seizure of the gun on Flores' person. The State
contends that Officer Paul Oiumette had a legitimate concern that Giovanni Powell could
have passed his gun to Cody Flores. The State, however, does not argue that the Terry
investigatory stop rule validated Officer Oiumette's search of Flores' person. Terry v.
Ohio, 392 U.S. 1, 16,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968)
The State of Washington analogizes this appeal to a case involving the detaining
of a passenger in a stopped car. We agree with this analogy, but our agreement harms,
not advances, the State's position.
When reviewing claims of unlawful searches and seizures, we often must isolate
discrete actions ofa police officer during an extended encounter, as if the actions are
separate frames in a movie. Cody Flores does not argue that Officer Kyle McCain lacked
reason to detain him until officers accomplished the arrest of Giovanni Powell. Flores
does not need to assert this argument to be successful. Flores contends that Officer Paul
Oiumette lacked grounds, after the arrest of Powell, to require him to walk toward the
officer and to search his person. Flores emphasizes that he informed Oiumette of the gun
on his person only after Oiumette unlawfully directed him to parade carefully toward the
officer.
Cody Flores also argues that the law enforcement officers lacked reasonable
suspicion to legitimize a Terry stop of Flores. We agree with the State that this latter
contention is irrelevant since the State does not substantiate the detention and search of
Flores under Terry.
As the trial court did, we rely on the Washington constitution, not the Fourth
Amendment to the United States Constitution. Article I, section 7, provides that "[n]o
person shall be disturbed in his private affairs, or his home invaded, without authority of
law." That protection encompasses and exceeds the protection guaranteed in the Fourth
Amendment of the United States Constitution. State v. Horrace, 144 Wn.2d 386,392
n.2, 28 P.3d 753 (2001); State v. Parker, 139 Wn.2d 486,493-94,987 P.2d 73 (1999).
The State of Washington does not assign error to any finding of fact of the trial
court. Unchallenged findings, entered after a suppression motion hearing, are verities on
appeaL State v. O'Neill, 148 Wn.2d 564,571,62 P.3d 489 (2003); State v. Hill, 123
Wn.2d 641, 647,870 P.2d 313 (1994).
Whenever a police officer accosts an individual and restrains his freedom to walk
away, he has seized the person. Terry v. Ohio, 392 U.S. at, 16 (1968). Once an officer
seizes an individual, no subsequent events or circumstances retroactively justity the
seizure. State v. Mendez, 137 Wn.2d 208,224, 970 P.2d 722 (1999), abrogated on other
grounds by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132
(2007).
As a general rule, warrantless searches and seizures are per se unreasonable, in
violation of the Fourth Amendment and article I, section 7 of the Washington State
Constitution. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). There are five
jealously and carefully drawn exceptions to the warrant requirement, which include
exigent circumstances, searches incident to a valid arrest, inventory searches, plain view
searches, and Terry investigative stops. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d
1266 (2009). The State bears the burden of demonstrating that a warrantless seizure falls
into a narrow exception to the rule. State v. Doughty, 170 Wn.2d 57, 61, 239 P.3d 573
(2010). This is a strict rule. State v. White, 135 Wn.2d 761, 769, 958 P.2d 982 (1998).
Exceptions to the warrant requirement are limited and narrowly drawn. White, 135
Wn.2d at 769. Whereas, Washington courts repeatedly herald these principles, a court
rarely hinges a decision thereon. The principles should teach us that in close calls
challenged evidence should be suppressed.
I No. 32233-5-III
I State v. Flores
I I Washington courts have not announced under which of the five exceptions to a
! search warrant arrestee companion search and seizure fall. One court refused to ,i ~
characterize a companion search as a search incident to arrest, since this exception only
justifies the search of the arrestee and his immediate vicinity. State v. Parker, 139 Wn.2d
at 497 (1999). When a person is not under arrest, there can be no search incident to
arrest. Parker, 139 Wn.2d at 497. Perhaps the companion search should fall under the
exigent circumstances exception or be its own exemption category.
We now outline those detailed rules that control our decision. Merely associating
with a person suspected of criminal activity does not strip away the protections of the
constitution. State v. Broadnax, 98 Wn. 2d 289, 296, 654 P.2d 96 (1982), abrogated on
other grounds by Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d
334 (1993). In order for police to lawfully seize an otherwise innocent individual present
with an arrestee, the arresting officer must articulate an "objective rationale" predicated
specifically on safety concerns, for officers or other citizens to satisfy article I, section 7.
State v. Mendez, 137 Wn.2d at 220 (1999). This "objective rationale" criterion is a less
demanding standard than needed for a Terry stop. To justify a Terry stop, the police
officer must identify specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant an intrusion. Terry, 392 U.S. at 21; State
v. Armenta, 134 Wn.2d 1, 10,948 P.2d 1280 (1997).
The law recognizes that under certain circumstances, unarrested individuals may
pose a threat to officer safety in an arrest situation. State v. Horrace, 144 Wn.2d at 392
93; State v. Kennedy, 107 Wn.2d 1, 11,726 P.2d 445 (1986). An officer conducting a
stop may be endangered not only by the suspect but by companions of the suspect.
Kennedy, 107 Wn.2d at 11. This threat does not justify unlimited intrusions into the
companion's privacy, however. To automatically authorize the search of non arrested
individuals because those individuals happen to be associated with the arrestee, or within
the vicinity of the arrest, would distort the narrow limits of the warrant exceptions and
offend fundamental constitutional principles. State v. Parker, 139 Wn.2d at 497 (1999).
The authority to conduct a full blown evidentiary search cannot constitutionally derive
from the need to secure officer safety alone. Parker, 139 Wn.2d at 499. Because the
privacy interest of a non arrested individual remains largely undiminished, full blown
evidentiary searches of nonarrested individuals are constitutionally invalid even when
officers may legitimately fear for their safety. Parker, l39 Wn.2d at 499. A generalized
concern for officer safety has never justified a full search of a nonarrested person.
Parker, 139 Wn.2d at 501.
When stopping a car for a traffic violation, the officer may take whatever steps
necessary to control the scene, including ordering the driver to stay in the vehicle or exit
it, as circumstances warrant. State v. Mendez, 137 Wn.2d at 220. But with regard to
passengers, an officer must be able to articulate an objective rationale predicated
specifically on safety concerns for ordering a passenger to stay in the vehicle or to exit
the vehicle to satisfy article I, section 7. Mendez, 137 Wn.2d at 220. Whether such an
articulable, objective rationale exists depends on the circumstances at the scene of the
traffic stop. Mendez, 137 Wn.2d at 221.
If the officer arrests the driver, the officer may then order an occupant from the
car. State v. Parker, 139 Wn.2d at 502. Nevertheless, when the purpose of the officer's
interaction with the passenger is investigatory, the officer must meet the higher Terry
standard. Mendez, 137 Wn.2d at 220. Stated differently, if the officer searches the
person of the nonarrested passenger, the officer must have objective suspicions that the
person searched may be armed and dangerous. State v. Parker, 139 Wn.2d at 502. When
the suspicion that an individual may be armed is based in part on the observable actions
of others in a particular context, the officer must point to specific, articulable facts tying
those observable movements and their circumstances directly and immediately to the
individual to be frisked. State v. Horrace, 144 Wn.2d at 399-400 (2001). When officers
do not have an articulable suspicion that an individual is armed or dangerous and have
nothing to independently connect such person to illegal activity, a search of the person is
invalid under article I, section 7. State v. Parker, 139 Wn.2d at 498.
Most, if not all, Washington decisions address the stop and frisk of an arrestee's
companion in the context of a passenger in a car, rather than one walking on a sidewalk
with the arrestee. We consider the passenger cases controlling.
In State v. Mendez, 137 Wn.2d 208 (1999), police officers detained a car for
failing to stop at a stop sign. The car's passenger, Efrain Mendez, exited the vehicle and
quickly walked from the scene. Mendez did not heed an officer's command to return to
the car and reached inside his shirt two times while running away. Officers chased
Mendez, grabbed him, placed him under arrest, and searched him. During the search,
they found a marijuana pipe. After denying a CrR 3.6 motion to suppress the marijuana
pipe, the trial court found Mendez guilty of possessing paraphernalia.
In reversing the trial court's denial of Efrain Mendez's motion to suppress, the
Supreme Court held that the arresting officers possessed neither an objective rationale
that would allow them to order Mendez back into the vehicle in order to secure the scene,
nor a reasonable suspicion that Mendez had engaged or was about to engage in criminal
conduct. Mendez's running from the scene, without evidence that he committed a crime
or posed a threat to public safety, did not justifY his detention. Moreover, Mendez's
gesture of reaching inside his jacket while walking away with his back to the officers
occurred after he had been seized by the officer's command to return to the car.
Moses Lake officers possessed reason to seize Cody Flores in order to secure the
scene of Giovanni Powell's arrest. Officer McCain initially approached Powell and
Flores alone and was entitled to take limited measures to ensure Flores would not
interfere in his arrest of Powell. Nevertheless, the seizure exceeded the permissible scope
of the objective rationale standard. Contrary to what the State asserts, the officers'
objective rationale for detaining Flores does not ripen into a reasonable suspicion of
criminal activity sufficient to justify an investigatory seizure. Once Powell was safely in • custody, the officers' objective rationale for seizing Flores evaporated, and the officers
could no longer lawfully detain and search Flores because, as the trial court correctly
found, they lacked a reasonable suspicion that Flores had committed, or was about to
commit, a crime, or was a danger to the officers.
Cody Flores exhibited no threatening or aggressive behavior toward the officers.
He immediately complied with Officer McCain's every command. Officer Oiumette
testified that Flores was in a position of disadvantage by the time he arrived, kneeling on
the ground with his hands behind his head, facing away from the officers. The
anonymous tip made no mention of Flores, nor did any of the responding officers have
reason to believe Flores had dangerous propensities.
Even though arresting law enforcement officers believed Giovanni Powell passed
his gun to Flores after they could not find a gun on Powell's person, the record does not
show officers forwarded this information to Officer Paul Oiumette. Anyway, any
suspicion on Oiumette's part would not validate Terry'S reasonable suspicion standard,
because Paul Oiumette had no reason to believe Flores could not lawfully possess a
weapon. Officer Oiumette testified that he continued to detain Flores after others arrested
Powell because he responded to a call about a firearm and he believed Flores was
involved with the gun. Officer Oiumette thus admitted that Flores' extended detention
I II No. 32233-5-III State v. Flores
was premised on the same anonymous call that the State admits is insufficient to justifY a
Terry stop.
! j The trial court relied heavily on State v. Adams, 144 Wn. App. 100, 181 P.3d 37
(2008). The State argues that the trial court misinterpreted Adams as establishing a bright
line rule that an officer must have individualized suspicion to seize an arrestee's
companion in order for that seizure to comport with Washington's Constitution. We
disagree that the trial court misapplied Adams.
In State v. Adams, we reversed a trial court's denial of a motion to suppress
brought by the passenger of a vehicle detained by officers on suspicion of being stolen.
144 Wn. App. at 107. The arresting officer handcuffed both passenger and driver. He
asked the passenger, Jennifer Adams, if anything would poke him if he frisked her
person. Adams responded that she carried a syringe in her coat pocket, and she gave the
officer permission to remove the syringe. When the officer reached in her pocket to
retrieve the syringe, the officer found a bag of methamphetamine. The trial court denied
her motion to suppress the drug evidence. In reversing the trial court, we held that, when
a seized passenger poses no immediate threat to an officer's safety, nor appears armed,
Terry requires the officer to '" point to specific, articulable facts giving rise to an
objectively reasonable belief that the passenger could be armed and dangerous'" in order
to justifY a protective frisk. Adams, 144 Wn. App. at 105 (quoting State v. Horrace, 144
Wn.2d 386,399-400,28 P.3d 753 (2001). Adams supports our holding in this appeal.
I j :i No. 32233-5-III I i State v. Flores
I The State of Washington relies on State v. Horrace, 144 Wn.2d 386, in which the
state Supreme Court affirmed the conviction of a car passenger for possession of a
I concealed weapon. The court sanctioned the pat-down frisk of the passenger because,
I, while the officer returned to his patrol car to check for warrants for the driver, the officer
noticed furtive movements between the driver and his passenger, Ronald Horrace. In this
appeal, no Moses Lake officer saw Giovanni Powell hand Cody Flores an object, nor did
Powell or Flores engage in furtive movements.
CONCLUSION
We affirm the trial court's suppression of evidence and dismissal of charges
against Cody Flores.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
I CONCUR:
No. 32233-5-111
BROWN, A.C.J. (concurring in result) - First, Mr. Flores' case was decided by the
trial court applying solely the investigative stop principles of Terry v. Ohio, 392 U.S. 1,
88 S. Ct. 1868,20 L. Ed. 2d 889 (1968). While fact finding, the judge unsuccessfully
searched the record for "articulable circumstances indicating the particular person in the
arrestee's company poses a threat to officer safety to justify that person's detention and
frisk." Clerk's Papers (CP) at 56. The judge did not find facts justifying Mr. Flores'
continued detention and search after Mr. Powell's arrest. The judge applied Terry as
did State v. Adams, 144 Wn. App. 100, 107, 181 P.3d 37 (2008), a passenger search
case. But passenger cases are not distinct from Terry or separately "controlling" as the
majority reasons. We should not depart from the principles established in Terry.
Second,' we should defer to the trial court's discretionary fact finding and witness
credibility decisions in both letter and spirit. The judge found Mr. Flores was ordered to
"walk" backward and did not describe the walk as a "promenade" or "parade." CP at 61.
The judge did not criticize the officers' need to safely control Mr. Powell's arrest scene
and briefly detain his walking companion, Mr. Flores. Initial police interactions with
individuals in Terry situations are generally and neutrally described as stops or
encounters; thus in Terry situations, a police officer initially stops or encounters rather No. 32233-5-111 State v. Flores - Concurrence
than "accosts" individuals. "Accost" connotes challenging and aggressive, which is not
always true in police encounters. I cannot join in the noted incorrect descriptions.
Accordingly, for these two reasons, I must respectfully concur solely in the result.
Brown, A.C.J.
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