FILED AUGUST 15, 2019 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STATE OF WASHINGTON, ) ) No. 36044-0-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) JOSUE MANUEL OSORIO LOPEZ, ) ) Appellant. )
FEARING, J. — Josue Lopez challenges the stopping of his white pickup, which
stop led to the seizure of controlled substances inside the vehicle. He argues that
reasonable articulable suspicion did not justify the stop. We disagree and affirm his
conviction of possession with intent to deliver a controlled substance.
FACTS
This appeal’s facts cover two controlled buys of controlled substances implicating
appellant Josue Lopez. The first sale occurred on April 13, 2016. The second sale, No. 36044-0-III State v. Lopez
which led to Lopez’s arrest and conviction, transpired on January 26, 2017. We garner
the facts from testimony during a motion to suppress hearing.
On April 13, 2016, Sunnyside Police Department Detective John Gusby worked
for the Law Enforcement Against Drugs task force in Yakima County. Detective Gusby
had learned from an informant that Josue Lopez may engage in the sale of cocaine. With
that information, the task force assembled a surveillance team to shadow Lopez’s
activity. Task force members observed Lopez driving a large, lifted, four-door pickup
truck. The truck’s tailgate bore an emblem with the tradename “BOWTECH”
accompanied by a picture of a deer’s neck, head, and antlers. No other truck in
Sunnyside displayed this distinct emblem.
The drug task force arranged for its informant to purchase cocaine from Josue
Lopez on April 13, 2016. Before the controlled buy, task force members searched the
informant and his vehicle for drugs or excess cash. The task force handed the informant
cash for the controlled buy.
On April 13, detectives followed Josue Lopez to a business parking lot within the
city of Sunnyside, where the informant arranged to meet Lopez. Lopez entered the
parking lot in his truck and drove to the informant’s car. After Lopez parked next to the
driver’s side door of the informant’s car, the informant exited his vehicle and sat in
Lopez’s truck. Lopez drove around the parking lot, parked briefly in a parking stall away
from the informant’s vehicle, and then drove back to the informant’s driver side door.
2 No. 36044-0-III State v. Lopez
The informant exited Lopez’s truck and returned to his own vehicle. Lopez drove to
another location in the parking lot and parked his truck. Lopez walked to the informant’s
vehicle. Detective John Gusby observed a handshake between Lopez and the informant.
The informant returned to his vehicle and drove away. The informant returned to task
force members with a plastic parcel containing a white powdery substance that field
tested for cocaine. Law enforcement did not then arrest Lopez.
We forward to January 2017, when Detective Michael Boone surveilled Josue
Lopez. Detective Boone serves as a special agent with the Washington State Gambling
Commission assigned to the drug task force in Yakima County. Boone underwent
surveillance training that included forty hours of rolling surveillance tactics, eighty hours
of drug enforcement administration, eighty hours of basic drug trafficking investigation
school, and undercover certification school. Rolling surveillance entails trailing someone
moving in a vehicle.
On January 26, 2017, Detective Michael Boone parked in the Sunnyside Bi-Mart
parking lot, while conducting surveillance for an unrelated investigation. Detective
Boone observed a white, lifted Ford F-250, with a “BOWTECH” emblem on the tailgate.
Boone knew that the truck belonged to a suspect in another task force drug investigation
headed by Detective John Gusby. Josue Lopez’s truck passed in front of Boone’s vehicle
and parked in a parking stall next to a blue Chevrolet pickup truck. Only one person then
occupied Lopez’s truck. The blue Chevrolet remained in the middle of the traveling part
3 No. 36044-0-III State v. Lopez
of a parking lot aisle. Detective Boone drove to a parking stall behind the two trucks to
gain a better view. Boone spied two individuals now inside Lopez’s truck, while no one
occupied the blue Chevrolet. Lopez’s truck moved, and Boone notified his surveillance
team of the direction of travel of Lopez’s truck as Boone tailed the truck. Lopez’s truck
approached the exit of the Bi-Mart parking lot, but did not leave the lot. Instead, the
truck moved in a half-circle and stopped parallel to the blue Chevrolet. In order to avoid
raising suspicion, Detective Boone exited the parking lot, but continued observing the
two other vehicles. Boone did not observe the passenger exit Lopez’s vehicle and return
to the blue Chevrolet.
Based on Detective Michael Boone’s training and experience, he concluded that
the movement of Josue Lopez’s truck and the rendezvous between the two men signaled
the trafficking of illegal drugs. Boone relayed his observations to Detective John Gusby.
Gusby told Boone that the behavior in the parking lot mirrored behavior during the April
2016 controlled buy. Both detectives agreed that the action did not follow normal
shopping behavior. Boone and Gusby believed that Boone observed a possible drug
transaction.
At the request of Detective Michael Boone, Yakima County Sheriff Deputy Justin
Paganelli stopped Josue Lopez’s truck for an investigative detention. Lopez informed
Deputy Paganelli that a firearm lay in the door of his truck. A Sunnyside Police
Department officer placed Lopez in handcuffs for officer safety. Deputy Paganelli
4 No. 36044-0-III State v. Lopez
supervises a drug detection dog trained to detect heroin, cocaine, and methamphetamine
or a combination of the three. Paganelli walked his dog around the truck, and the dog
alerted to the partially opened driver’s door. The Sunnyside officer transported Lopez to
jail. Investigating officers obtained a search warrant to search Lopez’s vehicle and seized
a functional digital scale, a pill bottle with a white powdered substance, later determined
to be 2.9 grams of cocaine hydrochloride, and a loaded Ruger SR 40, .40 caliber pistol.
PROCEDURE
The State of Washington charged Josue Lopez with possession of cocaine, a
controlled substance, with intent to deliver. Lopez brought a motion to suppress the
seized scale, cocaine, and pistol. He argued that the drug task force conducted an
unlawful Terry stop.
After conducting a suppression evidentiary hearing, the trial court entered findings
of fact and conclusions of law. Finding of fact number four reads:
What Detective Boone observed on January 26, 2017 was consistent with the controlled buy involving the defendant that occurred on April 13, 2016 which was the subject of LEAD Task Force investigation under case number 16X00040. Furthermore, based on Detective Boone’s training and experience, Detective Boone’s observations on January 26, 2017 were consistent with the trafficking of illegal drugs and counter surveillance employed by those involved in the trafficking of illegal drugs.
Clerk’s Papers (CP) at 56. The trial court upheld the validity of the investigatory stop of
Lopez’s vehicle because law enforcement, based on the totality of the circumstances, held
reasonable articulable suspicion of criminal activity. Accordingly, the court denied
5 No. 36044-0-III State v. Lopez
Lopez’s motion to suppress evidence. The trial court convicted Josue Lopez of
possession with intent to deliver a controlled substance after a stipulated facts trial.
LAW AND ANALYSIS
On appeal, Josue Lopez assigns error to the trial court’s denial of his motion to
suppress evidence of the scale, cocaine, and pistol. When reviewing the denial of a
suppression motion, this court must determine whether substantial evidence supports the
trial court’s findings of fact. State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).
Evidence is substantial when it suffices to persuade a fair-minded, rational person of the
truth of the finding. State v. Wayman-Burks, 114 Wn. App. 109, 111, 56 P.3d 598
(2002). Unchallenged findings of fact are verities on appeal. State v. O’Neill, 148 Wn.2d
564, 571, 62 P.3d 489 (2003). This court reviews de novo conclusions of law pertaining
to suppression of evidence. State v. Levy, 156 Wn.2d at 733.
We first analyze whether substantial evidence supports the trial court’s findings of
fact. We later address whether the findings support the conclusions of law.
Josue Lopez only challenges finding of fact 4 to the extent the finding presumes
criminal activity. To repeat, finding of fact number four reads:
What Detective Boone observed on January 26, 2017 was consistent with the controlled buy involving the defendant that occurred on April 13, 2016 which was the subject of LEAD Task Force investigation under case number 16X00040. Furthermore, based on Detective Boone’s training and experience, Detective Boone’s observations on January 26, 2017 were consistent with the trafficking of illegal drugs and counter surveillance employed by those involved in the trafficking of illegal drugs.
6 No. 36044-0-III State v. Lopez
CP at 56. Lopez argues that Detective Michael Boone’s observations failed to establish
the requisite suspicion for seizure. The State contends substantial evidence supports the
finding. We agree with the State.
The trial court heard testimony regarding surveillance of Josue Lopez in April
2016 and January 2017. Detective John Gusby testified to his observations during the
2016 controlled buy with the informant. Gusby saw Lopez drive a distinct white Ford
pickup with a “BOWTECH” emblem on the tailgate. Lopez retrieved the informant in a
parking lot, drove in the lot for a short time, returned to the informant’s car, shook hands,
and left the informant. The informant presented Gusby with cocaine.
Detective Michael Boone testified to his observations during the January 2017
incident. Boone observed a similar elapse of events involving Lopez’s lifted, white Ford
F-250 with the “BOWTECH” insignia on the tailgate. Lopez parked next to an occupied
vehicle in a parking lot, the occupant entered Lopez’s truck, the two drove inside the lot
momentarily, the two returned to the other vehicle, and the driver of the white pickup
parked parallel to the passenger’s vehicle. The trial court justifiably concluded the two
occasions paralleled each other.
Detective Michael Boone testified about his surveillance training and how that
training informed his observations on January 26, 2017. Boone scrutinizes behavior to
determine if a suspect engages in activity intended to confuse law enforcement or hide
illegal conduct, activity known as counter surveillance techniques. Counter surveillance
7 No. 36044-0-III State v. Lopez
tactics include switching parking positions, stopping at unconventional spots in a parking
lot, or stopping along the side of the road.
Detective Michael Boone testified that Josue Lopez’s behavior on January 26,
2017 echoed the actions of one engaged in a drug transaction and counter surveillance.
The trial court justifiably concluded in finding of fact 4 that, based on the detective’s
training and experience, the 2017 observations were consistent with the trafficking of
illegal drugs and counter surveillance employed by one involved with drug trafficking.
We must now review whether the trial court’s findings of fact support a
conclusion that law enforcement held reasonable articulable suspicion to stop Josue
Lopez’s car on January 26, 2017. Josue Lopez contends that the State failed to meet its
burden of establishing a valid investigative detention on January 26. The State argues
that the detention of Lopez’s truck was a valid investigative detention under Terry v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Generally, warrantless searches and seizures are per se unconstitutional under the
Fourth Amendment to the United States Constitution and article I, section 7 of the
Washington Constitution. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
But, a few carefully drawn exceptions exist, which include exigent circumstances,
inventory searches, searches incident to arrest, plain view searches, and Terry stops.
State v. Garvin, 166 Wn.2d at 249; State v. Fuentes, 183 Wn.2d 149, 158, 352 P.3d 152
(2015). The State bears the burden of proving the exception to the warrant requirement
8 No. 36044-0-III State v. Lopez
by clear and convincing evidence. State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975
(1990).
As noted, a brief investigatory seizure, commonly referred to as a Terry stop, is
one exception to the warrant requirement. Terry v. Ohio, 392 U.S. 1 (1968). Under this
exception, a police officer may, without a warrant, briefly detain an individual for
questioning if the officer has reasonable and articulable suspicion that the person is or is
about to be engaged in criminal activity. State v. Fuentes, 183 Wn.2d at 158 (2015).
This court looks at the totality of the circumstances known to the officer at the time of the
stop when evaluating the reasonableness of the officer’s suspicion. State v. Glover, 116
Wn.2d 509, 514, 806 P.2d 760 (1991). The totality of the circumstances includes the
location of the stop, the officer’s training and experience, the conduct of the person
detained, the purpose of the stop, and the amount of physical intrusion into the person’s
liberty. State v. Weyand, 188 Wn.2d 804, 811-12, 399 P.3d 530 (2017). The suspicion
must be individualized to the person being stopped. State v. Weyand, 188 Wn.2d at 812.
In the absence of reasonable suspicion, the evidence uncovered from the stop must be
suppressed. State v. Fuentes, 183 Wn.2d at 158.
Josue Lopez contends and underscores that: (1) Detective Michael Boone’s
observations of Lopez’s truck were not of inherently suspicious behavior, (2) law
enforcement never saw drugs or cash passing hands, and (3) law enforcement never
identified the driver of the truck. We rule that officers could reasonably conclude that the
9 No. 36044-0-III State v. Lopez
behavior in the two parking lots suggested criminal activity. We further hold that law
enforcement need not see drugs or cash and need not have identified the driver to gain
reasonable, articulable suspicion for a Terry stop.
When the activity is consistent with criminal activity, but also consistent with
noncriminal activity, the behavior may still justify a brief detention. State v. Kennedy,
107 Wn.2d 1, 6, 726 P.2d 445 (1986). While an inchoate hunch is insufficient to justify a
stop, circumstances which appear innocuous to the average person may appear
incriminating to a police officer in light of past experience. State v. Pressley, 64 Wn.
App. 591, 596, 825 P.2d 749 (1992). The officer need not ignore that experience. State
v. Pressley, 64 Wn. App. at 596. While Lopez’s driving behavior was susceptible to
innocent explanations, Detective Michael Boone, through his training and experience,
articulated that these maneuvers evoked criminal activity.
In response to Josue Lopez’s emphasis that drug task force officers never observed
a drug transaction, the State relies on cases concerning suspected drug transactions that
involved no firsthand observation of any exchange. State v. Kennedy, 107 Wn.2d 1
(1986); State v. Glover, 116 Wn.2d at 514 (1991). The Glover court noted that courts
consider an officer’s training and experience when determining the reasonableness of a
Terry stop. State v. Glover, 116 Wn.2d at 514. Citing Terry v. Ohio, 392 U.S. 1 (1968),
the State also argues that an officer may base an investigative stop solely on unusual
activity recognized by an experienced police officer.
10 No. 36044-0-III State v. Lopez
We disagree with the State’s contention that abnormal behavior observed by a
trained law enforcement officer can by itself justify an investigative stop. Although not
cited by either party, our Supreme Court’s recent decision in State v. Weyand, 188 Wn.2d
804 (2017) must be considered in response to the State’s argument. Corporal Bryce
Henry conducted a Terry stop of a car after observing, at 2:40 a.m., Wesley Weyand and
another man leave 95 Cullum Avenue, a house documented as the site of numerous drug
deals. As the men quickly walked toward the car, they looked up and down the street
multiple times. Based on these observations, coupled with the officer’s knowledge of the
extensive drug history at the residence, he stopped the vehicle. After the stop, Corporal
Henry ran Weyand’s name and discovered he had an outstanding warrant. A search
incident to arrest of Wesley Weyand led to the discovery of a capped syringe on his
person.
The Washington Supreme Court reversed Wesley Weyand’s conviction. The
Supreme Court noted that, although Corporal Henry identified 95 Cullum as a “known”
drug house, he failed to articulate a reasonable suspicion that Weyand was involved in
criminal activity at that residence based on Weyand’s conduct at the inception of the stop.
The court emphasized that reasonable suspicion must be individualized to the person
being stopped and police cannot justify a suspicion of criminal activity based on a
person’s locale in a high crime area. Also, Weyand’s looking up and down the street,
considered to be furtive movements, failed to supply reasonable suspicion.
11 No. 36044-0-III State v. Lopez
We compare the stop of Wesley Weyand to the investigatory stop of Josue Lopez.
Rather than a “known” drug house with an extensive history, Lopez operated a “known”
vehicle with a history of a single drug sale. In Weyand, the defendant walked quickly and
looked up and down the street multiple times. This behavior, coupled with the history of
the house, did not justify a suspicion of criminal activity, even at 2:40 in the morning.
Josue Lopez parked his truck at a grocery store, let a passenger inside, drove in a half-
circle, and returned to his passenger’s car. This behavior, coupled with the history of
Lopez’s vehicle, led Detective Michael Boone to believe a drug transaction had taken
place. A vehicle being driven abnormally in a parking lot and a person looking up and
down a street can both be seen as innocent conduct. With that in mind, Weyand compels
that this court conclude that, based solely on the driving in the parking lot, Detectives
Boone and Gusby did not possess reasonable suspicion individualized to Lopez at the
moment his vehicle was stopped.
The facts in Josue Lopez’s appeal contain additional suspicious behavior. In State
v. Weyand, Corporal Bryce Henry only articulated an unknown individual acting
suspiciously after leaving a “known” drug house late at night before his Terry stop.
Lopez previously sold cocaine to an informant, drove the same unique pickup truck, and
employed the same vehicle maneuvers during the transaction.
Case law does not require that a suspect be identified prior to a valid Terry stop.
In State v. Glover, 116 Wn.2d 509 (1991), officers observed Conjewel Glover acting
12 No. 36044-0-III State v. Lopez
suspiciously when turning from the officers and walking faster after leaving an apartment
building. Officers did not recognize Glover as a resident of the apartment complex,
which has a no trespassing policy and history of gang and drug activity. Officers stopped
the unknown man to investigate a possible criminal trespass and subsequently found
cocaine on his person after they noticed a clear plastic baggie. The court held that the
arresting officers had substantial evidence to justify a Terry stop, and they had reasonable
grounds to believe that defendant was committing the crimes of criminal trespass and
drug possession.
Josue Lopez also questions whether a police officer can rely on information from a
previous controlled buy, occurring nine months before, as a basis to form reasonable
suspicion. He emphasizes that, in January 2017, officers did not determine if ownership
of the pickup truck had changed since April 2016. Officers also did not confirm that the
driver of the pickup truck in January was the same as the driver in April. Nevertheless,
Lopez cites no authority for the proposition that these specific facts prevent a finding of
reasonable articulable suspicion. Some cases require information used by officers to
support probable cause or articulable suspicion to be recent information, but here the law
enforcement officers had both old information and new information.
We note that, in April 2016, a confidential informant informed law enforcement
that Josue Lopez engaged in the sale of controlled substances. We know nothing about
the informant’s previous record of supplying reliable information to law enforcement.
13 No. 36044-0-III State v. Lopez
Nevertheless, the informant confirmed by a controlled buy that Lopez sold cocaine. That
information alone, plus the use of the distinct pickup truck, could have formed probable
cause to arrest the driver of the truck in January 2017. In his analysis, Lopez fails to
recognize his sale of cocaine in April 2016.
CONCLUSION
We affirm the trial court's denial of Josue Lopez's motion to suppress evidence.
We confirm Lopez's conviction for possession of a controlled substance with intent to
deliver.
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.
Fearing, J.
WE CONCUR:
Lawrence-Berrey, C.J.