State Of Washington v. Mark Wade Alexander, Jr.

425 P.3d 920

• Court: Court of Appeals of Washington
• Decided: September 4, 2018
• Docket: 76506-0
• Status: Published

Opinion

FiLED tOURT OF APPEALS DiV ~ STATE OF WASHINGTON 2OI8SEP—~ AM 9:30

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 76506-0-I Appellant, ) ) DIVISION ONE v. ) ) PUBLISHED OPINION MARK WADE ALEXANDER, JR., ) ) Respondent. ) FILED: September 4, 2018 _________________________________________________________________________________ ) LEACH, J. — The State appeals the trial court’s decision to suppress

evidence of no-contact orders discovered by police during a Terry1 stop. The

State challenges the court’s findings and conclusions related to the scope of the

Terry stop. Because we agree that the investigating officer did not exceed the

scope of the Terry stop, we reverse and remand.

FACTS

On October 24, 2016, at about 6:44 p.m., a motorist driving on Aurora

Avenue called 911. The motorist identified herself and reported that she saw a

man punch a woman at North 85th Street and Aurora Avenue North. She

described the man as a white male, 20 to 30 years old, thin, wearing a baseball

cap and a red hooded sweatshirt. She described the victim as a white female, 20

1 Terrqv. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968). No. 76506-0-I /2

to 30 years old, five feet seven, slender, with long, dark, curly hair in a ponytail,

wearing a red sweatshirt with plaid pajama pants. She reported they were

traveling northbound.

A dispatcher relayed the information provided by the 911 caller to Officer

Nathan Lemberg. Officer Lemberg saw a man and woman matching this

information walking northbound near 88th and Aurora. After following them for a

short while, he stopped them. When he first saw them, they were walking and

talking together. When Officer Lemberg started to follow them, the man began to

walk in front of the woman.

Officer Lemberg saw no assault or struggle between the man and the

woman. He pulled his car off the road and detained the man and woman.

The man identified himself as Mark Alexander. The man admitted to

getting “into the face of the woman” and arguing with her but denied assaulting

her. He also denied having any relationship with the woman. Officer Lemberg

ran the name through the law enforcement database. The search confirmed

Alexander’s identity. The search revealed no outstanding warrants but did reveal

two active domestic violence no-contact orders. The orders prohibited Alexander

from contacting a person named Danyail Carison.

At that time, Officer Lemberg did not know the identity of the woman with

Alexander. While Officer Lemberg searched the law enforcement database, the

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other officers spoke to the woman. She denied that she had been assaulted.

When the officers asked her name, she gave a false name. Almost immediately,

the officers discovered this after learning the woman’s true identity as Carlson by

looking at a booking photo.

Officer Lemberg arrested Alexander for violating the domestic violence no-

contact orders. The State charged Alexander with domestic violence felony

violation of a court order. Alexander asked the court to suppress evidence of the

no-contact orders, claiming that Officer Lemberg did not have the required

reasonable suspicion needed to justify the initial stop.

After a joint CrR 3.5/3.6 hearing, the trial court suppressed the no-contact

orders on a different ground. It found that Officer Lemberg was justified in

detaining Alexander but exceeded the scope of the initial Terry stop when (1) he

ran Alexander’s name through a law enforcement database and (2) he conducted

a second round of questioning of the woman about her identity and the no-

contact orders.

The State appeals.

ANALYSIS

The State challenges one of the trial court’s findings of fact and two

conclusions of law. When reviewing a trial court’s suppression decision, this

court examines whether substantial evidence supports the challenged findings

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and whether those findings support the conclusions of law.2 Substantial

evidence is enough evidence to persuade a fair-minded person of the truth of the

finding.3 This court treats unchallenged findings as true for purposes of the

appeal and reviews the trial court’s conclusions of law de novo.4 Whether a

warrantless stop is constitutional presents a question of law this court also

reviews de novo.5

Both the federal and Washington constitutions bar warrantless searches

unless they fall within one of several narrow exceptions.6 A Terry investigatory

stop is one exception to the warrant requirement.7 A Terry stop allows officers to

seize a person briefly if specific articulable facts give rise to a reasonable

suspicion that the person stopped is or has been involved in criminal activity.8 “A

reasonable, articulable suspicion means that there ‘is a substantial possibility that

criminal conduct has occurred or is about to occur.”9 When reviewing a Terry

stop’s validity, courts consider the totality of the circumstances,1° delicately

2 State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001). ~ State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002). ~ Ross, 106 Wn. App. at 880. ~ State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008). 6 u~s• CONST. amend. IV; WASH. CONST. art. 1, § 7; State v. Doughty, 170

Wn.2d 57, 61, 239 P.3d 573 (2010). ~ Terry, 392 U.S. at 21, 30. 8 State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). ~ State v. Snapp, 174 Wn.2d 177, 197-98, 275 P.3d 289 (2012) (quoting State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986)). 10 Glover, 116 Wn.2d at 514.

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“balancing the interest of society in the enforcement of its laws against the

individual’s right to protection against unreasonable searches and seizures.”11

“[T]he determination of reasonable suspicion must be based on

commonsense judgments and inferences about human behavior.”12 Courts

consider factors such as the officer’s training and experience, the location of the

stop, the conduct of the person detained, the purpose of the stop, the amount of

physical intrusion upon the suspect’s liberty, and the length of time the suspect is

detained.13 Our Supreme Court has acknowledged that officers must be given

some leeway when a stop involves a serious crime or potential danger.14

“A lawful Terry stop is limited in scope and duration to fulfilling the

investigative purpose of the stop.”15 Similar to the analysis for determining the

validity of the stop, the proper scope of a Terry stop depends on “the purpose of

the stop, the amount of physical intrusion upon the suspect’s liberty, and the

length of time the suspect is detained.”16 If the initial investigation dispels the

11State v. Lesnick, 84 Wn.2d 940, 942, 530 P.2d 243 (1975). 12 State v. Saggers, 182 Wn. App. 832, 840, 332 P.3d 1034 (2014) (quoting Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)). 13 State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003). 14 State v. Z.U.E., 183 Wn.2d 610, 623, 352 P.3d 796 (2015). 15 Acrey, 148 Wn.2d at 747; see also Terry, 392 U.S. at 20 (stating that

determining the reasonableness of a seizure involves a dual inquiry about “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place”). 16 State v. Williams, 102 Wn.2d 733, 740, 689 P.2d 1065 (1984).

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officer’s suspicions, the stop must end.17 But if it confirms or further arouses the

officer’s suspicions, the officer may lawfully extend the scope and duration of the

stop 18

Challenge to Finding of Fact

The State first challenges the trial court’s finding that Officer Lemberg

concluded that no assault had occurred. The trial court made the following

finding of fact:

Officer Lemberg observed no struggle between the man and woman or assault occurring prior to the stop. The defendant, Mark Alexander, and the woman denied an assault had occurred. Officer Lemberg inspected the woman’s face for injury but did not observe any signs of injury. Officer Lemberg did not take any photographs of the woman’s face. The defendant Alexander denied any relationship with the woman. Based on this, Officer Lemberg concluded that no assault had occurred.

The trial court relied on this finding to conclude that at this point, the purpose of

the stop—to investigate an assault—was satisfied and Officer Lemberg no longer

had authority to detain Alexander.

The State contends that the record does not support a finding that Officer

Lemberg concluded that no assault occurred. The State notes that when the trial

court made its oral ruling, the prosecuting attorney asked the court to clarify

whether it was finding that Officer Lemberg testified that he concluded that no

17Acrey 148 Wn.2d at 747. 18Acrey, 148 Wn.2d at 747. -6- No. 76506-0-I / 7

assault had taken place. The court clarified that it “did not hear the officer state

that he determined an assault had occurred; that he determined that there were

no signs of injury at the time, after inspecting her for an injury, and that there

were no statements from the victim . . . that . . . there had been physical contact

with Mr. Alexander.” The court accurately characterized Officer Lemberg’s

testimony. He never stated that he concluded that no assault had occurred.

Alexander argues that the court was entitled to draw this inference from

the facts presented. We disagree. Evidence that the officer found no additional

evidence to corroborate the assault described in the 911 call does not show that

the officer concluded that no assault occurred. The court’s finding that Officer

Lemberg concluded no assault occurred is not supported by substantial

evidence.

In addition, the State points out in its reply brief that the court based its

inference on a misstatement of the facts. The court found that Officer Lemberg

concluded that no assault occurred after he inspected Carlson’s face. But he

only interacted with Carlson after he ran Alexander’s name. Thus, Officer

Lemberg could not have determined that no assault occurred based on the lack

of visible injury until after he searched for and found Alexander’s records.

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Challenges to Conclusions of Law (b)

Next, the State challenges the trial court’s conclusion that Officer Lemberg

exceeded the scope of the Terry stop when he ran Alexander’s name through the

law enforcement database. The trial court reasoned,

The scope of the Terry stop was exceeded when Officer Lemberg ran the defendant Alexander’s name though a law enforcement database. At this point, Officer Lemberg had conducted an investigation of the allegation of assault and determined no assault had occurred. The purpose of the Terry stop to investigate and determine whether an assault had likely occurred was satisfied. Determining there was not probable cause to arrest for assault, Officer Lemberg no longer had the authority to detain the defendant Alexander.[19J

Washington courts have often held that police may check for outstanding

warrants during valid criminal investigatory stops.2° These checks are

This finding conflicts with the trial court’s statement at the hearing that 19

“through the process of the investigatory stop, [Officer Lemberg] was entitled to run . .Mr. Alexander’s information.” .

20 State v. Williams, 50 Wn. App. 696, 700, 700 n.1, 750 P.2d 278 (1988)

(citing State v. Kerens, 9 Wn. App. 449, 513 P.2d 63 (1973); State v. Thompson, 24 Wn. App. 321, 601 P.2d 1284 (1979), rev’d on other grounds, 93 Wn.2d 838, 613 P.2d 525 (1980)); see also State v. Chelly, 94 Wn. App. 254, 261, 970 P.2d 376 (1999) (“Checking for outstanding warrants during a valid criminal investigatory stop is a reasonable routine police practice, and warrant checks are permissible as long as the duration of the check does not unreasonably extend the initially valid contact.”); State v. Madrigal, 65 Wn. App. 279, 283, 827 P.2d 1105 (1992) (holding that checking for outstanding warrant checks during valid criminal investigatory stop which took only about two minutes was not an unreasonable extension of the initial contact); State v. Reeb, 63 Wn. App. 678, 681-82, 821 P.2d 84 (1992); ct State v. Rife, 133 Wn.2d 140, 146, 150, 943 P.2d 266 (1997) (holding that law enforcement had no statutory authority to run a warrant check after stopping someone for a routine traffic infraction without reaching the constitutional issues). -8- No. 76506-0-I I 9

reasonable routine police procedures as long as they do not unreasonably

extend the initial valid stop.21 Federal courts have also held that law enforcement

may run warrant checks during Terry stops.22

Here, the trial court concluded that the initial stop was a valid investigatory

stop. Our legislature has directed that “[t]he primary duty of peace officers, when

responding to a domestic violence situation, is to enforce the laws allegedly

violated and to protect the complaining party.”23 A report of a man assaulting a

woman along the roadway presents a potential domestic violence situation. The

history of domestic violence in our society informs police officers about the risk of

serious harm to its victims.

After stopping Alexander, Officer Lemberg questioned him for about two

minutes before returning to his car to run the name. The computer search that

revealed the no-contact orders took approximately two minutes. The other

21 Williams, 50 Wn. App. at 700. 22 ~ United States v. Young, 707 F.3d 598, 606 (6th Cir. 2012) (holding that the officers did not exceed the scope of a Terry stop by running a warrant check); Klaucke v. Daly, 595 F.3d 20, 26 (1st Cir. 2010) (noting that “most circuits have held that an officer does not impermissibly expand the scope of a Terry stop by performing a background and warrant check, even where that search is unrelated to the circumstances that initially drew the officer’s attention”); United States v. Villagrana-Flores, 467 F.3d 1269, 1275 (10th Cir. 2006) (holding that a police officer did not violate the Fourth Amendment by obtaining a suspect’s identity and performing a warrants check while conducting a valid investigative stop where the suspect was detained for a relatively short period). 23 RCW 10.99.030(5).

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officers then questioned Carison about her identity. Within a few more minutes,

they discovered Carison’s identity by looking up her picture. Officer Lemberg

then arrested Alexander for violating a protection order approximately nine

minutes after the initial stop.

When an officer conducts a valid investigatory stop to determine whether

an assault occurred following a reliable informant tip, that officer may check for

outstanding warrants. Under these facts, Officer Lemberg properly ran

Alexander’s name through the law enforcement database during the investigative

stop.

The State also challenges the trial court’s conclusion that Officer Lemberg

exceeded the scope of the Terry stop when he questioned Carison about her

identity. The court reasoned,

[TJhe scope of the stop was certainly exceeded when Officer Lemberg, with the defendant Alexander still detained, conducted a second round of questioning of the woman regarding her identity and the no contact orders. Officer Lemberg provided no articulable facts that supported his hunch that the woman was the subject of the no contact orders. At no point during her interaction with Officer Lemberg or the other officers did she say anything or act in a manner that would indicate there was an active no contact order with the defendant Alexander. Nor was her giving of a false name without more, reason to believe she was the subject of the no contact orders. Her reluctance to give her true name to the police could reasonably have been attributed to her having a criminal record.

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Two cases provide help in deciding whether Officer Lemberg had sufficient

articulable facts to continue his search. The State compares the facts of this

case to State v. Pettit.24 Alexander distinguishes Pettit and claims this case is

more like State v. Allen.25 From our comparison of these two cases, we conclude

that the facts here gave Officer Lemberg reasonable suspicion that Alexander

was violating a no-contact order and justified an inquiry into the identity of the

woman with him.

In Pettit, a sheriff’s deputy stopped Pettit because his car had a loud

exhaust.26 A record check revealed that no-contact orders restrained him from

contacting a 16-year-old girl, Michelle Whitmarsh.27 A female passenger in the

front seat appeared to be about 16.28 The passenger gave the deputy the name

Samantha Wright and a birth date.29 He ran that name and found no record.3°

Dispatch also provided him information about Michelle Whitmarsh.31 The

passenger matched the description from dispatch.32 The deputy arrested Pettit

24160 Wn. App. 716, 251 P.3d 896 (2011). 25 138 Wn. App. 463, 157 P.3d 893 (2007). 26 Pettit 160 Wn. App. at 718. 27 Pettit, 160 Wn. App. at 718. 28 Pettit, 160 Wn. App. at 718. 29 Pettit, 160 Wn. App. at 719. 30 Pettit, 160 Wn. App. at 719. 31 Pettit, 160 Wn. App. at 719. 32 Pettit, 160 Wn. App. at 719.

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for violating the no-contact order. Division Two affirmed the trial court’s decision

to deny Pettit’s motion to suppress Whitmarsh’s identity.33 The court reasoned,

Deputy Watson knew that the no-contact order protected a 16-year- old girl named Michelle Whitmarsh from Pettit and that Pettit’s front seat female passenger appeared to be 16. These facts were sufficient to support a rational inference warranting the officer’s initial request for the passenger’s identification to determine whether she was the person whom the no-contact order sought to protect. Pettit’s female passenger provided a birth date that was not consistent with her apparent age, justifying the subsequent records check, which then led to the corroborating physical description, including the identifying tattoo on her left hand. The additional investigation was brief and did not significantly extend the duration beyond that of a typical traffic stop.~34~

The court also noted that Whitmarsh’s status as a minor who had been reported

missing presented exigent circumstances warranting the brief detention.35

In Allen, police stopped a car for failure to have a working license plate

light.36 Allen was a passenger in the car.37 The officer checked the driver’s

information and discovered that she was “a [petitioner] in a protection order.”38

The officer also learned that the restrained party was named Allen but did not

know the gender or have a description.39 The officer asked for Allen’s identity;

~ Pettit, 160 Wn. App. at 719, 722. ~ Pettit, 160 Wn. App. at 720-21. ~ Pettit, 160 Wn. App. at 721-22. 36Allen, 138 Wn. App. at465-66. ~ Allen, 138 Wn. App. at 465. 38 Allen, 138 Wn. App. at 466. 39Allen, 138 Wn. App. at466. -12- No. 76506-0-I /13

both Allen and the driver gave a false name.4° After checking the given name

with dispatch and discovering it was false, the officer questioned the driver

further about the passenger’s identity.41 The driver eventually identified the

passenger as Allen.42 Division Two decided that the trial court should have

suppressed the identification of Alien.43 It reasoned, in part, that “[w]ithout

knowledge that the passenger provided a false name, [the officer] did not

possess reasonable articulabie facts to believe that the no-contact order referred

to the passenger.”44

This case differs from Pettit because Officer Lemberg had no description

of the protected person. But unlike in Allen, he had other articulable facts to

suggest that the woman with Alexander was the protected party. Officer

Lemberg was following up on a reliable informant tip reporting an assault when

he discovered the domestic violence no-contact orders. Although he found no

corroborating evidence to support the assault, based on his experience

investigating assaults and domestic violence incidents, he knew that victims often

stay with the assaulter. In addition, Alexander denied any relationship with the

woman with whom he had been walking and talking, admitted that the two had

40 Allen, 138 Wn. App. at 466. 41 Allen, 138 Wn. App. at 466-67. 42 Allen, 138 Wn. App. at 467. ~ Allen, 138 Wn. App. at 472. 44Allen, 138Wn. App. at 471. -13- No. 76506-0-I /14

been arguing, and that he had gotten into her face. And both Alexander and the

woman demonstrated unwillingness to reveal her identity. Thus, unlike in Allen,

but like in Pettit, Officer Lemberg had enough facts to raise a reasonable

suspicion that a no-contact order was being violated.

Unlike in Pettit, this case does not involve a missing child. But it does

involve an alleged recent assault, admitted quarreling, and a domestic violence

no-contact order, thus warranting Officer Lemberg’s investigation into the

woman’s identity.45

Here, the Terry stop involved detention of an alleged assailant and victim,

a very recent assault, a warrant check disclosing a protection order, admitted

quarreling, and unwillingness to disclose the alleged victim’s identity. These

facts provided Officer Lemberg with sufficient reasonable suspicion to investigate

whether the woman with Alexander was the protected person. Indeed, the public

policy expressed by our legislature in RCW 10.99.030(5) makes the protection of

that victim a primary duty of the officer. Officer Lemberg did not exceed the

proper scope of the Terry stop.

CONCLUSION

The trial court erred in concluding that Officer Lemberg exceeded the

See State v. Jacobs, 101 Wn. App. 80, 89 n.3, 2 P.3d 974 (2000) (where the existence of a domestic violence no-contact order was relevant to the court finding exigent circumstances justified a warrantless search of a home). -14- No. 76506-0-I /15

scope of the Terry stop. It should not have suppressed the evidence of the no-

contact orders. We reverse and remand for further proceedings consistent with

this opinion.

WE CONCUR:

I -~:~~i ~\-. ~QAJr~Qe~

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