State v. Belieu

751 P.2d 321, 50 Wash. App. 834, 1988 Wash. App. LEXIS 58

• Court: Court of Appeals of Washington
• Decided: March 22, 1988
• Docket: 7666-1-III; 7794-2-III
• Status: Published

Opinions

Thompson, J.

Kevin Belieu was convicted, on stipulated facts, of being a felon in possession of a handgun, and third degree possession of stolen property. He appeals the denial of his motion to suppress. Ronald M. Blount appeals his convictions for two counts of second degree burglary and one count each of attempted second degree burglary and second degree possession of stolen property. Because both cases stem from the same encounter with Spokane police officers, and both turn on the lawfulness of that encounter, we have consolidated them for purposes of this opinion. We reverse in both cases.

On October 21, 1985, at approximately 9:30 p.m., Steven Duffy telephoned the 911 operator to report someone had just come to his door and asked to use the phone, allegedly because his car was disabled. Mr. Duffy told the operator he suspected his home was being cased for burglary. He described the individual who came to the door as having a beard and wearing jeans and a dark jacket. Officer Poole received a radio report of Mr. Duffy's suspicions and proceeded to the 2600 block of East Heroy in Spokane, Washington. Upon arriving in the area at approximately 9:46 p.m. he noticed two men walking west on Heroy Avenue, one generally matching Mr. Duffy's telephone description. He did not stop the men, but radioed his observations to other officers in the area.

Officer Fertakis also heard the initial radio report of the 911 call and drove to the area in an unmarked vehicle. He also saw two men walking, and additionally noticed the parked car. When he drove up behind the parked car, the driver slid down in his seat, and as the two individuals on foot walked by the car, they looked back. He was told by Officer Lindskog, also in the area, to drive away, which he did.

Officer Lindskog saw the two men, assumed to be the same two observed by Officers Poole and Fertakis, walking east on Hoffman, around the corner from the parked car. He saw them run back toward the area where Officer Fertakis had reported seeing the car, and then Officer Lindskog saw a vehicle coming his way from that direction. Before the headlights were turned on, he could see the passenger in the front seat bend forward.

Thereafter, Officers Giese and Stanley, driving an unmarked car with red and blue grille lights, assisted by Officers Lindskog, Poole, and Fertakis, followed shortly thereafter by other units, effected a full felony stop of the vehicle with guns drawn. All four occupants of the vehicle were ordered out of the car, hands behind their heads, and one at a time they were handcuffed, secured, and separated. No questions were asked until all were secured. After a passenger in the rear seat was removed from the car, a rifle which appeared to be altered was seen on the rear floor.

When Mr. Belieu got out of the car, he was patted down by Officer Stanley, who removed a small leather pouch and a canvas pouch from his pockets. During this search, a ring, later determined to be stolen, fell out of Mr. Belieu's pocket.

Thereafter, Mr. Blount, the driver, was questioned. Based on the searching officer's belief he had Mr. Blount's consent, he searched the car.¹ Two handguns were found: one under the driver's seat and one under the passenger's seat. The under-seat area was so cluttered the guns could not have been passed under the seat from the front to back of the car. Mr. Belieu was charged with being a felon in possession of a handgun, based on a prior conviction for second degree robbery and the location of the .38 caliber revolver under the passenger seat where he had been seated. A charge of second degree possession of stolen property was later added, based on the ring that fell from his pocket.

Approximately 10 minutes after the stop, it was determined Mr. Blount had an outstanding arrest warrant for a traffic violation. He was placed under arrest pursuant to the warrant.

One of the passengers, Brian Anderson, admitted that he had committed several burglaries with Mr. Blount. Mr. Blount was charged with four counts of second degree burglary, one count of attempted second degree burglary (for the request to use the telephone at Mr. Duffy's home), and one count of second degree possession of stolen property.

Mr. Belieu and Mr. Blount were tried separately. Both made motions to suppress, contending the vehicle stop was unlawful. Both motions were denied by different judges. Mr. Blount was convicted by a jury; Mr. Belieu was found guilty by the court on stipulated facts. Each appeals the denial of his motion to suppress, and raises other contentions we need not address due to our disposition of their primary contentions.

The first issue is whether the trial court erred when it concluded Mr. Belieu did not have standing to challenge the search of the automobile. The trial court concluded Mr. Belieu had no legitimate expectation of privacy in the car, citing State v. White, 40 Wn. App. 490, 494-95, 699 P.2d 239, review denied, 104 Wn.2d 1004 (1985), and thus lacked standing to challenge seizure of the pistol found underneath the front passenger seat. White held a passenger arrested for robbery and assault had no standing to challenge seizure of a gun found in the rear passenger compartment of the vehicle after his arrest, notwithstanding Washington's adherence under article 1, section 7 of the Washington State Constitution to the "automatic standing" rule.

The Court in United States v. Salvucci, 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547 (1980) overruled the automatic standing rule of Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725, 78 A.L.R.2d 233 (1960). State v. Simpson, 95 Wn.2d 170, 622 P.2d 1199 (1980) rejected the federal approach by independently requiring automatic standing for possessory offenses under article 1, section 7 of the Washington State Constitution. In doing so, the court reaffirmed State v. Michaels, 60 Wn.2d 638, 646-47, 374 P.2d 989 (1962) and its requirements for automatic standing to challenge a search and seizure: (1) the offense with which defendant is charged must involve possession as an "essential" element of the offense; and (2) the defendant was in possession of the contraband at the time of the contested search or seizure. Here, possession is an essential element of the felon in possession charge.

However, the State argues because Belieu had no possessory interest in the car, he could not show the second prong, i.e., possession at the time of the search. We hold that under Simpson, Mr. Belieu can challenge the seizure, notwithstanding White. The gun was under his seat, not in the rear as in White. Also, he was charged with possession of that gun and his presence in the seat was to be used as proof of possession. While United States v. Salvucci, supra, in overruling Jones, allowed the prosecutor to take such a seemingly inconsistent position, this was because the inquiry turned on the defendant's legitimate expectation of privacy. In Washington, the inquiry is fundamentally different, and requires a defendant be able "to assert a violation of privacy as a result of impermissible police conduct at least in cases where, as here, a defendant is charged with possession of the very item which was seized". Simpson, at 180.

We now turn to the issue of whether the car stop was lawful. Although the conclusions reached by the two judges are the same in each case regarding the legality of the stop, their reasoning and basis differed. In State v. Blount, the court held the intrusion was a reasonable investigatory stop, based on Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). In State v. Belieu, the court concluded police had probable cause to arrest when the stop was made. However, on appeal the State in both cases has focused its argument on whether the stop would qualify under Terry, conceding probable cause did not arise until sometime later, after the individuals were in custody. This usually necessitates a 2-question analysis: (1) whether officers possessed articulable suspicion of criminal activity to justify a Terry detention, i.e., information leading them to a belief there was a substantial possibility of criminal conduct, State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986); and (2) whether officers exceeded the "scope" of a permissible investigatory stop. See State v. Williams, 102 Wn.2d 733, 689 P.2d 1065 (1984).

But we need not discuss the first prong. Assuming the premise that reasonable officers, trained to detect crime, could legitimately seek an explanation from the suspects to dispel or confirm their suspicions, we hold the full felony stop executed by those officers far exceeded the scope of a permissible investigatory stop.

It is clear for a police/citizen encounter to be properly categorized as a Terry stop, the investigative methods used must be the least intrusive means reasonably available to verify or dispel the police officer's suspicion in a short period of time. Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983). Also, the scope of the stop must be reasonably related to the initial justification. Williams, at 739-40. The question becomes whether the procedure used here was '"substantially less intrusive' than an arrest". Michigan v. Summers, 452 U.S. 692, 702, 69 L. Ed. 2d 340, 101 S. Ct. 2587 (1981). This is necessary to determine whether in fact police conducted a Terry stop, or whether constitutionally there was a full-blown arrest. If the intrusion is not a limited intrusion "roughly analogous to the narrowly defined intrusions involved in Terry and its progeny", Dunaway v. New York, 442 U.S. 200, 213, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979), then officers must have probable cause to arrest.

Here, the intrusiveness of the stop is remarkably similar to State v. Williams, supra. In Williams, officers were answering a request by a radio dispatcher to investigate a silent burglar alarm at a nearby residence. Upon arrival, the officers noticed a car starting to move away with headlights on. The officers made a full felony stop, as here. In holding the intensity and scope of the intrusion excessive, the court noted police did not question the defendant, but first ordered him out of the car, frisked him, handcuffed him, and placed him in a squad car. They then investigated the suspected crime. In this case, police did likewise. Moreover, here, police lacked the information officers possessed in the Williams case that a specific crime was being committed.

Nor did the officers in this case have information the suspects were armed and dangerous, which might justify the felony stop procedure. See Williams, at 740 n.2. Although Officer Lindskog testified he saw a passenger bend forward in his seat before the headlights were turned on, there was no indication his suspicions or observations were transmitted to the other officers prior to the decision to employ a guns-drawn felony stop. Nor will general knowledge handguns have been stolen in recent residential burglaries justify a felony stop such as here without some link to these individuals. This was not an investigatory stop. As a practical matter, Mr. Belieu and Mr. Blount were under arrest when they were ordered out of the vehicle at gunpoint and handcuffed. Florida v. Royer, 460 U.S. at 503. See also Hayes v. Florida, 470 U.S. 811, 84 L. Ed. 2d 705, 105 S. Ct. 1643 (1985).

It should be emphasized that handcuffing a suspect, or placing him in a patrol car, may be justified within the scope of a valid investigatory stop, see State v. Wheeler, 108 Wn.2d 230, 236, 737 P.2d 1005 (1987). However, the additional intrusion of transporting the suspect a short distance to the scene of the crime is reasonable only when a crime has been reported. 3 W. LaFave, Search and Seizure § 9.2, at 26 (Supp. 1986), cited in Wheeler, at 237. No crime had been reported here. The conclusion from Wheeler must be that a significant intrusion, such as a full felony stop, can be justified only when more than mere suspicion of criminal activity is present.

While the degree of intrusion utilized by the police officers in this case might be upheld in certain circumstances, see 3 W. LaFave, Search and Seizure § 9.2(d), at 364 n.65 (1987), no case similar on its facts has been found in which a full felony stop, with guns drawn, followed by handcuffing and frisking the car's occupants, has been found less intrusive than an arrest. If it were otherwise, the Terry exception to the probable cause requirement would swallow the general rule that probable cause is ordinarily required. Dunaway v. New York, 442 U.S. at 213.

Several cases from the Ninth Circuit Court of Appeals reinforce this conclusion. In United States v. Strickler, 490 F.2d 378 (9th Cir. 1974), police officers, involved in surveillance of a residence where cocaine was being sold, observed a Cadillac whose occupants showed some interest in the home in question. A woman walked from the area where the car was parked toward the residence. The car was stopped, using the same full felony procedure as here. The court held this armed approach to a surrounded vehicle could not be equated with a Terry stop. It held the arrest was complete upon the officer's initial contact with the suspects. The court found it unnecessary to discuss whether the circumstances would have justified a mere investigatory stop.

Recently, in United States v. Robertson, 833 F.2d 777, 780 (9th Cir. 1987), the court held officers arriving at a home suspected of being a methamphetamine lab to serve an arrest warrant effectively arrested a woman leaving that residence when several officers stopped her at gunpoint. The court held such an intrusive encounter could not be equated with Terry. See also Kraus v. County of Pierce, 793 F.2d 1105, 1108-09 (9th Cir. 1986), cert. denied, — U.S __, 94 L. Ed. 2d 763, 107 S. Ct. 1571 (1987); United States v. Vasquez, 638 F.2d 507, 522 (2d Cir. 1980), cert. denied, 454 U.S. 975 (1981); United States v. Ramos-Zaragosa, 516 F.2d 141, 144 (9th Cir. 1975).

We emphasize we do not require our police officers to provide easy targets for dangerous individuals. When officers have a reasonable belief a car's occupants are armed and dangerous, they may make a stop at gunpoint. United States v. Ceballos, 654 F.2d 177, 182-84 (2d Cir. 1981); United States v. Beck, 598 F.2d 497 (9th Cir. 1979); United States v. Ramos-Zaragosa, supra; State v. Williams, supra at 740; State v. Samsel, 39 Wn. App. 564, 573, 694 P.2d 670 (1985); cf. United States v. Hensley, 469 U.S. 221, 235, 83 L. Ed. 2d 604, 105 S. Ct. 675 (1985) (drawn gun reasonable when officer had specific report suspect armed and dangerous); State v. Friederick, 34 Wn. App. 537, 542, 663 P.2d 122 (1983) (drawn gun used to stop suspect upheld where suspect ran after being told to stop and he was a suspect in a violent crime, and was potentially armed and dangerous). However, this was not a case where a lone officer attempted to stop a car containing several suspects under potentially dangerous circumstances; Officer Lindskog had adequate backup immediately on the scene. We hold the facts known and articulated by the police officers here did not give rise to a reasonable belief these individuals, in this car, were armed and dangerous. Thus, police exceeded the permitted scope of an investigatory stop, transforming this "stop" into an arrest. As in Williams, probable cause to arrest would be required to justify the detention and search of Mr. Belieu and Mr. Blount.

The State conceded at oral argument probable cause to arrest did not develop until the guns were seen after the stop as to Mr. Belieu, and until the arrest warrant was discovered as to Mr. Blount. Thus, while subsequent events may have produced the necessary probable cause to arrest the defendants, at the time they were actually arrested, those events had not yet transpired. See State v. Gonzales, 46 Wn. App. 388, 396, 731 P.2d 1101 (1986). The dissent correctly points out that this encounter revealed much more as the events unfolded. However, when analyzing whether the articulable suspicions of the officers justified this high degree of force, what was later revealed must not be considered. The officers did not see the weapons referred to in the dissent until after the suspects were effectively arrested. Our sentiments match those of the court in United States v. Ramos-Zaragosa, 516 F.2d at 145:

We realize this state of affairs is not an entirely happy one for law enforcement officials. It is not surprising that such poorly marked boundaries are sometimes transgressed. Our task, however, is to preserve the markings as best we can. We cannot do this by pretending they do not exist.

Because the stop was unlawful, evidence seized must be suppressed. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); State v. Larson, 93 Wn.2d 638, 611 P.2d 771 (1980); State v. Tocki, 32 Wn. App. 457, 648 P.2d 99, review denied, 98 Wn.2d 1004 (1982). We therefore reverse both convictions.

McInturff, C.J., concurs.

1 The trial court in State v. Belieu declined to hold Mr. Blount gave consent to search. Because of our disposition of the Terry stop issue, we need not address this point. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).