State v. Flores

379 P.3d 104, 186 Wash. 2d 506
Washington Supreme Court·Decided September 15, 2016·No. No. 91986-1·Published·Cited by 22 cases

Opinions

Stephens, J.

¶1 This case requires us to decide under what circumstances officers making a lawful arrest may seize a companion of the arrestee in the absence of reasonable suspicion to independently justify a Terry1 stop of the companion. We hold that where officers have an objective rationale predicated on safety concerns to seize a companion to secure the scene of the arrest, article I, section 7 of the Washington State Constitution allows for the seizure, so long as it remains reasonable in scope and duration. Based on this holding, we reverse the Court of Appeals and hold that evidence of the gun taken from Cody Flores during his brief seizure should not have been suppressed.

FACTS AND PROCEDURAL HISTORY2

¶2 On November 2, 2013, the Moses Lake Police Department dispatched all available patrol officers to an address in Moses Lake. An anonymous source3 had reported that Giovanni Powell was at that address and had pointed a gun at someone’s head. Officer Kyle McCain was first to arrive at the scene. McCain was familiar with Powell, had seen pictures of him holding firearms, knew he was in a gang, and knew he was a material witness to a Spokane homicide.4 While en route, dispatch informed McCain (and other [510] officers who were following him) that “Powell had a warrant out for his arrest in the Spillman police information system. This warrant was later confirmed after Powell was stopped.” Clerk’s Papers (CP) at 60.

¶3 Officer McCain arrived at the reported address less than five minutes from the time of the call, around 4:40 p.m. He observed Powell, whom he recognized, and another person (later identified as Flores) walking down the street together. McCain did not recognize Flores and did not have an individualized, articulable reason to suspect Flores of criminal activity. Officers testified they were concerned that Flores posed a threat to their safety because of “his association and close proximity to Powell within a few minutes of a report of Powell pointing a gun at someone’s head.” Id.

¶4 McCain “parked across the street from Powell and Flores, got out of his car, drew his side arm, held it pointed at the ground, and ordered . . . Powell to stop.” Id. Both Flores and Powell stopped. McCain ordered Powell and Flores to drop to their knees with their hands up, a position of disadvantage. Powell and Flores were talking, so “McCain ordered Powell to move away from Flores.” Id. Powell complied, moving about six feet away. McCain then “ordered Powell to walk backwards towards him with his hands up.” Id.

¶5 As this was occurring, other officers arrived, including Officer Paul Oiumette. Id. In total, there were approximately five officers on the scene. All had their guns drawn and held at the “low ready” position. Id. “While Officer McCain was securing Powell [,] Officer Oiumette ordered Flores to walk backwards towards him with his hands up.” [511] Id. at 61. “As he was walking backwards towards Officer Oiumette [,] Flores told the Officer he had a gun. This statement was not in response to a question from Officer Oiumette.” Id. Oiumette told Flores to keep walking backward and they would deal with the gun in a minute. Once Flores got to Oiumette, Oiumette asked where the gun was. Flores responded that it was in his pants. Oiumette removed and secured the gun. Id. The State charged Flores with first degree unlawful possession of a firearm.

¶6 Flores brought a CrR 3.6 motion to suppress all evidence of the gun, arguing that Oiumette’s command to walk backward constituted a second seizure that was not predicated on articulable suspicion that Flores was involved in criminal activity. See id. at 12-17 (Flores’s CrR 3.6 motion). Judge John Knodell granted the motion to suppress “the gun found on . . . Flores and his statements pertaining to it,” concluding that “[p]ursuant to RAP 2.2(b)(2)... the practical effect of this order is to terminate the case.” Id. at 62. Judge Evan Sperline then dismissed the charges without prejudice. Id. at 67. The State appealed, and Division Three of the Court of Appeals affirmed. State v. Flores, 188 Wn. App. 305, 351 P.3d 189 (2015). The State petitioned this court for review, which we granted. State v. Flores, 184 Wn.2d 1019, 361 P.3d 747 (2015).

ANALYSIS

¶7 The primary question in this case is whether it is always a violation of article I, section 7 of the Washington State Constitution for an officer to seize the nonarrested companion of an arrestee to secure the scene of an arrest. The Washington State Constitution protects individuals from unlawful searches and seizures. Wash. Const. art. I, § 7 (“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”); see also State v. Harrington, 167 Wn.2d 656, 663, 222 P.3d 92 (2009) (“Because searches and seizures incontrovertibly disturb pri[512] vate affairs, article I, section 7 envelops search and seizure.”). It is well established that article I, section 7 “grants greater protection to individual privacy rights than the Fourth Amendment.” Harrington, 167 Wn.2d at 663 (citing U.S. Const. amend. IV). There is almost an absolute bar to warrantless seizures, with only limited, “jealously guarded exceptions.” State v. Valdez, 167 Wn.2d 761, 773, 224 P.3d 751 (2009).

¶8 “Our analysis under article I, section 7 requires us to determine ‘whether the State unreasonably intruded into the defendant’s “private affairs.” ’ ” State v. Mendez, 137 Wn.2d 208, 219, 970 P.2d 722 (1999) (quoting State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984)), abrogated on other grounds by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007). The analysis focuses “ ‘not on a defendant’s actual or subjective expectation of privacy but, as we have previously established, on those privacy interests Washington citizens held in the past and are entitled to hold in the future.’ ” Id. (quoting State v. White, 135 Wn.2d 761, 768, 958 P.2d 982 (1998)). “The violation of [an individual’s] right of privacy under article I, section 7 automatically implies the exclusion of the evidence seized.” State v. Afana, 169 Wn.2d 169, 179, 233 P.3d 879 (2010). We review “conclusions of law from an order pertaining to the suppression of evidence de novo.” State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002).

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State v. Flores, 379 P.3d 104, 186 Wash. 2d 506 (Wash. 2016).

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