State v. Guevara

288 P.3d 1167, 172 Wash. App. 184
CourtCourt of Appeals of Washington
DecidedDecember 6, 2012
DocketNo. 29671-7-III
StatusPublished
Cited by3 cases

This text of 288 P.3d 1167 (State v. Guevara) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Guevara, 288 P.3d 1167, 172 Wash. App. 184 (Wash. Ct. App. 2012).

Opinion

Sweeney, J.

¶1 — The court need not suppress incriminating evidence discovered as the result of a “social contact” with a defendant. Here an officer contacted the defendant, who was in the company of other boys, told them that he suspected they were using drugs and asked them to turn their pockets inside out. We conclude that the police contact here amounted to more than a “social contact,” and we therefore reverse the conviction for possession of drugs and dismiss the prosecution.

FACTS

¶2 The facts here are undisputed. Yakima Police Officer Ben Graves worked as a school resource officer at Eisenhower High School in Yakima, Washington. Officer Graves saw three boys walking east to the 3800 block of Webster Avenue. He knew one was an Eisenhower High School student. He also knew that students often went to that area to smoke marijuana. Officer Graves thought that the boys would be late for 8:00 a.m. classes because it was about 7:55 a.m. and the boys were more than a block from the high school.

¶3 The officer followed the boys in his marked patrol car. He wore his police uniform. He stopped his car about 20 feet behind the boys. He got out of his car and walked east toward them. He asked them what they were doing. They replied that they were going for a walk. Officer Graves told them that he believed they were skipping school to smoke [187]*187marijuana. He then asked them if they would show him the contents of their pockets. The boys began showing him what was in their pockets. He asked them to “bunny ear” their pockets one by one so he did not miss anything. Report of Proceedings (RP) at 11-12. Ulises Ibarra Guevara was the last to empty his pockets. When he did, Officer Graves saw a plastic “baggie” tucked behind Mr. Ibarra Guevara’s Eisenhower High School identification card. He asked Mr. Ibarra Guevara what the baggie contained, and Mr. Ibarra Guevara responded that it was marijuana.

¶4 The State charged Mr. Ibarra Guevara with possession of less than 40 grams of marijuana. Mr. Ibarra Guevara moved to suppress the drug evidence. The court concluded that the stop was a “social contact” and denied the motion. The court found Mr. Ibarra Guevara guilty as charged.

DISCUSSION

¶5 Whether police conduct amounts to a seizure is a mixed question of law and fact. State v. Harrington, 167 Wn.2d 656, 662, 222 P.3d 92 (2009). The trial court is entitled to great deference in resolving the facts, but “the ultimate determination of whether those facts constitute a seizure is one of law and is reviewed de novo.” State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108 (1996), overruled on other grounds by State v. O’Neill, 148 Wn.2d 564, 62 P.3d 489 (2003).

¶6 The court must enter written findings and conclusions following a suppression hearing. CrR 3.6. Those findings and conclusions are generally necessary for appellate review. State v. Head, 136 Wn.2d 619, 622-23, 964 P.2d 1187 (1998). The court here did not enter findings or conclusions. We may, however, overlook this failure where the court clearly and comprehensively states the basis of its opinion orally. State v. Cruz, 88 Wn. App. 905, 907-09, 946 P.2d 1229 (1997). Here, the evidence is uncontested and the court’s oral ruling fully explains the basis of its opinion. It [188]*188concluded this was not a seizure but rather a social contact. We then conclude that we can conduct a meaningful review without written findings and conclusions.

Police Social Contact

¶7 Article I, section 7 of our state constitution provides that “[n]o person shall be disturbed in his private affairs . . . without authority of law.” It “casts a wider net than the Fourth Amendment’s protection against unreasonable search and seizure.” Harrington, 167 Wn.2d at 663; U.S. Const, amend. IV.

¶8 A person is seized when “considering all the circumstances, an individual’s freedom of movement is restrained and the individual would not believe he or she is free to leave or decline a request due to an officer’s use of force or display of authority.” State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004). Police actions likely to amount to a seizure include “ ‘the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.’ ” State v. Young, 135 Wn.2d 498, 512, 957 P.2d 681 (1998) (quoting United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)).

¶9 A “social contact” is not a seizure. Harrington, 167 Wn.2d at 664-65. It “occupies an amorphous area . . . resting someplace between an officer’s saying ‘hello’ to a stranger on the street and, at the other end of the spectrum, an investigative detention.” Id. at 664. A social contact may involve a police officer asking for identification or to remove one’s hands from his pockets. State v. Armenta, 134 Wn.2d 1, 11, 948 P.2d 1280 (1997); State v. Nettles, 70 Wn. App. 706, 712, 855 P.2d 699 (1993). These activities, in isolation, do not amount to a seizure. Armenia, 134 Wn.2d at 11. But even these seemingly innocuous small intrusions may amount to a seizure when combined. Harrington, 167 Wn.2d at 668 (citing State v. Soto-Garcia, 68 Wn. App. 20, [189]*189841 P.2d 1271 (1992), abrogated on other grounds by Thorn, 129 Wn.2d 347).

¶10 In Harrington and Soto-Garcia, the trial court concluded that the combination of small intrusions did ripen into a seizure. 167 Wn.2d at 669; 68 Wn. App. at 25. In both cases, the defendants were walking in public when officers stopped and questioned them. Harrington, 167 Wn.2d at 661; Soto-Garcia, 68 Wn. App. at 22. The defendants answered voluntarily at first, but the police kept prying. In Harrington, the officer asked Mr. Harrington to remove his hands from his pockets and consent to a search as another officer arrived. 167 Wn.2d at 662. In Soto-Garcia, the officer asked if he had any cocaine on him, Mr. Soto-Garcia denied having cocaine, and the officer asked for consent to a search. 68 Wn. App. at 22. The courts in both cases concluded that these amounted to more than “social contacts” and therefore concluded that the drug evidence should have been suppressed. Id. at 29; Harrington, 167 Wn.2d at 670.

¶11 The Harrington court suggested that an officer’s request to search is particularly significant. See Harrington, 167 Wn.2d at 667-70. It noted that “[Requesting to frisk is inconsistent with a mere social contact.” Id. at 669.

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288 P.3d 1167, 172 Wash. App. 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-guevara-washctapp-2012.