State v. Kennedy

726 P.2d 445, 107 Wash. 2d 1, 1986 Wash. LEXIS 1273

• Court: Washington Supreme Court
• Decided: October 16, 1986
• Docket: 50848-8
• Status: Published

Opinions

Utter, J.

Michael Kennedy appeals the Court of Appeals affirmance of his conviction for possession of over 40 grams of marijuana. He urges reversal of his conviction because the initial police stop of the car he was driving and its subsequent search was a violation of article 1, section 7 of the Washington Constitution and the fourth amendment to the United States Constitution. As such, he contends that the subsequent discovery of marijuana should have been suppressed at trial. We disagree and affirm the conviction.

At about 2:30 p.m. on September 17, 1982, Officer Leonard Adams drove by Rob Smith's house in Walla Walla. He was investigating complaints from Smith's neighbors that there was heavy pedestrian traffic in and out of the Smith house and that individuals involved stayed only for a few moments. As he drove by he saw a maroon car, with someone seated on the passenger side, parked near the Smith house.

Adams had received information from an informant that Michael Kennedy regularly purchased marijuana from Smith, that Kennedy only went to Smith's house to buy drugs, and that Kennedy usually drove either a light green pickup truck or a maroon Oldsmobile belonging to Sue Sisón. He had the license checked and found out the car belonged to Sue Sisón. As he sat in his car, he observed Kennedy come out of the Smith house, get into the car and drive ofp. He saw nothing in Kennedy's hands nor any suspicious activity but nevertheless decided to stop Kennedy to investigate because he believed Kennedy had purchased some marijuana.

After he signaled Kennedy to pull over, Adams observed Kennedy lean forward as if to put something under the seat. Once they both stopped, Adams approached the car and asked Kennedy to get out. Kennedy complied and moved to the rear of his car. Adams looked into the car to identify the passenger and reached under the front seat. A plastic bag was found which he suspected contained marijuana and he removed it from the car. Kennedy was released after a conversation in which he stated he had purchased the marijuana at the Smith house. Kennedy was subsequently charged with possession of marijuana and moved to suppress the marijuana seized from the car. The motion was denied and he was convicted. He appealed, and the Court of Appeals upheld the conviction.

I

Whether defendant's rights were violated begins with the stop of the car. If the initial stop was unlawful, the subsequent search and fruits of that search are inadmissible as fruits of the poisonous tree. 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).

Both the State and Kennedy agree that a stop, although less intrusive than an arrest, is nevertheless a seizure and therefore must be reasonable under the Fourth Amendment and article 1, section 7 of the Washington Constitution. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. Lesnick, 84 Wn.2d 940, 530 P.2d 243 (restraint of an individual by the police, even if not an arrest is seizure), cert. denied, 423 U.S. 891, 46 L. Ed. 2d 122, 96 S. Ct. 187 (1975); Davis v. Mississippi, 394 U.S. 721, 22 L. Ed. 2d 676, 89 S. Ct. 1394 (1969) (the Fourth Amendment applies to involuntary detention at the investigative stage). Article 1, section 7 of the Washington Constitution provides, ".No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Under article 1, section 7, the concern regarding whether a defendant has been disturbed in his "private affairs" raises questions in many ways similar to the inquiries regarding the reasonableness of the stop required to be examined under Terry.

The term "private affairs" has been found to include automobiles and their contents. State v. Gibbons, 118 , 203 P. 390 (1922). Nevertheless, that does not altogether preclude the warrantless stop or search of an automobile. There is no historical evidence that the framers of our constitution, had they contemplated the existence of the automobile, would have completely exempted it from a reasonable search or seizure. Nothing in the language of our constitution compels a different result. Furthermore, this court has recognized, albeit in the context of arrest, that article 1, section 7 permits a warrantless search of the passenger compartment of an automobile. State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986).

Our approach is further reflected by our analysis of article 1, section 7 in State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984). There we observed that the relevant inquiry under the Washington Constitution for determining whether a search has occurred is "whether the State unreasonably intruded into the defendant's 'private affairs."' See also State v. Simpson, 95 Wn.2d 170, 622 P.2d 1199 (1980). We believe that this is also the proper inquiry under our constitution to determine whether an investigative stop is permissible. We note that the United States Supreme Court has approached the investigative stop from a similar perspective. Therefore our analysis begins based on the premise that we should focus on the reasonableness of the officer's activities with respect to the privacy rights thereby invaded.

In Terry v. Ohio, supra, the Supreme Court framed the inquiry with regard to an investigative stop as whether the officer had "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. at 21. Terry, however, involved firsthand observation by police of suspicious activity. In the case at bench, Officer Adams saw no suspicious activity prior to signaling Kennedy to pull over. He derived the facts from which he based his conclusion of a drug buy on informant tips and his own experience.

It is generally recognized that crime prevention and crime detection are legitimate purposes for investigative stops or detentions. See Terry v. Ohio, supra; Adams v. Williams, 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972); 3 W. LaFave, Search and Seizure § 9.2 (1978). While there has been some dispute among critics, courts have not required the crime suspected or under investigation to be a felony or serious offense. See, e.g., United States v. Cortez, 449 U.S. 411, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981). Less than probable cause is required because the stop is significantly less intrusive than an arrest. Although some have argued otherwise, the level of articula-ble suspicion required for a car stop is no greater than required for a pedestrian stop. Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). Because article 1, section 7 requires us to examine the reasonableness of the officer's actions in view of the facts he knew, this same analysis describes our inquiry under that provision.

As with many legal terms, although difficult to describe, articulable suspicion does have a definition developed by use of the term through application to various situations. The United States Supreme Court has suggested one must look at the totality of the circumstances. United States v. Cortez, supra. The Cortez Court described articulable suspicion as the ability to reasonably surmise from the information at hand that a crime was in progress or had occurred. Hence, the degree of probability required for the police conclusion is less in a stop situation than in an arrest. 3 W. LaFave, at 65. LaFave suggests that the standard is a substantial possibility that criminal conduct has occurred or is about to occur. We believe this to be the preferred definition. It maintains the ability of law enforcement to deter criminal conduct and yet reasonably safeguards "private affairs." When the activity is consistent with criminal activity, although also consistent with noncriminal activity, it may justify a brief detention.

The Supreme Court reached the issue of a stop based on an informant tip rather than on police observation in Adams v. Williams, supra. There a police officer, acting on a tip received at the scene of the stop, approached a suspect sitting in a car and asked him to open the door. When the suspect instead rolled down the window, the officer reached to where the informant had said a gun would be, withdrew the gun and subsequently arrested the suspect. The Court found the initial approach lawful because the informant possessed the necessary indicia of reliability to justify a reasonable suspicion Adams had a gun. Several jurisdictions have adopted this analysis. See Stone v. Patterson, 468 F.2d 558 (10th Cir. 1972); State v. Love, 169 Conn. 596, 363 A.2d 1035 (1975); State v. Brown, 195 Neb. 321, 237 N.W.2d 861 (1976); State v. McZorn, 288 N.C. 417, 219 S.E.2d 201 (1975), vacated in part, 428 U.S. 904, 49 L. Ed. 2d 1210, 96 S. Ct. 3210 (1976).

Two Washington cases have also addressed the issue of a stop of a suspect based on informant tips. State v. Sieler, 95 Wn.2d 43, 621 P.2d 1272 (1980) and State v. Lesnick, supra. These cases follow an analysis similar to that of the United States Supreme Court, permitting police to detain an individual only if the officer has a well founded suspicion, based on objective facts, that the person is connected to potential or actual criminal activity. Sieler held that a tip may justify a detention if it possesses sufficient indicia of reliability, i.e., the circumstances suggest the informant's reliability or there is some corroborative observation which suggests the presence of criminal activity or that the information was obtained in a reliable fashion.

The Lesnick court applied a similar analysis holding a detention is lawful if based on an informant's tip which demonstrates some indicia of reliability providing an objective measure of reasonableness. The court was careful to emphasize "no single rule can be fashioned to meet every conceivable confrontation between the police and citizen. Evaluating the reasonableness of the police action and the extent of the intrusion, each case must be considered in light of the particular circumstances facing the law enforcement officer." State v. Lesnick, 84 Wn.2d at 944. This is consistent with our approach to article 1, section 7 which requires us to look at the reasonableness of the officer's actions to determine whether "private affairs" were disturbed.

The case at bench falls squarely within the Adams v. Williams, supra, Sieler and Lesnick analyses. Officer Adams testified at the suppression hearing that he had received tips from the police informant for several months and that the informant was reliable. He further testified that one tip resulted in the issuance of a warrant and subsequent conviction. This satisfies the "indicia of reliability" test set forth in Adams, Sieler and Lesnick. However, in addition, Officer Adams had firsthand corroboration for two of the informant's facts. He saw Kennedy come out of the Smith house and enter a car described by the informant.

Moreover, the police had another source of information— the neighbors' complaints about the frequent foot traffic to the Smith house. The neighbors' information does not require a showing of the same degree of reliability as the informant's tip since it comes from "citizen" rather than "professional" informants. See State v. Chatmon, 9 Wn. App. 741, 746, 515 P.2d 530 (1973); State v. Riley, 34 Wn. App. 529, 532-33, 663 P.2d 145 (1983). In addition, Officer Adams had been with the Walla Walla Police Department for 20 years and had been involved in over 100 drug-related investigations over the previous 5 years. Given his extensive knowledge of and experience regarding drug trafficking, this tip can be seen as corroboration of the other tip.

The two independent sources of information each provide support for the other's veracity. On the basis of the two tips, the officer's experience with drug investigations, and his own eyewitness corroboration of some of the information, Officer Adams had sufficient articulable suspicion to stop Kennedy as he drove away from the Smith house. Adams' stop of Kennedy was reasonable under article 1, section 7 and under the fourth amendment to the United States Constitution. The stop, although intrusive, was limited and was warranted by the facts known to Adams and the reasonable conclusions he drew from them.

II

No search can be reasonable if the initial detention is unlawful. However, the mere lawfulness of a detention does not automatically render a subsequent search reasonable under article 1, section 7 and the Fourth Amendment. Because Adams' stop of Kennedy was based upon articula-ble suspicion, and therefore proper, the question of whether his subsequent intrusion into Kennedy's car was also lawful must be examined.

Given that the stop was lawful, as it was here, Officer Adams' request that Kennedy step out of the car did not unjustifiably intrude on Kennedy's reasonable expectation of privacy. Under similar circumstances, the United States Supreme Court has found such an intrusion de minimis. Pennsylvania v. Mimms, 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977). Washington courts have also subscribed to this analysis. See, e.g., State v. Sykes, 27 Wn. App. 111, 115-16, 615 P.2d 1345 (1980). We see no reason to do otherwise in this case.

The Court of Appeals upheld the search of Kennedy's car on a "plain view" analysis. We believe, however, that the doctrine was incorrectly applied in this instance without further analysis. As we have explained in past cases, "plain view" applies to a situation where an officer inadvertently sees an item immediately recognizable as contraband, after legitimately entering an area with respect to which a suspect has a legitimate expectation of privacy. State v. Seagull, 95 Wn.2d 898, 901, 632 P.2d 44 (1981). The "plain view" doctrine, however, does not justify the initial intrusion into the protected area. State v. Seagull, supra; accord, State v. Chrisman, 100 Wn.2d 814, 819, 676 P.2d 419 (1984); Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). The officer's right to seize the evidence "must turn on the legality of the intrusion that enable [d him] to perceive and physically seize the property in question." Texas v. Brown, 460 U.S. 730, 737, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1983). See also Payton v. New York, 445 U.S. 573, 587, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980) (an object in plain view cannot be seized on that basis alone, if it is "situated on private premises to which access is not otherwise available for the seizing officer"). The validity of the initial stop does not justify the intrusion. Absent a plain view exception, the seizure is invalid unless it occurred within the context of another exception to the warrant requirement.

Because there is some confusion we take this opportunity to note the difference between "plain view" and "open view." Whereas a "plain view" situation involves an officer viewing an item after a lawful intrusion into a constitutionally protected area, "open view” involves an observation from a nonconstitutionally protected area. State v. Seagull, 95 Wn.2d 898, 901-02, 632 P.2d 44 (1981). Hence, if an officer, after making a lawful stop, looks into a car from the outside and sees a weapon or contraband in the car, he has not searched the car. Because there has been no search, article 1, section 7 is not implicated. Once there is an intrusion into the constitutionally protected area, article 1, section 7 is implicated and the intrusion must be justified if it is made without a warrant. While the terms "open view" and "plain view" were adopted in cases interpreting the demands of the fourth amendment to the United States Constitution and not specifically addressed to our state constitution, the concerns they address are also appropriate in discussing when persons may be disturbed in their "private affairs." This was not an "open view" situation as the contraband was not visible from outside the car.

Here the search was justified under a number of exceptions to the traditional warrant requirements. The same concern that justifies the frisk under a Fourth Amendment analysis, possible danger to the officer, justifies it under article 1, section 7. First, when an officer stops a person, even if just to question him, the officer may, under certain circumstances, frisk the suspect as a matter of self-protection. This "stop and frisk" analysis was first adopted in Terry v. Ohio, supra. In fact, most of the cases developing the Terry reasoning have focused on the frisk rather than the stop portion of the analysis. The questions raised with regard to the frisk concern how much suspicion the officer must have that the suspect is armed and dangerous, whether the test is objective or subjective, and to what extent the officer may search the suspect, containers and the surrounding area.

An officer conducting an investigative stop may be endangered not only by the suspect but by companions of the suspect as well. Some courts have held that an officer may frisk a companion if the officer may lawfully frisk the driver, United States v. Berryhill, 445 F.2d 1189 (9th Cir. 1971), especially where the companion is in the suspect's car, United States v. Vigo, 487 F.2d 295 (2d Cir. 1973).

Turning to the facts of the present case, Adams saw a furtive gesture sufficient to give him an objective suspicion that Kennedy was secreting something under the front seat of the car. From his vantage, in his own car behind Kennedy's, he had no way of knowing what Kennedy was hiding. When he had Kennedy outside the car, he did not frisk him, as he could have had he suspected Kennedy might be armed. However, there remained the gesture, the unknown object under the front seat, and the passenger inside the car who had easy access to the object.

Recently, this court set out the parameters of a search incident to arrest. In State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986), we articulated a rule to aid law enforcement officers having to determine the scope of an automobile search incident to arrest. We weighed the safety of the officers, the State's legitimate interest in preserving evidence of a crime, and the heightened privacy interests afforded Washington citizens under our state's constitution. Because an officer on the street does not have the luxury of time necessary to evaluate these disparate interests, we opted for a clearer rule: upon an arrest, an officer may search for weapons or destructible evidence in the vehicle's passenger compartment as well as in any unlocked containers or unlocked glove compartments. 106 Wn.2d at 152.

While Stroud provides some guidance, not all the policy concerns we addressed there exist in the present case. Hence, we must view the scope of the search somewhat differently. In contrast to an arrest, a Terry stop does not present the same dangers to the police officer or to evidence of a crime. No evidence could be lost, because, without some further predicate, no evidence could be seized. Because the risk to a Terry suspect is substantially less than that presented a Stroud arrestee, the risk to the officer is correspondingly reduced. Given the absence of a state interest in evidence and this reduced risk to the officer, the degree of intrusion into an admittedly private area—the passenger compartment of a car—should be reduced. To hold otherwise would make the scope of a Terry stop coterminous with that of an arrest, a conclusion we find unsupportable under article 1, section 7 of the Washington Constitution. Moreover, raising the stakes of a Terry stop would unnecessarily increase the volatility in that police-citizen encounter.

Hence, in this context, we find Professor LaFave's guidelines to be appropriate. The scope of the search should be sufficient to assure the officer's safety. This means that the officer may search for weapons within the investigatee's immediate control. We also recognize that such a limited search applies to any companion in the car because that person presents a similar danger to the approaching officer. The front seat of the car is in the immediate control of a passenger seated next to the driver. Consequently, a search in that area to discover whether the suspect's furtive gesture hid a weapon under the front seat is similar to a Terry frisk where an officer may frisk a suspect to protect himself from danger.

In light of these principles, we agree that it was reasonable for Adams to conduct a limited search for weapons given his objective reasons for doing so. It would be unreasonable to limit an officer's ability to assure his own safety. The apparent policy reasons behind article 1, section 7 of the Washington Constitution, as well as our recent Stroud decision, allow an officer to make a limited search of the passenger compartment to assure a suspect person in the car does not have access to a weapon within the suspect's or passenger's area of control. There is no argument made that this intrudes on the protected "private affairs" of a driver or passenger.

Once the officer here was legitimately within the automobile and legitimately within the area of the front seat, the discovery of the contraband fell within the "plain view" doctrine. The officer had to have a prior justification for the intrusion; discovery of the contraband had to be inadvertent and he had to immediately recognize the item as contraband. Coolidge v. New Hampshire, supra; State v. Lair, 95 Wn.2d 706, 714, 630 P.2d 427 (1981).

The first requirement was met inasmuch as the officer's intrusion into the car was reasonable under article 1, section 7 and its attendant stop and frisk analysis. Second, the discovery was inadvertent since Adams came upon the contraband while looking for a weapon under the front seat. Third, once he had the bag in his hand, Adams could immediately conclude, based on his own prior experience investigating narcotics and the information he had about the Smith household and about Kennedy, that the bag contained contraband. Hence, the seizure was justified under the "plain view" doctrine.

Officer Adams' stop of Kennedy was reasonable under article 1, section 7 of the Washington Constitution and the fourth amendment to the United States Constitution. His subsequent search for a weapon under the front seat was also reasonable under those provisions. His inadvertent discovery of marijuana was therefore lawful and the subsequent conviction for possession of marijuana is affirmed.

Brachtenbach, Andersen, Goodloe, and Durham, JJ., concur. Dore, J., dissents.