State v. Sykes

615 P.2d 1345, 27 Wash. App. 111, 1980 Wash. App. LEXIS 2217

Opinions

Munson, J.

The State appeals an order suppressing evidence of marijuana taken from defendant's vehicle. One issue is presented: Did the police lawfully seize the marijuana pursuant to an investigatory stop? We answer yes and reverse.

The facts are undisputed. Detective Panther of the Rich-land Police Department was contacted by an individual during the week prior to defendant's arrest on February 1, 1979. The informant expressed a desire to help the police and supplied information concerning drug users in the local area; this information corresponded with information the detective had previously received. On January 30, the informant told the detective he had been in contact with the defendant; the detective had previously received information concerning the defendant's activities. On February 1, the informant told the detective he had been approached by the defendant the day before; the informant had observed approximately 1 pound of marijuana in a green "ammo box" in the back seat on the floorboard of defendant's car which he described by color, make and license number. The informant also advised that later that day the defendant and a person named Tony, whom he described, would arrive in the defendant's automobile in a specific parking lot at a local high school during the first lunch break for the purpose of selling marijuana to the high school students.

The detective and other officers set up a surveillance of the high school. The defendant's automobile arrived and the occupants fit the informant's description. The driver parked out of the view of the police, stayed only a few minutes and then drove away. A patrol car stopped the vehicle shortly after it left the school parking lot.

The detective approached defendant's automobile on foot and saw the green "ammo box" on the rear floorboard. He asked the defendant to step from his car, which he did without objection; they walked to the front of the patrol car, whereupon the defendant was advised of his Miranda rights. Defendant indicated he understood those rights. The detective then advised him of his suspicions and asked if he in fact did possess marijuana. The defendant replied yes and after being advised of his right to refuse, consented to the search of his car. Marijuana was found inside the "ammo box".

The trial court held the stopping of the vehicle was an illegal arrest, that the marijuana was obtained as a result thereof, and suppressed the evidence. See State v. Byers, 88 Wn.2d 1, 7-8, 559 P.2d 1334 (1977), rev'g 85 Wn.2d 783, 539 P.2d 833 (1975).

The first issue, relating to the stop, involves the fourth amendment to the United States Constitution, which prohibits "unreasonable searches and seizures." Article 1, section 7 of the Washington State Constitution has been interpreted accordingly. When fundamental constitutional rights are in issue, an appellate court may make its own independent examination and evaluation of the facts. McNear v. Rhay, 65 Wn.2d 530, 398 P.2d 732 (1965). Furthermore, when the facts are undisputed, the judicial determination becomes a conclusion of law reviewable on appeal. State v. Byers, 85 Wn.2d 783, 786, 539 P.2d 833 (1975), rev'd on other grounds, 88 Wn.2d 1, 559 P.2d 1334 (1977); State v. Freeman, 17 Wn. App. 377, 379-80, 563 P.2d 1283 (1977). This determination rests upon a review of the totality of facts and circumstances within the officer's knowledge at the time of the officer's stop. State v. Fricks, 91 Wn.2d 391, 398, 588 P.2d 1328 (1979). In State v. Sinclair, 11 Wn. App. 523, 528-30, 523 P.2d 1209 (1974), the court set forth the pertinent ground rules for an investigatory stop:

A police officer, in the discharge of his routine law enforcement duties prior to having probable cause to believe that a person he seeks to question has committed a crime for which an arrest may be made, may detain and question that suspect concerning his knowledge of the commission of a crime, including one in process of being committed or about to be committed, without the detention or questioning being considered an arrest and without the necessity of the police officer first giving the person questioned Miranda warnings. Adams v. Williams, 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); Slate [sic] v. Gluck, 83 Wn.2d 424, 518 P.2d 703 (1974); State v. Smith, 9 Wn. App. 279, 511 P.2d 1032 (1973); State v. Haverty, 3 Wn. App. 495, 475 P.2d 887 (1970). . . .

An officer, following a lawful investigatory stop and detention based on "a well-founded suspicion not amounting to probable cause" to arrest, may reasonably wish to check the suspect's answers to investigatory questions. . . . Because the investigation is still in progress, the officer may temporarily detain a suspect pending the receipt of results of the police headquarters radio check. . . .

... As J. Cook [Constitutional Rights of the Accused: Pretrial Rights § 17 (1972)], supra at 131, states:

[T]he suspect may himself reveal evidence which provides probable cause to arrest. . . . [T]he suspect may, by virtue of his own incriminating statements, provide the probable cause to justify his arrest.

State v. Gluck, 83 Wn.2d 424, 426, 518 P.2d 703 (1974); State v. Serrano, 14 Wn. App. 462, 465-66, 544 P.2d 101 (1975).

Likewise, in United States v. Brignoni-Ponce, 422 U.S. 873, 881, 45 L. Ed. 2d 607, 95 S. Ct. 2574, 2580 (1975), quoting from Adams v. Williams, 407 U.S. 143, 145-46, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1973), the court states:

"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry [v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)] recognizes that it may be the essence of good police work to adopt an intermediate response. ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time."

Here, the officer had information from an informant known to him who had corroborated previous information. The informant had specifically advised the detective he had seen marijuana in a green "ammo box" in the back seat of the defendant's car, which he described by color, make and license number, and that he would be at the school parking lot at a given time. These facts were subsequently confirmed by the detective's own observations. Thus, the situation differs from the anonymous informant's tip held insufficient in State v. Lesnick, 84 Wn.2d 940, 530 P.2d 243, cert. denied, 423 U.S. 891, 46 L. Ed. 2d 122, 96 S. Ct. (1975); State v. Moreno, 21 Wn. App. 430, 585 P.2d 481 (1978), and State v. Chatmon, 9 Wn. App. 741, 515 P.2d 530 (1973). In State v. Lesnick, 10 Wn. App. 281, 285, 518 P.2d 199 (1973), aff'd, State v. Lesnick, 84 Wn.2d 940, 530 P.2d 243 (1975), the court noted:

A distinction must be made between merely descriptive information which enables the officers to simply determine the identity of the subject, and a tip which incorporates detailed predictive information about a suspect's movements, which may, upon corroboration, justify a conclusion that the informer was privy to the suspect's activities. Such a conclusion may support an inference that the informer's information was obtained in a reliable way. See Draper v. United States, 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329 (1959), and State v. White, 10 Wn. App. 273, 518 P.2d 245 (1973).

The detective in this case satisfied himself that the information the informant gave confirmed what the detective knew about criminal activities in the community and specifically about the defendant. The informant said he had seen marijuana in the defendant's car. We find the information, which was corroborated, was sufficient to establish the informant's reliability and was sufficient justification for the officer to make an investigatory stop. See United States v. Heredia-Castillo, 616 F.2d 1147 (9th Cir. 1980).

After the officer stopped defendant's car, he asked him to step from the car, which defendant apparently did voluntarily; he does not contend otherwise. Such an order is a permissible "de minimis" intrusion after a car has been lawfully stopped. Pennsylvania v. Mimms, 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330, 333 (1977). After the defendant got out of his car, he was advised of his Miranda rights. While this may not have been necessary, as a result of the investigatory stop, it obviously was done as an exercise of caution on the part of the officer. There is no contention the defendant failed to comprehend his rights. The officer explained to him the purpose of the stop and then directly asked whether the defendant had possession of marijuana, to which the defendant voluntarily replied yes. That answer, in and of itself, would provide the officer with probable cause to arrest the defendant. It does not appear he made any overt attempt at that time to do so. The officer explained to the defendant he would like to search the vehicle, although the defendant had a right to refuse the search. The detective then asked directly if he could be permitted to do so; the defendant gave his voluntary consent. This procedure is not that type of police conduct which the exclusionary doctrine seeks to prohibit.¹ Cf. State v. Thompson, 93 Wn.2d 838, 613 P.2d 525 (1980). There was a reasonable basis for a suspicion, made upon objective facts, that this defendant was involved in criminal activities. This procedure complies with the standards enunciated in State v. Larson, 93 Wn.2d 638, 611 P.2d 771 (1980), rev'g State v. Larson, 21 Wn. App. 506, 587 P.2d 171 (1978). Thus, the investigative stop was lawful, the admission of the fact of possession was voluntary, and the consent to search the vehicle was voluntarily given.² Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979); United States v. Richards, 500 F.2d 1025 (9th Cir. 1974), cert. denied, 420 U.S. 924, 43 L. Ed. 2d 393, 95 S. Ct. 1118 (1975); United States v. Van Lewis, 409 F. Supp. 535 (E.D. Mich. 1976).

Defendant cross-appeals, claiming the trial court erred in refusing to require disclosure of the identity of the informant on whom the officers relied for the stop. The contention is that the identity of an informant must be disclosed when there is no showing of probable cause apart from the informant's communication. People v. Williams, 51 Cal. 2d 355, 333 P.2d 19 (1958). As we have previously found, the reliability of the informant was corroborated by the detective's prior knowledge and the subsequent corroboration of the information the informant gave describing the vehicle, its occupants, and its location. These facts were based not only on the informant's personal observation, but information which had obviously come to him from the defendant. The defendant has the burden of showing circumstances exist which would justify an exception to the State's privilege of nondisclosure. That burden has not been sustained. State v. Harris, 18 Wn. App. 564, 569 P.2d 84 (1977), aff'd, 91 Wn.2d 145, 588 P.2d 720 (1978). State v. Burleson, 18 Wn. App. 233, 566 P.2d 1277 (1977); State v. White, 10 Wn. App. 273, 279, 518 P.2d 245 (1973). See Annot., Accused's right to, and prosecution's privilege against, disclosure of identity of informer, 76 A.L.R.2d 262 et seq. (1961).

Order of dismissal is reversed and the matter remanded for further proceedings.

Roe, J., concurs.

1 Nor is it the type of conduct sought to be prevented by Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979); Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979); Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975).

2 See State v. Shoemaker, 85 Wn.2d 207, 533 P.2d 123 (1975).