State v. Thorn

917 P.2d 108, 129 Wash. 2d 347

Opinions

Pekelis, J.

Footnotes

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*

— The State appeals a Court of Appeals decision affirming the trial court’s suppression of evidence in a prosecution for possession of a controlled substance. The trial court and Court of Appeals concluded that the evidence was obtained pursuant to an illegal seizure. We reverse.

The parties agreed to submit the case on the following stipulated facts. While on routine patrol in a marked patrol car shortly after midnight, Spokane Police Officer K. Peden observed three people seated in a car that was legally parked in the parking lot of Friendship Park in suburban Spokane. The officer also observed a flicker of light emanate from within the parked car and believed that the light was a flame being used to ignite a drug pipe. Friendship Park is not known as a high crime area and there is no indication that Officer Peden heard any drug-related conversations, smelled marijuana, or observed any overt appearance of drug intoxication on the part of the three occupants of the car.

Officer Peden stopped, exited the patrol car, and approached the parked car on foot. The officer asked the driver of the parked car, "Where is the pipe?” The stipulated facts do not reveal the manner, tone of voice, or body language of the officer in asking the question. In response to the question, the driver, James Thorn, removed a pipe from his coat pocket and handed it to Officer Peden. Peden recognized it as a pipe used to smoke marijuana and arrested Thorn for "possession of drug paraphernalia.”¹ During the ensuing search incident to that arrest, Peden discovered a plastic bag containing what was subsequently determined to be psilocybin mushrooms, a controlled substance. Thorn was charged with one count of possession of a controlled substance, in violation of RCW 69.50.401(d).

Thorn moved to suppress the evidence, arguing that it was the result of an illegal stop by Officer Peden in violation of his Fourth and Fifth Amendment rights under the United States Constitution, and article I, sections 7 and 9 of the Washington Constitution.

The trial court resolved the only disputed fact in favor of Thorn, finding that Officer Peden’s observations were "not so distinctive” as to make it clear that Thorn was lighting a pipe, let alone a marijuana pipe. Findings of Fact and Concl. of Law, Clerk’s Papers at 36. The trial court relied on the absence of additional evidence such as the length and distance of the officer’s observation, the size of the pipe, the smell of marijuana, or signs of the defendant’s intoxication.

Thus, the trial court concluded that Officer Peden’s actions could not be justified pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) because the officer did not have a reasonable, articulable suspicion, based on objective facts, that Thorn was involved in criminal activity. The court further concluded that Thorn had been seized when Officer Peden asked him, "Where is the pipe?” because it would be "unreasonable to believe that [Thorn] understood that he was free to leave.” Findings of Fact and Concl. of Law, Clerk’s Papers at 37. Consequently, the trial court suppressed evidence of the pipe, its contents, and the mushrooms. Because the court’s suppression ruling effectively eliminated all evidence on which the prosecution could proceed, the trial court dismissed the case.

The State appealed the suppression order and the Court of Appeals, Division III, affirmed. We granted review to resolve only whether Thorn was seized when Officer Peden asked him, "Where is the pipe?”

The Fourth Amendment protection against unreasonable searches and seizures is implicated only when an encounter between a police officer and a citizen rises to the level of a seizure. There is only one Washington case addressing whether the determination of whether a seizure has occurred is a question of fact or one of law. State v. Soto-Garcia, 68 Wn. App. 20, 24, 841 P.2d 1271 (1992). The Court of Appeals in that case stated, without discussion or citation to authority, that the determination was a question of fact. Id. However, the weight of federal authority consistently holds that the determination is more appropriately labeled a mixed question of law and fact. United States v. Dixon, 51 F.3d 1376, 1379 (8th Cir. 1995); United States v. Tehrani, 49 F.3d 54, 58 (2d Cir. 1995); Martinez v. Nygaard, 831 F.2d 822, 826 (9th Cir. 1987); United States v. Kerr, 817 F.2d 1384, 1386 (9th Cir. 1987). Cf. Thompson v. Keohane, 116 S. Ct. 457, 465-66, 133 L. Ed. 2d 383 (1995) (holding that determination of whether defendant is in custody when interrogated is mixed question of fact and law). But see United States v. Werking, 915 F.2d 1404, 1409 (10th Cir. 1990) (characterizing trial court determination of seizure as question of fact).

We agree with the view that the determination of whether a seizure has occurred is a mixed question of law and fact. The resolution by a trial court of differing accounts of the circumstances surrounding the encounter are factual findings entitled to great deference.² State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994) (stating that findings of fact are binding on appeal if there is substantial evidence in the record supporting the facts). However, the ultimate determination of whether those facts constitute a seizure is one of law and is reviewed de novo. Martinez, 831 F.2d at 826; Kerr, 817 F.2d at 1386; cf. Thompson, 116 S. Ct. at 465. The trial court in this case evidently recognized this distinction, labeling its resolution of whether a seizure had occurred a "Conclusion of Law.” Findings of Fact and Concl. of Law (CrR 3.6 Hearing), Clerk’s Papers at 37. Thus we proceed to review de novo the trial court’s conclusion that a seizure occurred.

A person is "seized” within the meaning of the Fourth Amendment of the United States Constitution only when restrained by means of physical force or a show of authority.³ State v. Stroud, 30 Wn. App. 392, 394-95, 634 P.2d 316 (1981) (citing United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)), review denied, 96 Wn.2d 1025 (1982). A police officer does not necessarily seize a person by striking up a conversation or asking questions. Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991); State v. Mennager, 114 Wn.2d 304, 310, 787 P.2d 1347 (1990). Thus, in Bostick, the United States Supreme Court held that police officers did not necessarily seize a bus passenger by asking the defendant for identification, explaining that they were narcotics officers, and requesting to search the defendant’s luggage. Bostick, 501 U.S. at 431-32. Similarly, the Court of Appeals, Division I, has held that a police officer did not seize a defendant by stating that she would like to speak with the defendant and asking him to remove his hands from his pockets. State v. Nettles, 70 Wn. App. 706, 708, 855 P.2d 699 (1993), review denied, 123 Wn.2d 1010, 869 P.2d 1085 (1994).

The relevant inquiry for the court in deciding whether a person has been seized is whether a reasonable person would have felt free to leave or otherwise decline the officer’s requests and terminate the encounter. Bostick, 501 U.S. at 436. The court must look to the totality of circumstances to determine whether a seizure has occurred. Bostick, 501 U.S. at 437; State v. Toney, 60 Wn. App. 804, 806, 810 P.2d 929 (looking to "particular, objective facts surrounding the encounter”), review denied, 117 Wn.2d 1003, 815 P.2d 266 (1991).

In concluding that a seizure occurred, the Court of Appeals relied on the fact that Thorn was in a parked car at the time the question was asked, reasoning that "[t]o end the encounter, Mr. Thorn would have had to either start the engine and drive away or would have had to open the driver’s door, exit the vehicle and walk away.” State v. Thorn, No. 13340-1-III, slip op. at 5 (Wash. App. Dec. 22, 1994). We reject this rationale.

First, as federal courts have recognized, this increased difficulty in leaving is arguable at best. See United States v. Kim, 25 F.3d 1426, 1430 (9th Cir.) (stating that distinction between stopping pedestrian and person in car dissipates when car is parked in public place), cert. denied, 115 S. Ct. 607, 130 L. Ed. 2d 517 (1994). Moreover, as the Bostick court pointed out, the focus of the inquiry is not on whether the defendant’s movements are confined due to circumstances independent of police action, but on whether the police conduct was coercive. Bostick, 501 U.S. at 436. Finally, as outlined above, the question is not merely whether Thorn felt free to leave, but whether he felt free to terminate the encounter, refuse to answer the officer’s question, or otherwise go about his business. Consequently, whether it was more difficult for the defendant to actually leave the scene of the police contact because he was in a parked car is not a significant factor here. See INS v. Delgado, 466 U.S. 210, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984) (holding that no seizure took place where INS agents interrogated suspected aliens at their workplace despite the fact that the workers may have felt not free to leave because they were at work).

Instead, we must return to the established test of looking to the totality of circumstances surrounding the encounter to determine whether a seizure occurred. The problem inherent in a case such as this one, presented on limited stipulated facts, is that the encounter is capable of varying interpretations. For example, did the officer approach and ask in a pleasant or joking tone of voice where the pipe might be or did the officer stride forcefully toward the car, impliedly demanding that Thorn respond? From the bare facts of the stipulation, we know only that the officer asked a question. Thorn presented no facts about the encounter on which to base a determination that the circumstances were such that a reasonable person would not feel free to ignore the question. If there was something about the question, or the manner in which it was asked, that was coercive, there was insufficient evidence for the trial court to ascertain this. Hence, we reject the trial court’s implicit conclusion that the question itself, as a matter of law, created a coercive environment such that Thorn reasonably believed that he could not leave.

Our holding should not be construed as a blanket rule that an officer does not seize a person merely by asking a question. However, where the question is, as here, capable of more than one interpretation, it does not per se constitute a "seizure.” The burden of proving that a seizure occurred is on Thorn. See 5 Wayne R. LaFave, Search and Seizure § 11.2 (b), at 44-45 (3d ed. 1996) (citing United, States v. Carhee, 27 Fed. 3d 1493 (10th Cir. 1994); Russell v. State, 717 S.W.2d 7 (Tex. Crim. 1986)).⁴

We remand to the trial court for trial.

Durham, C.J., and Dolliver, Smith, Guy, Madsen, and Talmadge, JJ., concur.

Justice Rosselle Pekelis is serving as a justice pro tempore of the Supreme Court pursuant to Const. art. IV, § 2(a) (amend. 38).

1

It is a misdemeanor to use drug paraphernalia or to possess drug paraphernalia with intent to deliver. RCW 69.50.412(1), (2). Thorn does not raise an issue regarding the statutory basis for his arrest.

2

We note also that although findings of fact in a suppression hearing are entitled to great deference on appeal, where, as here, the trial court did not hear oral testimony but made findings based solely on stipulated facts, there is no reason to defer to the judgment of the trial court, and we review the factual findings de novo. State v. Rowe, 93 Wn.2d 277, 280, 609 P.2d 1348 (1980). However, because the findings of fact are not challenged in this case, the degree of deference is irrelevant.

3

Thorn also argues that article I, section 7 of the Washington Constitution provides greater protection than the Fourth Amendment of the U.S. Constitution. We decline to reach this issue as the mere mention of the state constitution, without briefing upon the factors set out in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), is insufficient to require this court to independently construe a state constitutional provision. Clark v. Pacificorp, 118 Wn.2d 167, 192, 822 P.2d 162 (1991).

4

The cases cited by the dissent address the issue of who has the burden of showing that an exception to the rule against warrantless seizures applies. Here, the issue is not whether an exception applies but whether a seizure has occurred in the first instance.