IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
,—.3
STATE OF WASHINGTON, j No. 70713-2-1
o
Respondent, ) DIVISION ONE
V.
u:
CLYDE JOHNSON, | UNPUBLISHED
O
Appellant. ] FILED: December 22. 2014
Cox, J. — "Whether the Fourth Amendment or article I, section 7 of the
Washington Constitution is in issue, a detaining officer must have 'a reasonable,
articulable suspicion, based on specific objective facts, that the person seized
has committed or is about to commit a crime.'"1 Courts analyze whether an
officer had a reasonable suspicion for a Terry stop under a totality of the
circumstances test.2 It is the State's burden to establish the validity of a Terry
stop.3 Because the State fails in its burden to establish, under the totality of the
circumstances of this case, that a reasonable, articulable suspicion existed to
support the Terry stop of Clyde Johnson, we reverse.
1 State v. Day. 161 Wn.2d 889, 896, 168 P.3d 1265 (2007) (emphasis omitted)
(quoting State v. Duncan, 146 Wn.2d 166, 172, 43 P.3d 513 (2002) (citing Terry v. Ohio,
392 U.S. 1, 21, 88 S. Ct. 1868, 20 L Ed. 2d 889 (1968))).
2 State v. Cardenas-Muratalla. 179 Wn. App. 307, 309, 319P.3d811 (2014).
3 Id.
No. 70713-2-1/2
The undisputed facts in the trial court's CrR 3.6 Findings of Fact and
Conclusions of Law, which are substantially unchallenged on appeal, state the
material facts. While on patrol in April 2013, a Seattle police detective received a
call from an FBI agent. The agent relayed to the detective that a paid confidential
informant working for the FBI had called to report an incident that had occurred at
18th Avenue and East Yesler Way in Seattle. The informant reported that he or
she had witnessed someone believed to be Johnson "embroiled in a 'heated but
not physical' argument with a female." The informant stated further "that during
that argument Johnson had 'flashed' a gun at the female." The informant also
provided a detailed description of Johnson and the clothing he was wearing.
The police detective had seen photos of Johnson before and knew he was
a convicted felon, prohibited from possessing firearms. The police detective and
his partner "immediately drove to the location of 18th and Yesler to investigate a
potential violentfelony crime and insure there was no ongoing threat to public
safety."
On arriving at the intersection, the detectives saw a man matching the
description the informant gave in front of a convenience store. They observed
that both the man and his clothing matched the physical description that the
informant had given. The detectives observed no one else in the area. The
detective who had previously seen photos of Johnson was "95% certain" that the
man was Johnson.
No. 70713-2-1/3
After making eye contact with one of the detectives, Johnson "looked
surprised, then turned and began briskly walking in the opposite direction from
the [detectives]."
The detectives pulled up to the place where Johnson had been standing
and both exited the patrol car. They identified themselves and ordered Johnson
to stop and return to their location. Johnson complied. The detectives then took
control of Johnson's arms and placed his hands on the hood of their patrol car.
Thereafter, they frisked him for weapons. They found "a 40 caliber
Berretta." The detectives then arrested him.
The State charged Johnson with unlawful possession of a firearm.
Johnson moved to suppress evidence of the gun, arguing that police lacked a
legitimate basis to conduct a Terry stop. The court denied the motion.
The parties agreed to a stipulated facts bench trial. The trial court found
Johnson guilty as charged.
Johnson appeals.
MOTION TO SUPPRESS
Johnson argues that the trial court erroneously denied his motion to
suppress evidence. Specifically, he contends that the detectives lacked
reasonable, articulable suspicion to believe that a crime had been committed or
was about to be committed. We agree.
Article I, section 7 of the Washington State Constitution and the Fourth
Amendment of the United States Constitution limit warrantless searches and
No. 70713-2-1/4
seizures.4 Courts generally presume that warrantless searches and seizures
violate both constitutions.5 But the State may rebut this presumption by showing
that a search falls within one of the "'narrowly and jealously drawn exceptions to
the warrant requirement.'"6
Brief investigatory stops are one exception to the warrant requirement.
Also known as Terry stops, under either the Fourth Amendment or article I,
section 7, officers may make a brief investigatory stop without a warrant.7
For a constitutional Terry stop, officers must have reasonable suspicion.8
This suspicion must be articulable and "'based on specific objective facts,
[indicating] that the person seized has committed or is about to commit a crime.'"9
Under both the Fourth Amendment and article 1, section 7, courts analyze
whether officers had reasonable suspicion using a totality of the circumstances
test.10 Under the Fourth Amendment, the test is objective.11 While under article
4 Day, 161 Wn.2d at 893.
5 Id.
6Id at 894 (quoting State v. Stroud. 106Wn.2d 144, 147, 720 P.2d 436 (1986)).
7]d at 896.
8id at 895-96.
9]d at 896 (emphasis omitted) (quoting Duncan. 146 Wn.2d at 172-74).
10 United States v. Arvizu. 534 U.S. 266, 273, 122 S. Ct. 744, 151 L Ed. 2d 740
(2002); Day, 161 Wn.2d at 896.
11 Terry. 392 U.S. at 21-22.
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1, section 7, the totality of the circumstances includes the officer's subjective
beliefs.12
Relevant factors for the totality of the circumstances test can include "the
officer's training and experience, the location of the stop, the conduct of the
suspect. .. 'the purpose of the stop, the amount of physical intrusion upon the
suspect's liberty, and the length of time the suspect is detained.'"13 The totality of
the circumstances also includes "the seriousness of the offense and any threat to
public safety."14
Fleeing from police officers is another factor to consider in determining
reasonable suspicion.15 But in State v. Gatewood, the supreme court held that
the fact that a suspect looked surprised when he saw police officers, appeared to
try to hide something, and walked away, did not provide reasonable suspicion.16
The mere presence of a weapon does not, by itself, justify a Terry stop.17
But a report of threatened use of a weapon can provide reasonable suspicion.18
12
Day. 161 Wn.2dat896.
13 State v. Acrev. 148 Wn.2d 738, 747, 64 P.3d 594 (2003) (quoting State v.
Williams. 102 Wn.2d 733, 740, 689 P.2d 1065 (1984)).
14 Cardenas-Muratalla. 179 Wn. App. at 313.
15 State v. Gatewood. 163 Wn.2d 534, 540, 182 P.3d 426 (2008).
16 id at 537-38, 40.
17 Cardenas-Muratalla, 179 Wn. App. at 313.
18 Id
5
No. 70713-2-1/6
Additionally, an officer may have reasonable suspicion based on
information received from another person.19 A tip provides reasonable suspicion
if, under the totality of the circumstances, it has sufficient "indicia of reliability."20
Sufficient indicia of reliability can be shown with evidence suggesting that the
informant is reliable or with police corroboration.21
For example, when an informant accurately predicts a suspect's future
behavior, it suggests the informant had reliable information.22 Eyewitness
knowledge is also more reliable.23
In order to corroborate a tip, officers must corroborate an informant's
knowledge of criminal activity.24 Corroborating a "description of a subject's
readily observable location and appearance" does not by itself provide sufficient
indicia of reliability.25
Courts consider information received from concerned citizens more
reliable than information received from paid informants.26 Thus, when a paid
19 Navarette v. California U.S. 134 S. Ct. 1683, 1688, 188 L. Ed. 2d 680
(2014).
20 State v. Marcum, 149 Wn. App. 894, 904, 205 P.3d 969 (2009).
21 ]d
22 Alabama v. White, 496 U.S. 325, 332, 110 S. Ct. 2412, 110 L.Ed. 2d 301
(1990).
23 Navarette. 134 S. Ct. at 1689.
24 Florida v. J.L. 529 U.S. 266, 272, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000).
25 id
26 State v. Kennedy. 107 Wn.2d 1, 8, 726 P.2d 445 (1986).
No. 70713-2-1/7
informant provides information, the information requires a higher showing of
reliability.27
To determine reliability, "[C]ourts will generally consider several factors,
primarily (1) whether the informant is reliable, (2) whether the information was
obtained in a reliable fashion, and (3) whether the officers can corroborate any
details of the informant's tip."28
Evidence seized in an invalid Terry stop must be suppressed.29
Trial courts make written findings of fact and conclusions of law after an
evidentiary hearing on a motion to suppress evidence.30 Appellate courts review
challenged findings of fact for substantial evidence, and determine whether the
findings support the conclusions of law.31 "Evidence is substantial when it is
enough 'to persuade a fair-minded person of the truth of the stated premise.'"32
Conclusions of law are reviewed de novo.33
Here, we begin our examination of the totality of the circumstances by
considering the indicia of reliability relating to the information provided to police
by the paid FBI informant. The court's undisputed factual findings provide in
27 id
28 State v. Saggers Wn. App. 332 P.3d 1034, 1038 (2014).
29 Day, 161 Wn.2d at 894-95.
30 CrR 3.6.
31 State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
32 id (quoting State v. Reid, 98 Wn. App. 152, 156, 988 P.2d 1038 (1999)).
33 State v. Ortega, 177 Wn.2d 116,122, 297 P.3d 57 (2013).
No. 70713-2-1/8
relevant part:
No information was provided by police regarding the identity
of the paid informant who furnished the information to law
enforcement, nor the informant's track record as a paid informant or
the informant's reliability. The informant's identity was not
disclosed for two reasons: 1) safety concerns on behalf of the
informant and 2) to allow for the continued use of this particular
informant, which requires that anonymity be preserved.'341
We do not take issue with law enforcement's decision not to disclose the
paid informant's identity to the court. That is a decision for law enforcement to
make. But that decision has consequences.
Our constitutional inquiry is whether sufficient indicia of reliability justify the
Terry stop in this case. It is undisputed that the police provided to the court no
information about the informant's reliability. It is also undisputed that the police
provided no information about the informant's track record as a paid informant.
Without either or both of these pieces of information, it is difficult to see how the
State could meet its burden to show sufficient indicia of reliability in this case.
Notwithstanding these undisputed findings of fact, the court concluded that
the informant's tip provided reasonable suspicion because it had sufficient indicia
of reliability. It stated in its conclusions of law that:
[T]here was corroborating information suggesting the informant's tip
to law enforcement was accurate. Specifically in this case, the
corroborating information was the location, identification of the
suspect, and the suspect's physical description and clothing
description. The implication is that the defendant was seen
wearing the jacket by the informant on the day in question as
relayed to police.[35]
34 Clerk's Papers at 50.
35 Id. at 52.
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No. 70713-2-1/9
The court concluded that the tip showed sufficient indicia of reliability
because it satisfied two factors of the test. First, the court believed it satisfied the
factor of "whether the officers can corroborate any details of the informant's tip."36
Second, the court concluded the tip was reliable because it suggested that "the
informer's information was obtained in a reliable fashion."37 We disagree with
both conclusions.
The court's first conclusion is erroneous because it relies on an overbroad
statement of the law. It is incorrect that corroborating "any details of the
informant's tip" provides indicia of reliability.
According to the United States Supreme Court in Florida v. J.L., merely
corroborating a suspect's location and description does not provide sufficient
indicia of reliability for reasonable suspicion.38 In that case, an anonymous caller
reported that a young man at a bus stop was carrying a gun.39 Officers went to
the bus stop, found a young man who matched the tip's description, frisked him,
and found a gun.40 The officers did not observe any suspicious or threatening
behavior before frisking J.L.41
36 Jd (quoting State v. Lee, 147 Wn. App. 912, 918, 199 P.3d 445 (2008)).
37 i
WE CONCUR:
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