IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 78958-9-I
)
Respondent, )
) DIVISION ONE
v. )
)
KRISTOPHER CHARLES MARTIN, ) PUBLISHED OPINION
)
Appellant. )
)
MANN, C.J. — Absent an applicable exception, warrantless searches and
seizures are per se unreasonable and violate both the United States and Washington
Constitutions. While asleep in a Starbucks store, Kristopher Martin was subjected to a
warrantless search. Based on the search, Martin was charged with and found guilty of
possession of a controlled substance.
Martin appeals his conviction and contends that the trial court erred by denying
his motion to suppress because the search did not meet either the Terry1 stop or
community custody exceptions to the warrant requirement. We agree, vacate Martin’s
conviction, and remand to the trial court for further proceedings consistent with this
opinion.
1
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
No. 78958-9-I/2
I.
On December 11, 2017, at 8:27 a.m., Officer Nicholas Bickar responded to a
911 call from a Starbucks employee, requesting assistance with the removal of a
sleeping person inside the store. When Bickar arrived, he saw Martin sleeping in a
chair. Bickar gestured to the Starbucks employee and received a responsive gesture
from the employee that Martin was the person identified in the 911 call.
When Bickar approached Martin, he noticed Martin was wearing multiple jackets
that had pockets. Bickar attempted to wake Martin, first by raising his voice and then by
squeezing and shaking his left shoulder. Martin remained unresponsive. Trying not to
startle Martin, Bickar then performed a “light sternum rub,” using his knuckles to rub
Martin’s sternum. While Bickar attempted to wake Martin, he would briefly gain
consciousness, but quickly lose consciousness before Bickar could communicate with
him.
Bickar began to suspect that Martin was under the influence of drugs. Bickar
determined that he would need to use a “hard sternum rub,” but feared Martin might
react violently because hard sternum rubs can be painful and startling for a person
sleeping. During this encounter, Bickar noted that there were Starbucks customers
sitting within four feet of Bickar and Martin and there were between seven and eight
people, not including staff, in Starbucks.
Before Bickar proceeded with the hard sternum rub, Bickar noticed the end of a
metal utensil sticking out of Martin’s pocket. Bickar worried that the metal utensil could
be a knife or another utensil sharpened into a weapon. Bickar also expressed concerns
about sharp needles. Without feeling the outside of the pocket, Bickar removed the
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utensil. The utensil was a cook spoon, had burn marks on the bottom, and a dark
brown residue on the inside. At that point, Bickar determined that he had probable
cause to arrest Martin for possession of drug paraphernalia and continued searching
Martin. While searching Martin, Bickar found methamphetamine, heroin, cocaine, and
other drug paraphernalia.
After removing the drugs from Martin, Bickar conducted a hard sternum rub.
Once Martin woke up, Bickar told him that he was under arrest, proceeded to handcuff
him, and brought him to an aid car. Because Martin did not wake up easily, he was
transported to the hospital. Bickar called the aid car sometime prior to waking up
Martin.
Martin moved to suppress all evidence collected as a result of the unlawful
detention and search. The court heard testimony from Officer Bickar and denied
Martin’s motion to suppress concluding, “[c]ommunity caretaking and Terry authorized
Officer Bickar to take necessary precautions to protect himself and others from a
potentially dangerous situation. Officer Bickar was authorized to pat the Defendant
down for potential weapons.”
Martin proceeded to a stipulated bench trial on the charge of unlawful possession
of a controlled substance. The court found Martin guilty. The court sentenced Martin to
30 days of confinement. Martin appeals.
II.
The Washington Constitution commands: “No person shall be disturbed in his
private affairs, or his home invaded, without authority of law.” Wash. Const. art. I, § 7.
The United States Constitution also protects people from unreasonable searches and
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seizures. U.S. Const. amend. IV. Absent an applicable exception, warrantless
searches and seizures are per se unreasonable, and violate these provisions. State v.
Russell, 180 Wn.2d 860, 867, 330 P.3d 151 (2014). “The State bears a heavy burden
to prove by clear and convincing evidence that a warrantless search falls within one of
those exceptions.” Russell, 180 Wn.2d at 867.
When reviewing the denial of a motion to suppress, the appellate court
determines whether substantial evidence supports the trial court’s findings of fact and
whether the findings of fact support the trial court’s conclusions of law. State v.
Boisselle, 194 Wn.2d 1, 14, 448 P.3d 19 (2019). We review the trial court’s conclusions
of law de novo. Boisselle, 194 Wn.2d at 14.
A.
Martin first contends that the trial court erred in finding the search permissible
under Terry because “[f]irst, there was [no] reasonable suspicion that Mr. Martin was
engaged in criminal activity. Second, there were not specific and articulable reasons to
believe Mr. Martin was armed and dangerous. And third, even if Terry applied, the
officer exceeded the lawful scope of the frisk.”
The State argued before the trial court and in its brief before this court, that the
search was lawful under Terry. At oral argument, however, the State conceded that the
search was not lawful under Terry because Bickar did not testify that he was conducting
a criminal trespass investigation.
We accept the State’s concession that the search was not valid as a Terry stop.
Terry stops are an exception to the warrant requirement. In a Terry stop, “[o]fficers may
briefly, and without warrant, stop and detain a person they reasonably suspect is, or is
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about to be, engaged in criminal conduct.” State v. Day, 161 Wn.2d 889, 895, 168 P.3d
1265 (2007). “While Terry does not authorize a search for evidence of a crime, officers
are allowed to make a brief, nonintrusive search for weapons if, after a lawful Terry
stop, ‘a reasonable safety concern exists to justify the protective frisk for weapons’ so
long as the search goes no further than necessary for protective purposes.” Day, 161
Wn.2d at 895. In making this determination, “we consider the totality of the
circumstances, including the officer’s subjective belief.” Day, 161 Wn.2d at 896.
A protective frisk does not violate a defendant’s rights when (1) the initial stop is
legitimate, (2) a reasonable safety concern exists to justify a protective frisk for
weapons, and (3) the scope of the frisk is limited to the protective purpose. State v.
Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993). “The failure of any of these makes
the frisk unlawful and the evidence seized inadmissible.” State v. Setterstrom, 163
Wn.2d 621, 626, 183 P.3d 1075 (2008). “A reasonable safety concern exists, and a
protective frisk for weapons is justified, when an officer can point to ‘specific and
articulable facts’ which create an objectively reasonable belief that a suspect is ‘armed
and presently dangerous.’” Collins, 121 Wn.2d at 173. Further, “[t]he officer need not
be absolutely certain that the individual is armed; the issue is whether a reasonably
prudent person in the circumstances would be warranted in the belief that his or her
safety or that of others was in danger.” Collins, 121 Wn.2d at 173.
This search fails to meet the requirements under Terry. Starbucks is open to the
public. The record does not support the trial court’s finding that Bickar was conducting
a criminal investigation for trespass because there is no evidence in the record that
Starbucks had trespassed Martin from the premises. Also absent from the record is
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evidence supporting Bickar’s claim that Martin sleeping created a reasonable safety
concern. Bickar performed a hard sternum rub with several people seated in close
proximity to Martin. While Bickar stated that, based on his training and experience as
an officer, he feared Martin would react violently once awake, Bickar’s actions do not
support his attestation. Bickar did not ask patrons sitting less than three feet from
Martin to move away before using a hard sternum rub to wake Martin.
Finally, even if Bickar were conducting a criminal investigation for trespass, the
search exceeded the scope of a frisk under Terry. An officer may “conduct a limited
pat-down of the outer clothing of a person in an attempt to discover weapons that could
cause harm.” State v. Russell, 180 Wn.2d 860, 867, 330 P.3d 151 (2014). “The officer
may not slide, squeeze or in any other manner manipulate the object to ascertain its
incriminating nature. Such manipulation of the object will exceed the scope of a Terry
frisk.” State v. Garvin, 166 Wn.2d 242, 251, 207 P.3d 1266 (2009). Bickar did not pat-
down the outside of Martin’s pocket where the utensil handle was protruding. Instead,
Bickar removed the utensil because he thought it could have been a knife or a metal
utensil that had been sharpened into a weapon. Had Bickar felt the outside of Martin’s
pocket, he would have learned it was a spoon and not a sharp object. Removing the
spoon without a pat down exceeded the scope of a Terry frisk.
The search was not lawful under Terry because there was no reasonable
suspicion that a crime had been committed, there was not a reasonable safety concern,
and the search exceeded the lawful scope of a frisk.
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B.
Martin next contends that the community caretaking exception to the warrant
requirement is also not applicable. We agree.
Recently, the Washington Supreme Court clarified the appropriate factors for
determining whether an officer has exercised his or her emergency aid community
caretaking function. Boisselle, 194 Wn.2d at 10. “[I]n order for the community
caretaking exception to apply, a court must first be satisfied that the officer’s actions
were ‘totally divorced’ from the detection and investigation of criminal activity.”
Boisselle, 194 Wn.2d at 10. The threshold issue for the court is “whether the
community caretaking exception was used as a pretext for a criminal investigation
before applying the community caretaking exception test.” Boisselle, 194 Wn.2d at 11.
Once the court is satisfied that officers did not use the exception as pretext for
criminal investigation, the court must next determine whether the warrantless search
was reasonable. Boisselle, 194 Wn.2d at 10. “When a warrantless search falls within
an officer’s general community caretaking function, such as the performance of a
routine check on health and safety, courts must next determine whether the search was
reasonable.” Boisselle, 194 Wn.2d at 11-12. “Where . . . an encounter involves a
routine check on health and safety, its reasonableness depends upon a balancing of a
citizen’s privacy interests in freedom from police intrusion against the public’s interest in
having police perform a ‘community caretaking function.’” Boisselle, 194 Wn.2d at 12.
“An officer’s emergency aid function, however arises from a police officer’s
community caretaking responsibility to come to the aid of persons believed to be in
danger of death or physical harm.” Boisselle, 194 Wn.2d at 12 (internal quotations
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omitted). “Compared with routine checks on health and safety, the emergency aid
function involves circumstances of greater urgency and searches resulting in greater
intrusion.” Boisselle, 194 Wn.2d at 12. “Accordingly, courts apply additional factors to
determine whether a warrantless search falls within the emergency aid function of the
community caretaking exception.” Boisselle, 194 Wn.2d at 12.
In Boisselle, the court clarified that the three-part emergency aid test announced
in State v. Kinzy, 141 Wn.2d 373, 386-87, 5 P.3d 668 (2000) is the applicable test, but
amended the three-part test “to make clear that there must be a present emergency for
the emergency aid function test to apply.” Boisselle, 194 Wn.2d at 13. Thus, the
exception applies when “(1) the officer subjectively believed that an emergency existed
requiring that he or she provide immediate assistance to protect or preserve life or
property, or to prevent serious injury, (2) a reasonable person in the same situation
would similarly believe that there was a need for assistance, and (3) there was a
reasonable basis to associate the need for assistance with the place searched.”
Boisselle, 194 Wn.2d at 13-14. “If a warrantless search falls within the emergency aid
function, a court resumes its analysis and weighs the public’s interest against that of a
citizen’s.” Boisselle, 194 Wn.2d at 12.
In balancing Martin’s privacy interests against the public’s interest in having the
police perform a community caretaking function, we conclude that removing the spoon
from Martin’s pocket was unreasonable. There is insufficient evidence in the record to
find that Bickar was conducting a routine check on health and safety or rendering
emergency aid. Bickar stated that he was dispatched to Starbucks “for an individual
they wanted to leave, who was sleeping.” Absent from the record is any evidence
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tending to show that Bickar was dispatched to assist with an unresponsive customer or
customer in need of emergency aid. Bickar indicated that he could tell Martin was
breathing and therefore, did not check his pulse. After Bickar performed a light sternum
rub, Martin opened his eyes, but fell back to sleep before Bickar could communicate
with Martin. Bickar did not feel like he needed to perform lifesaving maneuvers. Other
Starbucks customers sat a few feet away from Martin as he slept and Bickar did not
indicate that any customers or employees expressed concern that Martin was in danger
of death or physical harm. Finally, Bickar did not ask the other Starbucks customers to
back away from the area where Martin slept before performing the hard sternum rub.
Bickar did not subjectively believe an emergency existed and a reasonable person in
the same situation would not believe there was a need for assistance.
Furthermore, even if the community caretaking exception applied to this search,
a simple pat-down on the outside of Martin’s coat pocket would have alleviated any
concern that the metal utensil was a sharp object or weapon. See State v. Acrey, 148
Wn.2d 738, 754, 64 P.3d 594 (2003) (concluding that a pat-down of a juvenile before
putting him in a patrol car was reasonable for officer safety while performing their
community caretaking function of transporting the juvenile home after his mother’s
request for officer assistance). Removing the spoon violated Martin’s right to be free
from unreasonable searches and seizures.
We vacate Martin’s conviction and remand to the trial court for further
proceedings consistent with this opinion.
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WE CONCUR:
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