State v. Young

Alexander, J.

(concurring in part, dissenting in part) — I concur with the majority’s rejection of the test that was articulated in California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), for determining whether a seizure has occurred. I entirely agree with the majority’s view that we should preserve the objective test for a disturbance of private affairs that has long been a part of this court’s jurisprudence.

I part company, though, with the majority in its conclusion that Young was not seized or disturbed in his private affairs when he was illuminated by the police car spotlight. Although the majority correctly observes that not every encounter between a police officer and a citizen is a seizure or a disturbance of private affairs, the spotlighting of Young was such an intrusion. I reach that conclusion because, in my view, a reasonable person in Young’s position would not have believed that he was free to leave once he fell under the beam of the police spotlight. In rejecting this view, the majority makes much of the fact that “[t]he spotlight did not illuminate anything Young sought to keep private,” and that Young was “in the open on a public street.” Majority at 515. That begs the question because, as the majority concedes, the issue is whether Young was seized and thereby disturbed in his private affairs. One is seized when a show of authority by an officer of the law would *516cause a reasonable person to believe he was not free to leave. State v. Thorn, 129 Wn.2d 347, 352, 917 P.2d 108 (1996) (citing Florida v. Bostick, 501 U.S. 429, 436, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)).

The majority’s conclusion that the spotlighting was not such a show of authority does not hold up under these facts. Significantly, Deputy Sheriff Carpenter had just spoken to Young a few minutes before the spotlighting took place and had chosen to drive away from what he described as “social contact.” Majority at 502. Nevertheless, after learning that Young had a criminal record, the deputy turned his vehicle around and headed back toward Young. As the deputy did so, he observed Young walking toward an apartment complex. This caused the deputy to increase the speed of his automobile and shine its spotlight on Young. The deputy gave no explanation for doing so and made no attempt to justify this action. Because the earlier contact with Young had been uneventful, and Young did not do anything between the time of that contact and the time the spotlight was shined on him that was unlawful or even suspicious, shining the light on Young was saying, in essence, STOE This, in my view, was an unjustified intrusion into Young’s private affairs.

This is a case of first impression. The cases that are closest factually to the present one are previous holdings by courts in this state that “[a] seizure occurs when police officers pull up to a parked vehicle and activate their emergency lights.” State v. Markgraf, 59 Wn. App. 509, 511, 798 P.2d 1180 (1990) (citing State v. DeArman, 54 Wn. App. 621, 624, 774 P.2d 1247 (1989)); see also State v. Stroud, 30 Wn. App. 392, 396, 634 P.2d 316 (1981), review denied, 96 Wn.2d 1025 (1982).9 The rule set forth in those cases seems pertinent here because it has been applied even where a parked vehicle was not pulled over by the police officer, nor *517detained while in the process of leaving. See Stroud, 30 Wn. App. at 393. As a result, the message sent by the police lights was not necessarily obvious and yet a seizure was held to have occurred. Indeed, the person seized by the display of lights in Stroud was not even in the driver’s seat, but rather was “a mere passenger.” Stroud, 30 Wn. App. at 396. Moreover, in Stroud, unlike here, there had been no prior interaction between the officers and the person seized to make the subsequent seizure even more apparent. Still, the use of the lights was held to have “constituted a show of authority sufficient to convey to any reasonable person that voluntary departure from the scene was not a realistic alternative.” Stroud, 30 Wn. App. at 396.

Similarly, here, even accepting as true Deputy Sheriff Carpenter’s characterization of his initial contact with Young as a mere “social contact,” it would have been quite clear to Young that their second interaction was actually serious business. Under these circumstances, the searchlight shining upon Young sent a message no less unmistakable than that sent by flashing fights to occupants of parked cars. In short, the combination of the second encounter following the first resulted in a show of authority constituting a seizure. Yet, under the permissive approach that the majority is adopting here, “it will be advantageous to the police to place a seizure at the latest possible moment so as to be able to use any earlier-revealed incriminating evidence as part of the basis for the Terry stop.” 4 Wayne R. LaFave, Search and Seizure § 9.3(d), at 130 (3d ed. 1996). This is because the bar for what actually constitutes a “seizure” is being set so high that its purposes can now be accomplished by other means and without reasonable and articulable suspicion. Accordingly, then, the majority’s acknowledgment of the “greater protection of privacy afforded Washington citizens under article I, section 7” becomes empty rhetoric. Majority at 510.

I am not suggesting, as the majority suggests Young is, *518that there is a disturbance of private affairs every time someone is illuminated by a police spotlight. There are, of course, many legitimate uses of a spotlight and there are undoubtedly instances where a person illuminated by such a light could not reasonably contend that he was seized. One of the legitimate uses of the light, of course, is to impart to an individual that the officer wants him to stop where he is. In such cases, though, the officer must possess information that would lead a reasonable person to believe that there is a substantial probability that criminal conduct has or is about to occur. Prior to the spotlight being shone here, there was no basis for such a belief. The seizure or intrusion was, therefore, unjustified. I would affirm the trial court’s order suppressing evidence.

Johnson, J., concurs with Alexander, J.

The State inexplicably cites these cases in support of the proposition that flashing police lights upon “moving” cars constitutes a seizure, even while it quotes language from Stroud noting that a “parked car” was involved. Br. of Appellant at 5 (quoting Stroud, 30 Wn. App. at 396). It then cites three cases from other states, completely ignoring Washington case law to the contrary, to support *517its proposition that “flashing lights upon an already parked car may not constitute a seizure.” Br. of Appellant at 5-6.