State v. Mackey

Schultheis, J.

(concurring) — The facts of this case are troublesome. I agree with the majority that the initial traffic stop was proper, as was the trooper’s request that Brian Mackey step out of the car so the suspicion of driving under the influence could be further investigated. However, under the specific facts of this case, my plenary agreement stops at that point. I am uncomfortable with the court’s determination that the trooper had a reasonable suspicion that Mr. Mackey was presently armed and dangerous that justified a search for weapons in the fanny pack attached to his waist. Our law enforcement officers must make immediate judgment calls while on duty and it is all too easy to criticize their thought processes after the fact. I was perfectly comfortable with the trooper’s decision to conduct a pat-down of Mr. Mackey for weapons due to the fact the trooper was alone on the side of the road in the dark and outnumbered by suspects who made unidentifiable movements inside the car prior to stopping. However, when the *141trooper testified his decision to search Mr. Mackey’s fanny pack was based in part on the trooper’s personal choice to keep his own weapon in a fanny pack, my comfort level dwindled. As found in State v. Lennon, 94 Wn. App. 573, 580, 976 P.2d 121 (1999), an officer’s generalized suspicion, without more, that criminal activity is occurring is insufficient to justify a frisk for weapons. As applied to this case, the rule set forth in Lennon would prohibit the trooper’s conclusion that fanny packs necessarily contain concealed weapons. For this reason, I am not comfortable with the trial court’s conclusion that the wearing of a fanny pack is “commonly associated with concealment of weapons.”1 Nevertheless, on balance, I would agree with the trial court’s decision (and the majority’s approval) the trooper had reason to pat Mr. Mackey down for weapons.

However, I write separately to voice my concern about the enormous conflict between the trooper’s testimony regarding the resultant search of the fanny pack, which was attached to Mr. Mackey’s waist, and the testimony of the only other two witnesses to the trooper’s words and actions — Mr. Mackey and his brother. The trooper testified Mr. Mackey willingly opened the fanny pack for him upon request and that the illegal drugs were immediately seen in plain view inside the fanny pack. Mr. Mackey and his brother, on the other hand, both testified the trooper grabbed the fanny pack and began to unzip it while asking Mr. Mackey for his permission to do so. Mr. Mackey testified he sarcastically agreed to the trooper’s request because it was a moot point, as the bag had already been opened by the trooper before he could answer. These are the facts with which I am disturbed. I take this opportunity to remind law enforcement officers it is vital that they follow the strict constitutional safeguards that have been in place for 35 years when conducting a Terry2 stop pat-down for weapons.

In conclusion, the trial court determined the trooper’s testimony was more credible than that of Mr. Mackey and *142his brother and I am constrained to follow that credibility determination.3 For this reason I must agree with the majority decision that the court’s conclusion of law 3 was supported by facts in the record.

Motions for reconsideration denied October 24, 2003.

Clerk’s Papers at 83.

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).