¶15
(dissenting) This police encounter was not a “social contact,” and Dustin Harrington was not free to just walk away. And so I respectfully dissent.
¶16 Mr. Harrington was confronted by two uniformed officers and two squad cars at 11:00 at night. The state trooper stopped to provide “backup.” The police officer ordered Mr. Harrington to remove his hands from his pockets and then asked whether he could search him. The court concluded, nonetheless, that this contact was a “social contact.” Clerk’s Papers (CP) at 19 (Conclusion of Law 1). But there is no suggestion that the officer knew Mr. Harrington, that Mr. Harrington needed help, or that the officer was looking for someone on the street at 11:00 at night to visit with. And moreover, any suggestion that this was a “social contact” evaporated when the state trooper showed up and stood nearby, or when the officer ordered Mr. Harrington not to put his hands in his pockets.
¶17 Mr. Harrington was not in a high crime area. State v. Miller, 91 Wn. App. 181, 183, 955 P.2d 810, 961 P.2d 973 *564(1998). There was no suspicion (reasonable or otherwise) of criminal activity in or around the area where Mr. Harrington was seized. State v. Armenta, 134 Wn.2d 1, 8, 948 P.2d 1280 (1997); State v. Hopkins, 128 Wn. App. 855, 867, 117 P.3d 377 (2005). Mr. Harrington was not and did not appear to be sick, injured, disabled, drunk, or lost. State v. Aerey, 110 Wn. App. 769, 773, 45 P.3d 553 (2002), aff’d, 148 Wn.2d 738, 64 P.3d 594 (2003). In short, there was no legally supportable reason for this encounter/stop/confrontation/seizure and labeling it a “social contact” does not change the reality. There simply was no reason to contact Mr. Harrington.
¶18 We do a disservice to the public and to police by moving the so-called “social contact” into just another form of seizure, albeit without any cause or suspicion of crime or danger to the public or the police. Backup is certainly an important police safety procedure for any investigation. But this was, according to the court, not an investigation, it was a “social contact.” The trooper says he may or may not have had his emergency lights on.
¶19 I would conclude that this stop by a police officer, along with the presence of backup by a state trooper and the presence of two marked police cars at this time of night, put Mr. Harrington in a position that he was not free to simply walk away.
¶20 The court’s conclusion that Mr. Harrington’s conduct was “suspicious, and supported Officer [Scott] Reiber continuing the contact” (Conclusion of Law 2) flies in the face of the court’s conclusion that all of this amounted to a “social contact” (Conclusion of Law 1). CP at 19. Fidgety and nervous behavior is an understandable reaction given the encounter here.
¶21 A social contact should be just that — a social contact — not an opportunity for police to investigate, provoke, or “find” criminal activity. This may have started as a casual encounter, but it escalated into something more, without probable cause or even a reasonable suspicion that Mr. Harrington had done anything wrong.
*565¶22 I intend no criticism of the police work here. Indeed, it may well have been good police work. I conclude simply that there was not adequate constitutional sanction for the conduct here, and the evidence should then have been suppressed. Our holding in State v. Soto-Garcia is on point. State v. Soto-Garcia, 68 Wn. App. 20, 841 P.2d 1271 (1992), abrogated on other grounds by State v. Thorn, 129 Wn.2d 347, 917 P.2d 108 (1996).
¶23 I have read State v. Nettles and respectfully disagree with the conclusion the majority of the court reaches there. State v. Nettles, 70 Wn. App. 706, 712, 855 P.2d 699 (1993). There, the court concluded that orders from an armed policeman to remove one’s hands from one’s pockets was not a sufficient showing of authority to convert a social contact into a seizure. That aside, the police contact in Nettles was at least prompted by reports of and a request to investigate drug activity in the area where police found Mr. Nettles. Id. at 707-08.
¶24 Thom is also distinguishable. Thorn, 129 Wn.2d 347, overruled on other grounds by State v. O’Neill, 148 Wn.2d 564, 62 P.3d 489 (2003). There, the court concluded that the question “ 4 [w] here is the pipe?’ ” did not constitute a seizure because it was capable of more than one interpretation. Id. at 354. But the court was clear: “Our holding should not be construed as a blanket rule that an officer does not seize a person merely by asking a question.” Id.
¶25 Here, two police officers, two patrol cars, late at night, orders to remove his hands from his pockets, and finally a request to search over the course of up to five minutes does not add up to a conclusion that a reasonable person would have felt free to just walk off. Mr. Harrington was not free to just walk off. There was a sufficient show of authority that no citizen would have felt free to just walk away from the police officers.
Review granted at 164 Wn.2d 1034 (2008).