|15 (dissenting) — I disagree with the majority’s conclusion that Officer Derek Bishop had a sufficient basis for an investigatory stop. Therefore, I respectfully dissent.
f 16 Under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution, warrantless searches and seizures are per se unreasonable and the State bears the burden of demonstrating that the warrantless search falls within one of the few narrow exceptions to the general rule. State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984). Under the Terry2 stop exception, police officers may briefly detain a person if they “have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.” Brown *591v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979). When determining whether police have reasonable suspicion sufficient to justify a Terry stop, we apply the totality of the circumstances test. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991) (citing United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981)). Evaluated against this standard, I conclude that the facts known to Officer Bishop at the time he stopped Walter Doughty fall short of reasonably indicating that Mr. Doughty was engaged at the time in criminal activity.
¶17 The majority identifies the following facts to justify the stop: (1) a house identified by law enforcement as a drug house, (2) Mr. Doughty’s two-minute visit at that house, and (3) the early morning hour. The majority asserts that State v. Kennedy, 107 Wn.2d 1, 726 P.2d 445 (1986) supports its conclusion that the stop was justified, but Kennedy is distinguishable. In that case, in addition to observing the defendant leave a known drug house, police had reliable information from an informant that the defendant regularly purchased marijuana from the owner of the drug house and that he only went to that particular house to buy drugs. Id. at 3. Police also saw the defendant lean forward in his car as if placing something on the front seat.
¶18 Here in contrast, a police officer simply saw a person briefly enter a drug house at an early morning hour. We have previously found similar circumstances insufficient justification for a Terry stop. In State v. Gleason, 70 Wn. App. 13, 851 P.2d 731 (1993), for example, we held that a stop was not justified where the defendant was seen leaving an apartment complex with a history of drug sales. In reversing the trial court’s denial of the suppression motion, we reasoned, “this was the first time the defendant had been seen in the area, the officers did not know what occurred inside the apartment and neither officer saw him involved in the purchase of drugs . . . , there was no evidence Mr. Gleason was acting suspiciously, [and] he was not carrying any unusual objects.” Id. at 18 (citation omitted).
*592¶19 Furthermore, in State v. Richardson, 64 Wn. App. 693, 825 P.2d 754 (1992), we held that a person’s presence in a high crime area does not give rise to a reasonable suspicion to stop him. In Richardson, the defendant was observed walking at 2:30 a.m. in an area known for its high drug activity in the company of a person suspected of drug dealing. Id. We held that the stop was improper, noting that at the time of the stop, the officer “knew only that Mr. Richardson was in a high crime area, late at night, walking near someone the officer suspected of ‘running drugs’. He had not heard any conversation between the men and had not seen any suspicious activity between them.” Id. at 697 (emphasis added).
¶20 The majority acknowledges Richardson, but finds our case distinguishable because it was “Mr. Doughty’s own suspicious behavior” that supported the officer’s suspicion. Majority at 590. But what is the suspicious activity here? Officer Bishop did not observe any activities inside the house, see Mr. Doughty make contact with anyone, see him with unusual objects, or overhear any conversation. Based on our own precedent, the circumstances here do not rise to the level of articulable suspicion necessary to justify an investigatory stop. Accordingly, I would reverse the judgment of the trial court.
Review granted at 166 Wn.2d 1019 (2009).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).