Opinion
Nos. 37590-7-II; 37594-0-II; 37600-8-II.
September 22, 2009.
Appeals from a judgment of the Superior Court, Pierce County, No. 08-1-00295-2, D. Gary Steiner, J., entered March 13, 2008.
Affirmed by unpublished opinion per Kulik, J., concurred in by Houghton, J.; Quinn-Brintnall, J., concurring separately.
The trial court dismissed charges against Desmond Johnson, Bashine Rutledge, and Steven Miranda for various weapons and drug crimes. These dismissals followed a CrR 3.6 suppression hearing in which the trial court determined that police officers' initial contact with the men was unlawful because the 911 caller's identity was not independently verified by the officers. The trial court ruled that the evidence seized as a result of the initial stop was inadmissible under State v. Hopkins, 128 Wn. App. 855, 117 P.3d 377 (2005). The State appeals, asserting that we should overrule Hopkins. We do not, however, reach consideration of the 911 caller's reliability. Here, the officers received no facts to form a reasonable suspicion of criminal activity nor did they observe any criminal activity. We, therefore, affirm dismissal of the charges.
FACTS
On January 15, 2008, Tacoma Police Sergeant Daniell Griswold was in the area of 37th and Pacific when she saw two black males and a white male walking two dogs. Around 1:00 p.m., 911 Tacoma police dispatch received a call that a male was carrying a silver handgun. The caller described the man as a black male, about five feet eleven inches tall, wearing a blue/purple knit cap, a green backpack, and blue jeans. The caller said another black male wearing all blue clothing and a third undescribed male accompanied the first man. The caller also said the men were walking dogs.
In the 911 call, the reporting party identified herself and the address from where she was calling. She also reported hearing popping sounds that might be gunshots. The CAD log of the call listed the name of the caller, the caller's telephone number, and the residential address of the call. A radio dispatch was issued to officers providing the caller's name, telephone number, and address, and a report that an 18-to 22-year-old black male — wearing a blue or purple knit cap, a green backpack, and blue jeans — was seen carrying a silver handgun. The man was accompanied by another black male wearing all blue clothing, and a third man who was not described. The men were walking two dogs. The dispatch report to the officers did not include the caller's report of popping sounds that might be gunshots.
Computer-aided dispatch.
Sergeant Griswold realized that the description in the radio dispatch matched the three men that she had seen about five minutes earlier and she began looking for the men. Detective Krancich, who was also in the area, joined in the search in a separate vehicle. A few minutes later, Sergeant Griswold located the described subjects near 37th and Pacific. Neither officer independently verified the 911 caller's identity nor did they see a gun or suspicious or criminal behavior.
Sergeant Griswold contacted the first man, identified as Johnson, and ordered him to the ground. Sergeant Griswold handcuffed Johnson for officer safety. She then explained the reason for the stop. Johnson denied having a gun. Sergeant Griswold patted down Johnson and felt a hard object in his waist band. Believing this to be a gun, Sergeant Griswold removed it and found that it was a glass drug pipe containing a residue. Johnson admitted that it was a drug pipe.
Sergeant Griswold arrested Johnson and searched him incident to the arrest. Additional controlled substances were found. Inside Johnson's backpack, Sergeant Griswold found a gun wrapped in a wig.
Sergeant Ross Mueller also assisted with the pat-down search of Johnson and noted what appeared to be two hard and unidentifiable objects in Johnson's pocket. He removed the items and several other items also came out of the pocket, including two small plastic baggies of marijuana. Sergeant Mueller had arrived on scene while Sergeant Griswold was in the process of detaining Johnson and detained Miranda.
Sergeant Mueller placed handcuffs on Miranda and conducted a cursory weapons search. He felt a hard object in Miranda's sweatshirt pocket and discovered a switchblade style knife. As Sergeant Mueller continued the pat-down search of Miranda, he felt more hard objects in Miranda's pants pockets. One item turned out to be a pill container, appearing to contain two small plastic baggies with a substance in them, which he suspected was powder cocaine or methamphetamine.
Officer Steven Reopelle arrived shortly after Sergeant Griswold and Detective Krancich had detained the third man. This man was later identified as Rutledge. Rutledge was detained in handcuffs, and Officer Reopelle conducted a pat-down search of Rutledge for officer safety.
Rutledge had a jacket pocket that was loose and open. The jacket was thick. Officer Reopelle wanted to make sure there was no needle or razor blade in the pocket that might poke him. He opened a pocket and observed several baggies of marijuana. Rutledge was placed under arrest. A search of Rutledge incident to arrest revealed bags of cocaine.
At the suppression hearing, Sergeant Mueller testified regarding the 911 dispatch system. He stated that the system automatically identifies the telephone number from which a call originates. The system also identifies the location the call came from and, that in responding to such calls, the location was accurate about 99 out of 100 times. Sergeant Mueller explained that many cell phones are GPS activated and that dispatch can pin or triangulate the location of these calls depending on the cell service company.
Global positioning satellite.
The trial court determined that Hopkins was controlling and that the officers had not contacted the caller to verify the caller's identity. The court also found that the officers did not hear the caller's conversation with the dispatch operator, so some of the facts relayed in the 911 call were not personally known to the officers on the scene, including the caller's report of popping sounds that might be gunshots. Consequently, the court found that the officers on the scene did not know more than was contained in the dispatch call and the CAD log.
The trial court found the actions of the officers lawful in every regard, except that the officers did not independently verify the identity of the caller before contacting the suspects. It noted that the officers had no reason to believe the report was reliable without such contact. The court held this independent verification was necessary in light of Hopkins and, therefore, the court suppressed the evidence obtained as a result of the initial stop. The court dismissed all charges against Johnson, Rutledge, and Miranda. This appeal followed.
ANALYSIS
The State contends the trial court erred by concluding that the informant's 911 tip was not sufficiently reliable to support the subsequent investigative stop. The State asserts that the trial court erred when using the Hopkins analysis to determine the reliability of the informant's tip because Hopkins is contrary to state and federal precedent.
When reviewing a court's findings from a CrR 3.6 suppression hearing, we evaluate the evidence to determine whether substantial evidence supports the findings of fact. State v. Hill, 123 Wn.2d 641, 644-45, 870 P.2d 313 (1994). Conclusions of law are reviewed de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996). Any unchallenged findings of fact are verities on appeal. Hill, 123 Wn.2d at 644.
Police may conduct an investigatory stop if the officer has a reasonable and articulable suspicion that the individual is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). "A reasonable suspicion is the `substantial possibility that criminal conduct has occurred or is about to occur.'" State v. Lee, 147 Wn. App. 912, 916, 199 P.3d 445 (2008) (quoting State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986)). Reasonable suspicion can be based upon an informant's tip. Id. at 7. However, an informant's tip must contain objective facts to support a reasonable suspicion of criminal activity. See State v. Sieler, 95 Wn.2d 43, 47-48, 621 P.2d 1272 (1980).
Here, the officers did not have any information of actual or potential criminal activity nor was any such activity observed by the officers. The officers received the caller's name, telephone number, and residential address. They also received a description of three men and a statement that one man was seen with a silver handgun. But carrying a gun is not a crime unless there is evidence that it is being aimed or brandished in some manner. RCW 9.41.230. Significantly, the caller's statement about "popping sounds" was not given to the officers. And they did not see a gun or any criminal activity.
Discharge of a weapon may be a basis for stopping an individual. See RCW 9.41.230(1)(b).
We conclude that the officers did not have sufficient facts to support a reasonable suspicion of criminal activity. Therefore, we do not reach the issue of the informant's reliability. We affirm the suppression of the evidence seized from the defendants and the dismissal of the charges.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
HOUGHTON, J., concur.
Although I agree with the majority that the officers lacked probable cause to arrest these three defendants, I disagree with the analysis and write separately to clarify my view. Reiterating my dissent in State v. Hopkins, 128 Wn. App. 855, 866-71, 117 P.3d 377 (2005) (Quinn-Brintnall, C.J., dissenting), in my opinion, the 911 dispatch information provided Tacoma Police Sergeant Daniell Griswold with an articulable reason sufficient to approach the men and inquire about the caller's concern that the men were armed; because the officer could not see a handgun, she could legitimately have asked to see a concealed weapons permit. See RCW 9.41.50(1)(a) ("Except in the person's place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol."); Tacoma Municipal Code 8.67.010 (adopting by reference RCW 9.41.070).
I agree with the majority that Sergeant Griswold did not have probable cause to conduct the full felony arrest of Desmond R. Johnson that she did. I note that the record does not indicate that dispatch gave the call a specified threat level (e.g., 1, 2, or 3). Nor does the record indicate whether the area in question was known Blood turf and that by wearing blue clothing the young man might have been intentionally challenging, or unintentionally exposing his group to, a violent confrontation with rival gang members who generally wear red clothing. It is likely that an experienced patrol officer such as Griswold would recognize clothing and territory identified with local gangs. See State v. Yarbrough, ___ Wn. App. ___, 210 P.3d 1029 (2009) (discussing expert testimony concerning gang-related clothing and other insignia). Additionally, as the majority noted, there is no evidence that dispatch relayed the caller's statement regarding "popping sounds," which the caller believed might have been gun shots.
In my opinion, Sergeant Griswold clearly had a community caretaking duty to question the three young men about the citizens' report that one of them was displaying a handgun. Unfortunately, the responding officers assumed that the young men were engaging in violent criminal activity and made an arrest that, on the evidence presented in this record, was unsupported by probable cause. I emphasize that if the record contained evidence that the 911 dispatch had communicated the caller's full information or a specified threat level, or if the officer had testified with independent knowledge that the conduct reported was designed to incite gang violence, my opinion would differ. Because the record does not contain such evidence, I only concur with the result reached by the majority.