Opinion
No. 61347-2-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-02867-2, Richard D. Eadie, J., entered February 25, 2008.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
An officer may seize a passenger of a vehicle that has been pulled over if the officer articulates an objective rationale based on officer safety. Here, the passenger exited a slowing moving vehicle in a dark alley after it had evaded the patrol car. The officer's testimony established his concern that the passenger would either shoot at him or flee. Because the officer established that he had an objective rationale to seize the passenger based on specific safety concerns, we affirm the trial court's denial of the motion to suppress.
FACTS
Around 2:30 a.m. on February 25, 2007, police responded to a report of a disturbance at a McDonald's parking lot near Seattle Center. The police considered this location to be a "hot spot," because of the volume of calls the Seattle Police Department (SPD) receives originating from it. Officers Cierley and Espinoza pulled into the parking lot, observing eight to ten cars in the parking lot and eight or nine people who were milling around. The crowd dispersed as they arrived.
The officers paid close attention to a dark Monte Carlo, because of the speed with which it left the parking lot. The officers departed; only minutes later, they saw the Monte Carlo heading back in the direction of the McDonald's. Concerned about the purpose of the car's return to the parking lot — where the disturbance call had originated — the officers followed the Monte Carlo. Officer Cierley testified that the car made a few illegal and evasive turns while the patrol car was in plain sight of the driver of the Monte Carlo. Officer Espinoza, who was driving the patrol car, activated the lights. The car did not pull over, but accelerated and made another evasive turn into an alley. Officer Cierley testified that the alley was "extremely dark." The car continued to accelerate down the alley until it suddenly slowed, at which point the passenger, Jerome Pratt, opened the door.
Officer Cierley testified that at the point the passenger door started to open, while the car was still moving, he was concerned about one of two things: either the passenger would shoot at the patrol car, or the passenger would run. The officers could not see inside the Monte Carlo, preventing them from determining how many other occupants were in the car. Officer Cierley explained that the inability to see inside the car also contributed to his concern.
Officer Cierley exited the patrol car, his weapon drawn, and ordered Pratt to halt. Pratt began to exit the passenger door, with his torso facing Officer Cierley, giving Officer Cierley a full frontal view. He observed the grip of a pistol coming out of Pratt's waist band. Officer Cierley realized that Pratt was attempting to flee, and decided not to engage with him. Because Officer Cierley did not want to pursue Pratt past the vehicle, for fear of the potential actions of other occupants, Pratt was able to flee. Pratt was apprehended by an officer from another vehicle. A loaded handgun was discovered near where Pratt had exited the vehicle.
Pratt moved to suppress the evidence of the loaded hand gun, arguing that Officer Cierley had illegally seized him, causing Pratt to involuntarily abandon the handgun. The court denied the motion, relying on State v. Mendez, finding that Officer Cierley had an "objective rationale to seize the defendant due to officer safety concerns." State v. Mendez, 137 Wn.2d 208, 970 P.2d 722 (1999) (overruled on other grounds by Brendlin v. Cal., 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007)). Finding that the seizure was lawful, the court did not address the involuntary abandonment issue. The jury convicted Pratt as charged, for unlawful possession of a firearm in the first degree. The judge sentenced him to an 85 month sentence.
ANALYSIS
I. Seizure
We review findings of fact on a motion to suppress under the substantial evidence standard. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. Id. at 644. We review conclusions of law in an order pertaining to suppression of evidence de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
Article I, section 7 of the Washington Constitution provides greater protection to individuals against warrantless searches of their automobiles than does the Fourth Amendment to the United States Constitution. State v. Parker, 139 Wn.2d 486, 493, 987 P.2d 73 (1999). The State bears the burden of proving that a warrantless search falls within one of the narrowly construed exceptions to governmental trespass absent a warrant. Id. at 496.
Neither party disputes the trial court's conclusion of law that Pratt was seized when Officer Cierley drew his weapon and ordered Pratt to halt as he exited the vehicle. A seizure occurs when an individual's freedom of movement is restrained or when the individual would not reasonably believe he was free to leave. State v. Carney, 142 Wn. App. 197, 202, 174 P.3d 142 (2007) (review denied, 164 Wn.2d 1009, 195 P.3d 87 (2008)). The actions of the law enforcement officer must objectively demonstrate that a seizure occurred. State v. Young, 135 Wn.2d 498, 501, 957 P.2d 681 (1998).
The parties dispute whether the seizure was lawful under the officer safety exception. When officers pull over a vehicle, the driver but not the passenger has been stopped on the basis of probable cause, so the passenger's privacy interest must be balanced against the valid concerns for officer and public safety. Mendez, 137 Wn.2d at 219. Our Supreme Court articulated this balance in Mendez:
An officer must therefore be able to articulate an objective rationale predicated specifically on safety concerns, for officers, vehicle occupants, or other citizens, for ordering a passenger to stay in the vehicle or to exit the vehicle to satisfy article I section 7. This articulated objective rationale prevents groundless police intrusions on passenger privacy. But to the extent such an objective rationale exists, the intrusion on the passenger is de minimis in light of the larger need to protect officers and to prevent the scene of a traffic stop from descending into a chaotic and dangerous situation for the officer, the vehicle occupants, and nearby citizens.
Mendez, 137 Wn.2d at 220. To facilitate determinations about whether there is an objective safety rationale, the Supreme Court articulated a factor test: the number of officers, the number of vehicle occupants, the behavior of the occupants, the time of day, the location of the stop, traffic at the scene, affected citizens, or officer knowledge of the occupants. Mendez, 137 Wn.2d at 220-21. The factors are not exclusive; nor does any one factor alone justify an officer's seizure of a passenger at a traffic stop. Mendez, 137 Wn.2d at 221.
Officer Cierley's articulations of his safety concerns suggest that an objective rationale based on safety concerns existed. See Mendez, 137 Wn.2d at 224 (looking to the officer's testimony that he did not have safety concerns, as well as the factors, in holding that the seizure was invalid). He testified that as Pratt was exiting the vehicle, he had a specific concern that Pratt would shoot the officers:
In my training and experience, when a vehicle is rolling, a patrol vehicle is behind him with lights and siren on, and the door starts to open, usually one of two things occur in my opinion.
. . .
I am looking for someone to come out and start to shoot at the patrol vehicle. That's what I am concerned about.
He also explained that the circumstances posed a threat to him.
Many of the Mendez factors are here as well, and suggest the existence of an objective rationale predicated on safety concerns. The events took place late at night — at approximately 2:30 a.m. The location of the stop was a dark alley. Neither officer could see inside the vehicle to determine the number of occupants. Neither Officer Cierley nor Officer Espinoza initially called for back up, so only two officers were present at the scene when the vehicle stop occurred. Additionally, the officers knew that the occupants had quickly left the parking lot from which a disturbance call originated and, instead of pulling over immediately once the officers activated the lights, they had taken evasive turns and accelerated away from the patrol car.
The factual circumstances here are distinguishable from those in Mendez, where the court found that the officer did not have an objective rationale to detain a passenger. Mendez, 137 Wn.2d at 224. The stop occurred in broad daylight. Id. at 225. Two officers pulled a car over after it had run a stop sign, and the passenger got out of the car as it stopped and began to walk away. Id. at 212-13. At this point, one of the officers seized him. Id. The court focused on the fact that the vehicle complied with the patrol car once it had activated its lights, and that the passenger had done nothing to arouse suspicion or threaten the officers' safety. Id. at 212-13; 224-25. Lastly, the court emphasized that the officers' testimony did not reveal that the situation posed a threat to their safety. Id. at 226.
Here, Officer Cierley's testimony and the Mendez factors establish that an objective safety rationale exists. Officer Cierley lawfully seized Pratt, and the trial court's denial of Pratt's motion to suppress was correct.
Finding that Officer Cierley articulated an objective rationale based specifically on safety concerns, we do not determine whether the decision to detain Pratt also constituted an appropriate Terry stop.
II. Entry of Findings of Fact and Conclusions of Law
Pratt claims that the trial court erred in failing to enter written findings of fact and conclusions of law on his CrR 3.6 motion. CrR 3.6 states that "[i]f an evidentiary hearing is conducted, at its conclusion the court shall enter written findings of fact and conclusions of law." Although the CrR 3.6 hearing occurred in October 2007, the trial court did not enter findings of fact and conclusions of law until August 15, 2008. At that point, Pratt had already filed his opening brief.
This court will find error if the appellant shows that he was prejudiced by delay of the entry of the findings and conclusions or that the findings and conclusions were tailored to meet the issues presented on appeal. State v. Glenn, 140 Wn. App. 627, ¶ 22, 166 P.3d 1235 (2007). We will also reverse if the trial court does not enter findings and conclusions at all. See State v. McGary, 37 Wn. App. 856, 861, 683 P.2d 1125, (noting that the primary purpose of requiring findings is to allow the appellate court to fully review the questions raised on appeal).
Here, the findings of fact and conclusions of law, though entered late, do not vary from the trial court's oral ruling, demonstrating that they are not tailored for this appeal. The prosecuting attorney also filed a declaration a few days after the trial court had submitted its findings and conclusions, stating that she had no knowledge of the appellate issues, and that she had drafted the findings of fact and conclusions of law based on the transcripts of the suppression hearing.
We hold that Pratt has not demonstrated prejudice from the delayed entry of written findings of fact and conclusions of law on the CrR 3.6 motion.
We affirm.