Opinion
No. 28149-3-III.
July 15, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Yakima County, No. 08-8-01682-1, Blaine G. Gibson, J., entered April 13, 2009.
Reversed by unpublished opinion per Sweeney, J., concurred in by Kulik, C.J.; Korsmo, J., dissenting.
This is a prosecution for possession of marijuana, use of drug paraphernalia, and obstructing an officer. The trial judge concluded that the defendant's location in a high crime area, her furtive and suspicious conduct, and her refusal to follow police instructions were sufficient to support the officer's seizure and subsequent search of the defendant. We see neither the particularized suspicion of criminal activity nor the requisite objective and reasonable belief that the defendant here was armed and dangerous sufficient to support the warrantless seizure or the subsequent search. And we then reverse the trial court and dismiss the prosecution.
FACTS
Someone called police and complained about skateboarders in a city park in Toppenish, Washington. A police officer responded. The park was described as a high crime area and one known for gang and drug activity. The officer arrived at the park as the skateboarders were leaving. The officer saw people he knew were gang members sitting at a picnic table marked with gang-related graffiti. He recognized the members from "previous activity, gang activity, suspicious circumstances, assaults[, and] things like that." Report of Proceedings (RP) at 8.
The officer approached the group. One of them, Juan Rivas, Clarissa Rivas's brother, got up on top of the table and obstructed the officer's view of the others. The officer saw furtive movements from the people around the table and became concerned for his safety. He then ordered the people to remove their hands from their pockets. The people at the table complained to the officer that he was harassing them. Everyone but Clarissa Rivas complied with the officer's order to take their hands out of their pockets. The officer ordered Ms. Rivas to remove her hands from her pockets at least three times. The officer saw a wire hanging from her pocket. Ms. Rivas told the officer that he could not search her because she was female. The officer then arrested Ms. Rivas for obstructing.
The officer handcuffed Ms. Rivas and sat her down on the edge of the cement picnic area. The officer waited for backup to conduct the search in front of a video camera mounted in his patrol car. He noticed that Ms. Rivas slipped one hand out of her handcuffs and into her pocket. The officer stood her back up and again put the handcuffs on her. He discovered a glass pipe with burnt residue that smelled like marijuana on the ground where she was sitting. Backup arrived. The officer then searched Ms. Rivas and discovered marijuana in her pocket.
The State charged Ms. Rivas with possession of marijuana, use of drug paraphernalia, and obstructing a law enforcement officer. Ms. Rivas moved to suppress the drug evidence. The officer testified that the park was used for gang and drug activity. The court did not find that the park was used for gang or drug activity. The officer testified that the people at the table were gang members. The court did not find that they were gang members. The court concluded that the officer had a reasonable suspicion of criminal activity and denied Ms. Rivas's motion to suppress the drug evidence. The court found Ms. Rivas guilty on all counts.
DISCUSSION
Ms. Rivas contends that the court should have suppressed the drug evidence because the State failed to show that the officer had a reasonable suspicion of criminal activity or that she was otherwise a threat to him. The State responds that the totality of the circumstances here suggests otherwise.
Both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution guarantee a right to be free from unreasonable searches and seizures apart from a few well-established and delineated exceptions. State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1998). These include searches made during a valid investigative stop. State v. Duncan, 146 Wn.2d 166, 171-72, 43 P.3d 513 (2002). For an investigative stop to pass constitutional muster,
the State must show that (1) the initial stop is legitimate; (2) a reasonable safety concern exists to justify the protective frisk for weapons; and (3) the scope of the frisk is limited to the protective purposes.
Id. at 172. A stop is justified if an officer has "a reasonable, articulable suspicion, based on specific, objective facts, that the person has committed or is about to commit a crime." Id. And an officer is justified in taking protective measures, such as a warrantless search, where the officer can point to "specific articulable facts that create an `objectively' reasonable belief that a suspect is armed and `presently' dangerous." State v. Xiong, 164 Wn.2d 506, 514, 191 P.3d 1278 (2008).
We review conclusions of law from a suppression hearing de novo. State v. Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009).
Ms. Rivas challenges the court's conclusions that police had sufficient cause to detain Ms. Rivas by ordering her to remove her hands from her pockets, and to subsequently search her. The court based its conclusion on the officer's knowledge of prior gang activity by the people present, their location (a high crime area), and the furtive movements by those around the picnic table.
First, the area was a public park where these people and anyone else had a right to be. State v. Larson, 93 Wn.2d 638, 645, 611 P.2d 771 (1980) ("It is beyond dispute that many members of our society live, work, and spend their waking hours in high crime areas, a description that can be applied to parts of many of our cities. That does not automatically make those individuals proper subjects for criminal investigation."). So Ms. Rivas correctly points out that mere presence in this area was not enough to justify an investigative seizure. State v. Martinez, 135 Wn. App. 174, 180, 143 P.3d 855 (2006); State v. Doughty, 148 Wn. App. 585, 589, 201 P.3d 342, review granted, 166 Wn.2d 1019 (2009).
Second, a major premise of our criminal justice system is that we as a society will punish people for what they do, not who they are. Robinson v. California, 370 U.S. 660, 666, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962). So, while gangs are certainly a problem, this system will, and must, punish people not because they choose to associate with a gang but because they or their group engage in criminal activity — specific, identifiable criminal activity, as opposed to some vague suspicion (no matter how well founded) that these people are up to no good. There is no showing on this record of that particularized suspicion of criminal activity. A protective frisk is justified only when the officer can point to "specific and articulable facts" that create an objective, reasonable belief that the suspect is armed and dangerous. State v. Lennon, 94 Wn. App. 573, 580, 976 P.2d 121 (1999).
Dawson v. Delaware, 503 U.S. 159, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992).
State v. Rowell, 144 Wn. App. 453, 457, 182 P.3d 1011 (2008).
The State agrees that Ms. Rivas was seized when the officer told the group to remove their hands from their pockets. RP at 47. So, of course, State v. Nettles is inapposite since there the essential question was whether the defendant was seized. The court concluded he was not. Nor is City of Seattle v. Hall helpful. There, the defendant voluntarily approached the officer. That did not happen here and no one suggests that it did. Incidentally, what is not at issue here is the propriety of the officer's conduct as good police practice. And we do not pass on that. What is at issue here is the constitutional implications of that conduct, i.e., whether the drugs and paraphernalia he seized are admissible as evidence on behalf of the State in its criminal prosecution of Ms. Rivas.
State v. Nettles, 70 Wn. App. 706, 711-12, 855 P.2d 699 (1993).
City of Seattle v. Hall, 60 Wn. App. 645, 651, 806 P.2d 1246 (1991).
As to the requirement of reasonable suspicion of criminal activity, there is no showing of a particularized suspicion of any criminal activity. Doughty, 148 Wn. App. at 589. And that is what is required. A general showing of a suspicion that these kids were generally up to no good (valid as it might be) is not sufficient to support the seizure or subsequent search. Id. And, while they may have been members of a gang in a high crime area, no one points to suspicion of any criminal activity, let alone a reasonable suspicion of specific criminal activity.
As to the concerns of threats to the officer, here the officer saw no weapons; no one suggested the use of weapons or other particularized threats to the officer. The test is rigorous. The officer must point to "specific articulable facts that create an `objectively' reasonable belief that a suspect is armed and `presently' dangerous." Xiong, 164 Wn.2d at 514. No one suggests that is the case here. Obstructing Charge
This brings us to the final question — whether these people were obstructing the officer from his official duties. Investigation and the right to investigate assume some suspicion — reasonable suspicion of criminal activity. State v. Barnes, 96 Wn. App. 217, 224, 978 P.2d 1131 (1999). That is missing here. And so the State can hardly argue that the officer was discharging his lawful police duties. Id.
It is unlawful to hinder, delay, or obstruct a law enforcement officer in the discharge of his official powers or duties. RCW 9A.76.020(1). A refusal to follow police directions may constitute hindrance, delay, or obstruction. See State v. Little, 116 Wn.2d 488, 806 P.2d 749 (1991) (refusal to stop fleeing when requested was hindrance). But the wording of the statute assumes the defendant obstructed police exercising a lawful duty.
Here, there was no reasonable suspicion of criminal activity and therefore there was nothing for this officer to investigate. At the end of the day, we have suspected gang members in a park, not engaged in anything that can be characterized, or was characterized, by the officer as criminal activity. Furtive movements and hands in pockets may justifiably make an officer nervous but they again do not provide the necessary objective reasonable suspicion required by this "jealously guarded" exception to the requirement of probable cause and a warrant. State v. Ladson, 138 Wn.2d 343, 349-50, 979 P.2d 833 (1999). There was nothing to investigate. And there was then no lawful police duty to obstruct. Barnes, 96 Wn. App. at 224-25. The court erred in finding Ms. Rivas guilty of obstruction.
Holding
We reverse the juvenile court adjudications and dismiss the prosecution.
A majority of the panel has determined that 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.
KULIK, C.J., concur.
The primary issue presented by this appeal involves whether Clarissa Rivas obstructed an officer in the performance of his official duties. I agree with the trial court that she did and would therefore affirm the juvenile court adjudications for obstructing a public servant, possession of marijuana, and possession of drug paraphernalia. Since the majority decides otherwise, I respectfully dissent.
Ms. Rivas argues that she was unlawfully seized by the order to display her hands, and subsequently was illegally arrested for obstruction. I will address each claim in turn.
Seizure. Ms. Rivas contends that the officer lacked authority to seize her, while the State contends that the officer reasonably acted to ensure his safety during an investigation. An officer may seize a person to investigate possible criminal activity if the officer has an articulable suspicion, based on objective facts, that a person has or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986).
An officer also has the ability to maintain his personal safety and can frisk a subject or conduct a brief search for weapons if there is an articulable reason for believing they may be present. Terry, 392 U.S. at 21. Cases have also recognized that instead of patting a person down, an officer can take the less intrusive step of having the subject person keep his hands in plain sight. E.g., State v. Nettles, 70 Wn. App. 706, 709-712, 855 P.2d 699 (1993), review denied, 123 Wn.2d 1010 (1994); City of Seattle v. Hall, 60 Wn. App. 645, 806 P.2d 1246 (1991). In Nettles, a man was contacted on a street by an officer and agreed to talk to her. The officer directed the man to take his hands out of his pockets. The court concluded that the directive was permissible and did not even amount to a seizure under the circumstances. Nettles, 70 Wn. App. at 712. Similarly in Hall, an officer approached a man who had just left a "huddle" of other men in an area of known drug trafficking. The man kept his hands in his pockets and acted "antsy" and "nervous." The court concluded that the officer could pat him down since the behavior caused legitimate concern for officer safety. Hall, 60 Wn. App. at 647, 651.
The facts known to Officer Hawkins when he approached the group were that the five were gang members, sitting at a table marked with gang graffiti, in a park known for gang and drug activity. As he approached them, one person acted to block his view of the others, all of whom were putting their hands in their pockets. This furtive activity justified the order to have the five youths display their hands. Nettles. The group was trying to hide something from the officer. Under these circumstances, the officer was justified in having them display their hands to ensure that no one was about to draw a weapon of some type. If there was a seizure here, and Nettles suggests there was not, it nonetheless was proper under the facts articulated by the officer and found by the trial court.
I agree with the trial court that Officer Hawkins had articulable suspicion justifying the order that Ms. Rivas take her hands out of her pockets. The motion to suppress was correctly denied.
Arrest. Ms. Rivas challenges her arrest for obstructing a public servant on the basis that she was not lawfully seized, arguing that one cannot obstruct a public servant who is performing an illegal act. State v. Barnes, 96 Wn. App. 217, 225, 978 P.2d 1131 (1999). Her argument runs afoul of governing Washington Supreme Court precedent.
One obstructs an officer when she "willfully hinders, delays, or obstructs" the officer "in the discharge of his or her official powers or duties." RCW 9A.76.020(1). Ms. Rivas argues that an illegal seizure does not constitute "official powers or duties." The case law holds otherwise.
In State v. Hoffman, 116 Wn.2d 51, 804 P.2d 577 (1991), a defendant argued that an officer was not performing his official duties because the officer had (allegedly) illegally attempted to arrest the defendant without a warrant. Id. at 99-100. Our court disagreed, ruling that as long as the officer was not engaged in a "frolic of his or her own," the officer was still performing his official duties even if the arrest was improper or had even lacked probable cause. Id. at 100. State v. Mierz, 127 Wn.2d 460, 901 P.2d 286 (1995), involved a similar claim by a defendant who argued that he was not guilty of assault because the officers he attacked were trespassing on his property in violation of the Fourth Amendment. Our court again disagreed, holding that officers were still performing official duties even if they were acting outside the strictures of the constitution. Id. at 473-476. In State v. Valentine, 132 Wn.2d 1, 935 P.2d 1294 (1997), the court, rejecting an old common law rule, determined that a person cannot respond to police illegality by performing a criminal act in return. Id. at 21.
These cases stand for the proposition that an officer's improper or even illegal action does not justify an illegal response. One illegal act does not authorize or excuse another one. An officer must be on a "frolic" beyond the scope of his official duties before he is not acting within his powers. An officer's incorrect assessment of the facts or of his lawful authority does not a frolic make.
Applying the noted authorities, Officer Hawkins was performing his "official duties" when he contacted Ms. Rivas and her associates. Thus, even if he had illegally detained Ms. Rivas, it would not have negated her own illegal response. Her repeated refusal to remove her hands from her pockets, and the later effort to escape the handcuffs, constituted obstruction of a public servant.
The obstructing statute, RCW 9A.76.020, stands in contrast to the resisting arrest statute, RCW 9A.76.040, in which the lawfulness of the arrest is an element of the crime that must be established by the prosecution. RCW 9A.76.040(1).
The cases relied upon by the majority are not persuasive on this point. Barnes, which is factually similar to this case, determined that a person is not guilty of obstructing an officer if the officer lacks grounds to detain him. 96 Wn. App. at 224. It allegedly finds support for this proposition in the lead opinion in State v. Little, 116 Wn.2d 488, 806 P.2d 749 (1991). However, the Little opinion never even addressed the topic. At issue in Little was the validity of stopping non-residents who were allegedly trespassing on public housing property. Several people who fled from police were convicted of obstructing a public servant and appealed, challenging the validity of their detentions. Id. at 492-495. The plurality lead opinion found that there was articulable suspicion for investigating the crime of trespassing and upheld the convictions for obstructing a public servant. Id. at 496-498. The court did not address whether or not the defendants could lawfully still be convicted of obstructing a public servant for fleeing an unlawful detention. The question was not presented by the majority's disposition of the case. Barnes, however, concluded that because Little had upheld the validity of the stops and the accompanying convictions, a valid stop was essential to a conviction for obstructing a public servant. The Little case simply does not support that proposition. Subsequent to Little, the Washington Supreme Court has several times addressed the issue of a criminal act in response to allegedly illegal police action. See Mierz, supra; Hoffman, supra; Valentine, supra. Little simply is not apropos. Barnes erred in relying upon it.
Barnes was a split decision. Judge Brown in dissent argued that the officer was acting in the course of his official duties while checking on Mr. Barnes's warrant status. 96 Wn. App. at 225-227.
The three judges in the concurrence simply stressed the facts that justified the seizure for trespass in those cases. 116 Wn.2d at 498-499 (Guy, J., concurring).
The important issue the parties needed resolved in Little concerned the validity of the "no trespass" policy at public housing complexes. The parties were not concerned with the consequences of fleeing allegedly illegal detentions. Hence, the court was not presented with the issue and did not address it.
It is quite possible to obstruct a public servant without being involved in a stop or a seizure. For instance, someone who lies to an officer filling out an accident report would be guilty of obstructing. Nessman v. Sumpter, 27 Wn. App. 18 94 Wn.2d 1021, 22, 615 P.2d 522, review denied, (1980).
Interestingly, Barnes cited Nettles with approval for the proposition that directing someone to remove his hands from his pockets does not constitute a seizure. 96 Wn. App. at 222. The Barnes conclusion that an accumulation of actions could convert a voluntary encounter into a detention also foreshadowed State v. Harrington, 167 Wn.2d 656, 222 P.3d 92 (2009).
Because any seizure was justified and because Ms. Rivas was not privileged to respond illegally even if it had not been proper, I agree with the trial court that the defendant obstructed the officer in the performance of his official duties. The arrest was proper and the evidence derived from the arrest could be used against her.
I also would hold that the evidence of drug paraphernalia possession was sufficient, a topic that the majority does not address in light of its disposition of the case.
I would affirm. Since the majority concludes otherwise, I respectfully dissent.