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State v. Sudduth

The Court of Appeals of Washington, Division One
Mar 10, 2008
143 Wn. App. 1031 (Wash. Ct. App. 2008)

Opinion

No. 59557-1-I.

March 10, 2008.

Appeal from a judgment of the Superior Court for King County, No. 05-1-09647-7, Michael J. Fox, J., entered February 16, 2007.


Affirmed by unpublished per curiam opinion.


A sheriff's deputy believed Kenneth Sudduth matched the description of a reported possible car prowler. When the deputy approached Sudduth, who sat in the driver's seat of a parked car, the deputy saw the ignition punched, wires exposed, and tools strewn all about the car, including a screwdriver on the front passenger seat. In order to get complete view of the car's vehicle identification number (VIN), the deputy asked Sudduth to step out of the vehicle. The deputy then noticed what appeared to him to be scissors sticking out of Sudduth's pocket. Conducting a subsequent protective frisk for weapons, the deputy discovered that the scissors were actually forceps. The deputy also removed other hard objects that he believed could be weapons. In doing so, he discovered a glass pipe, methamphetamine, and a scale. The methamphetamine and scale were in an open bag that fell out of Sudduth's pocket as the deputy removed a wrench from Sudduth's coat pocket. We conclude the detention of Sudduth was reasonably related in scope to the circumstances justifying the detention and that the deputy did not exceed the lawful scope of a protective search. Thus, we affirm the trial court's decision denying the motion to suppress evidence obtained subsequent to the warrantless search.

In his brief, Sudduth notes that he testified that the ignition in the vehicle was not missing, and notes that the pictures the deputy took of the scene did not show a missing ignition. However, Sudduth does not assign error to the trial court's factual findings that the deputy's testimony was credible, the ignition was punched, and the wires exposed. Unchallenged findings of fact are verities on appeal. State v. Bray, No. 25858-1-III, 2008 WL 362994, at *2 (Wash.Ct.App. Feb. 12, 2008); see also State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (we do not review on appeal the trial court's credibility determinations).

I.

Deputy Pelczar was called to a report of a suspicious male peering into cars in an apartment complex on Vashon Island around 1:12 a.m. on June 1, 2005. The male was described as white, in his 50s, with brown, thin hair and a green shirt. The deputy, working alone, arrived on the scene and saw a vehicle with Virginia license plates parked on the side of the road near the complex. The deputy believed that Sudduth, who was in the driver's seat of the vehicle, matched the description of the suspect car prowler. Sudduth also was wearing a heavy "Carhart-type jacket" that could easily conceal a weapon. The deputy conducted a computer search of the vehicle's license plates but could not find any record for the vehicle. The plates also looked as if their tabs had been scratched off.

As the deputy approached the vehicle on the driver's side, he saw tools strewn inside the vehicle, including a screwdriver on the front passenger seat. The deputy testified that seeing the screwdriver was significant because "first, these types of tools can be used to actually commit the theft or to tear apart the ignition and steal a car. Second, what caused me concern, these tools can also be used as weapons, primarily a screwdriver."

The deputy, believing that the vehicle might be stolen, wanted to check the VIN, which is located on the dashboard and also in the driver's door or interior of the door frame. Condensation on the windshield prevented the deputy from reading the VIN on the dashboard. Because "[t]o bend over and squat while Mr. Sudduth is sitting in the car with access to weapons close by put myself in an extremely vulnerable position," the deputy asked Sudduth to step out of the car.

As Sudduth got out, the deputy saw what appeared to be the tips of scissors poking out of a hole from Sudduth's back pocket. For his own safety, the deputy conducted a pat-down search. He first removed the scissors, discovering that they were forceps. He then felt two hard objects in Sudduth's jacket pocket. One was long, the other was box-shaped. The deputy testified that he believed the long object could be a weapon, such as a screwdriver. The deputy removed the items and found that they were a digital camera and a glass pipe with residue later identified as methamphetamine.

As the deputy patted down the other jacket pocket, he felt a six-to eight-inch-long hard object and also a large bundle of keys. Feeling that the hard object might be a knife or a dangerous tool, the deputy worked it out of the pocket. The object turned out to be a wrench. Entangled with the wrench were the keys and the strings of a cloth bag. The bag fell open and the deputy could see that it contained a scale and a substance that appeared to be methamphetamine in quarter-size baggies. Sudduth was arrested and advised of his rights. He subsequently admitted to the deputy that the substance in the baggies was methamphetamine.

The State charged Sudduth with possession with intent to deliver methamphetamine. Sudduth unsuccessfully moved to suppress all evidence, contending that the deputy's actions exceeded the permissive scope of a Terry stop.

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

II.

We first address Sudduth's three challenges to the trial court's findings of fact that were entered in support of its ruling on the suppression motion. In reviewing findings of fact entered following a motion to suppress, this court reviews only those facts to which error has been assigned. State v. Glenn, 140 Wn. App. 627, 639, 166 P.3d 1235 (2007) (citing State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994)). "`Where there is substantial evidence in the record supporting the challenged facts, those facts will be binding on appeal.'" Glenn, 140 Wn. App. at 639 (quoting Hill, 123 Wn.2d at 647). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).

Sudduth challenges the following findings:

6. . . . .As the defendant got out the deputy saw a pair of scissors sticking out of the defendant's back pocket.

7. Seeing the scissors and the screwdriver the deputy conducted a patdown for officer safety. He first removed the scissors and saw that they were similar to forceps.

8. . . . .He believed [a hard, cylindrical object and a hard square object in the defendant's jacket pocket] could be weapons.

Substantial evidence in the record supports finding of fact 6 only in that the deputy believed he saw a pair of scissors sticking out of the defendant's back pocket as he got out of the vehicle. The evidence further established that the item was actually forceps.

Sudduth challenges finding of fact 7 only to the extent it implies that the forceps were scissors. It was undisputed at the hearing that the item the deputy believed to be scissors were actually forceps, but that the deputy did not realize this until after he removed the item and examined it closer.

Substantial evidence in the record supports finding of fact 8 only as to the hard, cylindrical object. Deputy Pelczar testified that he felt two objects in Sudduth's front right jacket pocket. The deputy testified that the first object was a four-inch-long hard object with a bulb at one end. When asked whether he had a concern that this object might be a weapon, the deputy testified, "Yes, it's very common for auto thieves to carry punches, screwdrivers, and this felt very much like a screwdriver." The object turned out to be the pipe containing methamphetamine residue.

When asked what he did after removing the pipe, the deputy testified that "[t]here was also another hard object in the right jacket pocket, a box in shape. I removed that, too, and it turned out to be a digital camera." Nothing in the record supports a finding that the deputy believed that the hard square object could be a weapon.

We hold that the record does not support the trial court's findings insofar as they recite that scissors were actually found and removed from Sudduth's pocket. We also hold that, although the record does not support the finding that the deputy believed the box-shaped object to be a weapon, the record does support the finding that the deputy believed that the item that turned out to be the pipe could be a weapon upon feeling it.

III.

Notwithstanding these discrepancies in the trial court's findings of fact, we hold that the trial court properly denied the motion to suppress.

We review de novo conclusions of law in an order denying a suppression motion. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003).

The Fourth Amendment and article I, section 7 of our state constitution prohibit unreasonable searches and seizures. State v. Day, 161 Wn.2d 889, 893, 168 P.3d 1265 (2007). As a general rule warrantless searches and seizures are per se unreasonable, and the State bears the burden of demonstrating the applicability of a recognized exception to the rule. Day, 161 Wn.2d at 893-94. One such exception is that officers may briefly stop and detain a person they reasonably suspect is, or is about to be, engaged in criminal conduct. Day, 161 Wn.2d at 893. This is often referred to as a " Terry stop." Day, 161 Wn.2d at 893 (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).

Here, Sudduth concedes that the circumstances provided the deputy with an adequate basis to conduct a Terry stop to investigate whether the vehicle was stolen. However, he contends that the deputy exceeded the permissible scope of the detention by removing Sudduth from his car, rather than first asking Sudduth to identify himself and explain the circumstances.

The scope of a permissible Terry stop will vary with the facts of each case. State v. Bray, No. 25858-1-III, 2008 WL 362994, at *3 (Wash.Ct.App. Feb. 12, 2008). The question presented to us is whether the deputy's actions in asking Sudduth to get out of the vehicle was "reasonably related in scope to the circumstances which justified the interference in the first place." State v. Williams, 102 Wn.2d 733, 739, 689 P.2d 1065 (1984); Bray, 2008 WL 362994, at *3.

"`The fact that the protection of the public might, in the abstract, have been accomplished by `less intrusive' means does not, itself, render the search unreasonable.'" United States v. Sharpe, 470 U.S. 675, 687, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985) (quoting Cady v. Dombrowski, 413 U.S. 433, 447, 93 S. Ct. 2523, 2531, 37 L. Ed. 2d 706 (1973)). "The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it." Sharpe, 470 U.S. at 687; see State v. Mackey, 117 Wn. App. 135, 139, 69 P.3d 375 (2003).

To support his contention, Sudduth relies on Williams and State v. Johnston, 38 Wn. App. 793, 690 P.2d 591 (1984). But each of these cases is distinguishable. In Williams, a police officer responded to a report of a residential burglar alarm sounding and saw a vehicle that was parked in front of the residence turn on its headlights and start to move. Williams, 102 Wn. 2d at 734. The officer called for backup, used his patrol car to block the suspect vehicle, and told the driver to shut the car off, throw the keys outside, and put his hands on the interior roof of the car. Williams, 102 Wn.2d at 734-35. When other officers arrived, Williams was ordered out of the vehicle, patted down, handcuffed, advised of his rights, and placed in the back seat of one of the patrol cars. Williams, 102 Wn.2d at 735. Then police investigated the house, began asking Williams questions, and searched his vehicle. Williams, 102 Wn.2d at 735.

On appeal, our Supreme Court concluded that the police actions exceeded the proper purpose and scope of a Terry stop. Williams, 102 Wn.2d at 741. The court reasoned that the amount of intrusion was significant and the police could not articulate a reason for believing that Williams was dangerous. Williams, 102 Wn.2d at 740. The court also noted that the detention was not related to an investigation focused on Williams and that such a relationship is essential. Williams, 102 Wn.2d at 740-41.

Here, the investigation was completely focused on Sudduth. Also, unlike the police in Williams, Deputy Pelczar in the present case did articulate a reason for believing that Sudduth was dangerous. He matched the general description of the suspected car prowler. Sudduth sat in the driver's seat of a vehicle with a punched ignition and wires exposed. Tools were strewn about the car, including a screwdriver on the passenger seat that could be used as a weapon. The deputy testified that this caused him concern for his safety. It is true that the deputy could have first asked Sudduth to identify himself and explain the situation, but it was not unreasonable, given the circumstances, for the deputy to desire to check the VIN and to ask Sudduth to step out of the vehicle while this took place. This hardly constituted the type of significant intrusion discussed in Williams.

In Johnston, a police officer saw a person crouched down behind a vehicle and move toward the house while appearing to be carrying something. With additional police surrounding the house, the officer drew his revolver and knocked on the door of the house. Johnston and two others came to the door and were ordered outside at gunpoint and placed "under control." The officer then entered the house and found the person he had first observed and also a light fixture that appeared to be the object that the person had been carrying. That person told police he was carrying the light for Johnston, who told police the light may have come from a burglary at a nearby school. Johnston, 38 Wn. App. at 795-96. On appeal, the court held that because the officer "did not use the least intrusive means reasonably available to verify or dispel his suspicion that a burglary was being committed, he violated the Fourth Amendment." Johnston, 38 Wn. App. at 799. However, this holding preceded the United States Supreme Court's decision in Sharpe, holding that the existence of a less intrusive alternative means does not, by itself, render the search unreasonable. See Mackey, 117 Wn. App. at 139 ("The means of investigation need not be the least intrusive available.") (citing Sharpe, 470 U.S. at 687).

In the present case, unlike in Johnston, there was evidence suggesting that a crime had been, or was being, committed. Furthermore, unlike the officer in Johnston, Deputy Pelczar did not detain Sudduth at gunpoint. The deputy simply asked Sudduth to get out of the vehicle.

While there was no evidence that officer safety was a concern in Williams and Johnston, here there was evidence that officer safety was a concern. Deputy Pelczar's actions did not exceed the permissible scope of a Terry stop by asking Sudduth to get out of the vehicle, thus separating him from the screwdriver on the passenger seat.

IV.

Sudduth next challenges the validity and scope of the protective frisk. A Terry stop-and-frisk is justified when (1) the initial stop is legitimate; (2) there is a reasonable safety concern justifying a protective frisk for weapons; and (3) the scope of the frisk is limited to the protective purposes. State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993). 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. Terry, 392 U.S. at 21-22; Collins, 121 Wn.2d at 173.

Generally courts are reluctant to second-guess the judgment of officers in the field and will uphold the validity of most frisks that arise from a founded suspicion that is neither arbitrary nor harassing. Collins, 121 Wn.2d at 173. The suspicion must be founded, however, on facts specific to the individual suspect. State v. Lennon, 94 Wn. App. 573, 580, 976 P.2d 121 (1999); State v. Walker, 66 Wn. App. 622, 626, 834 P.2d 41 (1992). The officer must articulate specific facts from which he or she reasonably inferred that a particular suspect was armed and dangerous. Walker, 66 Wn. App. at 629-30 (citing State v. Smith, 102 Wn.2d 449, 452, 688 P.2d 146 (1984)).

Again, the two cases Sudduth relies on, Walker and Lennon, are distinguishable. In Walker, the appellate court found a protective frisk of the suspect was unjustified where the officer testified that he was concerned for his safety because he was alone in an isolated area when, in fact, another officer was present when the pat-down search began. The court also noted that the frisk occurred on a residential sidewalk in the middle of the afternoon and the lone suspect was clad in a T-shirt. The court considered the fact that the officer did not articulate any specific facts which led him to believe the suspect was armed and dangerous. The court also gave examples of facts that were absent in the record: "that appellant ignored requests to stop, fled at the officer's approach, made furtive gestures or threats, that the facts of the suspected crime justified assuming the suspect was armed and dangerous, or that the suspect's clothing was such that weapons could easily have been concealed." Walker, 66 Wn. App. at 631.

In Lennon, the appellate court held that a frisk was not justified where the suspect arrived at a drug dealer's motel room during the execution of a search warrant. Lennon, 94 Wn. App. at 575, 581. The court rejected the State's contention that a pat-down search of the suspect, conducted immediately after he was invited into the motel room by a detective who knew the suspect, was justified because police were accustomed to finding weapons at locations where narcotics search warrants were executed. Lennon, 94 Wn. App. at 580. The court reasoned that there were no facts to support an individualized suspicion that Lennon was armed or presently dangerous. The court also noted that Lennon did not appear nervous, try to flee, or make furtive gestures. Lennon, 94 Wn. App. at 581.

Here, Sudduth correctly notes that there was no evidence that he appeared nervous, tried to flee, or made furtive gestures. However, neither Walker nor Lennon stands for the proposition that evidence of nervousness, flight, or furtive movements are required to justify a protective search. If such evidence exists, it may well justify a protective frisk, but the absence of such evidence does not necessarily mean that the frisk was unjustified.

Instead, the concern is whether there were facts to support an individualized suspicion that the suspect was armed or presently dangerous. Here, such facts existed. Deputy Pelczar reasonably believed that the vehicle was stolen and that the occupant matched the description of the suspected vehicle prowler. The deputy, working alone around 1 a.m., saw tools strewn inside the vehicle, including a screwdriver on the front passenger seat that could be used as a weapon. Sudduth wore a type of coat that could conceal weapons. Under these circumstances, the deputy's belief that Sudduth could present a danger was reasonable. Thus, the deputy was justified in conducting a protective frisk, even after discovering that what he thought to be scissors was actually forceps.

Sudduth next contends that even if the protective frisk was justified, the search was not limited to its protective purpose. If, during the pat-down search, it is ascertained that the item in question is not a weapon, the government's limited authority for a protective frisk is spent. State v. Hudson, 124 Wn.2d 107, 113, 874 P.2d 160 (1994). However, when the result of the pat down is inconclusive as to whether an item may or may not be a weapon, the officer may only take action as is necessary to examine such object. Hudson, 124 Wn.2d at 112-13 (citing Terry, 392 U.S. at 30).

Sudduth, relying on State v. Loewen, 97 Wn.2d 562, 647 P.2d 489 (1982), contends that the deputy could not have reasonably believed that the pipe was a weapon because of its size and shape. In Loewen, the officer, conducting a protective frisk, felt a two-by-one-half-inch tubular shaped object in the defendant's pocket, which turned out to be a cocaine sniffer. Loewen, 97 Wn.2d at 564. Our Supreme Court concluded that removal of the sniffer, which was a little smaller than a lipstick container, exceeded the reasonable scope of the warrantless search because the actual size of the tube coupled with the officer's admitted search for drugs indicated that the search was not limited in scope to the discovery of weapons. Loewen, 97 Wn.2d at 567.

Unlike the object in Loewen, the object in Sudduth's coat was larger. Deputy Pelczar testified that the hard object was four inches long with a bulb at one end. When asked if he was concerned that it might be a weapon, the deputy answered "yes" and then explained that the object felt like a screwdriver.

Sudduth requests, pursuant to RAP 9.8(b), that this court order the actual pipe to be transferred to this court for review in support of his contention that it does not feel like a screwdriver. We decline this request. The issue for the court was what the object felt like in a pat down through the type of coat worn by Sudduth at the time of the frisk. The issue for us is not what the object might feel like in the palms of members of this court.

RAP 9.8(b) provides:

The clerk of the trial court shall transmit to the appellate court exhibits which are difficult or unusually expensive to transmit only if the appellate court directs or if a party makes arrangements with the clerk to transmit the exhibits at the expense of the party requesting the transfer of the exhibits. No weapons, controlled substances, or currency shall be forwarded unless directed by the appellate court.

Sudduth did not assign error to the trial court's factual finding that the deputy believed this object could be a weapon. A photograph of the object is part of the record.

Sudduth also argues that, even if the deputy believed the object was a screwdriver, a screwdriver is not a weapon. This argument is easily dismissed. A screwdriver can easily be used to harm another person. As such, it is a weapon for purposes of our analysis.

Sudduth also contends that the deputy had ample time to remove the object he believed to be a knife without disturbing the keys or the bag that contained the scale and baggies of methamphetamine.

During the course of a protective frisk, a police officer may not intentionally seize items the officer knows not to be weapons. State v. Fowler, 76 Wn. App. 168, 173, 883 P.2d 338 (1994). In that case, the court held that an officer exceeded the scope of a protective frisk when he intentionally tried to remove everything in a suspect's pocket after realizing that the soft items in the pocket were not weapons. Fowler, 76 Wn. App. at 170-73. The court reasoned that the trooper had ample time and opportunity to retrieve a hard object without disturbing softer items that he knew were not weapons. Fowler, 76 Wn. App. at 173.

Here, the deputy testified that he felt the keys in the same pocket as the object he believed to be a knife. But when he tried to remove the hard object, which turned out to be a wrench, it was entangled with the keys and the strings of the bag that contained the scale and baggies of methamphetamine. The trial court found that the scale and drugs inadvertently fell out of the pocket with the wrench. Unlike the trooper in Fowler, the deputy in the present case did not attempt to scoop everything out of the pocket. Thus, the deputy did not exceed the limits of the warrantless search. See Collins, 121 Wn.2d at 171-72 (upholding a protective frisk where a plastic bag containing methamphetamine fell out of a pocket as the officer pulled out a knife from the defendant's pocket).

Because Deputy Pelczar did not exceed the permissible scope of a Terry stop or a protective frisk, the trial court correctly denied the motion to suppress. Accordingly, Sudduth's conviction for possession with intent to deliver methamphetamine is affirmed.


Summaries of

State v. Sudduth

The Court of Appeals of Washington, Division One
Mar 10, 2008
143 Wn. App. 1031 (Wash. Ct. App. 2008)
Case details for

State v. Sudduth

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. KENNETH ANDREW SUDDUTH, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 10, 2008

Citations

143 Wn. App. 1031 (Wash. Ct. App. 2008)
143 Wash. App. 1031