Two WA Supreme Court Decisions on Privacy:

The outcome of this appeal is controlled by the outcome of the co-

defendant's case. Since the Washington Supreme Court has reversed the conviction of

the co-defendant, the conviction in this matter also must be reversed.

Appellant Alice Day and her husband, Charlie Day, were arrested after an officer

investigating a parking infraction searched them and found a weapon. A later search

incident to the arrest discovered evidence of methamphetamine manufacturing activity.

After losing a joint suppression hearing, the Days were separately convicted of

methamphetamine related offenses. The Washington Supreme Court ultimately reversed

Charlie Day's conviction for manufacturing methamphetamine and remanded to the trial

court for further proceedings. State v. Day, 161 Wn.2d 889, 168 P.3d 1265 (2007).

No. 25016-4-III
State v. Day

Alice Day was eventually convicted at a bench trial of possession of

pseudoephedrine with intent to manufacture methamphetamine. Her appeal raises the

same issues as her husband's case. The Washington Supreme Court determined in

Charlie Day's appeal that the officer lacked authority of law to conduct a frisk in the

course of investigating a parking infraction. That ruling requires the same result in this

action.

The conviction is reversed and the case remanded for further proceedings

consistent with the opinion in State v. Day.

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An unlawful pretext stop occurs when an officer stops a vehicle in order to conduct a speculative criminal investigation unrelated to the driving, and not for the purpose of enforcing the traffic code. State v. Ladson, 138 Wn.2d 343, 349, 351, 979 P.2d 833 (1999). Here, after viewing the suspicious behavior of occupants of a van in a parking lot, an officer decided to surveil the parties. The van left the parking lot without its headlights on. The officer followed. After the headlights were turned on a short time later, the officer pulled the van over. We conclude that this constitutes a pretext stop.
Accordingly, we reverse.

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Mainsail wrote:

Can the police randomly stop the driver of a Corvette to make sure he has a driver’s license? No, and he cannot use the rational that the car is capable of going above the speed limit, or that it’s capable of outrunning their Crown Vics. If he sees a Corvette drive past, and there’s no violation of any traffic laws, he must assume that the driver is legal.

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Not completely true. WSP has the power given to them by law to stop and check licenses and/or inspect vehicles. Mind you that this only applies to WSP and no other agency.

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The Fourth Amendment forbids violations of "[t]he right of the people to be secure in their persons, houses, papers, and effects,against unreasonable searches and seizures." The Fourteenth Amendment applies the Fourth Amendment to the states. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). Article I, section 7 reads: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." This provision provides greater protection than the Fourth Amendment, Rankin, 151 Wn.2d at 694, so we cite Washington cases applying article I, section 7 over federal cases applying the Fourth Amendment.

Without probable cause and a warrant, an officer is limited in what he can do. He cannot arrest a suspect; he cannot conduct a broad search. State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994). An officer may, though, frisk a person for weapons, but only if (1) he justifiably stopped the person before the frisk, (2) he has a reasonable concern of danger, and (3) the frisk's scope is limited to finding weapons. State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993). The failure of any of these makes the frisk unlawful and the evidence seized inadmissible.

To justify a frisk without probable cause to arrest, an officer must have a reasonable belief, based on objective facts, that the suspect is armed and presently dangerous. Collins, 121 Wn.2d at 173. Reasonable belief that the suspect is armed and presently dangerous means, "'some basis from which the court can determine that the detention was not arbitrary or harassing.

We do not find such a basis here. The police received an anonymous call claiming Setterstrom was under the influence, heard a lie about his name, and observed his nervous, fidgety behavior. The record shows no threatening gestures or words. Setterstrom did not even stand. At most, the record shows that Setterstrom was under the influence; this is not a crime in itself. Moreover, Setterstrom was lawfully in a public area of the DSHS building, filling out a DSHS benefits form. It seems likely that some people filling out benefits forms exhibit erratic behavior, making employment difficult and benefits applicable. This is not a situation where the officers encountered Setterstrom in a dark alley in a crime-ridden area. See State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). Lt. Stevens has been on the force for 20 years, three of them spent in the narcotics division. He may, of course, rely on this experience in deciding how to act. Id. Surely officers may protect themselves when the situation reasonably appears dangerous, but a frisk is a narrow exception to the rule that searches require warrants. The courts must be jealous guardians of the exception in order to protect the rights of citizens.

Conclusion

We hold that the officer did not have justification to frisk Setterstrom. Unless already holding a suspect legitimately, officers must have some basis beyond nervousness and lying to justify the intrusion of a frisk. The officer
here lacked such a basis.

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Police received a 911 telephone call reporting that a man was attempting to break into a soda vending machine in front of a grocery store. Because the informant did not give sufficient identifying information and the police officers did not see any independent evidence of criminal wrongdoing to corroborate the tip, the officers did not have reasonable suspicion to detain and search Timothy Spangler. The trial court erred in denying Spangler's motion to suppress drugs that the officers found during the unlawful search.

At the CrR 3.6 suppression hearing, one of the arresting officers testified that a man named Michael telephoned 911 at around 8:20 p.m. on April 6, 2005, to report that a man at a nearby grocery store was trying to break into a soda vending machine with a wire. According to the officer, Michael said he worked at the Bartell Drugs store adjoining the grocery store. Michael described the man
as having dark hair and wearing a hat and dark jacket. Two police officers arrived at the grocery store within minutes after receiving the dispatch. Upon arriving, they saw Spangler standing outside the grocery store, about 150 feet away from the vending machine, with a handful of change. He was panhandling. He had brown hair, a hat, and a coat. Police stopped their patrol car directly in front of Spangler and one officer told Spangler to place his hands on the hood. The other officer asked Spangler for identification, learned that he had an outstanding warrant, and arrested him.

After Spangler's arrest, police examined the soda machine near the grocery store. They did not observe any damage. They attempted to speak with the 911 caller, Michael from Bartell's, but learned that he had left for the evening. Police searched Spangler's pockets at the station and found several opium suppositories. The State charged him with possession of opium.

Pretrial, Spangler moved to suppress the opium on the basis that his detention by the police was unlawful because there was no evidence that the informant's tip was reliable. A hearing was held on February 6, 2007. The trial court denied Spangler's motion to suppress and entered written findings of fact and conclusions of law on March 30, 2007. A jury found Spangler guilty as charged. The trial court sentenced Spangler to six months confinement. Spangler appeals.

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Here, the information police knew about Michael (his first name, his job, his business telephone number) is similar to what was known about the father in Sieler (name, telephone number, father of a student) and the informant in Hopkins (name, telephone number, two contacts with police). Police did not know Michael and did not speak with him before they arrested Spangler. What the police learned about Michael after Spangler's arrest is not important. "'The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search." Hopkins, 128 Wn. App. at 865, quoting Florida v. J.L., 529 U.S. 266, 271, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). The trial court erred in concluding that Michael, though unknown, was a reliable informant.

The second aspect of establishing the reliability of a tip is that the details relayed by the informant must have enough objective facts to justify the detention, or the report of criminal activity in the tip must be corroborated by police. Hopkins, 128 Wn. App. at 862-63. Some "underlying factual justification for the informant's conclusion must be revealed so that an assessment of the probable accuracy of the informant's conclusion can be made." Sieler, 95 Wn.2d at 48. In Sieler, the officers did not observe any conduct that corroborated the informant's tip that students were dealing drugs before approaching the car in the school parking lot. "Given the informant's uncertain trustworthiness [and] the absence of any facts known to the police supporting his allegation, . . . the police simply could not have formed a well founded suspicion of criminal activity by the defendants."

Here, the description of the suspect given by Michael was extremely general, far less distinctive than an orange Pinto, and largely innocuous. It is not a stand out detail that a person is wearing a hat and dark jacket on a spring evening, nor that their hair might be dark in color. The State claims, however,that police observed coins in Spangler's hands and that sufficiently corroborated Michael's observation that the man he saw was trying to break into a pop machine. The State omits from its factual account the evidence that Spangler was panhandling when police arrived to investigate. The fact that a panhandler has a handful of change does not do much to corroborate a suspicion that the panhandler had just been trying to break into a pop machine with a wire. The record does not give information about how many coins Spangler held, and in what amounts.

Police did not observe Spangler engaged in any suspicious behavior consistent with a theft before contacting him. The intensity of the investigatory stop was not commensurate with the relatively minor nature of the crime. There is no evidence of exigent circumstances that might justify such a precipitous arrest. Upon contacting Spangler, police immediately told him to put his hands on the hood of the car and searched him. Such a response, absent detailed nformation about the informant or independent evidence of wrongdoing, is not warranted. There is no apparent reason why the police would not have had time to first locate Michael and have him confirm that Spangler was the person he had seen, or at least examine the pop machine.
We conclude that the trial court erred in finding that the informant's tip was sufficiently reliable and detailed to provide police with reasonable suspicion to contact the defendant. Thus, we reverse the trial court's denial of Spangler's
suppression motion. Because the State's case rested solely on the improperly seized evidence, the conviction cannot stand.

Reversed.

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joeroket wrote:

Mainsail wrote:

Can the police randomly stop the driver of a Corvette to make sure he has a driver’s license? No, and he cannot use the rational that the car is capable of going above the speed limit, or that it’s capable of outrunning their Crown Vics. If he sees a Corvette drive past, and there’s no violation of any traffic laws, he must assume that the driver is legal.

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Not completely true. WSP has the power given to them by law to stop and check licenses and/or inspect vehicles. Mind you that this only applies to WSP and no other agency.

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I believe this would be completly unconstitutional under the fourth ammendment, would it not?

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ATCer wrote:

joeroket wrote:

Mainsail wrote:

Can the police randomly stop the driver of a Corvette to make sure he has a driver’s license? No, and he cannot use the rational that the car is capable of going above the speed limit, or that it’s capable of outrunning their Crown Vics. If he sees a Corvette drive past, and there’s no violation of any traffic laws, he must assume that the driver is legal.

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Not completely true. WSP has the power given to them by law to stop and check licenses and/or inspect vehicles. Mind you that this only applies to WSP and no other agency.

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I believe this would be completly unconstitutional under the fourth ammendment, would it not?

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I know that applies to Commercial Vehicles. WSP can stop a commercial vehicle for no other reason than the commercial vehicle operating on the highway if they want. I dont remember reading or hearing anywhere that troopers can make stops on thenon-commercial motoring public for inspections.

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At that point, the officer knows and therefore has probable cause to conclude that Mr. Vanderpool was driving without a license and those are grounds to arrest him. State v. Pacas, 130 Wn. App. 446, 449, 123 P.3d 130 (2005); State v. Craig, 115 Wn. App. 191, 195, 61 P.3d 340 (2002). The officer had just seen Mr. Vanderpool drive Ms. Schneider's car.

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Ok, I'm confused then. I thought if an officer asks to see your ID you "have to show them" your ID.

If I'm walking around the waterfront in Bremerton and an officer stops and asks for ID aren't I supposed to comply? Or am I just being a sheeple and doing what I'm told? And why does this sh_t have to be so confusing?

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Ok, I'm confused then. I thought if an officer asks to see your ID you "have to show them" your ID.

If I'm walking around the waterfront in Bremerton and an officer stops and asks for ID aren't I supposed to comply? Or am I just being a sheeple and doing what I'm told? And why does this sh_t have to be so confusing?

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gsx1138 wrote:

Ok, I'm confused then. I thought if an officer asks to see your ID you "have to show them" your ID.

If I'm walking around the waterfront in Bremerton and an officer stops and asks for ID aren't I supposed to comply? Or am I just being a sheeple and doing what I'm told? And why does this sh_t have to be so confusing?

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I may be mistaken but I don’t believe you have to show ID orverbally identify yourself even if you are detained. It may be in your best interest to because if the officer feels justified in detaining you and you don’t identify yourself, I think they have to take you ‘downtown’ to ID you through fingerprints.

If you know he’s just blowing smoke up your butt when he detains you, you don’t have to say a word.

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Mainsail wrote:

gsx1138 wrote:

Ok, I'm confused then. I thought if an officer asks to see your ID you "have to show them" your ID.

If I'm walking around the waterfront in Bremerton and an officer stops and asks for ID aren't I supposed to comply? Or am I just being a sheeple and doing what I'm told? And why does this sh_t have to be so confusing?

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I may be mistaken but I don’t believe you have to show ID orverbally identify yourself even if you are detained. It may be in your best interest to because if the officer feels justified in detaining you and you don’t identify yourself, I think they have to take you ‘downtown’ to ID you through fingerprints.

If you know he’s just blowing smoke up your butt when he detains you, you don’t have to say a word.

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The "Key Word" is (Drove)

"Timothy Vanderpool drove a blue Ford Explorer through the parking lot of an

apartment complex"

He had a Suspended License.

You dont have to identify yourself via ID, Unless You Are Driving, Per Statute

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Here, the officer simply asked Mr. Vanderpool for identification to verify that he was not James Schneider. That is not a seizure.

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XD45PlusP wrote:

Mainsail wrote:

gsx1138 wrote:

Ok, I'm confused then. I thought if an officer asks to see your ID you "have to show them" your ID.

If I'm walking around the waterfront in Bremerton and an officer stops and asks for ID aren't I supposed to comply? Or am I just being a sheeple and doing what I'm told? And why does this sh_t have to be so confusing?

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I may be mistaken but I don’t believe you have to show ID orverbally identify yourself even if you are detained. It may be in your best interest to because if the officer feels justified in detaining you and you don’t identify yourself, I think they have to take you ‘downtown’ to ID you through fingerprints.

If you know he’s just blowing smoke up your butt when he detains you, you don’t have to say a word.

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The "Key Word" is (Drove)

"Timothy Vanderpool drove a blue Ford Explorer through the parking lot of an

apartment complex"

He had a Suspended License.

You dont have to identify yourself via ID, Unless You Are Driving, Per Statute

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Here, the officer simply asked Mr. Vanderpool for identification to verify that he was not James Schneider. That is not a seizure.

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No, Vanderpool was driving. He was walking when the officer approached him to request ID. If you read the case it appears the court is saying that he had the option of simply walking away. He volunteered that he had no license.

If you haven’t watched these two videos, I strongly urge you to do so. A police officer will almost never start a conversation with you simply because he’s bored and looking to chat. Again, watch the videos and be mindful of what an officer’s job is and what he is evaluated on. I know SVlibertarian has said he would give up his ID when approached by an officer, I, knowing what I do now and more so after seeing the videos, would not.

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One of the more disturbing things comes at the beginning of the second video. The police officer mentions sitting in on criminal “interviews” done in other countries like Spain or Italy, and that they start out physically. IOW, the suspect gets a thorough beating before they start talking to him or her. Those are not third world countries! One can easily imagine what happens to the citizens of Ivory Coast, Yemen, or Myanmar. Search for police abuse on youtube or liveleak and you’ll see what I mean. The implications are huge and we should all thank God for our civil rights. In this case, the Fifth, Fourth, and Second Amendments all protect us from that sort of interrogation. You don’t have to give testimony to the police, you have privacy rights, and if they got totally out of control, you have the right to bear arms.

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Tatiana M. Uphoff contends that because she was unlawfully arrested she had the right to resist as long as the resistance was reasonable and proportioned to the injury threatened. In Washington, even in the face of an unlawful arrest, the use of force in self-defense is justified only when the arrestee is in actual, imminent danger of serious injury or death. State v. Bradley, 141 Wn.2d 731, 738, 10 P.3d 358 (2000). Here, even if the arrest was unlawful, Ms. Uphoff was not in such actual, imminent danger. We therefore affirm her conviction for third degree assault of a police officer.

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