State v. Flores

186 Wash.2d 506

379 P.3d 104

State of Washington, Petitioner,

v.Cody Ray Flores, Respondent.

NO. 91986–1

Supreme Court of Washington, En Banc.

Argued March 10, 2016

Filed Sept. 15, 2016

Kevin James McCrae, Grant County Prosecutor's Office, P.O. Box 37, Ephrata, WA, 98823–0037, for Petitioner.

David Bustamante, Attorney at Law, 601 S. Pioneer Way, Ste. F, # 415, Moses Lake, WA, 98837–1837, for Respondent.

Russell M. Aoki, Isham Mahesh Reavis, Aoki Law PLLC, 1200 5th Ave., Ste. 750, Seattle, WA, 98101–3106, Helen D. Ling, Attorney at Law, 671 S. Jackson St., Ste. 201, Seattle, WA, 98104–2927, Douglas B. Klunder, Attorney at Law, 6940 Parshall Pl. S.W., Seattle, WA, 98136–1969, as Amicus Curiae on behalf of ACLU.

STEPHENS, J

¶1 This case requires us to decide under what circumstances officers making a lawful arrest may seize a companion of the arrestee in the absence of reasonable suspicion to independently justify a Terry¹ stop of the companion. We hold that where officers have an objective rationale predicated on safety concerns to seize a companion to secure the scene of the arrest, article I, section 7 of the Washington State Constitution allows for the seizure, so long as it remains reasonable in scope and duration. Based on this holding, we reverse the Court of Appeals and hold that evidence of the gun taken from Cody Flores during his brief seizure should not have been suppressed.

FACTS AND PROCEDURAL HISTORY²

¶2 On November 2, 2013, the Moses Lake Police Department dispatched all available patrol officers to an address in Moses Lake. An anonymous source³ had reported that Giovanni Powell was at that address and had pointed a gun at someone's head. Officer Kyle McCain was first to arrive at the scene. McCain was familiar with Powell, had seen pictures of him holding firearms, knew he was in a gang, and knew he was a material witness to a Spokane homicide.⁴ While en route, dispatch informed McCain (and other officers who were following him) that “Powell had a warrant out for his arrest in the Spillman police information system. This warrant was later confirmed after Powell was stopped.” Clerk's Papers (CP) at 60.

¶3 Officer McCain arrived at the reported address less than five minutes from the time of the call, around 4:40 p.m. He observed Powell, whom he recognized, and another person (later identified as Flores) walking down the street together. McCain did not recognize Flores and did not have an individualized, articulable reason to suspect Flores of criminal activity. Officers testified they were concerned that Flores posed a threat to their safety because of “his association and close proximity to Powell within a few minutes of a report of Powell pointing a gun at someone's head.” Id.

¶4 McCain “parked across the street from Powell and Flores, got out of his car, drew his side arm, held it pointed at the ground, and ordered ... Powell to stop.” Id. Both Flores and Powell stopped. McCain ordered Powell and Flores to drop to their knees with their hands up, a position of disadvantage. Powell and Flores were talking, so “McCain ordered Powell to move away from Flores.” Id. Powell complied, moving about six feet away. McCain then “ordered Powell to walk backwards towards him with his hands up ” Id.

¶5 As this was occurring, other officers arrived, including Officer Paul Oiumette. Id. In total, there were approximately five officers on the scene. All had their guns drawn and held at the “low ready” position. Id. “While Officer McCain was securing Powell[,] Officer Oiumette ordered Flores to walk backwards towards him with his hands up.”

Id. at 61. “As he was walking backwards towards Officer Oiumette[,] Flores told the Officer he had a gun. This statement was not in response to a question from Officer Oiumette.” Id. Oiumette told Flores to keep walking backward and they would deal with the gun in a minute. Once Flores got to Oiumette, Oiumette asked where the gun was. Flores responded that it was in his pants. Oiumette removed and secured the gun. Id. The State charged Flores with first degree unlawful possession of a firearm.

¶6 Flores brought a CrR 3.6 motion to suppress all evidence of the gun, arguing that Oiumette's command to walk backward constituted a second seizure that was not predicated on articulable suspicion that Flores was involved in criminal activity. See id. at 12–17 (Flores's CrR 3.6 motion). Judge John Knodell granted the motion to suppress “the gun found on ... Flores and his statements pertaining to it,” concluding that “[p]ursuant to RAP 2.2(b)(2)... the practical effect of this order is to terminate the case.” Id. at 62. Judge Evan Sperline then dismissed the charges without prejudice. Id. at 67. The State appealed, and Division Three of the Court of Appeals affirmed. State v. Flores , 188 Wash.App. 305, 351 P.3d 189 (2015). The State petitioned this court for review, which we granted. State v. Flores , 184 Wash.2d 1019, 361 P.3d 747 (2015).

ANALYSIS

¶7 The primary question in this case is whether it is always a violation of article I, section 7 of the Washington State Constitution for an officer to seize the nonarrested companion of an arrestee to secure the scene of an arrest. The Washington State Constitution protects individuals from unlawful searches and seizures. WASH. CONST . art. I, § 7 (“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”); see also State v. Harrington , 167 Wash.2d 656, 663, 222 P.3d 92 (2009) (“Because searches and seizures incontrovertibly disturb private affairs, article I, section 7 envelops search and seizure.”). It is well established that article I, section 7 “grants greater protection to individual privacy rights than the Fourth Amendment” Har rington , 167 Wash.2d at 663, 222 P.3d 92 (citing U.S. CONST , amend. IV). There is almost an absolute bar to warrantless seizures, with only limited, “jealously guarded exceptions.” State v. Valdez , 167 Wash.2d 761, 773, 224 P.3d 751 (2009).

¶8 “Our analysis under article I, section 7 requires us to determine ‘whether the State unreasonably intruded into the defendant's “private affairs.” ’ ” State v. Mendez , 137 Wash.2d 208, 219, 970 P.2d 722 (1999) (quoting State v. Myrick, 102 Wash.2d 506, 510, 688 P.2d 151 (1984) ), abrogated on other grounds by Brendlin v. California , 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). The analysis focuses “ ‘not on a defendant's actual or subjective expectation of privacy but, as we have previously established, on those privacy interests Washington citizens held in the past and are entitled to hold in the future.’ ” Id. (quoting State v. White, 135 Wash.2d 761, 768, 958 P.2d 982 (1998) ). “The violation of [an individual's] right of privacy under article I, section 7 automatically implies the exclusion of the evidence seized.” State v. Afana , 169 Wash.2d 169, 179, 233 P.3d 879 (2010). We review “conclusions of law from an order pertaining to the suppression of evidence de novo,” State v. Duncan , 146 Wash.2d 166, 171, 43 P.3d 513 (2002).

¶9 Under our state constitution, an individual is seized “when considering all the circumstances, an individual's freedom of movement is restrained and the individual would not believe he ... is free to leave or decline a request due to an officer's use of force or display of authority.” State v. Rankin , 151 Wash.2d 689, 695, 92 P.3d 202 (2004). “This determination is made by objectively looking at the actions of the law enforcement officer” Id. There is no doubt here that Flores was seized, and indeed, the State concedes that he was seized when McCain stopped him and Powell and ordered them into a position of disadvantage.

See CP at 19 (State's Resp. to Def.'s Mot. to Suppress Under CrR 3.6 ).

¶10 Flores challenges his seizure as an unlawful Terry stop. See Resp't's Br. at 27–46; Resp't's Answer to Pet. for Review at 13–16. Flores asserts that the seizure should be analyzed in two parts: the initial seizure when McCain first ordered Flores into a position of disadvantage, and a second seizure when Oiumette ordered Flores to move back toward him. Resp't's Answer to Pet. for Review at 12. Although Flores does not concede that McCain's initial detention of him was permissible, see Resp't's Br. at 33; Resp't's Answer to Pet, for Review at 12, he contends that even if the initial seizure by McCain was justified by the need to secure the scene of Powell's arrest, that justification “evaporated the moment that Powell, having complied with officer's directives that he get down on his knees, continued to follow Officer McCain's orders.... At this point in time, the scene was secured, Powell was safely under control, and there was no need to further intrude on Flores' liberty by ordering him to walk backwards to the sound of Officer Oiumette's voice.” Resp't's Br. at 33. Flores insists that the second seizure was investigatory and an unlawful Terry stop because the State failed to show it was reasonable and necessary. Resp't's Answer to Pet. for Review at 15–16. Finally, Flores argues that this court should hold that vehicle stop cases involving the rights of passengers do not control cases where the companion and arrestee are pedestrians. Id. at 17–20.

¶11 The State counters that Terry is inapplicable because officers did not seize Flores for investigative purposes. Rather, the State argues that under State v. Parker, 139 Wash.2d 486, 987 P.2d 73 (1999) (plurality opinion), and Mendez, McCain and Oiumette acted within their authority to control the scene of an arrest when they directed Flores's movements. See Pet. for Review at 4–6; Pet'r's Suppl. Br. to Pet. for Review at 3, 6–8. The State contends that the circumstances here are not materially different from when the driver of a car has been arrested and the police may order the passenger in or out of the car to secure the scene of the arrest. See Pet. for Review at 4–5. Under Mendez, the court should review the officer's actions for an “ ...