State v. Pines

17 Wash.App.2d 483

487 P.3d 196

The STATE of Washington, Respondent,

v.Antwaun Deshawn PINES, Appellant.

No. 80450-2-I

Court of Appeals of Washington, Division 1.

FILED May 17, 2021

Nielsen Koch PLLC, Attorney at Law, Kevin Andrew March, Nielsen Koch PLLC, 1908 E Madison St., Seattle, WA, 98122, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, Jennifer Paige Joseph, King County Prosecutor's Office, 516 Third Avenue, Seattle, WA, 98104, for Respondent.

PUBLISHED OPINION

Mann, C.J. ¶ 1 Warrantless searches are per se unreasonable under Article I, Section 7 of the Washington Constitution unless one of the narrowly drawn exceptions to the warrant requirement applies. Antwaun Pines appeals his conviction for unlawful possession of a firearm in the first degree. Pines argues that the trial court improperly characterized his seizure and the subsequent warrantless search as a Terry ¹ stop, and thus erred when denying his motion to suppress the firearm discovered during the search. We agree with Pines that his seizure exceeded the bounds of a valid Terry stop and was instead a custodial arrest. We also agree that the police lacked probable cause at the time of the arrest because they were acting on the unverified belief that there was a warrant for Pines's arrest. Because the search of Pines was not valid under Terry, nor as a search subsequent to a lawful arrest, the firearm recovered in that search should have been suppressed.

¶ 2 We reverse and remand to the trial court to dismiss Pines's conviction with prejudice.

FACTS

A. Background

¶ 3 On March 23, 2018, the anticrime team and gang units of the Seattle Police Department conducted an operation to locate individuals with warrants in the South Precinct and Central District of the city. After a morning briefing on "emphasis patrol" or "hot spot" emphasis, Detective Aaron Sausman was working plain clothes and conducting surveillance in the 9200 block of Rainier Avenue, South, attempting to locate "wanted subjects." Sausman was in his vehicle when he identified Pines driving a black BMW. Sausman recognized Pines and was aware of a February 2018 King County Sheriff's bulletin identifying a warrant for Pines on residential burglary and domestic violence. Sausman knew that Pines was previously convicted of a felony.

¶ 4 Sausman followed Pines to Columbia City, where Pines parked his vehicle and entered a Pagliacci Pizza restaurant. Sausman advised the uniformed arrest team that Pines was in the restaurant.

¶ 5 Detective Will Miller was one of three uniformed officers that entered the restaurant to contact Pines. As the officers entered, Pines began moving toward the other door. The officers tackled Pines to the ground, holding him down by the neck and head, and handcuffed him. Detective Sausman, after seeing Pines attempt to leave, entered the restaurant. As the officers were handcuffing Pines, Sausman yelled out "you're under arrest for your felony warrant." While handcuffing Pines, Miller saw Pines's hand move towards his waistline, giving him concern that Pines had a weapon. Once cuffed, the following exchange took place:

MILLER: Antwaun, do you got anything on you?

PINES: Yes, sir.

MILLER: What do you got?

PINES: You know what I got.

MILLER: Is it dope or do you got a gun?

PINES: You know that I don't smoke dope.

MILLER: Say what now?

PINES: I don't smoke dope.

MILLER: You got a gun on you? Where's it at? Your pocket?

PINES: Yes, sir.

Exhibit 1 at 1:50-3:50.² The officers then frisked Pines and found a handgun in his jacket pocket.

¶ 6 Officers escorted Pines outside and read him his Miranda ³ rights. Thirteen minutes after detaining Pines, the police confirmed that there was a valid warrant for Pines's arrest.

B. Procedure

¶ 7 The State charged Pines with unlawful possession of a firearm in the first degree. Pines moved to suppress the handgun recovered during the search on the grounds that police lacked the lawful authority to detain and search him. The trial court heard testimony from Detectives Sausman and Miller during a pretrial CrR 3.6 hearing. The court found that Pines was not under arrest when officers contacted him in Pagliacci's, but was detained in accordance with the officers’ reasonable suspicion that he had an outstanding warrant. The court further determined that Pines's attempt to flee required that the officers escalated the standard Terry stop detention tactics. After detention, the officers inquired about firearms for their personal safety, subsequently recovering Pines's handgun. The trial court denied Pines's motion to suppress.

¶ 8 Pines waived his right to jury and proceeded to a bench trial on stipulated facts. The trial court found Pines guilty and imposed a sentence of 24 months in prison.

¶ 9 Pines appeals.

ANALYSIS

¶ 10 Pines argues that the trial court erred in finding that the search and discovery of his firearm was a lawful Terry stop, and thus denying his motion to suppress. Pines contends that his seizure amounted to a custodial arrest and that the police lacked probable cause at the time of his arrest.

¶ 11 We review a trial court's findings of fact at a suppression hearing for substantial evidence, which is such evidence that would persuade a rational, fair-minded individual of the truth of the finding. State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994). We review the trial court's conclusions of law in an order relating to suppression of evidence de novo. State v. Smith, 165 Wash.2d 511, 516, 199 P.3d 386 (2009).

¶ 12 Under Article I, section 7 of the Washington Constitution warrantless searches are per se unreasonable unless one of the narrowly drawn exceptions to the warrant required applies. State v. Muhammad, 194 Wash.2d 577, 596, 451 P.3d 1060 (2019) (citing State v. Hendrickson, 129 Wash.2d 61, 70, 917 P.2d 563 (1996) ). The State bears the burden to show an exception applies. Muhammad, 194 Wash.2d at 596, 451 P.3d 1060. "If the evidence was seized without authority of law, it is not admissible in court." State v. Day, 161 Wash.2d 889, 894, 168 P.3d 1265 (2007). At issue here is whether the warrantless search of Pines was valid as a Terry stop, or as a search subsequent to arrest.

A. Terry Stop or Arrest?

¶ 13 There is no dispute that Pines was "seized" at the time the arresting officers searched him and recovered the handgun. A person is seized when an officer, by physical force or show of authority, restrains the person's freedom of movement such that a reasonable person would not believe they were free to leave. State v. O'Neill, 148 Wash.2d 564, 574, 62 P.3d 489 (2003). The State argues, and the trial court agreed, that Pines's seizure and subsequent search was the result of a valid Terry stop. We disagree.

¶ 14 In Terry v. Ohio, 392 U.S. 1, 10, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the United States Supreme Court carved out an exception to the warrant requirement by allowing officers to detain an individual as part of an investigatory stop. Under this exception, a police officer may stop and detain an individual for investigation if the officer reasonably suspects the person is engaged or about to be engaged in criminal conduct. State v. Garvin, 166 Wash.2d 242, 250, 207 P.3d 1266 (2009). The officer may only frisk the individual for weapons when the officer has grounds to believe the individual is armed and presently dangerous. "For a permissible Terry stop, 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." State v. Duncan, 146 Wash.2d 166, 172, 43 P.3d 513 (2002).

¶ 15 Under Terry, a police officer may temporarily detain a person based on a reasonable suspicion that the person is or has been involved in a crime. In evaluating the reasonableness of an officer's suspicion, we look to the totality of the circumstances known to the officer. State v. Fuentes, 183 Wash.2d 149, 158, 352 P.3d 152 (2015). We determine the reasonableness based on an objective view of the known facts, not the officer's subjective belief or ability to correctly articulate his suspicion in reference to a particular crime. State v. Mitchell, 80 Wash. App. 143, 148, 906 P.2d 1013 (1995). "The detention must not exceed the duration and intensity necessary to dispel the officer's suspicions." Mitchell, 80 Wash. App. at 144, 906 P.2d 1013.

¶ 16 We also use an objective standard to determine whether an encounter with the police rises to the level of a formal arrest. State v. Reichenbach, 153 Wash.2d 126, 135, 101 P.3d 80 (2004). That is, whether a reasonable detainee under the circumstances would consider themselves under custodial arrest. State v. Radka, 120 Wash. App. 43, 49, 83 P.3d 1038 (2004) ; State v. Rivard, 131 Wash.2d 63, 75, 929 P.2d 413 (1997).

¶ 17 The State relies on Mitchell, to support its claim that the officers’ tactics of tackling, and handcuffing Pines were legitimate under Terry. In Mitchell, an officer working alone on night patrol observed Mitchell and a companion walking down the street in a Seattle residential neighborhood carrying a semiautomatic handgun. The officer observed Mitchell tuck the handgun into his waistband. 80 Wash. App. at 144, 906 P.2d 1013. After reporting his observation by radio, the officer turned his vehicle around and approached the two from the rear with his flashers and spotlights on. The officer got out of his vehicle, pulled his gun, and ordered the two to stop and put their hands up. Mitchell tossed a handgun into the bushes as he raised his hands. The officer ordered the two to lie face down with their legs spread and arms at their sides. The two remained in that position for two to three minutes until other officers arrived. After discovering his identity and criminal record, Mitchell was arrested for being an adjudicated minor in possession of a handgun. Mitchell, 80...