State v. Sydner

STATE OF WASHINGTON, Respondent, v. SYDNER, BRANDON MICHAEL, DOB: 10/20/1985, Appellant.

No. 77934-6-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

July 29, 2019

UNPUBLISHED OPINION

SCHINDLER, J. — Brandon Michael Sydner seeks reversal of his conviction for possession of a controlled substance committed while on community custody. Sydner challenges denial of the motion to suppress the drugs the police seized during an investigative Terry¹ stop. We affirm.

FACTS

Just after 8:30 p.m. on the evening of October 20, 2017, Everett Police Department officers responded to several 911 calls reporting a man and woman were involved in a robbery and assault at the Everett Mall Ulta Beauty store, including 911 calls from a store employee and a mall security employee. The 911 calls reported the woman was "[a]ssociated" with a male and after they left the store, the man and thewoman walked toward the back corner of the shopping mall parking lot toward a Red Robin restaurant. The police testified:

Information was there was multiple reporting parties calling with information that indicated one female fought with the employees at the store when they attempted to detain her for a shoplift. Another reporting party stated there was a male and female that they were leaving from the location and headed over to that area.

The 911 calls describe the male suspect as a white man with his hair pulled back in a ponytail, wearing black clothing and khaki boots, and possibly carrying a purse.

Within a couple of minutes of the 911 dispatch, patrol officer Devin Hackett saw a man, later identified as Brandon Michael Sydner, about 300 yards from Ulta Beauty in a dimly lit alley between Red Robin and a PETCO store. The area was near a dumpster not intended for public access. Officer Hackett said it was "completely dark" outside. There was a steep, eight-foot embankment near Sydner. Sydner was wearing black clothes and khaki boots and was "clutching a couple of items" in his hands. Officer Hackett testified that Sydner "perfectly" matched the description he received from dispatch.

Officer Hackett got out of the patrol car. Sydner stood with his hands slightly raised, "looking left and looking right." Sydner repeatedly refused to comply with Officer Hackett's commands to sit down. Sydner told Officer Hackett he "had the wrong guy" and "it was all the girl." Officer Hackett called for backup.

Officer Hackett noticed a bulge in the front pocket of Sydner's pants. Officer Hackett placed Sydner in handcuffs behind his back. Officer Hackett walked with Sydner to the patrol car and conducted a protective frisk for weapons. Officer Hackett felt a hard, cylindrical object in the front pocket of Sydner's pants. The object wasseveral inches long and at least an inch in diameter. Officer Hackett could not identify the object but thought it could be a weapon or could contain a weapon. Officer Hackett removed the object from Sydner's pants and set it aside on top of the patrol car.

When Officer Thaddeus Halbert arrived, he heard Sydner yelling at Officer Hackett. While Officer Hackett conducted the protective frisk, Officer Halbert searched the area near the dumpster. Officer Halbert found a purse behind the dumpster.

Meanwhile, police officers had detained the female suspect. The female told the officers that she left Ulta Beauty with her "boyfriend" Brandon Sydner. Officer Hackett and Officer Halbert obtained a photograph of Sydner from the Washington State Department of Licensing database. The photograph matched the male that Officer Hackett detained. The police database showed an outstanding felony warrant for Sydner. Officer Hackett arrested Sydner. After the arrest, Officer Hackett inspected the object he had removed from Sydner's pocket. There were narcotics in three interlocking containers.

The State charged Sydner with one count of possession of a controlled substance. The State alleged Sydner committed the crime while on community custody. Sydner filed a motion to suppress the evidence seized during the investigative stop. Sydner argued Officer Hackett (1) did not have reasonable suspicion that he was engaged in criminal activity and (2) exceeded the scope of a weapons frisk.

Officer Hackett and Officer Halbert testified at the CrR 3.6 hearing. The court denied the motion to suppress. The court entered written findings of fact and conclusions of law.

Sydner waived his right to a jury trial and agreed to a trial on stipulated facts. The court found Sydner guilty of possession of heroin and methamphetamine while on community custody.

ANALYSIS

Terry Stop

Sydner challenges the trial court's denial of his motion to suppress the drugs. Sydner claims the Terry² stop was unlawful because Officer Hackett lacked individualized reasonable suspicion to believe Sydner was involved in criminal activity.

In reviewing the denial of a motion to suppress, we review the findings of fact for substantial evidence and the conclusions of law de novo. State v. Fuentes, 183 Wn.2d 149, 157, 352 P.3d 152 (2015). "Evidence is substantial when it is enough 'to persuade a fair-minded person of the truth of the stated premise.'" State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009) (quoting State v. Reid, 98 Wn. App. 152, 156, 988 P.2d 1038 (1999)). Unchallenged findings of fact entered following a suppression hearing are verities on appeal. State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005).

The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution protect against unlawful searches and seizures and unwarranted government intrusions into private affairs. Although article I, section 7 provides greater protection than the Fourth Amendment, "[i]n a challenge to the validity of a Terry stop, article I, section 7 generally tracks the Fourth Amendment analysis." State v. Z.U.E., 183 Wn.2d 610, 617, 352 P.3d 796 (2015).

A warrantless search is per se unreasonable under article I, section 7 unless the search falls under one of the carefully drawn and jealously guarded exceptions to thewarrant requirement. State v. Patton, 167 Wn.2d 379, 386, 219 P.3d 651 (2009). A brief investigative Terry stop is an exception to the warrant requirement. State v. Gatewood, 163 Wn 2d 534, 539, 182 P.3d 426 (2008). A Terry stop is lawful when a law enforcement officer has a reasonable suspicion based on specific and articulable facts known to him at the inception of the stop that the detained person was involved in a crime. Fuentes, 183 Wn.2d at 158; Z.U.E., 183 Wn.2d at 617. Specific and articulable facts must demonstrate more than a generalized suspicion or hunch that the person detained has committed a crime. Z.U.E., 183 Wn.2d at 618. In evaluating reasonable suspicion, the reviewing court examines the totality of the circumstances known to the officer. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). The totality of the circumstances include the officer's training and experience, the location of the stop, the conduct of the person detained, the purpose of the stop, and the amount of physical intrusion on the suspect's liberty. State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003).

In denying the motion to suppress, the court found specific and articulable facts and a valid basis to detain Sydner. The following pertinent findings of fact and conclusions of law state:

a) Police may properly initiate an investigative detention if they have a reasonable and articulable suspicion that the individual stopped is involved, or is about to be involved, in criminal activity. State v. Marcum, 149 Wn. App. 894 (2009). Here, the officer who detained Mr. Sydner had received information from dispatch that a male was seen in the company of the female who was the primary suspect of what, at that time, was broadcast as a robbery from a store at the Everett Mall. He encountered Mr. Sydner shortly after this information was broadcast.

b) The male and female were described by dispatch as headed in the direction of a Jack in the Box, which the Court knows from personal experience is in the same general area as a PETCO and a RedRobin restaurant, locations that were testified to during the [CrR] 3.6 hearing. Additionally, the male was described as wearing black clothing with khaki colored boots and having a pony tail. He was described as a white male.

c) The officer testified that when he first saw Mr. Sydner, he immediately concluded he matched the broadcast description of the male suspect. Mr. Sydner was wearing black clothing and had a personal appearance similar to the description broadcast about the male who was accompanying the primary suspect.

d) Defense counsel identifies Mr. Sydner as a black male in her briefing. The state refers to Mr. Sydner as being a white male. The court does not know how Mr. Sydner self-identifies his race, but observed his skin color to be such that . . . the court would not presume to identify Mr. Sydner as belonging to any one racial category. His skin tone is light.

e) These facts, taken together, provide a sufficient factual basis to authorize the officer's initial contact and detention of Mr. Sydner under Terry v. Ohio. The facts known to the officer were not innocuous facts; he was responding to a specific and recent report of a robbery in which a male wearing black clothing was associated with the primary female suspect.

Sydner does not challenge these findings of fact and legal conclusions.³ Sydner challenges findings of fact d, f, and h:

d) Officer Hackett found a male matching the description of the white male wearing dark clothing.

. . . .

f) Instead [of sitting down], the male raised his hands slightly and looked around him. The officer was concerned he was looking for a way to leave. Officer Hackett again commanded him to sit down, and the defendant did not.

. . . .

h) Officer Hackett handcuffed him for a number of reasons. One of them was for officer safety, Officer Hackett was alone in a dimly lit area

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