State v. Z.U.E.

183 Wash.2d 610

352 P.3d 796

STATE of Washington, Petitioner

v.Z.U.E., Respondent.

No. 89894–4.

Supreme Court of Washington, En Banc.

Argued Sept. 18, 2014.

Decided July 16, 2015.

Brian Neal Wasankari, Pierce County Prosecuting Atty., Tacoma, WA, for Petitioner.

Eric J. Nielsen, Eric Broman, Casey Grannis, Nielsen Broman & Koch PLLC, Seattle, WA, for Respondent.

Opinion

JOHNSON, J.

¶ 1 This case involves whether, under either Washington State Constitution, article I, section 7 or the Fourth Amendment to the United States Constitution, the information provided by multiple 911 callers was reliable and sufficient to justify an investigatory Terry¹ stop of the car in which the defendant was a passenger. In this case, the defendant, Z.U.E., moved to suppress evidence of marijuana found on him following the stop, arguing that the officers lacked a reasonable basis to detain the car and its occupants. The trial court denied Z.U.E.'s motion, and the Court of Appeals reversed. State v. Z.U.E., 178 Wash.App. 769, 315 P.3d 1158 (2014). We accepted review and affirm the Court of Appeals. State v. Z.U.E., 180 Wash.2d 1020, 353 P.3d 641 (2014).

Facts

¶ 2 Late in the afternoon on October 2, 2011, Tacoma police dispatch received a 911 call reporting a man seen carrying a gun “in a ready position” through Oakland Playfield in Tacoma. 1 Verbatim Report of Proceedings (RP) at 33. The caller described the man as a shirtless, black male, between 18 and 19 years old, 5 feet 10 inches tall, 145 pounds, with short hair—so short that the man appeared bald. The two officers who responded to the dispatch, Officers Clark and Rose, were familiar with the park's reputation as a gang hangout site and a site of multiple gang-related incidents that year.

¶ 3 En route, the officers received updates from the dispatch center. They were advised that multiple other 911 callers reported seeing a shirtless man carrying a gun, and that a number of those callers observed the man enter a two-door, white (possibly gray) car with approximately eight other people. The car was seen headed toward the intersection of Center and Union, a few blocks away. The officers received a subsequent update that a 911 caller, who identified herself as Dawn, witnessed what she regarded as a 17–year–old female hand off a gun to the shirtless man, who then carried the gun through the park. Dawn provided the dispatch center with a detailed description of the girl's appearance and clothing, but she did not reveal why she believed the girl to be 17 years old. Dawn was also the only caller to report the female; the rest of the reports involved the shirtless man with a gun, who was seen possibly entering a white/gray car.

¶ 4 At the time, the dispatch center knew little about the identity of these 911 callers, as only two of the callers provided their names and contact information. The officers themselves had even less information: they did not know how many 911 calls the dispatch center had received or the caller's identities, nor did the officers obtain more information about the callers.

¶ 5 The officers arrived at Oakland Playfield within six minutes of receiving the initial dispatch. Upon arrival, the officers did not see anyone in the park, but they did observe two females a block away, one of whom matched the description provided by Dawn. Instead of stopping, however, the officers continued to search the area for the shirtless man. The officers contacted another witness, in person, who lived in an apartment complex overlooking the park. The witness explained that she observed a large scale fight, with multiple subjects running around the park, and that the subjects left in three to four different cars.

¶ 6 Continuing their search, the officers drove toward the Center and Union intersection. Upon arrival, the officers did not find the white/gray, two-door car, purportedly carrying the shirtless man and eight others, but they did observe the same two females seen earlier entering the backseat of a four-door gray car, which was idling in a nearby parking lot. Two male passengers sat in the front seats. The officers approached the car and noticed that neither passenger matched the description of the bald, shirtless man, but they proceeded toward the car anyway.

¶ 7 Based on the numerous 911 calls relayed to them by the dispatch center, the officers believed they were investigating a minor in possession of a firearm and a gang-related assault with a deadly weapon. At trial, Officer Clark explained the basis for their suspicion:

Q What information did you have to conclude that there had been an assault with a deadly weapon?

A Well, because we have a guy running around with a gun with eight other subjects, that another person has said that there was a large fight, so—

Q And what information did you have to conclude that that gun in any way was related to the fight that was described in the park?

A As I said, we had the witnesses who said that they had a large group talking about putting up dukes in reference to fighting. In the call, in the CAD [computer aided dispatch] call, the notes, it specifically says that the subject with the gun and no shirt is with a group of eight subjects.

Q Where did it say that the eight subjects were involved in a fight?

A Like I said, we have to conduct the investigation in order to confirm that, and that's what we were doing.

2 RP at 151.

¶ 8 However, both officers testified that the primary reason for stopping this particular car was the fact that one of the passengers matched the description of the female identified by the 911 caller Dawn. In fact, the other officer at the scene, Officer Rose, elaborated that at that point, they would have stopped any car the girl entered, even if she had entered red pickup truck instead of a gray sedan. 2 RP at 216.

¶ 9 The two officers approached the vehicle with guns drawn, using a “felony stop” technique, and directed the occupants to exit the car one at a time. 1 RP at 45. Shortly after, two more officers arrived at the scene, Officers Miller and Williams. As part of the felony stop, they detained the driver and the two females in handcuffs, and were able to do so without incident. Z.U.E. was the last to exit the car. Officer Miller, believing that Z.U.E. was deliberately ignoring his instructions, became concerned for his own safety and used a stun gun on and handcuffed Z.U.E., arresting him for obstruction of law enforcement. The officers searched Z.U.E. incident to his arrest and found marijuana on his person. The officers did not find any guns, nor did they find the bald, shirtless subject.

¶ 10 The State charged Z.U.E. in juvenile court with unlawful possession of a controlled substance and obstructing a law enforcement officer. Z.U.E. moved to suppress all the evidence obtained during the stop as fruit of an unlawful seizure. The trial court denied the motion and found Z.U.E. guilty of unlawful possession but found him not guilty of obstruction.

¶ 11 The Court of Appeals reversed, holding that the 911 calls lacked sufficient “indicia of reliability” to justify the stop because (1) the callers were essentially unknown callers, (2) the officers did not know the factual basis supporting the caller's assertion of criminal activity, (3) the officers did not corroborate the assertion of criminal activity, and (4) the officers could not corroborate that the information was obtained in a reliable manner. The Court of Appeals' analysis of the tips' reliability tracks the two-pronged, Aguilar /Spinelli² analysis, an analysis Washingtoncourts apply in determining whether an informant's tip is sufficiently reliable to support a finding of probable cause to issue a search warrant. The Court of Appeals also concluded that the potential threat to public safety at the time did not justify the officers' reliance on the less than reliable information.

Analysis

¶ 12 When presented with issues involving constitutional interpretation under both the state and federal constitutions, our general rule provides that we analyze the state constitutional argument first. State v. Hendrickson, 129 Wash.2d 61, 69–70, 917 P.2d 563 (1996). If we find the conduct protected by the state constitution, we need not address the federal constitutional argument.

¶ 13 In a challenge to the validity of a Terry stop, article I, section 7 generally tracks the Fourth Amendment analysis. Warrantless seizures are presumed unreasonable, and the State bears the burden of establishing that the seizure falls within one of the carefully drawn exceptions to the warrant requirement. One such exception is a brief investigatory detention of a person, known as a Terry stop. State v. Acrey, 148 Wash.2d 738, 746, 64 P.3d 594 (2003). For a Terry stop to be permissible, the State must show that the officer had a “reasonable suspicion” that the detained person was, or was about to be, involved in a crime. Acrey, 148 Wash.2d at 747, 64 P.3d 594.

¶ 14 The reasonable suspicion standard, under either constitutional analysis, requires that the suspicion be grounded in “specific and articulable facts.” Terry, 392 U.S. at 21, 88 S.Ct. 1868 ; State v. Thompson, 93 Wash.2d 838, 841, 613 P.2d 525 1980 ). However, because article I, section 7 provides for broader privacy protections than the Fourth Amendment, our state constitution generally requires a stronger showing by the State. See generally Acrey, 148 Wash.2d at 746–47, 64 P.3d 594 ; Hendrickson, 129 Wash.2d at 69, 917 P.2d 563. The available facts must substantiate more than a mere generalized suspicion that the person detained is “up to no good”; the facts must connect the particular person to the particular crime that the officer seeks to investigate. State v. Bliss, 153 Wash.App. 197, 204, 222 P.3d 107 (2009) (citing State v. Martinez, 135 Wash.App. 174, 181–82, 143 P.3d 855 (2006) ). In this case, the State argues that the officers reasonably suspected that at least one of the car's occupants was involved in a potential gang-related...