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Washington v. Thierry

January 30, 1991

THE STATE OF WASHINGTON, RESPONDENT,
v.
MARCUS THIERRY, APPELLANT



Worswick, C.j. Petrich and Alexander, JJ., concur.

Author: Worswick

Marcus Thierry appeals a juvenile conviction of carrying a loaded pistol in a vehicle without a license to carry a concealed weapon. RCW 9.41.050(3). He claims that evidence of the pistol should have been suppressed and that the evidence was insufficient to support the conviction. We affirm.

Substantial evidence and essentially undisputed findings of fact support the following recitation. Two Tacoma police officers, working off duty as security officers for Pierce Transit, observed Thierry, then under 18, with a teenage passenger, David Johnson, driving slowly past the 10th and Commerce transit stop in downtown Tacoma about 3 p.m. one winter afternoon. This is a high crime area with a high

incidence of gang activity, drug traffic, and violence. Despite the 40-degree weather, Thierry and Johnson had the windows of Thierry's 1978 Buick Electra rolled down, and the radio was playing loud enough to draw the attention of the officers and others in the area.

The officers continued to watch Thierry and Johnson, who were both slouched down in the front seat of the car, as they drove into a parking lot on Commerce adjacent to the transit area. Although there were many empty slots in the lot, Thierry drove around it, made no attempt to park, and stopped when he got back to the entrance.

The activity of Thierry and Johnson fit the Tacoma Police Department's profile of drive-by shootings, so the officers approached the car. As they drew near, Thierry immediately turned down his radio, and one of the officers saw a 2-foot-long wooden bat on the floor at Thierry's feet. He also noticed that Johnson was making furtive hand motions. The officers, concerned for their personal safety, ordered Thierry and Johnson to bring their hands into view.

As an officer walked to the driver's side of the car, he immediately saw a cocked semiautomatic pistol between the front armrests. The occupants had not been ordered out of the car before the officer spotted the pistol, and neither officer had his own gun drawn. The officers found another gun and knives in the car. After being advised of his rights, Thierry told the officers that he knew the guns were in the car and that he and Johnson, to whom the guns belonged, carried them for their own protection.

Thierry first contends that the initial stop made by the officers was invalid and that the court erred in denying his motion to suppress. We disagree.

[1] An investigative stop, although less intrusive than an arrest, is nevertheless a seizure and must therefore be reasonable under the Fourth Amendment to the United States Constitution and under Const. art. 1, ยง 7. State v. Kennedy, 107 Wash. 2d 1, 4, 726 P.2d 445 (1986). When the initial stop is unlawful, the ensuing search and its results

are inadmissible as "fruits of the poisonous tree." Kennedy, 107 Wash. 2d at 4 (quoting Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963)).

A stop is justified if the officer has "'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'" Kennedy, 107 Wash. 2d at 5 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889, (1968)); State v. Williams, 102 Wash. 2d 733, 739, 689 P.2d 1065 (1984) (in determining propriety of investigative stop, court first asks whether initial interference with the suspect's freedom was justified at its inception); State v. Rice, 59 Wash. App. 23, 26, 795 P.2d 739 (1990). Thierry contends that since no crime had been reported, the officers could have had ...


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