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Washington v. Toney

as corrected.: April 8, 1991.

THE STATE OF WASHINGTON, RESPONDENT,
v.
XAVIER TONEY, APPELLANT



Pekelis, J. Coleman and Kennedy, JJ., concur.

Author: Pekelis

Xavier Toney, a juvenile, appeals from the trial court's denial of his motion to suppress evidence seized by the police. Toney contends that the police conduct of following him first in their patrol car and then later on foot constitutes a seizure for which reasonable suspicion was lacking. We affirm.

I

On March 19, 1989, at around 1:30 p.m., Seattle Police Officers Dallas Murry and Michael James Magee were on routine patrol in the Rainier Vista housing development when they observed a group of 6 to 8 young males standing next to an apartment building. According to Magee, this is an area with a high incidence of residential burglaries and narcotic activity.

Upon seeing the officers, the group split up with the majority running northbound through the housing development. Murry and Magee followed the group in their patrol car, driving through the development on a parallel street. Officer Magee testified that the patrol car was not speeding and that they did not activate their patrol lights or siren.

As the officers continued down the street, the defendant, Toney, broke away from the group and cut across Martin Luther King Way to the east side of the development. The patrol car followed him for approximately 5 minutes.

Officer Magee stated that a citizen, seeing the patrol car, pointed in the direction behind an apartment building. Magee got out and walked around the corner of the building where he observed Toney take a plastic bag from his jacket, toss it to the ground, and kick grass over the top of it. Toney was arrested. The bag was retrieved and later determined to contain rock cocaine.

Toney was charged by information with one count of possession of cocaine in violation of the Uniform Controlled Substances Act, RCW 69.50.401(d).*fn1 At the fact-finding hearing he moved to suppress the cocaine. The court denied

the motion and found Toney guilty as charged. Toney appeals the trial court's denial of his motion to suppress.

II

[1] Toney asserts that the officers' pursuit on foot constituted a seizure, thus implicating Const. art. 1, ยง 7 and Fourth Amendment protections. We recognize that while the trial court's findings following a suppression hearing are of great significance to a reviewing court, the constitutional rights at issue compel our independent evaluation of the evidence. State v. Daugherty, 94 Wash. 2d 263, 269, 616 P.2d 649 (1980), cert. denied, 450 U.S. 958 (1981).

[2] Under Washington law, a seizure occurs when the circumstances surrounding the encounter demonstrate that a reasonable person would believe he was not free to leave. Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216, 80 L. Ed. 2d 247, 104 S. Ct. 1758 (1984); United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 100 S. Ct. 1870, reh'g denied, 448 U.S. 908 (1980); State v. Ellwood, 52 Wash. App. 70, 73, 757 P.2d 547 (1988). Whether a reasonable person would believe he was detained ...


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