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Washington v. Bennett

decided: April 29, 1991.

THE STATE OF WASHINGTON, RESPONDENT,
v.
JAMES BENNETT, APPELLANT



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

Author: Kennedy

This case concerns the arrest and conviction of a juvenile for knowingly riding in a stolen vehicle in violation of RCW 9A.56.070. Appellant claims that he was prejudiced by a delayed entry of findings of fact and conclusions of law, and that he was seized in violation of the fourth amendment to the United States Constitution and article 1, section 7 of the Washington State Constitution. We affirm.

I

Facts and Procedural History

In the early morning hours of January 8, 1989, King County Police Officer Montalvo saw a gray car parked in an otherwise empty parking lot across the street from a 7-Eleven store near Southwest 136th and First Avenue South in King County. The car was parked in such a way as to be not observable or only partially observable from the 7-Eleven or from the adjacent streets. There were no cars parked in the 7-Eleven parking lot at that time.

Appellant and four others got out of the car and began approaching the 7-Eleven. According to Officer Montalvo, some of the five appeared to be adults and some appeared to be juveniles. There was only one clerk on duty in the store, and Officer Montalvo had knowledge of previous incidents at this store at this time of day. Officer Montalvo noted that the five were "mingling" at a phone booth near the street entrance for a while. They then proceeded toward the door of the store. As Officer Montalvo drove his police car into the 7-Eleven parking lot, these five persons stopped at the door of the store. When Officer Montalvo asked them what they were doing, they replied "nothing".

He then asked them their names and for corroborating identification. Several of them gave false names at first. Only one produced identification at that time, and none of the names given by the parties showed up at the Department of Licensing pursuant to a computer check conducted by Officer Montalvo. Appellant first told Officer Montalvo that his name was Pernell Jones, but later admitted that his name was James Bennett. The other parties also eventually gave their real names and some had identification. According to Officer Montalvo, during this questioning, he indicated to the parties that they were not free to leave. The questioning lasted approximately 5 to 7 minutes. After the questioning, Officer Montalvo indicated that they could leave, and appellant and the others headed back toward the car in the lot across the street, rather than into the 7-Eleven.

At about this time, another officer, Officer Woo, arrived. Officer Woo recognized some of the persons, including appellant Bennett, from a previous meeting. Officer Woo later testified that, at his earlier meeting with them, Bennett and the driver of the car in the parking lot had told him that they did not drive and usually took the bus. There is no direct testimony indicating when Officer Woo realized that one of the parties he recognized was the driver of the car, but when Officer Montalvo told him that the group was in a car, he indicated to Officer Montalvo that he did not think they had cars and that they should investigate.

The officers then drove their cars across the street to check the license plate of the car in the parking lot. Officer Montalvo parked behind the car, while Officer Woo parked behind Montalvo. Officer Montalvo testified that he did not use his flashing red lights, but that he and Officer Woo parked in such a manner that the car would have been unable to leave the parking lot. Officer Montalvo then ran a check on the plates and determined that the car had been stolen. At the same time, Officer Woo approached the driver of the car to ask questions and

noticed that the car was running without any keys. Officer Montalvo testified that the duration of the stop until determining the car was stolen took less than a minute.

After determining that the car was stolen, Officer Montalvo turned on his lights and asked the occupants to get out of the car. He read them their Miranda*fn1 rights shortly thereafter. Bennett was then immediately taken to the police station where he made a statement that he had ridden in the car knowing that it was stolen.

Bennett was charged by information with violation of RCW 9A.56.070. A fact-finding hearing was held on May 11, 1989. At the hearing, Bennett moved to suppress all of the evidence arising out of his arrest and detention, including his statement of knowledge to the police. The motion was denied and Bennett was found guilty as charged. Bennett was sentenced to 22 days of confinement with 1 day suspended and was to begin serving his sentence on June 16, 1989.

Bennett filed his notice of appeal on July 10, 1989. When the prosecutor's office did not supply findings of fact and conclusions of law within the time period required by JuCR 7.11(d), appellant filed a motion with this court requesting an order compelling presentation of findings on or before January 5, 1990. This motion was granted by clerk's ruling on December 22, 1989. The findings of fact and conclusions of law were not entered until February 21, 1990. One of the findings, finding of fact ...


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