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Washington v. Thorn

filed: May 30, 1996.

STATE OF WASHINGTON, APPELLANT,
v.
JAMES M. THORN, RESPONDENT.



Appeal from Superior Court, Spokane (92-1-01218-0) County; Honorable Wallis Friel Judge. Judgment Date: 6-1-93.

Pekelis, J.p.t.,*fn* Durham, C.j., Dolliver, Smith, Guy, Madsen, Talmadge, J.j., Alexander, J. (dissenting by separate opinion), Johnson, J., dissenting. Sanders, J. (did not participate)

Author: Pekelis

En Banc

PEKELIS, J.P.T.*fn* --The State appeals a Court of Appeals decision affirming the trial court's suppression of evidence in a prosecution for possession of a controlled substance. The trial court and Court of Appeals concluded that the

evidence was obtained pursuant to an illegal seizure. We reverse.

The parties agreed to submit the case on the following stipulated facts. While on routine patrol in a marked patrol car shortly after midnight, Spokane Police Officer K. Peden observed three people seated in a car that was legally parked in the parking lot of Friendship Park in suburban Spokane. The officer also observed a flicker of light emanate from within the parked car and believed that the light was a flame being used to ignite a drug pipe. Friendship Park is not known as a high crime area and there is no indication that Officer Peden heard any drug-related conversations, smelled marijuana, or observed any overt appearance of drug intoxication on the part of the three occupants of the car.

Officer Peden stopped, exited the patrol car, and approached the parked car on foot. The officer asked the driver of the parked car, "Where is the pipe?" The stipulated facts do not reveal the manner, tone of voice, or body language of the officer in asking the question. In response to the question, the driver, James Thorn, removed a pipe from his coat pocket and handed it to Officer Peden. Peden recognized it as a pipe used to smoke marijuana and arrested Thorn for "possession of drug paraphernalia."*fn1 During the ensuing search incident to that arrest, Peden

Thorn moved to suppress the evidence, arguing that it was the result of an illegal stop by Officer Peden in violation of his Fourth and Fifth Amendment rights under the United States Constitution, and article I, sections 7 and 9 of the Washington Constitution.

The trial court resolved the only disputed fact in favor of Thorn, finding that Officer Peden's observations were "not so distinctive" as to make it clear that Thorn was lighting a pipe, let alone a marijuana pipe. Findings of Fact and Concl. of Law, Clerk's Papers at 36. The trial court relied on the absence of additional evidence such as the length and distance of the officer's observation, the size of the pipe, the smell of marijuana, or signs of the defendant's intoxication.

Thus, the trial court concluded that Officer Peden's actions could not be justified pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) because the officer did not have a reasonable, articulable suspicion, based on objective facts, that Thorn was involved in criminal activity. The court further concluded that Thorn had been seized when Officer Peden asked him, "Where is the pipe?" because it would be "unreasonable to believe that [Thorn] understood that he was free to leave." Findings of Fact and Concl. of Law, Clerk's Papers at 37. Consequently, the trial court suppressed evidence of the pipe, its contents, and the mushrooms. Because the court's suppression ruling effectively eliminated all evidence on which the prosecution could proceed, the trial court dismissed the case.

The State appealed the suppression order and the Court of Appeals, Division III, affirmed. We granted review to resolve only whether Thorn was seized when Officer Peden asked him, "Where is the pipe?"

The Fourth Amendment protection against unreasonable searches and seizures is implicated only when an encounter between a police officer and a citizen rises to the level of a seizure. There is only one Washington case addressing whether the determination of whether a seizure has occurred is a question of fact or one of law. State v. Soto-Garcia, 68 Wash. App. 20, 24, 841 P.2d 1271 (1992). The Court of Appeals in that case stated, without discussion or citation to authority, that the determination was a question of fact. Id. However, the weight of federal

authority consistently holds that the determination is more appropriately labeled a mixed question of law and fact. United States v. Dixon, 51 F.3d 1376, 1379 (8th Cir. 1995); United States v. Tehrani, 49 F.3d 54, 58 (2d Cir. 1995); Martinez v. Nygaard, 831 F.2d 822, 826 (9th Cir. 1987); United States v. Kerr, 817 F.2d 1384, 1386 (9th Cir. 1987). Cf. Thompson v. Keohane, 116 S. Ct. 457, 465-66, 133 L. Ed. 2d 383 (1995) (holding that determination of whether defendant is in custody when interrogated is mixed question of fact and law). But see United States v. Werking, 915 F.2d 1404, 1409 (10th Cir. 1990) (characterizing trial court determination of seizure as question of fact).

We agree with the view that the determination of whether a seizure has occurred is a mixed question of law and fact. The resolution by a trial court of differing accounts of the circumstances surrounding the encounter are factual findings entitled to great deference.*fn2 State v. Hill, 123 Wash. 2d 641, 647, 870 P.2d 313 (1994) (stating that findings of fact are binding on appeal if there is substantial evidence in the record supporting the facts). However, the ultimate determination of whether those facts constitute a seizure is one of law and is reviewed de novo. Martinez, 831 F.2d at 826; Kerr, 817 F.2d at 1386; cf. Thompson, 116 S. Ct. at 465. The trial court in this case evidently recognized this distinction, labeling its resolution of whether a seizure had occurred a "Conclusion of Law." Findings of Fact and Concl. of Law (CrR 3.6 Hearing), Clerk's Papers at 37. Thus we proceed to review de novo the trial court's conclusion that a seizure occurred.

A person is "seized" within the meaning of the Fourth Amendment of the United States Constitution only

when restrained by means of physical force or a show of authority.*fn3 State v. Stroud, 30 Wash. App. 392, 394-95, 634 P.2d 316 (1981) (citing United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)), review denied, 96 Wash. 2d 1025 (1982). A police officer does not necessarily seize a person by striking up a conversation or asking questions. Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991); State v. Mennegar, 114 Wash. 2d 304, 310, 787 P.2d 1347 (1990). Thus, in Bostick, the United States Supreme Court held that police officers did not necessarily seize a bus passenger by asking the defendant for identification, explaining that they were narcotics officers, and requesting to search the defendant's luggage. Bostick, 501 U.S. at 431-32. Similarly, the Court of Appeals, Division I, has held that a police officer did not seize a defendant by stating that she would like to speak with the defendant and asking him to remove his hands from his pockets. State v. Nettles, 70 Wash. App. 706, 708, 855 P.2d 699 (1993), review denied, 123 Wash. 2d 1010, 869 P.2d 1085 (1994).

The relevant inquiry for the court in deciding whether a person has been seized is whether a reasonable person would have felt free to leave or otherwise decline the officer's requests and terminate the encounter. Bostick, 501 U.S. at 436. The court must look to the totality of circumstances to determine whether a seizure has occurred. Bostick, 501 U.S. at 437; State v. Toney, 60 Wash. App. 804, 806, 810 P.2d 929 (looking to ...


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