Appeal from Superior Court King County. Docket No: 94-8-06968-5. Date filed: 02/13/95. Judge signing: Hon. Leroy McCullough.
Authored by Ronald E. Cox. Concurring: C. Kenneth Grosse, Faye C. Kennedy.
The opinion of the court was delivered by: Cox
COX, J. -- Vasa Coffin appeals the order of Disposition entered against her for one count of possession of cocaine. Because the seizure of Coffin was invalid and the trial court should therefore have granted her motion to suppress, we reverse the trial court and dismiss the charge.
Late one evening in March 1994, Officer Pamela K. Holmes stopped a car in which Coffin was one of four passengers. The officer stopped the car because one of its license plates was not illuminated. She asked the driver of the car for his license, registration, and proof of insurance. He had no identification. Officer Holmes then directed the driver and all four passengers to exit the car and place their hands on its hood. She and the training officer who was with her began to pat down all five persons for weapons.
Thereafter, other police officers arrived and assisted with the pat downs. During this process, Officer Holmes found ammunition on one of the persons other than Coffin. Another officer found more ammunition in the back seat of the car.
When Officer Suzanne Parton arrived on the scene, no one had as yet frisked Coffin. Officer Parton began to pat down Coffin, felt two hard objects in her pocket, and asked her what they were. When Coffin failed to respond, the officer reached into the pocket, removing a lipstick, a lighter, and a small plastic baggie with rock cocaine in it.
The State charged Coffin with possession of cocaine. The juvenile court denied Coffin's motion to suppress and found her guilty as charged. Coffin appeals.
She argues that Officer Holmes lacked sufficient justification to order her out of the car and that this invalid seizure requires suppression of the cocaine evidence. We agree.
When a party challenges denial of a motion to suppress evidence, we review the trial court's findings of fact for substantial evidence. *fn1 Substantial evidence exists if the evidence in the record is sufficient to persuade a fair-minded, rational person of the truth of the court's finding. We review the Conclusions of law de novo. *fn2 Warrantless searches, and seizures incident thereto, are per se unreasonable and therefore violate constitutional protections. *fn3 The State has the burden to prove that the intrusion falls squarely within one of the "'carefully delineated'" exceptions to the warrant requirement. *fn4 Among those exceptions is a "seizure of a person short of a custodial arrest and . . . an accompanying brief frisk of an individual's outer clothing to search for weapons." *fn5 Our state Supreme Court begins its analysis "based on the premise that [it] should focus on the reasonableness of the officer's activities with respect to the privacy rights thereby invaded." *fn6 It has further stated that "a court must make several inquiries in evaluating investigative stops: (1) was the initial interference with the suspect's freedom of movement justified at its inception? and, (2) was it reasonably related in scope to the circumstances which justified the interference in the first place?" *fn7 Here, there is no dispute that Coffin was seized when the police ordered her and the other occupants out of the car and began patting them down. *fn8 But the court's oral and written findings and Conclusions do not squarely address the threshold issue: Was the seizure of Coffin valid? Our independent review of the record before us leads us to conclude that it was not.
The record shows that the police stopped the car in which Coffin was a passenger late at night in a dark and deserted area for improper display of a license plate. Officer Holmes was accompanied by a training officer whose function was to observe her actions. When Officer Holmes approached the driver, she discovered he had no identification. She then ordered all occupants out of the vehicle.
At trial, Holmes described the stop and stated that she had all occupants exit the car for officer safety reasons. She testified that she approached the vehicle with her pistol drawn, but concealed behind her leg. She described this procedure as follows: "I'll just usually have it [the gun] down behind my leg. Occupants of the vehicle don't know that it's out. If I don't see a weapon, I see everybod[y's] hands, then I'll put my weapon back in my holster." She testified that she did, in fact, return her weapon to its holster when she contacted the driver.
She also testified that she did not recognize any of the passengers. Nor could she recall that any of them were not wearing seat belts or were committing any other infraction.
She further testified that she was concerned because occupants of the vehicle were wearing gang colors. The court found that the officer associated the colors she saw with gangs, but did not accept the officer's Conclusion that they were, in fact, gang colors.
The officer also testified that there "had also been a recent gang shooting in the area," although she did not recall exactly where or when. She claimed to have noted the shooting in her report. But her report was not introduced as an exhibit at trial and is therefore not part of the record before us. More importantly, nothing in her testimony or elsewhere in the record establishes any connection ...