Appeal from Superior Court of King County. Docket No: 95-8-01793-4. Date filed: 05/24/95.
Authored by Mary K. Becker. Concurring: Faye C. Kennedy, Ronald E. Cox
The opinion of the court was delivered by: Becker
BECKER, J. -- Patrick Williams, a juvenile, appeals his adjudication for unlawful possession of a firearm. We affirm.
Metro Transit had received repeated reports from its drivers of problems on bus route 48 from the vicinity of an alternative school to its destination on Capitol Hill. The reported problems included the presence of weapons on the bus, property destruction, graffiti, unlawful behavior, and disorderly conduct. Metro Transit's security personnel responded by conducting surveillance jointly with Seattle police. One afternoon about 2:15, two of Metro Transit security officers rode in the bus while Seattle police officers followed behind. The security officers observed in the rear of the bus a raucous and disorderly group of about ten youths, mostly male and between the ages of 13 and 17. At a predetermined point along the route, 23rd and East Madison, the bus stopped and the security officers removed four of the youths they had identified as the loudest and most disruptive.
Appellant Williams was among those removed; the waiting Seattle police officers then frisked all four for weapons. Seattle Police Officer Hayden frisked Williams for weapons and found the loaded handgun. This led to the charge against Williams for unlawful possession of a firearm.
Williams argues that the gun was the fruit of an unreasonable search, and that the trial court erred in admitting it as within the scope of a valid Terry *fn1 stop. We review findings of fact for substantial evidence and we review Conclusions of law de novo. State v. Thorn, 129 Wash. 2d 347, 351, 917 P.2d 108 (1996). To evaluate his contention, we conduct a two-step inquiry: (1) whether the initial interference with the suspect's freedom of movement was justified at its inception, and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place. State v. Watkins, 76 Wash. App. 726, 730, 887 P.2d 492 (1995).
The court found that the Metro officers identified Williams as one of the four youths who were largely responsible for the disturbance. It further found that Officer Hayden said he "was acting on the information provided by the Metro officers that previous disturbances on the bus involved violence and assaultive behavior."
At trial, one of the Metro officers described the youths' conduct as so disorderly that it caused other passengers to move to the front of the bus. He said it included "loud, disruptive, profane language, threatening, menacing, actual physical contact" and that some of the youths were striking each other. Williams contends the disturbance, as described, was mere boisterous behavior, not criminally sanctionable as "disorderly bus conduct", *fn2 and therefore Officer Hayden had no basis for detaining him. We need not analyze the scope of the disorderly conduct ordinance, for an officer may make a valid Terry stop without being certain that criminal conduct has actually occurred. What is required is only the officer's reasonable, articulable suspicion that criminal activity is afoot. State v. Garcia, 125 Wash. 2d 239, 883 P.2d 1369 (1994); Terry, 392 U.S. at 21. Officer Hayden did not personally observe Williams' conduct on the bus, but he was acting on information about previous disturbances on the bus involving violence and assaultive behavior as well as disorderly conduct. When the Metro officers told him that they had witnessed a disturbance and that Williams was partly responsible for it, Officer Hayden had sufficient reason to detain Williams briefly for questioning.
Williams argues that even if the investigative detention was reasonable, the patdown search was not. A limited frisk for weapons is reasonable under the Fourth Amendment when articulable facts known to the officer, and reasonable inferences therefrom, lead the officer to believe the suspect is armed and presently dangerous. State v. Collins, 121 Wash. 2d 168, 173, 847 P.2d 919 (1993); Terry, 392 U.S. at 30. The officer need not be absolutely certain that the individual is armed. "'A founded suspicion is all that is necessary, some basis from which the court can determine that the [frisk] was not arbitrary or harassing.'" Collins, 121 Wash. 2d at 173 (quoting State v. Belieu, 112 Wash. 2d 587, 601-02, 773 P.2d 46 (1989), and Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966)).
The officer's testimony supplies a basis for concern that the search was both arbitrary and harassing. Officer Hayden told the court Williams had two large coats on. He said he frisked Williams for weapons because "It's a normal thing that I do, working the south end for years. If somebody has a bulky jacket on, I usually frisk them down before I talk to them." We are not prepared to hold that an officer who has made a Terry stop of a young man in the south end of Seattle may frisk him for weapons simply because he is wearing baggy clothing.
But Officer Hayden went on to testify that he had reason to believe Williams was armed because "there was a disturbance involving several youths on a bus." The trial court found as a fact that Officer Hayden was acting on information provided by Metro Transit officers about previous disturbances involving violence and assaultive behavior. Williams does not assign error to this finding. Where a defendant does not assign error to a finding of fact, that finding is treated as a verity on appeal. State v. Hill, 123 Wash. 2d 641, 644, 870 P.2d 313 (1994).
In denying the motion to suppress, the trial court relied--as do we--on this additional information known to the officer, not the baggy clothing. As a participant in the joint surveillance operation, Officer Hayden knew that the bus was under surveillance because it had been the scene of prior disturbances involving assaultive behavior and the presence of weapons, and he knew that Williams was part of a disorderly group of youths causing the present disturbance on the same bus. This was sufficient to support a reasonable ...