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State v. Evans

October 7, 1996


Appeal from Superior Court of King County. Docket No: 94-1-05930-7. Date filed: 03/03/95. Judge signing: Hon. Jo Anne Alumbaugh.

PER CURIAM. Glenn Evans appeals from his convictions for second degree theft and possession of stolen property in the second degree. He contends that evidence seized following an unlawful investigatory detention should be suppressed. He also contends that his conviction should be reversed because no written findings of fact were entered following a CrR 3.5/3.6 hearing.

Based on the totality of the circumstances, including a reliable report of multiple ATM transactions late at night, one suspect's attempt to conceal something, and the second suspect's possession of a large "wad" of currency, police officers possessed a reasonable suspicion of criminal activity justifying an investigatory stop. In addition, written findings of fact in accordance with CrR 3.5 and 3.6 have now been entered, and Evans has not been prejudiced by the delay. Accordingly, we affirm.

Shortly after midnight on July 15, 1994, Seattle Police Officers Thomas Mooney and James Dyment were dispatched to investigate a report of suspicious activity. The officers were informed that a hospital security guard had reported seeing a man and woman making several ATM transactions at various cash machines in the area of 1200 Madison. In addition to identifying the gender and race of the individuals, the security guard provided a detailed clothing description.

The officers arrived in the area a few minutes later and saw two persons matching the description provided by the security guard; no one else was visible. The individuals, later identified as Victoria Bennett and appellant Glenn Evans, were walking on the sidewalk next to a First Interstate Bank; several other banks had cash machines in the area.

Bennett and Evans appeared to see the officers and quickly turned around and started walking in the other direction. Bennett appeared to be attempting to discard something or place it down the front of her pants.

The officers stopped their car and asked Bennett and Evans to come over. As Evans approached the car, the officers could see a large "wad" of cash sticking out of his pants pocket. The officers directed Evans and Bennett to place their hands on the hood of the patrol car and then frisked them for weapons. When the officers indicated that they were investigating suspicious ATM transactions, Evans denied having used an ATM.

A short time later, the hospital security guard arrived and identified Evans and Bennett as the persons he had seen making several ATM transactions. The guard explained to the officers that he found the transactions suspicious because Evans and Bennett appeared to be making multiple withdrawals at several different machines. Officer Dyment then removed the wad of cash from Evans' pocket.

A few minutes later, Officer Angela Gordon conducted a more thorough pat-down of Bennett and removed two credit cards from her crotch area. The credit cards were in the name of "Sam Walker" and were wrapped in a piece of paper with the word "PIN" and 4 numbers written on it. At this point, the officers arrested Evans and Bennett. A subsequent search of Evans produced a credit card receipt and other papers carrying the name of "Sam Walker."

The trial court denied Evans' motion to suppress the evidence, concluding that the officers had an articulable suspicion of criminal activity justifying an investigatory stop and that probable cause to arrest developed during the course of the investigation. The trial court also ruled that Evans' pre-arrest statements were admissible. Written findings of fact and Conclusions of law as required by CrR 3.5 and 3.6 were filed in the trial court on October 4, 1995, after Evans filed his opening brief in this appeal.

Following a jury trial, Evans was found guilty as charged.

On appeal, Evan challenges only the lawfulness of the initial investigatory stop. He does not challenge the scope of the subsequent investigation or the trial court's Conclusion that the investigation eventually resulted in probable cause to arrest. Consistent with the Fourth Amendment and article 1, section 7 of the Washington State Constitution, a police officer may conduct an investigatory stop based on less than probable cause if the officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." State v. Glover, 116 Wash. 2d 509, 514, 806 P.2d 760 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). The level of articulable suspicion necessary to support an investigatory detention is "a substantial possibility that criminal conduct has occurred or is about to occur." State v. Kennedy, 107 Wash. 2d 1, 6, 726 P.2d 445 (1986). In reviewing the reasonableness of an investigatory stop, a court evaluates the totality of the circumstances known to the officer and the officer's training and experience. Glover, 116 Wash. 2d at 514.

The suspects in this case were "seized" for constitutional purposes no earlier than when the officers directed them to place their hands on the police car for purposes of a frisk. See State v. DeArman, 54 Wash. App. 621, 623-24, 774 P.2d 1247 (1989). At that point, the officers were aware that a hospital security guard had reported seeing a man and a woman conduct multiple transactions at several ATM machines. Because the tip came from an identified citizen informant who had personally observed the suspicious conduct, the officers were entitled to rely on the information. See State v. Northness, 20 Wash. App. 551, 557, 582 P.2d 546 (1978). The security guard also supplied a detailed clothing description that the officers immediately confirmed upon arriving at the scene.

In addition, the officers were entitled to consider the lateness of the hour, the absence of other persons in the area, the fact that Evans and Bennett quickly turned away upon seeing the officers and started walking in a different direction, Bennett's apparent attempt to conceal something in the front of her pants, and Evans' possession of a large "wad" of currency sticking out of his pants. These circumstances, coupled with evidence that the suspects had made several "transactions" at different cash machines in the same area, constituted specific and articulable facts supporting a reasonable suspicion that the suspects were involved in the unlawful use of the cash machines.

As the trial court noted in its oral ruling, a person's use of several different cash machines within a short period of time, even late at night, is not criminal. But activity that is consistent with both criminal and noncriminal conduct may justify a brief investigatory detention. State v. Kennedy, 107 Wash. 2d at 6. An officer is not required to rule out all innocent explanations before ...

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