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State v. W.J.G.

December 16, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
W.J.G., B.D.: 3-2-78, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-8-01453-6. Date filed: 12/14/95. Judge signing: Hon. Eric Watness.

PER CURIAM. W.G. appeals his conviction for possession of marijuana. We reject his contention that he was unlawfully seized, accelerate review, and affirm.

Kirkland Police Officer Donna Rorvik, who was armed and in uniform, was patrolling a Park 'n Ride lot at approximately 11 p.m. January 21, 1995. Walking around a building, she discovered W.G. with two other youths, one of whom was using a pay telephone. She testified that because the Park 'n Ride lot had recently had a number of car prowls, she asked the boys what they were doing. They said they were waiting to use the telephone.

The officer then asked them for identification, which they replied they did not have. She then asked for their names and birth dates, which they gave. She then called in the names on the radio of her patrol car nearby to run a warrant check. She did not order the boys to stay or issue any other commands. While they were waiting, the youth who had been using the telephone asked the officer if he could leave. She told him yes and he walked away. W.G., who was standing next to him, did not similarly ask for permission to leave and testified he was "not sure" why. Although he testified he did not feel free to leave because she was "running" his name, he acknowledged on cross-examination that nothing really prevented him from leaving like his companion.

After a few minutes, the officer learned that W.G. had an outstanding arrest warrant, took him into custody, and during a search incident to arrest, discovered a quantity of marijuana. The trial court denied W.G.'s motion to suppress the evidence as the fruit of an illegal seizure.

W.G. contends as he did at trial that the police unlawfully detained him before learning of the outstanding warrant. This contention is without merit.

Under the Fourth Amendment, a person is seized only when restrained by means of physical force or a show of authority. State v. Thorn, 129 Wash. 2d 347, 352, 917 P.2d 108 (1996). The relevant inquiry is whether under all the circumstances surrounding the encounter, a reasonable person would believe he was not free to leave or otherwise terminate the encounter. Id.

The focus of this inquiry is whether the police conduct was coercive. Id. at 353. The determination of whether police have "seized" a person depends on the particular, objective facts of the encounter. State v. Ellwood, 52 Wash. App. 70, 73, 757 P.2d 547 (1988). Merely approaching a person in public and inquiring as to identity and/or identification, without more, does not constitute a seizure under the Fourth Amendment. Nor does the fact that an officer is armed and in uniform necessarily convert a street encounter into a seizure. State v. Soto-Garcia, 68 Wash. App. 20, 24, 841 P.2d 1271 (1992).

Applying these principles to the instant facts, we hold that the police did not seize W.G. while running the warrant check. The officer merely asked the boys what they were doing and whether they had identification. When they did not produce identification, she asked for their names and dates of birth. There was no evidence that she used either physical force or a show of authority to detain them after these requests.

W.G. testified that she was not impolite or "mean" and did not order them to wait or do anything else. Cf. State v. Ellwood, 52 Wash. App. at 73 (seizure occurred in similar circumstances when officer told defendants to "wait right here" while he ran a warrant check). Most importantly, one of W.G.'s companions was granted permission to leave and did, in fact, leave.

Because we conclude that a reasonable person would have believed he was free to leave, we find no error in the denial of the motion to suppress.

Affirmed.

19961216 ...


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