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State v. J.E.L.

February 3, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
[J.E.L. *FN1], B.D. 06-07-77, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-8-04997-8. Date filed: 09/26/94.

Authored by C. Kenneth Grosse. Concurring: Susan R. Agid, Faye C. Kennedy.

The opinion of the court was delivered by: Grosse

GROSSE, J. -- J.E.L. appeals his conviction of minor in possession of a firearm claiming that the court should have suppressed his admission that he had a gun, arguing he was seized at the time he made this statement to a police officer. We reject his arguments because a person is "seized" within the meaning of the Fourth Amendment only when restrained by means of physical force or a show of authority. *fn2 A voluntary encounter does not ripen into a seizure until the officer has taken some affirmative action directed toward the particular individual such that a reasonable person would not believe that he or she is free walk away. *fn3

Here, a uniformed police officer approached J.E.L. on foot, without sirens or his gun drawn, and he asked J.E.L. if he could talk to him. J.E.L. gave the police officer his name and told the officer where he lived. Because J.E.L. appeared nervous with the officer's requests to keep his hands out of his pockets, the police officer asked J.E.L. "if he had anything illegal on him or something he shouldn't have?" J.E.L. admitted that he had a gun in his pocket.

J.E.L. asserts that he did not feel free to go and that by questioning him as to whether he had anything illegal on him, the incident was transformed into a seizure. These arguments are not persuasive because the "reasonable" person standard does not depend upon the subjective perceptions of the suspect. *fn4 Given the officer's testimony that he only asked J.E.L. to speak with him, there is sufficient evidence to support the juvenile court's finding that the officer asked to speak with J.E.L. Simply asking J.E.L. questions in a public place did not transform a noncoercive encounter into a seizure. *fn5

In his other assignment of error, J.E.L. claims that the commissioner erred by imposing an unspecified term of community supervision as well as a term of confinement. The commissioner ordered J.E.L. to participate in community supervision and imposed 21-28 weeks of commitment as a middle offender to the Division of Juvenile Rehabilitation. The State concedes that the community supervision order should be vacated.

We agree that the commissioner exceeded its authority by ordering community supervision. The court adjudicated J.E.L. guilty of former RCW 9.41.040(1)(e). On option A of schedule D-2, a sentence with 21-28 weeks of confinement does not include the option of community supervision. *fn6 Under these circumstances, the commissioner only had the authority to order 21-28 weeks of confinement.

In summary, we affirm his conviction and remand with instructions to strike the community supervision provision.

WE CONCUR:

Susan R. Agid

Faye C. ...


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