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State v. Powell

March 10, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
BRIAN KEITH POWELL, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-1-03496-5. Date filed: 09/01/95. Judge signing: Hon. Sally Pasette.

PER CURIAM. -- Brian Keith Powell appeals his conviction for possession of a controlled substance, contending that his trial counsel was constitutionally ineffective. He argues that his counsel should have moved to suppress cocaine seized when police officers stopped him. Because we find that the trial court would not have suppressed the drugs, Powell's trial counsel was not ineffective. Therefore, we affirm.

Seattle police officers Ditusa and Strand were patrolling in the area of 85th Street and Aurora Avenue North in an unmarked police van on May 10, 1995, as part of a special drug enforcement unit. Both officers had specialized police force training in narcotics crime. They were observing two men who they knew to be involved in narcotics trafficking when they noticed them making contact with Powell who was walking on the opposite side of the street. Powell crossed the street and met up with them. Strand observed Powell pull a small object from his pocket and show it to the other men. He could not see what it was because Powell held it in a cupped hand.

The officers turned the van around and stopped it on the sidewalk about 15 feet from the group. They exited the van, identified themselves as police officers, and instructed the group to stop. Powell began walking in the opposite direction, followed by Ditusa and Strand. When Powell reached the next corner, he began running and threw a package on the ground. He eventually ran into a fence and fell when Ditusa, as a ruse, yelled, "Let the dogs loose." Strand collected the discarded package and later identified it as cocaine.

Powell contends that the cocaine was seized as the result of an unlawful Terry *fn1 stop and that his trial counsel was constitutionally ineffective because he failed to move to suppress it before trial. To establish a claim of ineffective assistance of counsel, Powell must show both that his trial counsel's performance was so deficient that it was unreasonable and that he was prejudiced by the deficient representation. State v. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995). In this case, to establish either element, Powell must show that his unlawful seizure claim was meritorious and that, had the court suppressed the cocaine, the result of the trial would have been different. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). Because we find that the officers seized the cocaine pursuant to a lawful Terry stop, and the trial court would not have granted a motion to suppress, we reject Powell's assertion that his trial counsel was ineffective.

Police officers may briefly detain and question a suspect if they have a reasonable belief, or well founded suspicion, that the individual is involved in actual or potential criminal conduct. Terry v. Ohio, 392 U.S. 1, 25-26, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). *fn2 Such a suspicion exists when the officers can point to specific and articulable facts which, taken together with reasonable inferences, support a finding that the intrusion is warranted. Terry, 392 U.S. at 21. In determining whether a Terry stop was lawful, we consider the officers' training, the location of the stop, and the suspect's conduct. State v. Pressley, 64 Wash. App. 591, 596, 825 P.2d 749 (1992).

Powell argues that the officers' only basis for stopping him was that he was in a high crime area associating with individuals known to the police. A suspect's mere presence in a high crime area, or association with known criminals are not sufficient bases for a Terry stop. See State v. Ellwood, 52 Wash. App. 70, 74, 757 P.2d 547 (1988) (defendant's presence in a high crime area was not sufficient for a lawful stop); State v. Richardson, 64 Wash. App. 693, 697, 825 P.2d 754 (1992) (defendant's presence in a high crime area and association with known traffickers was not sufficient for a lawful stop). He also correctly observes that the conduct observed by the officers must be more consistent with criminal activity than innocent conduct. See Pressley, 64 Wash. App. at 596 (huddling together examining an object in defendant's hand was not a sufficient basis for a stop until the defendant reacted to the presence of police officers and immediately turned to walk away).

Here, the officers observed Powell and his associates for a period of time prior to the stop. The officers were alert for conduct consistent with drug transactions because they were on a special assignment to patrol a high drug crime area. Unlike the officers in Pressley, Ditusa and Strand watched the men walk up and down Aurora Avenue several times, and flag Powell from across the street. They then observed the group come together and Powell present a small object in his cupped hand for the other men to examine. Taken together, the entire episode was consistent with the officers' training in narcotics transactions in the area and sufficient for the officers to have a reasonable suspicion that Powell was involved in criminal conduct.

If a suspect discards contraband subsequent to a lawful stop, the police may seize the contraband. Compare State v. Nettles, 70 Wash. App. 706, 855 P.2d 699 (1993) (property discarded as the result of an illegal seizure is not considered abandoned and cannot be retrieved by the police), review denied, 123 Wash. 2d 1010, 869 P.2d 1085 (1994). After he was stopped, Powell threw the cocaine into the open where officers were free to pick it up. Consequently, Powell's arguments that he was illegally stopped and that the cocaine was unlawfully seized must fail. Because Powell is unable to establish that the trial court would have granted a motion to suppress, he cannot show that his counsel was ineffective or that he was prejudiced.

Affirme ...


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