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State v. Dyke

April 28, 1997

STATE OF WASHINGTON, APPELLANT,
v.
GARY DYKE, RESPONDENT.



Appeal from Superior Court of King County. Docket No: 95-1-06555-1. Date filed: 12/13/95. Judge signing: Hon. Richard A. Jones.

Authored by Susan R. Agid. Concurring: H. Joseph Coleman, Ann L. Ellington.

The opinion of the court was delivered by: Agid

AGID, J. -- The State appeals the trial court's order granting Gary Dyke's motion to suppress evidence seized from his camper. The trial court believed that the police lacked reasonable suspicion to stop Dyke and that the basis for the stop was pretextual. Because we conclude that there was reasonable suspicion to support the stop, we reverse.

FACTS

At approximately 1:30 a.m. on September 20, 1995, Seattle Police Officers Dupleich and Gleason were on routine patrol. They were dispatched to the 1300 block of Dexter Avenue North in response to a complaint by a 911 caller about suspicious narcotics activity associated with a blue camper truck parked in the area. The 911 caller told police that the camper had been there for about an hour during which time there had been a number of short-term visitors to the camper and the occupant had made several calls from a nearby pay phone. On the way to Dexter Avenue the officers contacted two plainclothes police officers, Murry and Dermody, for backup. When Murry and Dermody arrived in the area, they found the camper parked toward the back of a vacant lot away from the street lights. They set up a surveillance point down the street from which they watched the camper with binoculars. After about five minutes, an older Chevrolet drove up Dexter Avenue, turned off its lights as it approached and drove into the lot. The driver, later identified as Allen Begg, got out of the car carrying a number of items in his hands, walked to the camper and knocked on the door. The officers did not see Begg make contact with anyone. But they observed that he continually looked about as if he was afraid someone was watching him and that his attention was briefly diverted to a side window. He also walked around to the back of the camper. Police dispatch had earlier informed the officers that the 911 caller had described the Chevrolet as it approached and that the caller now reported that someone inside the camper had stepped outside and looked up and down the street while Begg was nearby. As Begg walked back to the Chevrolet, the officers had the impression that he spotted them. When he got to the car, Begg placed the items he was carrying in the car and spoke briefly with the woman passenger. She then got out and walked down Dexter Avenue with him.

Murry and Dermody contacted Begg and his companion as they walked down the street. Dermody recognized Begg from prior contacts as a heroin addict. Both officers observed needle scars on his arms. Begg admitted that he was a heroin addict and told the officers that he had gone to the camper that evening to trade the items he had with him for drugs. He told the officers that he was unsuccessful in doing so but stated he had purchased drugs from someone in the camper on prior occasions. While the officers were talking to Begg, the camper began to drive away. As it left the lot, it drove over the curb, and the officers observed that its headlights were not on. Murry directed Gleason and Dupleich to stop the camper, which they did.

Murry and Dermody joined Gleason and Dupleich in contacting the driver, Gary Dyke. Gleason told Murry that Dyke had no driver's license, so Murry asked Dyke for some other form of identification. After he had emptied his pockets to show that he did not have any identification with him, Dyke asked the officers if he could get it from the camper. Murry agreed and walked with him to the rear door of the camper. There, Dermody asked Dyke if he and Murry could come in with him. Dyke agreed. When Dyke entered the camper, Murry saw a small plastic bindle containing what appeared to be several pieces of rock cocaine and a glass vial with a white substance in it on a bed just inside the camper. He also saw a medium-sized hunting knife resting on a ledge on the wall of the camper. Murry believed Dyke was moving in the general direction of the knife to retrieve his identification and stopped him, removed him from the camper and arrested him.

Because Dyke refused to allow police to search the camper, the officers obtained a search warrant from Judge Richard Ishikawa. When they searched the camper, the officers recovered a spoon and packaging material with suspected narcotics residue, a large baggie containing a white, powdery substance later determined to be cocaine, two suspected crack pipes, and 13 tablets of suspected klonopin. Police also recovered a Sony television, a Konica camera, two VCRs and a CD player which they believed were items that were stolen and traded for drugs.

Dyke was charged with one count of possession with intent to manufacture or deliver in violation of the Uniform Controlled Substances Act, RCW 69.50.401(a)(1)(ii). *fn1 Dyke moved to suppress the evidence seized as a result of the stop. After hearing testimony by Murry and Dermody regarding the circumstances in which the stop was made, Judge Richard Jones granted Dyke's motion to suppress all the evidence obtained during the stop of the camper as well as that gathered in the course of executing the resulting search warrant. After finding that the State had no evidence on which to proceed, the court dismissed the information. The State appeals.

Discussion

The State first argues that the officers had a reasonable suspicion to support the stop based on specific, articulable facts that suggested Dyke was engaging in criminal activity. A police officer may briefly detain and question a person if the officer has a well-founded suspicion that the person is engaged in criminal activity that has occurred or is about to occur. State v. Kennedy, 107 Wash. 2d 1, 6, 726 P.2d 445 (1986); State v. Pressley, 64 Wash. App. 591, 595, 825 P.2d 749 (1992). A reasonable suspicion exists if the officer can point to specific articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the intrusion. Pressley, 64 Wash. App. at 595. The reasonableness of the officer's suspicion is determined by the totality of the circumstances known to the officer at the time of the stop. State v. Glover, 116 Wash. 2d 509, 514, 806 P.2d 760 (1991). In examining the totality of the circumstances, a court may consider the experience and training of the officers, the location of the stop, and the conduct of the person detained. Glover, 116 Wash. 2d at 514; Pressley, 64 Wash. App. at 596. "'While an inchoate hunch is insufficient to justify a stop, circumstances which appear innocuous to the average person may appear incriminating to a police officer in light of past experience. The officer is not required to ignore that experience.'" Pressley, 64 Wash. App. at 596 (quoting State v. Samsel, 39 Wash. App. 564, 570-71, 694 P.2d 670 (1985)). An officer's reasonable suspicion cannot be based on information supplied by an informant unless the tip possesses sufficient indicia of reliability, i.e., if police are able to corroborate non-innocuous details of the tip that suggest the presence of criminal activity and if the information was obtained in a reliable fashion. Kennedy, 107 Wash. 2d at 7; State v. Randall, 73 Wash. App. 225, 230, 868 P.2d 207 (1994) (when an officer's observations corroborate information disseminated by police dispatch and give rise to a reasonable suspicion of criminal activity, the officer may make an investigative stop).

We conclude that police had a reasonable suspicion that Dyke had engaged or was engaging in criminal activity when they stopped him. Police set up surveillance of the camper in response to a 911 call from a private citizen. At the time they did so, they were aware that the identity of the caller was known to the dispatcher and that the caller's residence was located across the street from the lot where the camper was parked. See Kennedy, 107 Wash. 2d at 8 (a citizen informant's tip does not require a showing of reliability to the same degree as that of a professional informant). The camper was parked toward the back of the lot near a pay phone. The caller reported activity consistent with narcotics sales, including short-term visits to the camper by a number of people and repeated trips by the occupants of the camper to the pay phone. This justified setting up surveillance. When Begg approached the camper, he turned off his headlights as he neared the lot and looked around nervously as he walked up to it with the various items in his hands. This behavior corroborated the reports of the 911 caller and was consistent with narcotics activity. See Kennedy, 107 Wash. 2d at 7. Begg's behavior in walking away from the car in which he had come, his report that he had bought drugs from someone in the camper before and his statement that he was going to trade the items he was carrying for drugs provided further corroboration for the caller's reports. Finally, the 911 caller reported that someone inside the camper had stepped outside and seen the police just as the camper began to pull away. Given these facts, it is insignificant that Begg was unable to buy drugs. Once the occupant of the camper spotted the officers, we assume that he or she would not let anyone else in to make a transaction. The camper then drove off in such haste that it went over a curb with its lights off while police were interviewing Begg. This, too, was consistent with illegal activity. See Glover, 116 Wash. 2d at 514 (a court may consider the experience and training of the officers, the locations of the stop, and the conduct of the person detained). At this point, the officers had more than enough information to form a reasonable suspicion that the occupant was engaged in illegal activity and stop him.

Because police had a reasonable suspicion that Dyke was engaged in criminal activity at the time of the stop, we need not reach the ...


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