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State v. Allstead

May 29, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
JEFFERY DEAN ALLSTEAD, APPELLANT.



Appeal from Superior Court of Benton County. Docket No: 95-1-00550-4. Date filed: 02/02/96. Judge signing: Hon. Craig J. Matheson.

Authored by Dennis J. Sweeney. Concurring: Frank L. Kurtz, Stephen M. Brown.

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. An officer may conduct a protective search for weapons if he or she can point to "'specific and articulable facts' which create an objectively reasonable belief that a suspect is 'armed and presently dangerous.'" State v. Collins, 121 Wash. 2d 168, 173, 847 P.2d 919 (1993) (citing Terry v. Ohio, 392 U.S. 1, 21-24, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). A Benton County sheriff's deputy observed a Dodge Colt driving 45 to 50 m.p.h. in a 35 m.p.h. zone. The deputy activated his emergency lights. The Colt made a sudden left turn. When it stopped, the driver and the passenger, later identified as Jeffery Allstead, ran to switch places. The deputy noticed a bulge at Mr. Allstead's waist area. Concerned about the presence of a weapon, the deputy patted Mr. Allstead down. He felt a long, hard object, about six inches long, inside a fanny pack around Mr. Allstead's waist. Believing that weapons are often hidden in fanny packs, the deputy opened the pack. He found a crack pipe.

Mr. Allstead was charged with possession of a controlled substance, methamphetamine. RCW 69.50.401(d). He moved to suppress the evidence. The court denied the motion. It ruled that the deputy had a legitimate reason to frisk Mr. Allstead for weapons. On stipulated facts, Mr. Allstead was found guilty. This appeal follows. The sole question is whether the protective frisk for weapons was justified by the deputy's reasonably objective concern for safety. We hold it was and affirm.

Discussion

Mr. Allstead argues that a reasonably objective deputy would not have believed he was armed and dangerous, or presented a threat. He concedes, however, that the initial stop and detention of the vehicle were reasonable and that his switching places with the driver justified further detention.

Initially, we note that Mr. Allstead asserts that the search of the fanny pack violated Article I, Section 7 of the Washington Constitution, in addition to the Fourth Amendment of the United States Constitution. He does not, however, analyze any of the six factors outlined in State v. Gunwall, 106 Wash. 2d 54, 61-62, 720 P.2d 808, 76 A.L.R.4th 517 (1986) to show why the Washington constitution provides greater privacy protection. We will not independently construe a state constitutional provision without a Gunwall analysis. State v. Thorn, 129 Wash. 2d 347, 352 n.3, 917 P.2d 108 (1996). We, therefore, only address Mr. Allstead's Fourth Amendment challenge.

A warrantless, protective frisk of a defendant does not violate the Fourth Amendment to the United States Constitution if (1) the initial stop is legitimate, (2) a reasonable safety concern exists to justify the frisk, and (3) the scope of the frisk is limited to the protective purpose. Collins, 121 Wash. 2d at 173. A reasonably prudent person must believe that his or her safety or that of others is in danger. Id. at 173 (quoting Terry, 392 U.S. at 27). We review the suppression court's findings for substantial evidence. State v. Hill, 123 Wash. 2d 641, 647, 870 P.2d 313 (1994).

The trial court here concluded that the search was lawful because the deputy articulated reasons to believe Mr. Allstead and the driver might be armed. The vehicle did not immediately stop when the deputy activated his emergency lights. The occupants raced around the car in what appeared to be an attempt to avoid lawful arrest. The fanny pack could easily have concealed a weapon. The deputy had to make a quick decision as to the appropriate course of action to preserve his safety and the safety of others. Collins, 121 Wash. 2d at 175. He was not required to be absolutely certain that Mr. Allstead was armed. Id. at 173. The specific and articulable facts justified the deputy's belief that the suspect might be armed. Mr. Allstead's Fourth Amendment rights were not violated. The court's findings are supported by substantial evidence.

The conviction is affirmed.

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.

Sweeney, C.J.

WE CONCUR:

Kurtz, ...


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