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State v. Z.U.E.

Court of Appeals of Washington, Division 2

January 7, 2014

The State of Washington, Respondent,
v.
Z.U.E., Appellant

Page 1159

[Copyrighted Material Omitted]

Page 1160

Appeal from Pierce County Superior Court. Docket No: 11-8-01174-4. Date filed: 04/10/2012. Judge signing: Honorable Kitty-ann Van Doorninck.

Eric J. Nielsen (of Nielsen Broman & Koch PLLC ), for appellant.

Mark E. Lindquist, Prosecuting Attorney, and Brian N. Wasankari, Deputy, for respondent.

AUTHOR: Bradley A. Maxa, J. We Concur: Joel Penoyar, P.J., James Richard Verellen, J.

OPINION

Page 1161

[178 Wn.App. 774] Maxa, J.

¶ 1 ZUE appeals his juvenile adjudication for possession of a controlled substance (marijuana). He asserts that the trial court erred by denying his motion to suppress the marijuana, which was obtained during a search after an investigative stop of ZUE and three other vehicle occupants. Specifically, he argues that officers lacked the well-founded suspicion that ZUE or the other occupants were connected to actual or potential criminal activity necessary to conduct a lawful investigative stop of his vehicle. Because the citizen informants' tips that led to the investigative stop did not have sufficient indicia of reliability and the police officers' observations were unable [178 Wn.App. 775] to corroborate the presence of criminal activity, we hold that under the totality of the circumstances the stop was an unlawful seizure. Therefore, we reverse the trial court's denial of ZUE's suppression motion, vacate his conviction, and dismiss the charge with prejudice.

FACTS

¶ 2 On the afternoon of October 2, 2011, Tacoma police received a 911 call reporting that an individual was running with a gun in the area of Oakland Park. The caller stated that (1) the man was a shirtless black male, 18 to 19 years old, 5 feet 10 inches tall, 145 pounds, and appeared almost bald with short dark hair and (2) he was holding a gun down by his side, ducking in and out of houses and cars, and at one point he was seen holding the gun in a ready position. At least three officers responded to Oakland

Page 1162

Park, which was a known gang hangout and the site of multiple gang-related incidents in the previous year.

¶ 3 As the officers were responding, dispatch advised that multiple callers had reported that more individuals were involved and that approximately eight of those individuals - including the shirtless man with a gun - were in a two-door white car. Dispatch subsequently advised that a caller had reported that the car was gray, not white; the shirtless man with a gun had gotten into the car; and the car was headed toward Union on Center Street. These callers were not identified.

¶ 4 Dispatch updated the officers again, stating that another caller had observed a black female handing a gun to the shirtless male. The caller described her as 17 years old; medium height; slim; and wearing a black jacket, blue jeans, and black shoes with blue trim.

¶ 5 Tacoma police had limited information on the 911 callers. The record reflects that the first caller gave his name, telephone number, and address to dispatch. Another caller provided her first name, cell phone number, and [178 Wn.App. 776] location. One caller was uncooperative and merely reported a fight and a man with a gun. The officers knew the name of one of the callers but did not know how many 911 callers there were or the callers' identities. The officers also did not attempt to contact or obtain more information from any of the callers before conducting the investigative stop.

¶ 6 When the officers arrived in the area they did not see anyone in the park. As they checked the area they observed two females walking about one-half block away, and one of the females appeared to match the caller's description of the woman who handed off the gun. However, they continued to search for the man with the gun rather than make contact with the female subject.

¶ 7 The officers then contacted an unnamed woman at an apartment building overlooking the park. The woman stated that there had been a large brawl in the park, several of the participants had their shirts off, and the participants left in four separate vehicles. But she could not provide any information about the subjects or their vehicles. She did not say anything about a male or a female with a gun.

¶ 8 As they continued their area check the officers again saw the two females, who now were in a parking lot in front of a flower shop at the intersection of Center and Union. This location was near the area where dispatch had reported the gray car carrying the shirtless man with a gun was headed. The women approached a small gray car, and officers noticed that one of the women exactly matched the description of the woman who handed off the gun except she was not wearing a black jacket. One of the officers testified that the female's age, race, build, attire, as well as time and proximity, led him to believe that she may have been involved in the park incident. The woman got into the backseat of the gray car, which appeared to have two men in the front seat. The two men were wearing shirts and both had hair, so they did not match the description of the bald, shirtless man.

[178 Wn.App. 777] ¶ 9 Based on the available information, the officers believed they were investigating a minor in possession of a firearm and a gang-related assault with a deadly weapon. The officers approached the vehicle on foot with their firearms drawn, using a " 'felony stop'" technique. Clerk's Papers (CP) at 92. The officers instructed the occupants of the vehicle to put their hands up, which they did. The officers waited a few minutes for other officers to arrive and then directed the vehicle occupants to exit the vehicle one at a time. The driver and two female passengers exited the vehicle and were detained in handcuffs without incident.

¶ 10 ZUE, another passenger, was the last person to exit the vehicle. One of the officers believed ZUE was not responding to instructions and became concerned that he was reaching for a concealed weapon. As a result, the officer " touch[ed]" his electronic control tool to ZUE, handcuffed ZUE, and arrested him for obstruction. Report of Proceedings at 55. Officers searched ZUE incident to arrest and found marijuana on his person. Officers did not locate any guns.

Page 1163

¶ 11 The State charged ZUE with unlawful possession of a controlled substance (marijuana) and obstructing a law enforcement officer. ZUE moved to suppress any evidence obtained during the stop as the fruit of an unlawful seizure. The trial court conducted a combination CrR 3.6 hearing and bench trial. The trial court denied ZUE's suppression motion, ruling that the stop was supported by reasonable suspicion of criminal activity and that the scope of the stop was reasonable. The trial court entered detailed findings of fact and conclusions of law. The trial court then adjudicated ...


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