Superior Court County: King. Superior Court Cause No: 10-1-10224-4.SEA. Date filed in Superior Court: November 9, 2011. Superior Court Judge Signing: Beth Andrus.
Thomas M. Kummerow (of Washington Appellate Project ) and Susan F. Wilk (of Law Office of Michael Iaria PLLC ), for appellant.
Daniel T. Satterberg, Prosecuting Attorney, and Erin H. Becker, Deputy, for respondent.
AUTHOR: Grosse, J. WE CONCUR: Spearman, A.C.J., Dwyer, J.
[179 Wn.App. 309] ¶ 1 To be valid under both state and federal law, a warrantless, investigatory stop, or Terry  stop, must be reasonable, and it is the State's burden to prove reasonableness. An investigatory stop is reasonable if the arresting officer can testify to specific and objective facts that provide a reasonable suspicion that the person stopped has committed or is about to commit a crime. In determining whether an investigatory stop and frisk is reasonable, courts look at the totality of the circumstances. The circumstances must suggest a substantial possibility that the particular person has committed a specific crime or is about to do so. Here, an
anonymous tip reporting conduct not constituting a crime did not suffice to justify a Terry stop. Accordingly, we reverse.
¶ 2 At about 9:45 p.m. on December 7, 2010, Seattle Police Department Officers Christopher Myers and Chriseley Lang handled a nuisance call near Second Avenue and [179 Wn.App. 310] Main Street in Seattle. As the officers were completing the call, they heard a broadcast of a 911 call of a man with a gun in the area of Third Avenue and Yesler Way. At that time of night, that area is " an extremely high drug area, high weapons area, and high crime area." The broadcast did not give the identity of the person who reported seeing the man with the gun but described the suspect as a Hispanic male wearing a light blue hoodie and described the gun as having a silver handle. The caller reported the suspect displayed the gun; the caller did not say that the suspect pointed the gun at anybody or threatened anybody. The officers never learned the identity of the 911 caller.
¶ 3 Traveling along Third Avenue, the officers saw a person who matched the description of the suspect. Officer Myers testified that the suspect, later identified as appellant Jose Cardenas-Muratalla, looked surprised to see a patrol car, straightened his posture, had an " oh, crap" look on his face, and began " fluffing" behavior. Fluffing is when a person grabs the front of his or her sweatshirt and pulls it down and away from his or her body. Officer Myers testified that by fluffing, a person is " telegraphing that he has something to hide" and " telegraphing ... that it is right there in the front waistband." Another reason for fluffing is to make sure the gun is not tangled up in clothing and is accessible.
¶ 4 Officer Myers made a hard left turn to bring the patrol car across two lanes of traffic and shined the spotlight on Cardenas-Muratalla. At the time, Cardenas-Muratalla was holding a cell phone to his head with his right hand. The officer got out of the car, drew his handgun, and yelled at Cardenas-Muratalla, who had started to walk away, to get down on the ground. Cardenas-Muratalla did not comply with the officer's instruction.
¶ 5 Officer Lang's testimony differed from Officer Myers' testimony. Officer Lang testified that she had a clear view of Cardenas-Muratalla and that when the officers spotted [179 Wn.App. 311] him, he was not doing anything suspicious with his hands and was not doing anything with his hands, body, or expression that raised her level of alarm. The officer testified that her suspicions were aroused only when Cardenas-Muratalla began to " shuffle" away and did not respond to Officer Myers' direction to stop. She testified that ...