Argued October 28, 2014
Appeal from Benton County Superior Court. 11-1-01361-1. Honorable Vic L. Vanderschoor.
David N. Gasch (of Gasch Law Office ); and Kevin A. March (of Nielsen Broman & Koch PLLC ), for petitioners.
Andrew K. Miller, Prosecuting Attorney for Benton County, and Amy Harris and Terry J. Bloor, Deputies ; and Daniel T. Satterberg, Prosecuting Attorney for King County, and Jennifer P. Joseph, Deputy, for respondent.
AUTHOR: Chief Justice Barbara A. Madsen. WE CONCUR: Justice Susan Owens, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Charles K. Wiggins. AUTHOR: Justice Steven C. González. WE CONCUR: Justice Charles W. Johnson, Justice Sheryl Gordon McCloud, Justice Mary I. Yu.
[183 Wn.2d 152] [¶1] These consolidated cases require the court to resolve whether the totality of circumstances in each case provided law enforcement with reasonable suspicion of criminal activity to conduct a Terry stop.  Both cases involve the stop of a defendant after the defendant entered a high-crime apartment complex and visited an apartment occupied by a suspected drug dealer. However, other circumstances distinguish the cases and lead to different results. Because the circumstances include a particularized suspicion of criminal activity in State v. Fuentes, noted at 179 Wn.App. 1030, 2014 WL 546587, at *4, we affirm the court of appeals in that case, but we reverse the appellate court in State v. Sandoz, [183 Wn.2d 153] noted at 180 Wn.App. 1032, 2014 WL 1600596, at *4, because, in contrast to Fuentes, there are insufficient facts to give rise to individualized suspicion.
State v. Sandoz
[¶2] Around 11:30 p.m., Officer Chris Pryzgocki drove his patrol car past a six-unit apartment building in SeaTac. A high number of documented criminal incidents occurred in the area of this apartment building, including drug-related activity. Because of the high incidence of crime, the owner of the complex gave the King County Sheriff's Office signed, written permission to investigate people who loiter on the property. The officer testified, however, that a person did not commit a violation merely by visiting an apartment. The officer knew the apartment building and its tenants well because the building was deemed part of a " Problem
Solver project,"  which resulted in the officer regularly patrolling the complex. Verbatim Report of Proceedings (VRP) (Jan. 3, 2013) at 14-15. The officer patrolled the complex for four months, and consequently, he knew the tenants and knew the vehicles that they owned. He also knew that four of the tenants had convictions for drug-related crimes--either possession or possession with intent to distribute.
[¶3] While on patrol, Officer Pryzgocki saw a white Jeep--a vehicle the officer knew did not belong to any of the tenants--parked illegally.  The driver of the Jeep slumped down, as if to hide from the officer's view, as the officer drove by. The officer parked his marked patrol car about 20 yards away and observed the Jeep for about 15 minutes.
[183 Wn.2d 154] [¶4] Nobody left the vehicle, which contained three people, so the officer got out of his car and walked up to the driver. The officer asked the driver what he was doing there. The driver said he was there because his friend called him for a ride. The driver, however, did not explain why he slumped down as the officer drove by. The officer then waited on the passenger side of the vehicle. He observed Steven Sandoz leaving the apartment of Jennifer Meadows, who the officer knew had a conviction for possession of narcotics with intent to distribute. Over the course of four months, the officer had seen approximately 60 people coming and going from her apartment but observed none on the evening in question.
[¶5] Sandoz walked with his head down and his hands in his pockets toward the Jeep. When he looked up and saw the officer, Sandoz's eyes got big as he entered the backseat of the Jeep. The officer asked Sandoz what was going on, and Sandoz replied that his friend gave him a ride to collect $ 20 from Ms. Meadows. Sandoz was visibly shaking, and his face looked pale and thin. The officer, however, did not attribute Sandoz's appearance to drug use or to any specific cause.
[¶6] The officer believed that Sandoz's story for being at the apartment contradicted the driver's story. He asked Sandoz if he would mind stepping out of the vehicle. The officer again asked Sandoz what was going on, and Sandoz said he was there to collect $ 20 from Ms. Meadows.  After more conversation, Sandoz admitted that he had a drug problem and said that he had a crack pipe in his pocket. Sandoz took out the pipe, and the officer arrested Sandoz for possession of drug paraphernalia. During a search incident to arrest, the officer felt something in Sandoz's
groin area. The officer read Sandoz his Miranda  rights, and Sandoz admitted that he had two small envelopes of cocaine in his underwear.
[¶7] The State charged Sandoz with possession of cocaine. At pretrial, Sandoz moved to suppress his statements and the cocaine. Sandoz argued that a seizure occurred when the officer asked Sandoz to get out of the Jeep and that reasonable suspicion of criminal activity did not support the seizure.
[¶8] The trial court disagreed, concluding that specific and articulable facts supported the seizure: (1) the officer knew the area had extremely high drug activity based on 911 calls and drug dealing investigations, (2) the officer knew that the apartment Sandoz exited belonged to Ms. Meadows, who had numerous drug-related convictions, including possession with intent to deliver, (3) the officer had express authority from the complex owner to trespass nonoccupants for " loitering" at the complex, (4) the Jeep did not belong to any of the tenants at the complex, (5) the driver of the Jeep slouched down when the officer drove past, (6) the driver and Sandoz had conflicting stories for why they were in the area, (7) Sandoz looked surprised when he saw the officer, and (8) Sandoz visibly shook and looked pale when the officer talked to him. Clerk's Papers at 53. On these facts, the trial court denied Sandoz's motion to suppress.
[¶9] After a bench trial on stipulated facts, the trial court found him guilty of cocaine possession. In an unpublished opinion, the court of appeals affirmed. Sandoz, 2014 WL
1600596, at *4. Sandoz petitioned this court for discretionary review, which we granted. State v. Sandoz, 180 Wn.2d 1028, 331 P.3d 1173 (2014).
State v. Fuentes
[¶10] On October 5, 2011,  Officer Roman Trujillo and Officer Shirrell Veitenheimer of the Kennewick Police Department went to a Kennewick apartment as part of an apprehension team to look for a wanted person. The apartment belonged to Richard Fenton. In November 2010, 11 months before, police made controlled purchases of methamphetamine from Fenton. Police subsequently executed a search warrant on the apartment, where they found methamphetamine and related materials. Police suspected that Fenton was still selling narcotics based on recent interviews with individuals arrested for narcotics-related offenses.
[¶11] Approaching Fenton's apartment, officers saw two people on the steps who turned and went into the apartment when they saw the police. Police knocked on the door, but nobody answered, so the police left and returned that evening around 10 p.m. to set up surveillance on the apartment.
[¶12] During two hours of surveillance, police observed approximately 10 people enter and leave the apartment, each person staying inside between 5 and 20 minutes. Officer Trujillo testified that this behavior indicated narcotics activity: people arrive, make a purchase, and leave. VRP (Feb. 29, 2012) at 9. This observed behavior especially indicated narcotics activity because of the recent search warrant that uncovered narcotics at this apartment and because of the late hour of the short visits on a weeknight. See id. at 9-10, 30-31, 44-46.
[¶13] Around midnight, police saw Marisa Fuentes park her car across the street from the apartment. She walked up to the apartment, entered, stayed for about five minutes, and returned to her car. She opened the trunk of her car and ...