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State v. D.E.D.

Court of Appeals of Washington, Division 3

September 19, 2017

D.E.D., Appellant.

          KORSMO, J.

          D.E.D.[1] appeals from a juvenile adjudication finding him guilty of obstructing a public servant. For reasons different than he argues, we conclude that his passive resistance to an investigatory stop was not a crime under these facts. The conviction is reversed.


          The essential facts of the case revolve around an encounter between 17-year-old D.E.D. and Wapato Police Department Officer Michael Deccio. The officer responded to a call from a woman complaining about a group of youths who did not belong in her neighborhood along the 500 block of South Tieton Street. Several minutes later the officer arrived in the area in his patrol car.

          Instead of seeing a group of youths, the officer saw Mr. Davis walking down the middle of the street by himself. The officer did not immediately recognize Mr. Davis, but eventually recalled that he lived a few blocks away, although he could not remember the young man's name. The youth was walking in the direction of his house.

         Admittedly lacking evidence of reasonable suspicion to justify detaining the youth, Officer Deccio pulled up alongside in his patrol car and asked, "what's going on?" Dennis responded with profanity and accused the officer of bothering him. The youth's body was tense with fists clenched and arms flexed tight. The officer decided to park his car and further attempt to speak to the youth.

         As the officer was getting out of his car, the police dispatch advised that another caller had reported a group of kids, one of whom displayed a gun, outside his front yard. Officer Deccio then detained Davis while indicating that the young man was not under arrest. The officer attempted to handcuff Davis, but the younger man pulled his arm away and demanded that the officer not touch him. The officer directed Davis to put his arms behind his back, but the young man refused to comply. He attempted to stiffen his body and pull away from the officer in order to avoid being handcuffed. The officer continued to attempt to handcuff the young man in order to search for a gun. After two minutes, the officer prevailed in overpowering Davis and handcuffing him. A search failed to uncover any weapons.

          A charge of obstructing a public servant was filed in the juvenile division of the Yakima County Superior Court. Although no motion to suppress was ever filed, defense counsel attempted to argue during trial that the seizure was unlawful and, therefore, his client should be acquitted. The trial court declined to entertain the argument, pointing out that the defense never sought to challenge the legality of the stop by pretrial motion. Instead, counsel had objected to the officer relating the hearsay basis for his decision to detain Dennis. The trial court described defense counsel's approach as an effort to gain a tactical advantage over the prosecution. Report of Proceedings (RP) at 51-53.

         The court concluded that D.E.D. had hindered the officer in the course of his official duties by struggling and resisting the detention, along with attempting to kick the officer in the groin. RP at 54. This resistance had cost the officer several minutes of time. Accordingly, the court found that the defendant committed the crime of obstructing a public servant. RP at 54.

         The court imposed a standard disposition. Clerk's Papers at 9. D.E.D. then timely appealed to this court, arguing that his counsel rendered ineffective assistance by failing to file a motion to suppress. A panel considered the case without oral argument and then directed the parties to file supplemental briefing concerning the sufficiency of the evidence.[2]


         The sole issue is whether the evidence was sufficient to support the conviction for obstructing a public servant.[3] We conclude that the evidence was insufficient and reverse.

         One obstructs an officer when he "willfully hinders, delays, or obstructs" the officer "in the discharge of his or her official powers or duties." RCW 9A.76.020(1). To avoid constitutional infirmities, the obstruction statute requires conduct beyond merely making false statements to the police. State v. Williams, 171 Wn.2d 474, 485-86, 251 P.3d 877 (2011); accord State v. E.J. J., 183 Wn.2d 497, 502, 354 P.3d 815 (2015). Evidence is insufficient if the trier of fact could not find each element of the offense proven beyond a reasonable doubt. State v. Farnsworth, 185 Wn.2d 768, 775, 374 P.3d 1152 (2016); State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).

         While a charge of obstructing a public servant is the offense at issue in this case, it plays out in the context of an investigative detention authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (Fourth Amendment), and State v. Kennedy, 107 Wn.2d 1, 4-6, 726 P.2d 445 (1986) (Wash. Const., art. I, § 7). When an officer can articulate the basis for believing possible criminal activity is afoot, a brief detention to investigate is permissible. Terry, 392 U.S. at 21. The test is whether the facts known to the officer show "a substantial possibility that criminal conduct has occurred or is about to occur." Kennedy, 107 Wn.2d at 6. The Kennedy court also noted, "When the activity is consistent with criminal activity, although also consistent with noncriminal activity, it may justify a brief detention." Id.

         D.E.D initially argued on appeal that his counsel rendered ineffective assistance by failing to file a motion to suppress. For several reasons, we disagree with that position because the ineffective assistance standard was not satisfied here. Under the Sixth Amendment, an attorney provides ineffective assistance when he or she fails to live up to the standards of the profession and prejudice to the client results from that failure. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When the issue is raised for the first time on appeal, as here, the issue is not "manifest" if the record is insufficient to properly adjudge the matter. McFarland, 127 Wn.2d at 334. Furthermore, in the context of the failure to bring a motion to suppress, counsel can only have been ineffective if it can be shown that the motion likely would have been granted. Id.

         The preceding authorities show three of the reasons why the ineffective assistance argument fails. First, there is an insufficient record to fairly consider the issue. Because there was no motion to suppress, the State had no obligation or interest in developing the factual basis for the detention. Second, defense counsel had a tactical reason not to bring the motion-he wanted to keep the contents of the dispatch reports to Officer Deccio out of the record in order to support his theory that the detention was improper.[4] He successfully kept much of that information from entering the record. Third, the defense success in keeping the evidence out of the record leaves this court unable to determine whether or not a motion to suppress would have been granted. For all three reasons, the Strickland argument was unavailing; D.E.D. has not established that his counsel performed ineffectively.

         Moreover, even if one had been timely filed, a suppression motion necessarily would have failed because there was no evidence to suppress. The exclusionary rule only extends to the fruits of the bad search or seizure resulting from the illegal actions of the police. State v. Aydelotte, 35 Wn.App. 125, 131-32, 665 P.2d 443 (1983) (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). It is not a "but for" rule of causation leading to suppression of all evidence obtained after the improper conduct. Wong Sun, 371 U.S. at 487-88 ("We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police.")[5] Rather, suppression extends only to evidence that "has been come at by exploitation of that illegality." Id. at 488. Accord State v. Mierz, 127 Wn.2d 460, 474-75, 901 P.2d 286 (1995); State v. Bonds, 98 Wn.2d 1, 10-14, 653 P.2d 1024 (1982) (declining to suppress confession following illegal arrest and return from Oregon where officers had probable cause to make arrest); Aydelotte, 35 Wn.App. at 132.[6]It is for that reason that it long has been the rule that a defendant's criminal behavior in response to a police illegality is not subject to suppression. In State v. Hoffman, 116 Wn.2d 51, 804 P.2d 577 (1991), a defendant argued that an officer was not performing his official duties because the officer had (allegedly) illegally attempted to arrest the defendant without a search warrant. Id. at 99-100. Our court disagreed, ruling that as long as the officer was not engaged in a "frolic of his or her own, " the officer was still performing his official duties even if the arrest was improper or had lacked probable cause. Id. at 100. Mierz involved a similar claim by a defendant who argued that he was not guilty of assault because the officers he attacked were trespassing on his property in violation of the constitution. Our court again disagreed, holding that officers were still performing official duties even if they were acting outside the strictures of the constitution. Id. at473-76.[7] In State v. Valentine, 132 Wn.2d 1, 935 P.2d 1294 (1997), the court, rejecting an old common law rule, determined that a person cannot respond to police illegality by performing a criminal act in return. Id. at 21. In State v. Holeman, 103 Wn.2d 426, 429-31, 693 P.2d 89 (1985), a defendant was guilty of obstructing a public servant for attempting to assist another in resisting what was believed to be an unlawful arrest of his father. The illegality of that arrest did not justify the defendant hindering the officers.

         D.E.D. argues, and our concurring brother agrees, that an illegal seizure does not constitute "official powers or duties." For at least two reasons, we disagree. First, for the reasons previously noted, there is no basis for determining in this case whether the seizure was illegal or not. It may well have been. However, the defense never put the illegality of the stop before the trial court and the State had no opportunity to present its evidence on the topic. Second, the argument is based on dicta from a decision of this court that is at odds with the noted Washington Supreme Court authorities cited in the previous paragraph.

          The case in question is an opinion by a divided panel in State v. Barnes, 96 Wn.App. 217, 978 P.2d 1131 (1999). There an officer had asked the defendant to wait while he checked to see if an arrest warrant was still outstanding; the defendant told the officer it had been cleared. Id. at 219. Mr. Barnes fidgeted while waiting and would not keep his hands out of his pockets despite the officer's directives. That activity led the officer to arrest Barnes for obstructing a public servant. A search subsequently found cocaine. Id. at 220. On appeal, the prosecutor did not try to defend the stop other than to argue that initially it was consensual. Id. at 221-22. This court, thus, concluded the nature of the encounter was the "only question before us." Id. at 222. The majority determined that the encounter was not consensual and suppressed the drugs. Id. at 222-24. The court then went on to state that the arrest for obstructing a public servant also was invalid because an illegal arrest is not an official duty of a police officer. Id. at 225.

         It is this final-and unnecessary-observation on which Mr. Davis largely rests his argument. We do not. In addition to being unnecessary dicta since the determination that Mr. Barnes had been illegally detained prior to the arrest rendered the subsequent seizure of the drugs inadmissible, the comment is completely at odds with the repeated observations by our court that criminal behavior is not excused merely because the officer erred in arresting or seizing a suspect. As noted in Mierz, such a rule could result in an officer having to "pay the ultimate price" for a mistaken arrest with evidence of the officer's murder being suppressed. Mierz, 127 Wn.2d at 475. Suppression standards do not extend so far. Id. This approach also makes Barnes run afoul of Hoffman. If an illegal arrest does not justify suppression of a defendant's subsequent criminal action, Hoffman, 116 Wn.2d at 99-100, an illegal detention certainly cannot.

         But in addition to being dicta, the language from Barnes also was made without analysis; the sufficiency of the evidence question was never presented to that court because Mr. Barnes never was prosecuted for obstructing the officer. The only support cited by Barnes was the plurality opinion in State v. Little, 116 Wn.2d 488, 806 P.2d 749 (1991), where the four justice lead opinion would have found that fleeing from a valid Terry stop constituted obstructing a public servant. Id. at 496-98. The three justice concurrence would have resolved the case on the basis that the defendants were trespassing. Id. at 498-99 (Guy, J., concurring). Only the two dissenting justices challenged the validity of the detention. Id. at 499-504 (Utter, J., dissenting).

         Little is thus a very curious case to cite for the proposition that a valid detention is a requirement for an obstructing a public servant prosecution. After all, Little upheld the detention of the defendants and, although not a sufficiency of the evidence action, suggests that fleeing a valid stop is a crime. It does not stand for the converse proposition that fleeing an invalid stop is not a crime. The Barnes dicta is simply without support. We think a ...

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