stipulated bench trial, Kenneth Butler was found guilty of
one count of possession of a controlled substance. He
appeals, contending that the trial court erred by denying his
motion to suppress evidence of methamphetamine and heroin
discovered in his possession upon his arrest.
resolve this matter, we must address whether Butler was
unlawfully seized when a police officer commanded him to stop
leaving the scene near a traffic stop, whether Butler's
disregard of the police officer's show of authority
terminated the seizure, and whether Butler was unlawfully
seized when, soon thereafter, he was approached by a second
police officer, accompanied by a tracking dog, who had been
looking for him.
state of both the briefing and the decisional law require
that we analyze Butler's interaction with the police both
as one continuous law enforcement contact with him and as two
separate such contacts. We conclude that, under either
circumstance, Butler was unlawfully seized.
we reverse both the trial court's order denying the
suppression motion and the judgment of guilt entered against
David Allen was in his patrol vehicle parked on the side of a
two-lane road when he noticed a pickup truck driving
erratically toward a roundabout. Officer Allen observed the
truck cross over a solid double-yellow line into oncoming
traffic and nearly cause several collisions.
Allen activated the emergency equipment on his marked police
vehicle and initiated a traffic stop of the truck. In
response, the driver of the truck pulled over to the side of
the road. A few car lengths ahead of where the truck parked,
a passenger vehicle also pulled over to the side of the road
and parked. This vehicle had not been pursued by Officer
Allen spoke with the driver of the truck. The driver stated
that he was driving erratically because the passenger vehicle
that had parked up ahead had hit his truck and then driven
Allen began to approach the passenger vehicle and called out
to its driver to see if anyone was injured. As Officer Allen
approached, he observed that there were two other occupants
in the passenger cabin, a man and a woman. When Officer Allen
was three car lengths away from the vehicle, the two
passengers emerged from the vehicle. The man began to slowly
jog in the opposite direction of Officer Allen. The woman
followed after the man at a walking pace.
Allen commanded the man and woman to stop. They did not
comply. The man entered a nearby forested area to his right,
while the woman continued walking down the road.
Allen did not pursue either individual. Instead, he asked the
driver of the passenger vehicle why the two may have fled,
inquiring as to whether they might have had outstanding
warrants for their arrest. The driver of the passenger car
speculated, "[Y]eah, probably."
response, Officer Allen announced over his police radio that
a man and a woman had "fled" the scene of a traffic
stop. Officer Allen's broadcast described the man as a
Caucasian male wearing a gray jacket with a red stripe. Based
on the information obtained from the car's driver,
Officer Allen further announced that there were
"probable warrants" outstanding for the man and the
thereafter, while investigating the traffic incident, Officer
Allen observed the male passenger walk out of the woods. The
man noticed that his movements were being watched by Officer
Allen. The man proceeded to walk across the two-lane road,
heading away from the scene of the traffic stop. Officer
Allen updated his radio broadcast by announcing the direction
in which he saw the man walking.
Derek Oates, a K-9 officer with a tracking dog in his patrol
vehicle, was parked nearby. Officer Oates heard Officer
Allen's radio broadcasts regarding a fleeing suspect with
a "probable warrant" and drove to Officer
Allen's location. At the scene of the traffic stop, he
spoke with Officer Allen and they agreed that, in lieu of
deploying the tracking dog, Officer Oates would drive around
looking for the "suspect."
driving his patrol vehicle in the nearby area, Officer Oates
observed a man who matched the description given by Officer
Allen standing on the porch of a house, about to knock on an
Oates parked his vehicle in front of the house. He exited his
patrol vehicle and yelled out to the man, "[H]ey, come
talk to me, buddy." The man complied, leaving the porch
and approaching Officer Oates. Officer Oates asked the man
for identification, which he provided. The man was Kenneth
this time, Officer Christopher Farley and another police
officer arrived to assist Officer Oates. They parked their
patrol vehicles in front of the home.
Oates provided Butler's identifying information to police
dispatch. The dispatcher advised Officer Oates that Butler
had an outstanding arrest warrant. However, because Officer
Oates had a police dog in his patrol vehicle's passenger
cabin, he could not transport Butler from the scene.
Officer Farley arrested Butler on the outstanding warrant. In
a search of Butler's clothing following his arrest,
Officer Farley discovered a syringe along with substances
that were later determined to be methamphetamine and heroin.
was charged with one count of unlawful possession of a
subsequent suppression hearing, Butler moved to exclude all
evidence obtained after his arrest, arguing that he had been
unlawfully seized during his encounter with the police. The
trial court denied Butler's motion. The trial court
concluded that Butler was unlawfully seized when Officer
Allen commanded him to stop but that the unlawful seizure had
ended when Butler left the scene and was no longer in the
presence of a law enforcement officer. The trial court
further concluded that Officer Oates's interaction with
Butler was a second, independent police contact and that
Officer Oates's exchange with Butler, prior to the
confirmation of the arrest warrant, was a social contact,
rather than a seizure.
agreed to a bench trial on stipulated evidence. He was found
guilty as charged.
contends that the trial court erred by denying his motion to
suppress the evidence obtained after his arrest because the
search of his person following his arrest was the result of
an unlawful seizure. The trial court erred, Butler avers,
because he was either unlawfully seized by Officer Allen when
he was told to stop leaving the scene near the traffic stop
(and remained seized thereafter) or was unlawfully seized by
Officer Oates when he was commanded to leave the porch and
approach Oates's police vehicle.
resolve these claims, we must determine whether Butler was
seized, when he was seized, and whether the seizure was
lawful. "Whether police have seized a person is a mixed
question of law and fact." State v. Harrington,
167 Wn.2d 656, 662, 222 P.3d 92 (2009). "The rule in
Washington is that challenged findings entered after a
suppression hearing that are supported by substantial
evidence are binding, and, where the findings are
unchallenged, they are verities on appeal." State v.
O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).
Under article I, section 7 [of the Washington Constitution],
a person is seized " 'only when, by means of
physical force or a show of authority, '" his or her
freedom of movement is restrained and a reasonable person
would not have believed he or she is (1) free to leave, given
all the circumstances, State v. Young, 135 Wn.2d
498, 510, 957 P.2d 681 (1998) (quoting State v.
Stroud, 30 Wn.App. 392, 394-95, 634 P.2d 316 (1981) and
citing United States v. Mendenhall, 446 U.S. 544,
554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)), or (2) free to
otherwise decline an officer's request and terminate the
encounter, see Florida v. Bostick, 501 U.S. 429,
436, 111 S.Ct. 2382, 115 L.Ed. 2D 389 (1991); [State
v. ] Thorn, 129 Wn.2d [347, ] 352[, 917 P.2d
108 (1996), overruled on other grounds by State v.
O'Neill, 148 Wn.2d at 571]. The standard is ...
"a purely objective one, looking to the actions
of the law enforcement officer." Young, 135
Wn.2d at 501 (emphasis added).
O'Neill, 148 Wn.2d at 574. "[T]he
'reasonable person' test presupposes an
innocent person." Bostick, 501 U.S. at
defendant "bears the burden of proving a seizure
occurred in violation of article I, section 7."
Harrington, 167 Wn.2d at 664: accord
O'Neill, 148 Wn.2d at 574.
Our cases make it clear that a seizure does not occur simply
because a police officer approaches an individual and asks a
few questions. So long as a reasonable person would feel free
"to disregard the police and go about his business,
" California v. Hodari D, 499 U.S. 621, 628[,
111 S.Ct. 1547, 113 L.Ed.2d 690] (1991), the encounter is
consensual and no reasonable suspicion is required. The
encounter will not trigger Fourth Amendment scrutiny unless
it loses its consensual nature. The Court made precisely this
point in Terry v. Ohio, 392 U.S. 1, 19, n.16[, 88
S.Ct. 1868, 20 L.Ed.2d 889] (1968): "Obviously, not all
personal intercourse between policemen and citizens involves
'seizures' of persons. Only when the officer, by
means of physical force or show of authority, has in some way
restrained the liberty of a citizen may we conclude that a
'seizure' has occurred."
Bostick, 501 U.S. at 434.
Washington cases adopted the Mendenhall test of a
seizure to analyze a disturbance of a person's private
affairs under article I, section 7:
"A person is 'seized' within the meaning of the
Fourth Amendment only when, by means of physical force or a
show of authority, his freedom of movement is restrained....
There is a 'seizure' when, in view of all the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave."
State v. Stroud, 30 Wn.App. 392, 394-95, 634 P.2d
316 (1981) (footnote omitted) (citing United States v.
Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64
L.Ed.2d 497 (1980)), review denied. 96Wn.2d 1025
(1982): accord State v. Thorn, 129 Wn.2d 347');">129 Wn.2d 347');">129 Wn.2d 347');">129 Wn.2d 347,
351-52, 917P.2d 108(1996).
Washington search and seizure law stemming from
Terry and proceeding through Mendenhall is
Young, 135 Wn.2d at 510.
Young, our Supreme Court confirmed that
Mendenhall's approach to Fourth Amendment
"seizure" analysis remains applicable to article I,
section 7 "seizure" analysis.
"Examples of circumstance that might indicate a seizure,
even where the person did not attempt to leave, would be the
threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the person of
the citizen, or the use of language or tone of voice
indicating that compliance with the officer's request
might be compelled.... In the absence of some such evidence,
otherwise inoffensive contact between a member of the public
and the police cannot, as a matter of law, amount to a
seizure of that person."
Young, 135 Wn.2d at 512 (alteration in original)
(quoting Mendenhall, 446 U.S. at 554-55). Our
Supreme Court continues to apply the Mendenhall
formulation to state constitutional seizure analysis,
see, e.g.. Harrington, 167 Wn.2d at 664;
State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202
(2004); O'Neill, 148 Wn.2d at 574, as does this
court. See, e.g.. State v. Mote, 129
Wn.App. 276, 282-83, 120 P.3d 596 (2005).
first contends that the trial court erred by denying his
motion to suppress because his encounters with the police
constituted one coordinated action and he was unlawfully
seized by Officer Allen when he was commanded to stop leaving
the scene near the traffic stop of the truck. This contention
initial matter, we note that the case before us does not
involve a seizure arising from officer safety concerns.
State v. Flores, 186 Wn.2d 506, 379 P.3d 104 (2016),
case, our Supreme Court addressed whether police officers
"making a lawful arrest may seize a companion of the
arrestee in the absence of reasonable suspicion to
independently justify a Terry stop of the
companion." Flores, 186 Wn.2d at 509 (footnote
omitted). At the suppression hearing therein, the law
enforcement officers testified that they had seized Flores
because, even though they did not suspect Flores of criminal
activity, "they were concerned that Flores posed a
threat to their safety because of 'his association and
close proximity to Powell within a few minutes of a report of
Powell pointing a gun at someone's head.'"
Flores, 186 Wn.2d at 510.
Supreme Court began its analysis by discussing two of its
decisions wherein individuals had been seized due to officer
safety concerns, State v. Mendez, 137 Wn.2d
208, 970 P.2d 722 (1999), and State v. Parker, 139
Wn.2d 486, 987 P.2d 73 (1999). See Flores, 186 Wn.2d
at 519-20. Notwithstanding that the decisions involved
passengers in stopped vehicles, rather than pedestrians, the
Flores court reasoned that,
the court in Mendez and Parker was not
concerned with the mobility of the vehicle, but with the
threat that companions in the vehicle-those who are close in
proximity to the subject of the stop-pose to officers. In
Mendez. we described our test as "predicated
specifically on safety concerns, " 137 Wn.2d at 220, and
in Parker we noted that "the search incident to
arrest exception functions primarily to achieve [officer
safety], " 139 Wn.2d at 499. Because the analysis in
Mendez and Parker centered on safety
concerns rather than the location of the stop, it should not
be restricted to traffic stops, but is equally applicable in
cases like this one where an arrestee is accompanied by
companions at the time of the arrest.
This conclusion is common sense, as the potential danger at
an arrest scene does not turn on whether people are sitting
together in a car or ...