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State v. Butler

Court of Appeals of Washington, Division 1

February 20, 2018

STATE OF WASHINGTON, Respondent,
v.
KENNETH LEE BUTLER, Appellant.

          DWYER, J.

         After a 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.

         To 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.

         The 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.

         Accordingly, we reverse both the trial court's order denying the suppression motion and the judgment of guilt entered against Butler.

         I

         Officer 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.

         Officer 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.

         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 away.

         Officer 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.

         Officer 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.

         Officer 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."

         In 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 woman.

         Shortly 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.

         Officer 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."

         While 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 entry door.

         Officer 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 Butler.

         Around this time, Officer Christopher Farley and another police officer arrived to assist Officer Oates. They parked their patrol vehicles in front of the home.

         Officer 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.

         Consequently, 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.

         Butler was charged with one count of unlawful possession of a controlled substance.

         At 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.

         Butler agreed to a bench trial on stipulated evidence. He was found guilty as charged.

         II

         Butler 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.

         A

         To 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."[1] Bostick, 501 U.S. at 438.

         The 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.

         Previous 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 well-established.

Young, 135 Wn.2d at 510.

         In 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).

         B

         Butler 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 has merit.

         1

         As an 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), is instructive.

         In that 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.

         The 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 ...

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