do we do if we don't know [whether a seizure occurred]? I
can follow my instinct. My instinct is he would feel he
wasn't free because the red light's flashing.
That's just one person's instinct. Or I could say,
let's look for some studies. They could have asked people
about this, and there are none . . . . What should I do? Look
for more studies?
-Justice Stephen Breyer
Maybe we can just pass until the studies are done?
-Justice Antonin Scalia
Transcript of Oral Argument at 43, Brendlin v.
California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d
132 (2007) (No. 06-8120).
address familiar questions in a unique setting for Washington
law. First, did law enforcement seize a citizen within the
meaning of the Fourth Amendment to the
States Constitution or Wash. Const. art. I, § 7? Second,
did reasonable suspicion for a Terry stop support
any seizure? We hold that law enforcement officers seized
appellant Otoniel Carriero when two patrol cars blocked the
only exit of Carriero's Monte Carlo from a dead end alley
and two officers respectively approached the passenger and
driver side windows. Since the police officers lacked any
suspicion of criminal activity, the seizure was unlawful.
Because of the violation of Carriero's constitutional
rights, we reverse his conviction for unlawful possession of
borrow our narrative from the findings of fact entered by the
trial court after a CrR 3.6 suppression hearing. We add some
of the underlying testimony of law enforcement officers
during the hearing.
a.m. on a summer morning, the Yakima Police Department
received a phone call from a resident who lived adjacent to
the alleyway between the 1500 block of Roosevelt Avenue and
Cherry Avenue. The State presented no testimony that the
caller identified himself or herself. The reporting party
called 911 to report a suspicious vehicle, with lights off,
parked at the dead end of the alley. The caller did not
recognize the car. Law enforcement knows the neighborhood as
plagued with burglaries, vehicle prowling, and gang violence.
Police Officers Garrett Walk and Scott Gronewald, in their
respective marked patrol cars, responded to the call. Officer
Walk drove down the dim, block-long, narrow alleyway,
followed by Officer Gronewald. Neither officer activated his
car's emergency lights or sirens, but each car's
headlights illuminated the Monte Carlo. Officer Gronewald
activated his directional rear lights, which flash yellow to
oncoming traffic. At the end of the alleyway, the officers
saw a red Chevrolet Monte Carlo facing their direction,
occupied by two individuals, later identified as Otoniel
Carriero and Amber Rodriguez. According to Officer Gronewald,
the two officers endangered themselves by driving down the
narrow alley facing Carriero's vehicle, but the two
lacked a safe way to approach the Monte Carlo. The unlit
Monte Carlo had its engine off.
Garrett Walk stopped his patrol vehicle one car length away
from Otoniel Carriero's Monte Carlo, and Officer Scott
Gronewald parked his car behind Officer Walk's car. By
stopping their patrol vehicles in the narrow alley, the
officers' patrol cars blocked Carriero's egress.
Officer Walk testified at the suppression hearing:
Q. And the alleyway, is it a narrow or wide alleyway?
A. It's not the widest one I've been in, but there is
space to actually get two cars down the alleyway.
of Proceedings (RP) at 13-14. Officer Scott Gronewald
Every situation is different, I guess, but in this case
it's a pretty narrow alley.
I believe when Officer Walk ended up having to turn around,
he had to do a five or six-point turn. I think I had to move
my side mirror in so he could fit by me. So it's a very
narrow alley. I believe, to memory, Officer Walk parked more
on the north side of the alley as what I did. . . .
RP at 38-39.
Officer Garrett Walk further testified at the suppression
Q. (By Mr. Hintze) When you first made contact with the
defendant and his vehicle and the passenger, were there any
concerns that a crime might be being committed?
A. There is always a potential. I never know for sure until
we actually talk and have done an investigation.
RP at 24.
Garrett Walk and Scott Gronewald exited their respective
vehicles with flashlights in hand and approached the
stationary Monte Carlo. The officers noticed Otoniel Carriero
seated in the driver's seat and Amber Rodriguez seated in
the front passenger seat. Neither officer observed any
suspicious behavior or furtive movements from either
occupant. Officer Gronewald ambled to the driver's side
door and positioned himself adjacent to the door. Officer
Walk walked to the passenger side door.
Garrett Walk greeted the pair with "[h]i guys" and
spoke with a casual and friendly tone of voice. Clerk's
Papers (CP) at 38. Officer Walk questioned whether either
lived in the neighborhood, and Carriero responded that
neither did. Carriero told the officers that the two wanted
to be alone together. Carriero added that he owned the Monte
Garrett Walk explained that a concerned neighbor called 911
and reported an unfamiliar car in the alley. Walk asked
Otoniel Carriero and Amber Rodriguez if either possessed
identification. Neither Officer Scott Gronewald nor Officer
Walk told the two that they were free to leave. Rodriguez
handed Walk her identification card, while Carriero handed
Gronewald his card. During cross-examination at the
suppression hearing, Gronewald declared:
Q. (By Ms. Holman) Is it possible, had he [Carriero] grabbed
the license out of your hands and took off, that you would
have eventually charged him, you personally, with assault or
A. It is possible, yes.
RP at 43.
Scott Gronewald read Otoniel Carriero's name and date of
birth to dispatch over his radio while standing by the
vehicle. In turn, dispatch informed Gronewald that Carriero
was a convicted felon, who bore a conviction for unlawful
possession of a firearm, but had no outstanding warrants.
Officer Gronewald returned the identification card to
Garrett Walk read Amber Rodriguez's information to
dispatch and restored her identification card to her.
Dispatch informed Officer Walk of outstanding arrest warrants
for Rodriguez. At Officer Walk's order, Rodriguez exited
the Monte Carlo. Walk placed Rodriguez in handcuffs and sat
her near the rear of the car.
Scott Gronewald remained standing on the driver's side of
the car and shined his flashlight into Otoniel Carriero's
vehicle. Gronewald espied a silver and black handgun in a
pouch behind the driver's seat. Gronewald told Carriero
to keep his hands on the steering wheel. Both officers
directed Carriero to exit the vehicle, and the pair placed
Carriero in custody. Law enforcement later procured a search
warrant for the Monte Carlo and retrieved a loaded
semiautomatic pistol from the seat pouch.
State of Washington charged Otoniel Carriero with first
degree unlawful possession of a firearm. Carriero moved to
suppress all evidence and his statements based on an unlawful
seizure. The trial court conducted a CrR 3.6 hearing, during
which the court viewed a video of the interaction between
Otoniel Carriero and Officers Garrett Walker and Scott
Gronewald. Officers Walk and Gronewald testified.
the suppression hearing, the trial court entered twenty-seven
findings of fact, all consistent with the hearing testimony
except a finding that the officers knew the identity of the
caller. We repeat the critical findings:
3. The caller's identity was known to police. The caller
reported to dispatch that there was a darkened occupied
vehicle parked at the end of the dead-end alley, that the
vehicle was not associated with any of his neighbors, and
that he was very ...