society and the law that reflects its organizing principles
assume that citizens will trust law enforcement and believe
the things that police officers tell them. For instance, when
a police officer enters a schoolhouse and announces that an
active shooter is nearby, society desires that those so
informed believe the officer and act accordingly. Similarly,
when a homeowner is awakened in the night by a police officer
at the front door who announces that a wildfire is fast
approaching, society desires that the officer be believed and
that the homeowner acts accordingly. Indeed, examples of this
societal desire seem endless.
case law makes clear that a police officer, in the course of
investigating criminality, does not violate either the
federal or state constitution by lying to a potential suspect
or witness. The need to sometimes do so has been repeatedly
accommodated by the courts. But when police officers do
choose to lie, they must recognize and accept the logical
consequences of that decision.
such consequence arises in the context of constitutional
seizure analysis. This jurisprudence provides that, in a
police-citizen encounter, no seizure of the person occurs
unless-objectively viewed and under the totality of the
circumstances-a reasonable person would not believe that he
or she was free to terminate the encounter or decline the
officer's requests. In analyzing the circumstances of
such an encounter, a reasonable person is an innocent person.
And reasonable innocent persons may be assumed to believe the
truth of that which the police tell them.
case, Louis Johnson Jr. was found to be in unlawful
possession of a firearm. Prior to that discovery, however,
the police encounter with him had reached the point
where-under the totality of the circumstances and objectively
viewed-he had been seized. And, at the time of his seizure,
the police lacked a lawful basis to seize him. Thus, the
trial court properly granted his motion to suppress evidence
of the gun found in his possession. We affirm.
Lynnwood police officers, Zach Yates and James George, were
engaged in a proactive patrol late at night in an area known
to have a high rate of criminal activity. The officers
observed a silver vehicle enter a motel parking lot and park
in a stall. After the vehicle came to rest, about a minute
and a half passed without any person entering or leaving the
vehicle. The officers became suspicious that its occupants
were using drugs.
officers, both of whom were armed and in uniform, approached
the vehicle on foot and stood on opposite sides adjacent to
the driver's and passenger's doors. They shined
flashlights into the vehicle's interior to enable them to
see the vehicle's occupants and ensure that neither was
holding anything that could put the officers in danger.
Because the vehicle was also flanked on both sides by cars
parked in adjoining stalls, the officers had minimal space to
move. Officer Yates did not see any drugs or drug
paraphernalia when he shined his flashlight inside the
passenger compartment. Inside were Johnson and a female
Yates stood on the passenger side while Officer George stood
adjacent to the driver's door. Yates sought to start a
conversation with Johnson, who was in the driver's seat,
and did so by asking, "Hey, is this Taylor's
vehicle?" In fact, there was no "Taylor"; the
ruse was intended to make Johnson feel more comfortable, in
the hope that he would talk with the officer. Johnson
appeared confused by the question, and Yates asked, again,
whether the vehicle was "Taylor Smith's
vehicle." In response, Johnson stated that the vehicle
was his own and that he had recently purchased it.
then asked for Johnson's name, whether Johnson had a
driver's license, and if he would mind whether the
officer looked at it. When Johnson stated that he had an
identification card, both officers became suspicious that his
license might be suspended. Officer Yates received the
identification card from Johnson and used information from it
to request a check of Johnson's warrant history and
license status from police dispatch. Meanwhile, Officer
George, who was leaning over the driver's side door,
noticed a handgun placed between the driver's seat and
alerted Yates to the presence of the firearm, drew his own
handgun, opened the driver's door and removed the weapon
from Johnson's vehicle. Subsequently, Johnson was removed
from the vehicle. Meanwhile, police dispatch informed the
officers that Johnson's driver's license was
suspended in the third degree, and that he had an outstanding
arrest warrant and a felony conviction. The officers then
informed Johnson that he was being detained but not placed
under arrest and advised him of his
Johnson was charged with unlawful possession of a firearm in
the first degree. Before trial, Johnson moved to suppress the
evidence of the gun found in his possession, contending that
it was found attendant to his unlawful seizure. After an
evidentiary hearing, the trial court granted Johnson's
motion. However, the judge did not make a determination as to
whether Johnson was seized prior to the discovery and removal
of the firearm, instead ruling that the encounter was a
"social contact" and that "law enforcement had
an insufficient basis to initiate a social contact." The
trial court further acknowledged that granting the motion to
suppress essentially terminated the State's case. The
State appeals from the order granting Johnson's motion.
State challenges the trial court's ruling that the police
officers had an "insufficient basis" to initiate a
social contact with Johnson. The State asserts, correctly,
that there is no constitutional requirement for police
officers to have articulable reasons for simply engaging in
conversation with members of the public. Johnson does not
dispute this but, rather, insists that the encounter became a
seizure commenced without a lawful basis. He asks that we
affirm the suppression order on this ground, as we may affirm
a trial court decision on any basis supported by the evidence
and the record. State v. Rafay, 167 Wn.2d 644, 655,
222 P.3d 86 (2009) (citing State v. Rohrich, 149
Wn.2d 647, 654, 71 P.3d 638 (2003)). For its part, the State
asserts that the encounter was a social contact, rather than
a seizure, because none of the officers' actions or
statements prior to the discovery of the firearm amounted to
a show of authority that would cause a reasonable person to
feel not free to leave the scene or to disregard the
officers' requests. Johnson's analysis of the
encounter is well-taken.
constitutional sense, the term "social contact" is
meaningless. The term has been adopted by lawyers and judges
to describe circumstances that do not amount to a seizure.
But it never matters whether an encounter can be called a
social contact. In seizure analysis, what matters is whether
a person is seized. If not, the inquiry ends regardless of
whether the encounter can be said to have been a social
contact. If so, the requirements for a lawful seizure
apply_again without concern for any claimed
"social" purpose for the "contact."
sure, "social contact" discussions have entered our
case law. In such discussions, a social contact is said to
rest "someplace between an officer's saying
'hello' to a stranger on the street and, at the other
end of the spectrum, an investigative detention (i.e.,
Terry stop)." State v. Harrington, 167
Wn.2d 656, 664, 222 P.3d 92 (2009) (citing Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).
"The term 'social contact' does not suggest an
investigative component." Harrington, 167 Wn.2d
seizure jurisprudence is well-developed. "Article I,
section 7 does not forbid social contacts between police and
citizens: '[A] police officer's conduct in engaging a
defendant in conversation in a public place and asking for
identification does not, alone, raise the encounter to an
investigative detention.'" State v. Young,
135 Wn.2d 498, 511, 957 P.2d 681 (1998) (alteration in
original) (quoting State v. Armenta, 134 Wn.2d 1,
11, 948 P.2d 1280(1997)). '"[N]ot every encounter
between a police officer and a citizen is an intrusion
requiring an objective justification.'"
Young, 135 Wn.2d at 511 (quoting United States
v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64
L.Ed.2d 497 (1980)). Thus, "the police are permitted to
engage persons in conversation and ask for identification
even in the absence of an articulable suspicion of
wrongdoing." Young, 135 Wn.2d at 511. Moreover,
"[w]hile most citizens will respond to a police request,
the fact that people do so, and do so without being told they
are free not to respond, hardly eliminates the consensual
nature of the response." Immigration &
Naturalization Serv. v. Delqado, 466 U.S. 210, 216, 104
S.Ct. 1758, 80 L.Ed.2d 247 (1984).
sufficient suspicion of wrongdoing, meanwhile, is required
only to justify a seizure. As stated, a social contact is
simply a term for an encounter that does not amount to a
seizure. Thus, to determine whether such
justification was lacking in Johnson's situation, we must
first determine when Johnson was seized.
police have seized a person is a mixed question of law and
fact." Harrington, 167 Wn.2d at 662. "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, 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 M996J. overruled on
other grounds by State v. O'Neill, 148 Wn.2d 564].
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.
'reasonable person' test presupposes an
innocent person." Bostick, 501 U.S. at
438. "The Constitution does not require the utilization
of an objective 'reasonable criminal' test."
State v. Butler,2 ...