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State v. Johnson

Court of Appeals of Washington, Division 1

May 6, 2019

STATE OF WASHINGTON, Appellant,
v.
LOUIS EARL JOHNSON JR., Respondent.

          Dwyer, J.

         Our 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.

         Nevertheless, 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.

         One 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.

         In this 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.

         I

         Two 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.

         The 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 passenger.

         Officer 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.

         Yates 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 the door.

         George 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 Miranda[1] rights.

         Eventually, 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.

         II

         The 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.

         A

         In a 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."

         To be 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 at 664.

         Fortunately, 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).

         A 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.[2] Thus, to determine whether such justification was lacking in Johnson's situation, we must first determine when Johnson was seized.

         "Whether 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.

         "[T]he '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 ...


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