Generally, warrantless seizures are unconstitutional unless an exception applies. One such exception is a Terry stop. A defendant recently challenged evidence found in a search after what the state agreed was a Terry stop in a Washington criminal case.
A sheriff deputy was dispatched after a 911 call reporting an unwanted person in the caller’s home. The caller told the dispatcher the woman’s first name and said he had previously allowed her to stay there, but she was not welcome any more. He reported she had left, but then said she came back. He also said she had previously climbed in through a window to get inside. He did not indicate she was violent.
The deputy saw a woman matching the description the caller gave walking about two-tenths of a mile from the caller’s home. He stopped, and when he asked, the woman indicated her first name was the name given by the caller. The deputy asked her for identification, but she indicated she did not have any. She provided her name and birth date. The woman stayed in front of his car and its headlights while the deputy searched her name in his computer. The deputy confirmed she had an outstanding warrant. He arrested her and found a white powdery substance in a baggie in her pocket. The substance was found to be methamphetamine.
The defendant was not charged with any crime against the caller, but she was charged with unlawful possession of a controlled substance, methamphetamine. She moved to suppress the evidence and dismiss the charge.
The state argued the encounter between the deputy and the woman was a Terry stop and not a community caretaking encounter. The trial court found the deputy had reasonable suspicion to contact the defendant and denied her motions.
The jury found the defendant guilty and the court sentenced her to 16 months’ confinement. The court also imposed certain fees on her.
The defendant appealed both her conviction and her sentence. She argued she was unlawfully seized when the deputy approached and questioned her and the court should have suppressed the evidence found in the search. The appeals court, however, did not accept that the interaction prior to the arrest constituted a seizure. The deputy had not told the defendant she could not leave and did not take any identification from her. The state, however, had agreed the deputy conducted a Terry stop, which is a seizure. The appeals court therefore considered whether the deputy had cause to conduct a Terry stop.
A Terry stop is an exception to the warrant requirement. An officer may briefly detain and question a person if there is reasonable and articulable suspicion he or she is engaging or is about to engage in criminal activity. The officer’s suspicion of criminal activity must be well-founded, reasonable, and “based on specific and articulable facts.” The court considers the totality of circumstances as known by the officer when the stop occurred.
There must be a substantial probably that the person has committed or is about to commit a specific crime. A court considers whether the initial interference was reasonably related to the circumstances justifying it. The court must take into account the stop’s purpose, the extent of physical intrusion, and how long the person was detained.
The defendant challenged the finding that the 911 caller had asked her to leave and she subsequently returned. She argued there was no testimony the caller had asked her to leave. The appeals court agreed that there was not substantial evidence to support the finding. The defendant further argued that without that finding, the other findings did not support a conclusion the deputy had a reasonable suspicion of criminal trespass.
The appeals court rejected this argument. At the time of the stop, the deputy knew an unwanted person had returned to the 911 caller’s home. He also had information that the person had previously used a window to enter the home. The purpose of a Terry stop is investigatory, and the information reported to the deputy could allow him to reasonably believe there was a substantial possibility of trespass that needed to be investigated.
The appeals court found the stop “was reasonable because it was limited in nature.” He did not handcuff her or prevent her from leaving.
The defendant also argued the trial court did not make findings as to the reliability of the 911 call. When an officer’s suspicion is based on a tip from an informant, the state must show it bears “indicia of reliability under the totality of the circumstances.” This generally requires either circumstances that establish reliability or corroborative observation.
The appeals court found substantial evidence supported a conclusion the caller was an eyewitness. The caller told the dispatcher that the woman had left, then said she was back. The appeals court noted he could not know that unless he witnessed her return. The appeals court found a number of factors supporting a finding of reliability. The caller called 911 contemporaneously to the incident. A woman matching the description he provided was found near the address he gave. He stated he previously allowed the defendant to stay there. The appeals court found the information the deputy had supported a conclusion the 911 caller was an alleged victim of the unwanted person.
The appeals court rejected the defendant’s argument that there was no independent police corroboration. The appeals court noted that, in Washington, there must be either corroborative observation or circumstances establishing reliability. Here, there were sufficient facts supporting reliability.
The appeals court affirmed both the denial of the motion to suppress and the conviction. It remanded to the trial court for issues related to the defendant’s offender score and certain fees.
Whether any search or seizure is constitutional is fact dependent. If you are facing criminal charges, an experienced Washington criminal defense attorney will fight to protect your rights. Call Blair & Kim, PLLC, at (206) 622-6562 to set up a consultation.