[No. 25497-6-III. Division Three. May 13, 2008.]
[1] Arrest — Seizure — What Constitutes — Test — In General. A person is not "seized" by a law enforcement officer unless the person's movements are restrained to the extent that a reasonable person would no longer feel free to walk away from the officer. [2] Arrest — Seizure — What Constitutes — Request To Speak — No Show of Authority. A police officer in a patrol car who observes a person walking at night does not "seize" the person merely by parking the car out of the way, walking up to the person without impeding the person's ability to walk away, and asking the person to talk. [3] Arrest — Seizure — What Constitutes — Request To Speak — Arrival of Second Officer — Effect. A person engaged in a consensual conversation with a police officer is not "seized" by law enforcement by the arrival of another law enforcement officer if the second officer stands a respectful distance away without becoming part of the encounter. Law enforcement officers routinely back each other up. An additional officer, arriving without a show of force, does not change the nature of the original encounter. [4] Arrest — Seizure — What Constitutes — Request To Speak — Request To Remove Hands From Pockets. A person engaged in a consensual conversation with a police officer is not "seized" by the officer merely by the officer's asking that the person's hands be removed from the person's pockets and be kept in plain sight. [5] Arrest — Seizure — What Constitutes — Request To Speak — Request for Consent To Search. A person engaged in a consensual conversation with a police officer is not "seized" by the officer where the officer requests the person to consent to a search. [6] Searches and Seizures — Protective Search or Seizure — Grounds. When a person engaged in a consensual conversation with a police officer keeps placing his or her hands in object-laden pockets despite the officer's repeated requests not to do so, the officer is justified in conducting a pat-down search of the person for officer safety. SWEENEY, J., dissents by separate opinion. Nature of Action: Prosecution for unlawful possession of a controlled substance. The defendant was walking at 11:00 p.m. when he was approached by a police officer. The police officer asked to talk to the defendant and the defendant agreed. The police officer told the defendant that he was not under arrest. While the defendant and the police officer were talking, a state trooper stopped nearby and walked up to where the defendant and the police officer were standing. The defendant acted nervous and kept putting his hands in his pockets despite the police officer's request that he not do so. The police officer asked if he could check the defendant's pockets. The defendant agreed. A pat-down of the defendant revealed a "meth pipe." The defendant was then placed under arrest, and a search of the defendant incident to the arrest revealed a small quantity of methamphetamine in the pipe. Superior Court: After denying the defendant's motion to suppress the methamphetamine evidence, the Superior Court for Benton County, No. 06-1-00579-5, Carrie L. Runge, J., on August 31, 2006, entered a judgment of guilty based on stipulated facts. Court of Appeals: Holding that neither the consensual encounter with the police officer nor the arrival of the state trooper constituted a "seizure" of the defendant and that the police officer conducted a valid pat-down search of the defendant, the court affirms the judgment. Susan M. Gasch- (of Gasch Law Office), for appellant. Andrew K. Miller-, Prosecuting Attorney, and Adrienne M. Farabee-, Deputy, for respondent. ¶1 KORSMO, J. — Dustin Harrington appeals his conviction for possession of methamphetamine discovered during a pat down of his pockets. The trial court found that Mr. Harrington's meeting with Officer Scott Reiber was a consensual encounter. The arrival of an additional officer did not convert the situation into a seizure. Accordingly, we affirm the conviction. ¶2 Officer Reiber, while on patrol in Richland, saw Mr. Harrington walking at 11:00 p.m. and decided to talk to him. He turned his patrol car around and parked in a driveway ahead of Harrington. He then got out of his car and, standing away from the sidewalk, asked to speak with Mr. Harrington. Harrington agreed to talk and Reiber advised him that he was not under arrest. ¶3 The officer asked Mr. Harrington what he was doing; he also noted several objects were in Harrington's pockets. Told that Harrington had just visited his sister, the officer asked where she lived. Mr. Harrington replied that he did not know where she lived. The officer became suspicious. ¶4 During the conversation, Trooper William Bryan drove by and decided to stop. He parked on the street and walked up to where the two men were talking. Neither participant acknowledged the trooper's presence; Bryan did not involve himself in the conversation. ¶5 Mr. Harrington was nervous and kept putting his hands in his pockets despite the officer's request that he not do so. Eventually Officer Reiber asked if he could check Mr. Harrington's pockets. Harrington agreed. A pat-down of the outside of the pocket revealed a hard cylindrical object. When asked what it was, Mr. Harrington candidly told the officer it was a "meth pipe." Officer Reiber told Mr. Harrington he was now under arrest. Harrington fled but was apprehended by the two officers a short distance away. ¶6 A search incident to the arrest revealed a small amount of methamphetamine in the pipe. Mr. Harrington moved to suppress, contending that he had been seized when the officer approached him. The trial court disagreed, finding that there was a consensual meeting and that defendant's actions in repeatedly putting his hands in the pockets justified a pat down for officer safety. After his motion to suppress the evidence was denied, Mr. Harrington was found guilty during a stipulated facts trial. He then appealed to this court. ¶9 Appellant also contends that the request to check the pockets constituted a seizure, citing to State v. Soto-Garcia, 68 Wn. App. 20, 841 P.2d 1271 (1992), abrogated in part by State v. Thorn, 129 Wn.2d 347, 917 P.2d 108 (1996). ¶10 The facts of this case do not rise to the level of Soto-Garcia. There the combination of the records check, the inquiry about illegal drug possession, and the request to search constituted a seizure. In contrast, this was a consensual encounter not marred by inquiries concerning warrant status and illegal activity. Rather, the encounter was more like that in State v. Thorn, 129 Wn.2d 347, 917 P.2d 108 (1996), overruled on other grounds by State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). There an officer, after observing suspicious behavior, walked up to a parked car and asked, "Where is the pipe?" Id. at 349. The trial court had found the question constituted a seizure and suppressed the controlled substances found during a subsequent arrest and search. Id. at 350. The Washington Supreme Court reversed, concluding that the totality of the circumstances did not show a seizure had occurred when the officer asked the question about the pipe. Id. at 353-354. ¶11 Similarly here, asking for consent to search did not turn a voluntary meeting into a seizure. Appellant's position, if accepted, would essentially vitiate any consent to search where probable cause to search did not already exist. Such is not the state of the law. ¶13 The trial court correctly determined that no seizure took place. ¶14 Accordingly, the conviction is affirmed. BROWN, J., concurs. ¶15 SWEENEY, J. (dissenting) — This police encounter was not a "social contact" and Dustin Harrington was not free to just walk away. And so I respectfully dissent. ¶16 Mr. Harrington was confronted by two uniformed officers and two squad cars at 11:00 at night. The state trooper stopped to provide "backup." The police officer ordered Mr. Harrington to remove his hands from his pockets and then asked whether he could search him. The court concluded, nonetheless, that this contact was a "social contact." Clerk's Papers (CP) at 19 (Conclusion of Law 1). But there is no suggestion that the officer knew Mr. Harrington, that Mr. Harrington needed help, or that the officer was looking for someone on the street at 11:00 at night to visit with. And moreover, any suggestion that this was a "social contact" evaporated when the state trooper showed up and stood nearby, or when the officer ordered Mr. Harrington not to put his hands in his pockets. ¶17 Mr. Harrington was not in a high crime area. State v. Miller, 91 Wn. App. 181, 183, 955 P.2d 810, 961 P.2d 973 (1998). There was no suspicion (reasonable or otherwise) of criminal activity in or around the area where Mr. Harrington was seized. State v. Armenta, 134 Wn.2d 1, 8, 948 P.2d 1280 (1997); State v. Hopkins, 128 Wn. App. 855, 867, 117 P.3d 377 (2005). Mr. Harrington was not and did not appear to be sick, injured, disabled, drunk, or lost. State v. Acrey, 110 Wn. App. 769, 773, 45 P.3d 553 (2002), aff'd, 148 Wn.2d 738, 64 P.3d 594 (2003). In short, there was no legally supportable reason for this encounter/stop/confrontation/seizure and labeling it a "social contact" does not change the reality. There simply was no reason to contact Mr. Harrington. ¶18 We do a disservice to the public and to police by moving the so-called "social contact" into just another form of seizure, albeit without any cause or suspicion of crime or danger to the public or the police. Backup is certainly an important police safety procedure for any investigation. But this was, according to the court, not an investigation, it was a "social contact." The trooper says he may or may not have had his emergency lights on. ¶19 I would conclude that this stop by a police officer, along with the presence of backup by a state trooper and the presence of two marked police cars at this time of night, put Mr. Harrington in a position that he was not free to simply walk away. ¶20 The court's conclusion that Mr. Harrington's conduct was "suspicious, and supported Officer [Scott] Reiber continuing the contact" (Conclusion of Law 2) flies in the face of the court's conclusion that all of this amounted to a "social contact" (Conclusion of Law 1). CP at 19. Fidgety and nervous is an understandable reaction given the encounter here. ¶21 A social contact should be just that—a social contact—not an opportunity for police to investigate, provoke, or "find" criminal activity. This may have started as a casual encounter but it escalated into something more, without probable cause or even a reasonable suspicion that Mr. Harrington had done anything wrong. ¶22 I intend no criticism of the police work here. Indeed, it may well have been good police work. I conclude simply that there was not adequate constitutional sanction for the conduct here, and the evidence should then have been suppressed. Our holding in State v. Soto-Garcia is on point. State v. Soto-Garcia, 68 Wn. App. 20, 841 P.2d 1271 (1992), abrogated on other grounds by State v. Thorn, 129 Wn.2d 347, 917 P.2d 108 (1996). ¶23 I have read State v. Nettles and respectfully disagree with the conclusion the majority of the court reaches there. State v. Nettles, 70 Wn. App. 706, 712, 855 P.2d 699 (1993). There, the court concluded that orders from an armed policeman to remove one's hands from one's pockets was not a sufficient showing of authority to convert a social contact into a seizure. That aside, the police contact in Nettles was at least prompted by reports of and a request to investigate drug activity in the area where police found Mr. Nettles. Id. at 707-08. ¶24 State v. Thorn is also distinguishable. State v. Thorn, 129 Wn.2d 347, 917 P.2d 108 (1996), overruled on other grounds by State v. O'Neill, 148 Wn.2d 564, 62 P.3d 489 (2003). There, the court concluded that the question, "where is the pipe?" did not constitute a seizure because it was capable of more than one interpretation. Id. at 354. But the court was clear: "Our holding should not be construed as a blanket rule that an officer does not seize a person merely by asking a question." Id. ¶25 Here, two police officers, two patrol cars, late at night, orders to remove his hands from his pockets, and finally a request to search over the course of up to five minutes does not add up to a conclusion that a reasonable person would have felt free to just walk off. Mr. Harrington was not free to just walk off. There was a sufficient show of authority that no citizen would have felt free to just walk away from the police officers.