THE STATE OF WASHINGTON, Respondent, v. RAFAEL M. LASKOWSKI, Appellant.
[1] Arrest - Detention for Questioning - Articulable Suspicion - Involvement in Criminal Activity. A police officer may briefly stop and question a person whom the officer reasonably suspects of criminal activity.
[2] Searches and Seizures - Protective Search or Seizure - Scope - Detection of Weapons. A person lawfully detained by a police officer on suspicion of criminal activity may be frisked for weapons if the officer reasonably believes that the person is armed and dangerous. The reasonableness of an officer's belief that a person is armed and dangerous depends upon the totality of the circumstances, including facts known to or observed by the officer about the person's immediate companions.
[3] Searches and Seizures - Stop and Frisk - Protective Search or Seizure - Scope - Container. A police officer may conduct a patdown search of any container accessible to a person lawfully detained on suspicion of criminal activity if the officer reasonably believes that the person is armed and dangerous.
Nature of Action: Prosecution of a juvenile for unlawful possession of a firearm.
Superior Court: The Superior Court for Snohomish County, No. 96-8-01079-1, Kathryn E. Trumbull, J., entered an adjudication of guilty on October 1, 1996.
Court of Appeals: Holding that the juvenile court did not err by refusing to suppress evidence of a sawed-off shotgun discovered by a police officer in a backpack worn by the juvenile, the court affirms the adjudication.
Shannon B. Marsh of Washington Appellate Project, for appellant.
James H. Krider, Prosecuting Attorney, and Charles F. Blackmun, Deputy, for respondent.
Nov. 1997 STATE v. LASKOWSKI 859
88 Wn. App. 858, 950 P.2d 950
BAKER, C.J. - Rafael Laskowski and his companions matched the dispatcher's description of the suspects in a possible vehicle prowl. Because Laskowski appeared nervous and wore a backpack capable of concealing a weapon, and because another youth in the group was known to have a criminal history involving weapons and another was seen to have a live shotgun cartridge in plain view, we hold that the officer reasonably believed that Laskowski was armed and dangerous, justifying a frisk for weapons. And, because Laskowski's backpack was accessible to him and his companions, the patdown of the backpack was within the scope of the lawful frisk.
A police officer was dispatched to a potential vehicle prowl in the parking lot of an apartment complex in the late evening. When he arrived, he saw six teens matching the description of the suspects. He asked them to remove their hands from their pockets. Some did not comply until he repeated the request. He approached Laskowski, who appeared nervous answering his questions, wore a backpack, and refused the officer's request to look inside. The officer knew that one of the boys had a criminal history involving weapons. He performed a quick patdown of each of them«1» and saw a live shotgun cartridge in one of the boy's open pocket. He did not pat down the backpack. The officer testified that because the shotgun cartridge hightened his safety concerns, he ordered the boys to form a line, kneel, and place their hands over their heads. He then patted down Laskowski's backpack and felt a long hard object which he believed to be a weapon. He opened the backpack and discovered a loaded sawed-off shotgun.
The juvenile court denied the motion to suppress the sawed-off shotgun. It found Laskowski guilty of unlawful possession of a firearm while under the age of 18, in
«1» Laskowski does not challenge the first patdown because nothing was found from it.
860 STATE v. LASKOWSKI Nov. 1997
88 Wn. App. 858, 950 P.2d 950
violation of RCW 9.41.040. It sentenced him to 10 days detention and 24 hours of community service.
II
[1, 2] Officers can briefly stop and question persons whom they reasonably suspect of criminal activity.«2» When a stop is lawful, officers may perform a protective frisk if they reasonably believe that suspects are armed and dangerous.«3»
The totality of the suspicious circumstances supported the officer's belief that Laskowski was armed and dangerous. We do not agree with Laskowski's argument that he was searched solely due to his proximity to his companions.«4» Here, Laskowski was part of a group reported to be acting suspiciously, and the officer could reasonably consider all facts known or observed about any member of the group. "[A]ny reasonable basis supporting an inference that the investigatee or a companion is armed will justify a protective search for weapons."«5»
This case is similar to Terry, where the suspicious conduct of the group "casing" a store for robbery justified a stop and frisk of each member.«6» That officer did not have particularized suspicion distinguishing Terry from the others when the officer frisked him. Laskowski's reliance on State v. Galbert«7» is misplaced. There an officer refrisked a handcuffed person in a house immediately after
«2» State v. Smith, 102 Wn.2d 449, 452, 688 P.2d 146 (1984); Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
«3» Smith, 102 Wn.2d at 452; United States v. Place, 462 U.S. 696, 702, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983).
«4» See, e.g., Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979) (holding proximity to the premises searched did not justify frisk of customer); State v. Broadnax, 98 Wn.2d 289, 654 P.2d 96 (1982) (holding frisk unlawful where defendant was merely present at a searched home).
«5» State v. Wilkinson, 56 Wn. App. 812, 818, 785 P.2d 1139, review denied, 114 Wn.2d 1015 (1990).
«6» Terry, 392 U.S. at 6.
«7» 70 Wn. App. 721, 855 P.2d 310 (1993).
Nov. 1997 STATE v. LASKOWSKI 861
88 Wn. App. 858, 950 P.2d 950
the discovery of marijuana near the person. Because the second frisk was not based on a reasonable suspicion that the person was armed and dangerous, the court held it unlawful.«8» Unlike Galbert, here there was reasonable suspicion that Laskowski was armed and dangerous.
III
[3] We reject Laskowski's contention that the officer exceeded the scope of the Terry stop by not removing the backpack from Laskowski's reach without pattipg it down. This court declined to adopt this argument in State v. Franklin.«9» It would be unrealistic to require an officer to remove the pack in such a manner that a weapon would not be felt. Moreover, the risk to the officer's safety would continue once the pack was returned to the suspect.
A protective frisk may extend beyond a person to his or her area of immediate control "if there is reasonable suspicion that the suspect is dangerous and may gain access to a weapon."«10» The same interests that justify a limited intrusion for a Terry stop allow an intrusion on a person's possessory interests in property in some circumstances.«11» An officer is not restricted to frisking only a suspect's outer clothing, but may pat down articles of clothing not worn by, but closely connected to a suspect, where the officer reasonably believed a weapon was present therein.«12» In State v. Keyser,«13» the officer's frisk of a bag underneath the seat in a car was within the scope of a
«8» Galbert, 70 Wn. App. at 725-26.
«9» 41 Wn. App. 409, 414-15, 704 P.2d 666 (1985).
«10» State v. McIntosh, 42 Wn. App. 579, 582, 712 P.2d 323, review denied, 105 Wn.2d 1015 (1986); State v. Kennedy, 107 Wn.2d 1, 12, 726 P.2d 445 (1986); State v. Dorsey, 40 Wn. App. 459, 472, 698 P.2d 1109, review denied, 104 Wn.2d 1010 (1985).
«11» Dorsey, 40 Wn. App. at 472 (citing Place, 462 U.S. at 705-06).
«12» State v. Quaring, 32 Wn. App. 728, 730, 649 P.2d 173 (1982) (Terry-detained suspect asked the officer to retrieve his jacket from car); see also Franklin, 41 Wn. App. at 415 (rucksack that suspect admitted contained a gun).
«13» 29 Wn. App. 120, 126, 627 P.2d 978 (1981).
862 DOBBINS v. MENDOZA Oct. 1997
88 Wn. App. 862, 947 P.2d 1229
Terry search. A backpack, worn on Laskowski's back, was within his or his companions' immediate control. It is similar to a bag in a car or an article of clothing, and it presented the same risk to the officer's safety.
The backpack was the only place a shotgun could have been concealed. The officer was reasonably concerned that it might contain a shotgun which Laskowski or any of his companions could access because none of them were restrained during the stop. Given the potential risk of danger to the officer, the frisk of the backpack was reasonable and did not exceed the scope of a lawful Terry stop.
Affirmed.
GROSSE and BECKER, JJ., concur.
Review denied at 135 Wn.2d 1002 (1998).