93 Wn.2d 838, STATE v. THOMPSON

CITE:          93 Wn.2d 838, 613 P.2d 525

               STATE v. THOMPSON


FILE DATE:     July 3, 1980

CASE TITLE: The State of Washington, Respondent, v. Mack
               Harris Thompson, Petitioner.

[1] Arrest - Detention for Questioning - Well Founded Suspicion - What Constitutes. An individual may not be subjected to an investigatory stop unless the police officer has a reasonable suspicion, based on objective, specific, and articulable facts, that the individual is involved in criminal activity.

[2] Arrest - Detention for Questioning - Well Founded Suspicion - Proximity to Suspicious Persons. The proximity of an individual to others independently suspected of criminal activity does not raise a reasonable suspicion that that particular individual is involved in criminal activity and does not justify his detention by a police officer.

NAMES OF CONCURRING OR DISSENTING JUDGES: Wright, J., did not participate in the disposition of this case.

NATURE OF ACTION: Prosecution for possession of a controlled substance. After an automobile containing occupants suspected of criminal activity drove up next to the defendant's automobile in an isolated part of a shopping center parking lot and the defendant began walking rapidly toward the shopping center, a police officer stopped the defendant, learned he was wanted on a traffic warrant, and discovered heroin on his person and in his automobile.

Superior Court: The Superior Court for King County, No. 81657, Barbara J. Rothstein, J., entered a judgment of guilty on February 1, 1978.

Court of Appeals: The court AFFIRMED the judgment at 24 Wn. App. 321, holding that the police officer's suspicion was reasonable and justified the detention of the defendant.

Supreme Court: Holding that the police officer lacked an objective basis for believing that the defendant was involved in criminal activity, the court REVERSES the judgment.

COUNSEL:      DAVID MIDDAUGH, for petitioner.



MAJORITY OPINION: We granted review of the Court of Appeals opinion, STATE v. THOMPSON, 24 Wn. App. 321, 601 P.2d 1284 (1979), to determine whether the detention of petitioner Mack Harris Thompson for identification and a warrant check conformed to the requirements of the Fourth Amendment. The stop violated the Fourth Amendment because a constitutionally adequate justification for the stop did not exist, and we reverse the conviction.

The facts are essentially undisputed. While patrolling on Interstate 5 about noon on April 22, 1977, a State Patrol trooper received a radio report that an occupant of a northbound Cadillac was waving a handgun. Shortly thereafter, the trooper saw a car fitting the description exiting at Southcenter shopping complex. He testified that he followed the Cadillac as it "meandered" in the parking lot and stopped next to a green Chrysler, which was parked in a spot "somewhat isolated" from other vehicles.

The trooper parked in front of the Cadillac and ordered the occupants out of the car. At about this same time, he testified, petitioner, who was driving the Chrysler, got out of his car and started to walk "rapidly" toward Southcenter. The trooper ordered him not to leave. It is unclear whether Thompson again attempted to leave, but the trooper told him that he was not free to go.

Another unit soon arrived and one of the officers asked petitioner to identify himself. This information was radioed to headquarters, and the officers learned that Thompson was wanted on a $39 traffic warrant. Thompson was then placed under arrest and searched. Because contraband was found, the officers impounded the car, and they discovered more contraband during an inventory search.

Thompson was charged with possession of heroin in violation of the Uniform Controlled Substances Act, RCW 69.50.401(c). Prior to trial, he moved to suppress the contraband seized during the police investigation. The motion was denied, and a court sitting without a jury found petitioner guilty as charged. Thompson appealed on several grounds, including a challenge to the lawfulness of the initial detention. The Court of Appeals affirmed the conviction by a 2-to-1 vote. Thompson then petitioned for review in this court, raising solely the issue concerning the initial detention. We granted review on this issue. STATE v. THOMPSON, 93 Wn.2d 1009 (1980).

[1] All seizures of the person, even those involving only brief detentions, must be tested against the Fourth Amendment guaranty of freedom from unreasonable searches and seizures. UNITED STATES v. BRIGNONI-PONCE, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975); TERRY v. OHIO, 392 U.S. 1, 17, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). To conduct a full arrest of an individual, the officer must have probable cause to believe that an offense has been or is being committed. E.G., BRINEGAR v. UNITED STATES, 338 U.S. 160, 175-76, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949). An investigatory stop short of an arrest may be made on less than probable cause. TERRY v. OHIO, SUPRA. An officer making such an investigatory stop, however, is required by the Fourth Amendment to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal conduct. BROWN v. TEXAS, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979); SEE TERRY, at 21-22.

There is no question in this case that petitioner had been "seized": the State Patrol trooper told him he was not free to leave. SEE TERRY, at 16. We have held a person is under arrest from the moment the person was not, and knew he or she was not, free to go. STATE v. BYERS, 88 Wn.2d 1, 6, 559 P.2d 1334 (1977); CF. DUNAWAY v. NEW YORK, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979). A question exists after examining the facts of this case whether the detention here was a full arrest or merely an investigatory stop. This question need not be resolved because even the lesser standard for a stop, short of an arrest, was not met.

To justify an investigatory stop, the officer must be able to point to "specific and articulable facts which, taken together with rational inferences from those facts," "would 'warrant a man of reasonable caution in the belief' that the action taken was appropriate". TERRY, at 21, 22. The specific facts which the State cites to justify the seizure in this case are the brandishing of a pistol, the driver of the implicated Cadillac pulling up next to petitioner's car in an isolated part of the lot, and the petitioner's "hurried" walking away "without even looking back." These facts do not create a reasonable suspicion that petitioner was involved in criminal conduct.

[2] Since, as the radio report stated, the pistol was brandished solely by the occupants of the Cadillac and not by Thompson, this fact is irrelevant to any suspicion that Thompson had been involved in criminal activity. The Fourth Amendment requires that the suspicion be individualized, BROWN, at 51. Petitioner's mere proximity to others independently suspected of criminal activity does not justify the stop. SEE YBARRA v. ILLINOIS, 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979); STATE v. LARSON, 93 Wn.2d 638, 611 P.2d 771 (1980). Neither can we find that Thompson's rapid walking toward the shopping center, by itself, made him a proper subject for criminal investigation. SEE LARSON, at 645.

The State does not contend that the officers suspected Thompson of any specific misconduct, and points to no other circumstances which would raise a reasonable suspicion of criminal conduct.

The State Patrol officer's testimony at the suppression hearing illustrates that the necessary objective basis for the stop was not present. In response to the defense attorney's question as to why he stopped Thompson, he stated:

"All that I can say is that I had a suspicious circumstance.

Call it instinct or whatever. Something told me that I should keep this gentleman long enough to I.D. him.

At that time things happened very quickly. And I'm really not totally sure what went through my mind. It's just that I was- I think an instinct is a fair statement.

The suppression hearing judge found this "instinct" formed a reasonable ground for the stop and that the lack of a specific reason was not determinative. However, this "inarticulate hunch", TERRY, at 22, is precisely the type of subjective basis which is constitutionally insufficient, because it creates a risk that a person may be detained "solely at the unfettered discretion of officers in the field." BROWN, at 51.

In BROWN v. TEXAS, SUPRA, two officers cruising in a patrol car observed appellant Brown and another man walking away from each other in an alley in an area of El Paso noted for a high incidence of drug traffic. One officer testified that the two had been together or about to leave when the patrol car approached. He further testified that "the situation looked suspicious and we had never seen that subject in that area before." As in this case, the officers did not claim to suspect Brown of any specific misconduct.

One officer asked Brown to identify himself and explain what he was doing in the area. Brown refused and the officer arrested him for violation of a provision of the Texas penal code which makes it a crime to refuse to comply with a police officer's request for identification. The United States Supreme Court held that none of the facts known to the officers warranted a reasonable suspicion that Brown was involved in criminal conduct. Holding the stop illegal, the court noted that

"     In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference.

BROWN, at 52.

There is an understandable desire by police officers to investigate what appear to be suspicious circumstances. Those investigations, however, must comport with Fourth Amendment protections. Otherwise, when a stop is not based on specifically articulated facts, "the risk of arbitrary and abusive police practices exceeds tolerable limits." BROWN, at 52.

The initial detention of Thompson violated the Fourth Amendment because the officers lacked a reasonable suspicion, based on objective criteria, to believe that appellant was involved in criminal conduct. The conviction is reversed and the case is remanded to the trial court.

CONCURRING JUDGES: Rosellini, Stafford, Brachtenbach, Horowitz, Dolliver, Hicks, and Williams, JJ., and Faris, J. Pro Tem., concur.

POST-OPINION INFORMATION: Reconsideration denied September 30, 1980.