[No. 79992-0. En Banc.]
Argued March 13, 2008. Decided May 1, 2008.
[1] Criminal Law — Evidence — Suppression — Findings of Fact — Review — Standard of Review. Findings of fact entered by a trial court in support of a ruling on a motion to suppress evidence under CrR 3.6 are reviewed for substantial evidence. [2] Criminal Law — Evidence — Suppression — Conclusions of Law — Review — Standard of Review. Conclusions of law entered by a trial court in support of a ruling on a motion to suppress evidence under CrR 3.6 are reviewed de novo. [3] Arrest — Detention for Questioning — Validity — Question of Law or Fact — Review — Standard of Review. The constitutionality of a warrantless stop is a question of law that is reviewed de novo. [4] Searches and Seizures — Warrantless Search — Validity — State and Federal Protection. Const. art. I, § 7 affords individuals greater protections against warrantless searches than does the Fourth Amendment. [5] Arrest — Seizure — Warrantless Seizure — Validity — In General. In general, a police officer's warrantless seizure of a private citizen is unconstitutional unless it can be justified by one of the jealously and carefully drawn exceptions to the warrant requirement. Such exceptions provide for those cases where the costs to society of obtaining a warrant outweigh the reasons for prior recourse to a neutral magistrate. [6] Arrest — Detention for Questioning — Validity — Test. An investigate stop is a recognized exception to the constitutional requirement of a warrant before a private citizen may be seized by a law enforcement officer. The validity of an investigative stop is determined by whether the officer making the stop had a reasonable, articulable suspicion, based on specific, objective facts, that the person stopped had committed or was about to commit a crime. A valid investigate stop must be based on an articulable, particularized suspicion of criminal activity at the inception of the stop. [7] Arrest — Detention for Questioning — Articulable Suspicion — Startled Reactions to Seeing Police — In General. A person's startled reactions to seeing the police do not give rise to a reasonable suspicion that would justify the police in making an investigative stop of the person. [8] Arrest — Detention for Questioning — Articulable Suspicion — Flight From Police Officer — What Constitutes — Walking Away. Although a person's flight from a police officer is a factor that may be considered in determining whether the officer had a reasonable suspicion of criminal activity to justify making an investigative stop of the person, a person does not "flee" merely by walking away after noticing the officer's presence in the vicinity. [9] Arrest — Detention for Questioning — Articulable Suspicion — Startled Reactions to Seeing Police — Furtive Movements — Walking Away. The need for specific and articulable facts underlying a police officer's suspicion of criminal activity that would be sufficient to justify an investigative stop or seizure of an individual is not met where the officer observes the individual in a bus shelter, the individual has a startled reaction to seeing the police officer, the individual makes furtive movements suggesting an attempt to hide something, and the individual walks away from the shelter and crosses a street at midblock. [10] Arrest — Detention for Questioning — Invalidity — Suppression of Evidence. Evidence seized as the result of an unconstitutional investigatory stop must be suppressed. Nature of Action: Prosecution for second degree unlawful possession of a firearm, unlawful possession of a controlled substance, and unlawful possession of less than 40 grams of marijuana. The charges arose from evidence seized during an investigatory stop and subsequent arrest of the defendant. The arresting officers, who were on patrol, observed the defendant and some other individuals sitting in a bus shelter. The defendant, upon noticing the officers, gave a surprised look, twisted his body to the left, which the officers thought looked as though he were trying to hide something, and then walked away from the bus shelter, crossing a street at midblock. The officers followed the defendant and ordered him to stop. The defendant reached some bushes, bent over, and reached into his waistband. The officers could not see what he was doing, so they drew their guns and ordered the defendant to stop and show his hands. The defendant pulled something out of his waistband, threw it in the bushes, and then complied with the officers' request. One of the officers immediately handcuffed the defendant. The other officer recovered a loaded handgun from the bushes. The officers found marijuana on the defendant. A subsequent search of the bus shelter yielded cocaine. Superior Court: The Superior Court for King County, No. 04-1-06785-1, Douglass A. North, J., on September 6, 2005, entered a judgment on a verdict finding the defendant guilty of second degree unlawful possession of a firearm and unlawful possession of less than 40 grams of marijuana. Court of Appeals: The court affirmed the judgment by an unpublished opinion noted at 137 Wn. App. 1010 (2007). Supreme Court: Holding that the warrantless seizure of the defendant was unsupported by a reasonable, articulable suspicion of criminal activity and that all evidence discovered subsequent to the seizure should have been suppressed, the court reverses the decision of the Court of Appeals and the judgment. Susan F. Wilk- (of Washington Appellate Project), for petitioner. Daniel T. Satterberg-, Prosecuting Attorney, and Christine W. Keating- and James M. Whisman-, Deputies, for respondent. En Banc ¶1 J.M. JOHNSON, J. — This case requires us to determine the legality of police officers' warrantless seizure of Gary Gatewood. The trial court found that the seizure was supported by reasonable suspicion that criminal activity was afoot. The Court of Appeals affirmed. We granted review and now reverse. FACTS AND PROCEDURAL HISTORY ¶2 The facts are undisputed. Shortly after midnight on June 26, 2004, police officers Larry Longley and Edward Chan were patrolling the Rainier Valley area of Seattle. Chan was driving a marked patrol car, and Longley was riding in the passenger seat. As they drove north on Rainier Avenue South, Longley saw three or four people, including Gary Gatewood, sitting in a bus shelter. Gatewood looked at Longley and the police cruiser, and Longley testified that Gatewood's "eyes got big . . . like he was surprised to see us." 1 Report of Proceedings (RP) (July 7, 2005) at 7. Longley then observed Gatewood "twist[ ] his whole body to the left, inside the bus shelter, as though he was trying to hide something." Id. ¶3 Longley told Chan he thought Gatewood was hiding something and that he wanted to circle back and investigate. Chan turned right at the next intersection, turned right again, and then drove the wrong way down a one-way street, returning to the intersection near the bus shelter. ¶4 By the time the officers reached the intersection, Gatewood had left the bus shelter and was walking north on Rainier Avenue. Gatewood then jaywalked ¶5 When Gatewood reached some bushes, he bent over and reached into his waistband. The officers could not see what he was doing, so they drew their guns and ordered Gatewood to stop and show his hands. Gatewood pulled something out of his waistband, threw it into the bushes, and then complied with the officers' request. Chan immediately handcuffed Gatewood, and Longley recovered a loaded .22 caliber handgun in the bushes. The officers found marijuana on Gatewood, and a subsequent search of the bus shelter yielded cocaine. ¶6 The State charged Gatewood with second degree unlawful possession of a firearm, STANDARD OF REVIEW ANALYSIS ¶10 "Terry requires a reasonable, articulable suspicion, based on specific, objective facts, that the person seized has committed or is about to commit a crime." State v. Duncan, 146 Wn.2d 166, 172, 43 P.3d 513 (2002) (citing Terry, 392 U.S. at 21). The officers' actions must be justified at their inception. Ladson, 138 Wn.2d at 350 (citing Terry, 392 U.S. at 20). ¶11 The State concedes that when Longley said, " 'Stop, I need to talk to you,' " it was a seizure. Resp't's Br. at 13 n.7 (citing State v. Friederick, 34 Wn. App. 537, 541, 663 P.2d 122 (1983)); see State v. O'Neill, 148 Wn.2d 564, 577, 62 P.3d 489 (2003) (holding that commanding a person to stop is a seizure). Thus, we only need to analyze the facts known to the officers up to this point: (1) Gatewood's widened eyes upon seeing the patrol car, (2) his twist to the left like he was trying to hide something, (3) his departure from the bus shelter, and (4) his crossing the street midblock. ¶13 The trial court relied on two cases in its denial of Gatewood's motion to suppress: State v. Graham, 130 Wn.2d 711, 927 P.2d 227 (1996) and State v. Sweet, 44 Wn. App. 226, 721 P.2d 560 (1986). This case is distinguishable. In this court's Graham, 130 Wn.2d at 714, officers patrolling on bicycles almost ran into the defendant who was walking along the street. He was carrying a wad of money in one hand and a small plastic baggie with white rocks, which officers suspected was cocaine, in the other. Id. When he saw the officers, he looked nervous, shoved his hands into his pockets, and began crossing the street against the "Don't Walk" signal. Id. We upheld the warrantless seizure. In the instant case, however, the officers saw far less. Longley observed Gatewood's widened eyes and twist to the left as the police cruiser drove by. He did not see what Gatewood was trying to hide. In fact, from his vantage point in the passing patrol car, Longley could not have seen much. ¶14 In Sweet, 44 Wn. App. at 228, officers received a call about a suspicious truck, which they subsequently found parked and unoccupied in front of a closed business. They then saw a man standing in the shadows nearby, and when the officers approached him, the defendant " 'fled at a full run.' " Id. (quoting State v. Sweet, 36 Wn. App. 377, 379, 675 P.2d 1236 (1984)). The Court of Appeals held the ensuing Terry stop valid. The facts here are very different. Gatewood was not alone or in a suspicious place, and he did not flee from the officers but simply walked away. ¶15 Officers' seizure of Gatewood was premature and not justified by specific, articulable facts indicating criminal activity. Although circling back to investigate Gatewood's furtive movements was proper, the officers did not have reasonable suspicion that he committed or was about to commit a crime. They could have continued to follow Gatewood or engaged in a consensual encounter to further investigate the activity Longley observed in the bus shelter. See Rankin, 151 Wn.2d at 717 (" '[D]uring a consensual encounter, a police officer seeks the voluntary cooperation of an individual by asking non-coercive questions. A citizen is free to leave at any time during such an encounter or to ignore the police officer's questions.' " (alteration in original) (quoting People v. Paynter, 955 P.2d 68, 72 (Colo. 1998))). Since Gatewood did not flee from the officers, it was not necessary to take swift measures. CONCLUSION ALEXANDER, C.J., and C. JOHNSON, MADSEN, SANDERS, CHAMBERS, OWENS, FAIRHURST, and STEPHENS, JJ., concur.