[No. 79690-4. En Banc.]
Argued January 22, 2008. Decided May 22, 2008.
[1] Criminal Law — Review — Conclusions of Law — Standard of Review — De Novo Review. Conclusions of law entered by a trial court in a criminal case are reviewed de novo. [2] Criminal Law — Review — Findings of Fact — Standard of Review — Substantial Evidence Standard. Findings of fact entered by a trial court in a criminal case are reviewed to determine whether they are supported by substantial evidence. Substantial evidence is evidence that would convince a reasonable person that the fact is true. [3] Searches and Seizures — Constitutional Provisions — Federal Constitution — Application to States. The Fourth Amendment protection against unreasonable searches and seizures applies to the states through the Fourteenth Amendment. [4] Constitutional Law — Right to Privacy — State and Federal Provisions — Greater State Protection — In General. Const. art. I, § 7 is more protective of individual privacy rights than is the Fourth Amendment. [5] Searches and Seizures — Constitutional Provisions — State and Federal Provisions — State Constitutional Analysis — Exclusion of Federal Analysis. A court analyzing a search and seizure question under Const. art. I, § 7 and the Fourth Amendment will cite Washington cases applying Const. art. I, § 7 over federal cases applying the Fourth Amendment. [6] Searches and Seizures — Stop and Frisk — Protective Search or Seizure — Validity — Test. Absent a warrant or probable cause to make an arrest, a law enforcement officer may frisk a person for weapons only if (1) the officer justifiably stopped the person before the frisk, (2) the officer has a reasonable concern of danger, and (3) the scope of the frisk is limited to finding weapons. The failure of any one of these elements makes the frisk unlawful and renders evidence seized thereunder inadmissible. [7] Searches and Seizures — Stop and Frisk — Protective Search or Seizure — Nature of Suspicion. To justify frisking a person without probable cause to arrest, a police officer must have a reasonable belief, based on objective facts, that the person is armed and presently dangerous. A reasonable belief that a person is armed and presently dangerous requires some basis from which a court can determine that the detention was not arbitrary or harassing. [8] Searches and Seizures — Stop and Frisk — Protective Search or Seizure — Narrow Exception to Warrant Requirement. A protective frisk of a person for weapons is a narrow exception to the warrant requirement, one the courts jealously guard to protect the rights of citizens. [9] Searches and Seizures — Stop and Frisk — Protective Search or Seizure — Validity — Insufficient Circumstances. A police officer does not have sufficient justification to conduct a warrantless protective frisk of a person who is legitimately in a public area solely on the grounds that the person appears to be under the influence of an intoxicant, lies about his name, and is nervous and fidgety. Nature of Action: Prosecution for unlawful possession of a controlled substance. Based on a citizen report that two young men were in the lobby of a government office and that one of them was sleeping and the other one was apparently under the influence of drugs, the officers who responded to the dispatch call found the scene as the citizen had described. The defendant, who was filling out a public benefits application, lied about his name and became increasingly nervous and fidgety when questioned by the officers. One of the officers patted down the defendant for weapons. The officer felt hard objects in the defendant's right front pants pocket, reached into the pocket, and grabbed everything inside. One of the items was a small plastic baggie filled with white powder. The officer put the pocket's contents on the bench and told the defendant he was under arrest. The defendant dropped to his knees, grabbed the baggie, and swallowed it. The baggie was never recovered. After arresting the defendant, the officer seized a backpack the defendant had with him. Inside the backpack the officers found a small locked safe. After obtaining a warrant, the officers opened the safe and discovered a baggie of methamphetamine, together with a needle, a pipe, and a set of scales. Superior Court: After denying the defendant's motion to suppress the evidence seized from the safe, the Superior Court for Thurston County, No. 05-1-00518-5, Richard D. Hicks, J., on August 30, 2005, entered a judgment on a verdict of guilty. Court of Appeals: The court affirmed the judgment by an order dated December 20, 2006. Supreme Court: Holding that the officer was not justified in conducting a pat-down search of the defendant and that all evidence seized as a result of the frisk should have been suppressed, the court reverses the decision of the Court of Appeals and the judgment. Peter B. Tiller- (of The Tiller Law Firm), for petitioner. Edward G. Holm-, Prosecuting Attorney, and James C. Powers-, Deputy, for respondent. En Banc ¶1 J.M. JOHNSON, J. — A jury convicted Michael Setterstrom of possessing a controlled substance based on evidence he claims was discovered in violation of the Fourth and Fourteenth Amendments to the United States Constitution and article I, section 7 of the Washington Constitution. He wants the evidence suppressed and his conviction reversed. We agree with Setterstrom and reverse the Court of Appeals. FACTS ¶2 On the morning of February 28, 2005, someone called the police, complaining about two young men in the lobby of the Department of Social and Health Services (DSHS) building in Tumwater. The caller alleged one of them was sleeping and the other appeared under the influence of drugs. The dispatcher sent out word, and Lieutenant (Lt.) Don Stevens and Officer Glen Staley, both of the Tumwater Police Department, responded. ¶3 Arriving at the DSHS building, the officers found the scene as the caller had described. One man, Joseph Rice, was asleep on a bench in the lobby. The other, Michael Setterstrom (later the defendant and petitioner), sat next to Rice, filling out a benefits application. ¶4 The officers approached the men. Setterstrom had partially filled out the application, listing his name. Lt. Stevens saw the name and asked Setterstrom if that was his name; Setterstrom said yes. When asked how to spell it, Setterstrom changed his mind and said it was not his name and that he was just filling out the form for a friend. He said his real name was Victor M. Garcia. ¶5 Trying to determine which name was real, Lt. Stevens asked Rice (who by now was awake) what Setterstrom's name was. Before Rice could answer, Setterstrom blurted "Victor," in an apparent attempt to keep his friend from revealing his true identity. ¶6 Lt. Stevens described Setterstrom as nervous and fidgeting, behavior that quickly escalated. Lt. Stevens believed Setterstrom was under the influence, probably from methamphetamine. Lt. Stevens often encounters people on methamphetamine, and he believes they are erratic and can become violent without warning, even though Setterstrom himself did not stand up, put his hands in his pockets, or actually do or say anything threatening. ¶7 Lt. Stevens feared danger, so he patted down Setterstrom for weapons. In Setterstrom's right front pants pocket he felt hard objects. How many or what the objects were, Lt. Stevens did not remember. He testified that none felt like a gun. ¶8 Lt. Stevens reached into Setterstrom's pocket and grabbed everything inside. He does not remember what the hard objects were because, on emptying the pocket, he quickly focused on the small plastic baggie filled with white powder. He put the pocket's contents on the bench and told Setterstrom he was under arrest. ¶9 What happened next was, we assume, unusual. Setterstrom dropped to his knees, grabbed the baggie, and swallowed it. Lt. Stevens tried to make Setterstrom spit it out but was unsuccessful. For obvious reasons, police never recovered the baggie. ¶10 The police did, however, arrest Setterstrom and seize the backpack he had with him. Inside Lt. Stevens found a small locked safe. He later applied for and received a warrant to search the safe. Inside was a baggie of methamphetamine, together with a needle, a pipe, and a set of scales. ¶11 The State charged Setterstrom with possessing a controlled substance. Setterstrom moved to suppress the evidence, claiming the search was illegal. The trial judge denied the motion. The case went to trial and a jury convicted Setterstrom. The judge sentenced him to six months in jail. ¶12 Setterstrom appealed, and the commissioner of Division Two of the Court of Appeals affirmed. Setterstrom moved to modify the commissioner's ruling, and a three-judge panel denied the motion. He petitioned this court for review, which was granted. State v. Setterstrom, 161 Wn.2d 1022, 169 P.3d 830 (2007). ISSUES 1. Was the officer justified in frisking Setterstrom? 2. If the officer was justified in frisking Setterstrom, did he exceed the allowable scope of the search by removing everything from Setterstrom's pockets? ANALYSIS Lt. Stevens Was Not Justified in Frisking Setterstrom ¶17 We do not find such a basis here. The police received an anonymous call claiming Setterstrom was under the influence, heard a lie about his name, and observed his nervous, fidgety behavior. The record shows no threatening gestures or words. Setterstrom did not even stand. At most, the record shows that Setterstrom was under the influence; this is not a crime in itself. ¶18 Moreover, Setterstrom was lawfully in a public area of the DSHS building, filling out a DSHS benefits form. It seems likely that some people filling out benefits forms exhibit erratic behavior, making employment difficult and benefits applicable. This is not a situation where the officers encountered Setterstrom in a dark alley in a crime-ridden area. See State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). ¶19 Lt. Stevens has been on the force for 20 years, three of them spent in the narcotics division. He may, of course, rely on this experience in deciding how to act. Id. Surely officers may protect themselves when the situation reasonably appears dangerous, but a frisk is a narrow exception to the rule that searches require warrants. The courts must be jealous guardians of the exception in order to protect the rights of citizens. Hudson, 124 Wn.2d at 112. The justification for the frisk here was simply not sufficient. ¶20 Since the frisk was unjustified, we do not decide whether the officer took the frisk too far. CONCLUSION ¶21 We hold that the officer did not have justification to frisk Setterstrom. Unless already holding a suspect legitimately, officers must have some basis beyond nervousness and lying to justify the intrusion of a frisk. The officer here lacked such a basis. ¶22 There is one final issue. Setterstrom was convicted for the methamphetamine in his backpack, not the methamphetamine in his pocket. The officers had a warrant to search the backpack, which, if valid, would render the evidence found admissible and so justify the conviction. The State admitted at oral argument that the warrant rose or fell on the legality of the frisk. Since we hold the frisk unconstitutional, we remand to the trial court to reverse Setterstrom's conviction. ALEXANDER, C.J., and C. JOHNSON, MADSEN, SANDERS, CHAMBERS, OWENS, FAIRHURST, and STEPHENS, JJ., concur.