         FILE
         IN CLERKS OFFICE
  IUPREME COURT, STATE OF WASIII«m)N                              This opinion was filed for record

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                                                                    ~Ronald R.
                                                                        Supreme Court Clerk



                 IN THE SUPREME COURT OF THE STATE OF WASHINGTON


   STATE OF WASHINGTON,                             )
                                                    )
                              Respondent,           )                  No. 89253-9
                                                    )
            v.                                      )                    EnBanc
                                                    )
   TANNER ZACHARY ROY RUSSELL,                      )
                                                    )     Filed         JUL 1 0 2014
                                                                  --~==------------
                              Petitioner.           )
   _____________________________)

            OWENS, J. -- In certain situations, a police officer may briefly frisk a person

   to search for weapons that might pose a risk to officer and bystander safety. When

   justified, these protective frisks do not violate the constitutional prohibition against

   unreasonable invasions of individual privacy. In this case, we are asked to further

   define the permissible scope of these protective frisks. An officer stopped Tanner

   Zachary Roy Russell for violating several minor traffic laws. The officer recognized

   Russell from a previous encounter where Russell had told officers he was not armed,

   when in fact he had a small gun in his pocket. Fearing for his safety, the officer

   frisked Russell for weapons and felt a small box in Russell's pants pocket. The
State v. Russell
No. 89253-9


officer removed the box, opened it, and found a syringe filled with methamphetamine.

We hold that the initial protective frisk was justified to protect officer safety, but the

warrantless search of the container was not because it exceeded the permissible scope

of a protective frisk.

                                          FACTS

        At 11:00 p.m. on September 5, 2011, Officer Derrick Makein was on patrol in

Centralia when he observed a person riding a bicycle without a headlight, in violation

of traffic laws. See RCW 46.61.780. Officer Makein saw the cyclist change into the

left lane and travel for several blocks in the direction of oncoming traffic, another

traffic violation. Officer Makein pulled the cyclist over at a nearby gas station.

        After pulling the cyclist over, Officer Makein recognized him as Russell, a

passenger in a traffic stop that the officer made a week earlier. During the prior stop,

Officer Make in asked Russell if he had any weapons on him of any kind and Russell

said no. But during the course of the stop, another officer found a loaded .22 caliber,

derringer-style handgun in Russell's pocket. The gun was a very small and easily

concealable weapon meant for close-range shooting. The officers confiscated the gun

and issued Russell a citation.

        Because of that previous encounter, Officer Makein feared that Russell might

have a weapon and decided to frisk him. He was especially suspicious because

Russell had lied about the gun during the previous stop and because the gun was so



                                              2
State v. Russell
No. 89253-9


concealable. During the frisk Officer Makein felt a small, hard container in Russell's

pants pocket. He testified that the container was approximately six inches long, four

inches wide, and "an inch or two" deep. Verbatim Report of Proceedings (VRP) at

18.

        Officer Makein testified to what happened next:

              A. . .. I know that box was not a gun, but based on how big the
        box or that container was and the fact that he hid a very small caliber
        weapon in his front pocket the previous contact, I still felt that I needed
        to check what's in that box for my safety.

                   Q. Okay. So how did you go about doing that?

               A. Once I felt that to make sure everything matches as far as how
        big and remember how big the other weapon was, I asked him, What's
        this. He says, It's a box. Do you mind if I take it out? He says, Okay.

                   Q. So you did ask him for consent to search the box?

                   A. (Witness nods head.)

                   Q. Did he appear to have any problem with that?

                   A. No.

Id. at 18-19. Based on that testimony, the trial court made a finding of fact that

Russell consented to the search of the container. Officer Makein opened the container

and found one syringe containing methamphetamine. Though he testified that he

performed the search to ensure that the box did not contain a gun, Officer Makein

admitted "that the syringe weighed only a fraction of what the pistol weighed."

Clerk's Papers at 75.


                                               3
State v. Russell
No. 89253-9


       The State charged Russell with possession of a controlled substance; the

syringe was the only evidence against him. Russell moved to suppress the evidence,

arguing that the search was unlawful, and the trial court granted his motion and

dismissed the case. The trial court found that although the initial stop was justified,

the frisk was not because the stop occurred in a well-lit area and Russell did not

verbally threaten the officer, nor did he make any threatening gestures or movements.

The court also found that even if the frisk was justified, the search of the container

was not because it posed no threat once it was in the control of the officer.

        In a split, unpublished opinion, the Court of Appeals reversed the suppression

order and remanded the case for trial. State v. Russell, noted at 175 Wn. App. 1064,

2013 WL 3967169, at *7-9. The majority held that the initial protective frisk and the

subsequent removal and search of the container were reasonable. 2013 WL 3967169,

at *7-9. The dissent agreed that the initial frisk was reasonable but concluded that the

officer exceeded his authority when he searched the container. !d. at *11 (Quinn-

Brintnall, J., dissenting in part). We granted review. State v. Russell, 179 Wn.2d

1001, 315 P.3d 530 (2013).

                                          ISSUES

        1. Was the officer's initial protective frisk justified by concerns of officer

safety?




                                              4
State v. Russell
No. 89253-9


       2. Was the officer's warrantless search of the container discovered during the

search also justified by concerns of officer safety?

        3. Was the search otherwise permissible because the petitioner validly

consented to it?

                               STANDARD OF REVIEW

        When reviewing a trial court's ruling on a motion to suppress, we determine

whether substantial evidence supports the trial court's findings of fact and whether the

findings of fact support the trial court's conclusions of law. State v. Garvin, 166

Wn.2d 242, 249, 207 P.3d 1266 (2009). "Evidence is substantial when it is enough

'to persuade a fair-minded person ofthe truth ofthe stated premise."' !d. (quoting

State v. Reid, 98 Wn. App. 152, 156, 988 P.2d 1038 (1999)). We review conclusions

oflaw de novo. !d.

                                       ANALYSIS

    1. The Initial Protective Frisk Was Justified

        "As a general rule, warrantless searches and seizures are per se unreasonable, in

violation of the Fourth Amendment to the United States Constitution and article I,

section 7 of the Washington Constitution." 1 Id. There are several narrowly drawn

exceptions to that rule, and the State bears a heavy burden to prove by clear and


1
 We analyze the issues presented in this case under the Washington Constitution because
article I, section 7 "grants greater protection to individual privacy rights than the Fourth
Amendment." State v. Harrington, 167 Wn.2d 656, 663, 222 P.3d 92 (2009).

                                             5
State v. Russell
No. 89253-9


convincing evidence that a warrantless search falls within one of those exceptions. !d.

at 249-50.

        One exception to the warrant requirement is the so-called Terry stop and frisk

that was first articulated by the Supreme Court of the United States in Terry v. Ohio,

392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). It allows an officer to

conduct a limited pat-down of the outer clothing of a person in an attempt to discover

weapons that could cause harm. !d. at 30-31. A protective frisk is justified "when an

officer can point to 'specific and articulable facts' which create an objectively

reasonable belief that a suspect is 'armed and presently dangerous."' State v. Collins,

121 Wn.2d 168, 173, 847 P.2d 919 (1993) (quoting Terry, 392 U.S. at 21-24). For

example, if an officer has information that an individual could have a gun, that

information, "when combined with other circumstances that contribute to a reasonable

safety concern, ... could lead a reasonably careful officer to believe that a protective

frisk should be conducted to protect his or her own safety and the safety of others."

!d. at 177. "[C]ourts are reluctant to substitute their judgment for that of police

officers in the field. 'A founded suspicion is all that is necessary, some basis from

which the court can determine that the detention was not arbitrary or harassing."'

State v. Belieu, 112 Wn.2d 587, 601-02, 773 P.2d 46 (1989) (emphasis omitted)

(quoting Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966)).




                                             6
State v. Russell
No. 89253-9


       In this case, the stop and frisk was justified because Officer Makein could point

to specific and articulable facts that supported a belief that Russell could be armed and

dangerous. After legitimately stopping Russell for traffic violations, Officer Makein

immediately recognized him from a stop one week prior. At that prior encounter,

Russell denied having a weapon when he in fact possessed a small derringer-style

gun. Officer Makein testified that this specific and articulable fact made him fear for

his safety. In addition, the encounter was late at night and Officer Make in was the

only officer making the stop. These circumstances contribute to a reasonable safety

concern. Nothing about the initial stop and frisk was arbitrary or harassing. We hold

that the officer was justified in performing the initial protective frisk.

        This case is similar to Collins, where this court upheld the warrantless stop and

frisk of a suspect whom the officer recognized from an encounter two months prior.

121 Wn.2d at 177. During the previous encounter, the officer found "'a large amount

of either .38 or .357' ammunition, a holster, and a set of handcuffs" in the suspect's

truck. !d. at 171. That fact, along with the timing of the latter stop (it was at 4:00

a.m.) and the officer's knowledge that the suspect had a prior felony arrest, led the

court to conclude that the frisk was reasonable. !d. at 176-77.

        The justification for the initial frisk is stronger in this case than in Collins.

First, the prior encounter occurred just one week before the stop in question rather

than two months. Second, the officer actually found a gun in the prior encounter



                                               7
State v. Russell
No. 89253-9


rather than ammunition and a holster. Third, Russell lied about the gun in the prior

encounter while the suspect in Collins voluntarily revealed the ammunition. !d. at

171. Finally, Officer Make in was alone during the stop in question and therefore

more at risk than the officer in Collins, who made the stop with a partner. !d. at 170-

71. Thus, Collins supports our holding that the initial protective frisk did not violate

Russell's constitutional rights.

        Russell argues that if the officer used the prior encounter to justify the frisk in

this case, then the State must prove the validity of the prior encounter or the frisk

would be unconstitutional as "fruit of the poisonous tree." 2 Pet'r's Suppl. Br. at 12.

We disagree. Russell cites no case holding that the "fruit of the poisonous tree"

doctrine applies to Terry frisks, and it would be absurd to hold that it does. The

purpose of Terry frisks is to protect officer and bystander safety. An officer need only

identify specific and articulable facts that create an objectively reasonable belief of

danger. We would undermine the purposes of Terry and create unjustifiable risks if

we hold that an officer in the field must ignore specific facts that indicate potential

danger. We reject Russell's "fruit of the poisonous tree" argument.




2Simply put, the "fruit of the poisonous tree" doctrine requires courts to exclude any
evidence obtained as a direct result of an unconstitutional search. State v. Eisfeldt, 163
Wn.2d 628, 640, 185 P.3d 580 (2008) (citing Wong Sun v. United States, 371 U.S. 471,
487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)).

                                               8
State v. Russell
No. 89253-9


    2. The Warrantless Search of the Container Discovered during the Protective
       Frisk Was Not Justified

        The scope of a valid Terry frisk is limited to protective purposes. Garvin, 166

Wn.2d at 250. The frisk must be brief and nonintrusive. Id. at 254. "If the officer

feels an item of questionable identity that has the size and density such that it might or

might not be a weapon, the officer may only take such action as is necessary to

examine such object." State v. Hudson, 124 Wn.2d 107, 113, 874 P.2d 160 (1994).

"[O]nce it is ascertained that no weapon is involved, the goverrunent's limited

authority to invade the individual's right to be free of police intrusion is spent." State

v. Allen, 93 Wn.2d 170, 173, 606 P.2d 1235 (1980).

        The search of the container in this case violated Russell's constitutional right to

be free from police intrusion. The officer felt a small container, removed it, and then

opened it without a warrant. He admitted that the contents of the container weighed

only a fraction of what the pistol weighed. Therefore, we conclude that no reasonable

person could believe that the container housed a gun. At the point at which he

discovered that the container did not house a weapon, his authority to invade Russell's

privacy and search the container any further ended.

        This case is similar to Allen, where this court held that the warrantless search of

a wallet found during a stop and frisk was unconstitutional. Id. The court determined

that once the officer discovered that the wallet was not a weapon, the permissible

scope of the frisk ended. !d. The Court of Appeals applied similar logic and held that


                                              9
State v. Russell
No. 89253-9


the warrantless search of a cigarette pack found during a Terry frisk was

unconstitutional in State v. Horton, 136 Wn. App. 29, 38-39, 146 P.3d 1227 (2006).

The court in Horton rejected the State's argument that the cigarette pack could have

contained a small weapon like a razor blade or another small, sharp object. Id. at 37-

3 8. The court feared that if it accepted the State's argument, the scope of the Terry

frisk would be "essentially unlimited, since the tiniest object can conceivably be used

offensively." Id. at 38.

        These cases show that in Washington, warrantless searches of small containers

found during protective frisks are generally unconstitutional. The container itself was

not a weapon, and the officer had no authority to search through it after realizing that

it posed no threat. Furthermore, once the officer took control of the container the risk

of danger ended. He could have completed the encounter while holding onto the

container, thus eliminating any perceived danger.

        The State argues that the search was justified because the officer had to return

the container at the end of the encounter. While it is true that the officer had to return

the container, it does not follow that the officer may always search it first. See State v.

Glossbrener, 146 Wn.2d 670, 682, 49 P.3d 128 (2002) (holding that an officer

violated a detainee's rights when he performed a protective search of the passenger

compartment of the detainee's car after completing his investigation and "the only

thing left was for [the detainee] to leave"). Terry frisks are limited, external pat-



                                            10
State v. Russell
No. 89253-9


downs to ensure safety. Any further intrusion must end as soon as an officer

discovers that the suspect does not have a weapon. An officer may not search through

a detainee's personal effects under the unreasonable belief that they may contain a

weapon. We hold that the search of the container violated Russell's constitutional

rights.

     3. The State Did Not Show That Russell Voluntarily Consented to the Search, and
        Therefore His Supposed Consent Does Not Otherwise JustifY the Search

          As mentioned above, the trial court found that Russell consented to the search

of the container in its findings of fact, and the State argues that therefore the search

was permissible. We disagree. The trial court's finding of consent is not supported

by the evidence and therefore cannot justify the search.

          Police do not need a warrant for searches if they have valid consent. State v.

Ferrier, 136 Wn.2d 103, 111, 960 P.2d 927 (1998). The State has the burden to show

that the consent was voluntarily given. State v. Bustamante-Davila, 138 Wn.2d 964,

981, 983 P .2d 590 (1999). "Whether consent is freely given is a question of fact

dependent upon the totality of the circumstances." !d. A court considers several

factors, including "(1) whether Mirandd 31 warnings had been given prior to obtaining

consent; (2) the degree of education and intelligence of the consenting person; and (3)

whether the consenting person had been advised of his right not to consent." State v.




3
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                              11
State v. Russell
No. 89253-9


Shoemaker, 85 Wn.2d 207, 212, 533 P.2d 123 (1975). No one factor is dispositive.

!d.

       The State has not met its burden to prove that Russell voluntarily consented to

the search. In fact, the record does not show that Russell consented at all. The officer

testified only that Russell did not "appear to have any problem" with the search. VRP

at 19. The State offered no additional evidence of consent. Even the Court of

Appeals noted that the evidence supporting the finding of consent is "sketchy."

Russell, 2013 WL 3967169, at *5 n.3. We review findings of fact for substantial

evidence, and here, we do not find substantial evidence supporting the court's finding

that Russell consented to the search. Additionally, the record contains no evidence

that Russell's supposed consent was voluntary. The officer did not give Russell

Miranda warnings nor did he advise him of the right to refuse consent. Nor did the

State establish Russell's education or intelligence level. The search cannot be

otherwise justified on the basis of Russell's consent.

                                     CONCLUSION

        We hold that while the initial protective frisk was permissible, the officer

violated Russell's constitutional rights when he removed a small container from his

pocket and searched it without a warrant. The officer admitted that the container's

contents weighed only a fraction of what a pistol weighs. Because the officer did not

have a reasonable belief that the container housed a gun, the warrantless search was



                                             12
State v. Russell
No. 89253-9


not justified. Additionally, any threat to the officer's safety ended when he took

control of the container and he did not have authority to search it while investigating

traffic infractions. Finally, we hold that the search was not justified on the basis of

consent because the State did not show that Russell consented to the search. For these

reasons, we reverse the Court of Appeals and remand to the trial court for proceedings

consistent with this opinion.




                                             13
State v. Russell
No. 89253-9




WE CONCUR:




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                            14
State v. Russell (Tanner), No. 89253··9




                                            No. 89253-9

          GONZALEZ, J. (concurring)-! generally concur with the majority both in

principle and in outcome. I write separately, however, for two reasons. First, I

stress that we have not held, and do not hold today, that the "fruit of the poisonous

tree" doctrine cannot apply to a Terry 1 frisk as a matter of course. See majority at

8. Not only do we not need to consider this issue given that Officer Makein's

search went beyond the permissible scope of a Terry frisk and therefore there are

other grounds for exclusion, but also I am unwilling to foreclose the applicability

of the doctrine to Terry frisks on the facts before us. Second, the majority

concludes that "while the initial protective frisk was permissible, the officer

violated Russell's constitutional rights when he removed a small container from his

pocket and searched it without a warrant." Majority at 12. I partially disagree.

Russell's constitutional rights were not violated when the small container was

removed from his pocket. His rights were violated immediately after, when the

officer realized that it did not contain a weapon and searched the container




 1
     Terry v. Ohio, 392 U.S.· I, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)
                                                    1
State v. Russell (Tanner), No. 89253-9


anyway. Removing a container from a jacket that could potentially contain a

weapon does not require a warrant as part of an otherwise lawful Terry stop.

However, searching one once it has been removed, when the officer no longer has

any reason to believe that a weapon is contained thereil! or that a weapon could be

used against him, does not comport with article I, section 7.

       With these observations, I respectfully concur.




                                          2
State v. Russell (Tanner), No. 89253-9




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