     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                      DIVISION ONE

STATE OF WASHINGTON,                               No. 69218-6-

              Respondent,

              v.



DANTE URELL PIGGEE,                                UNPUBLISHED OPINION                       vP


              Appellant.                           FILED: November 25, 2013


       Verellen, J. — Dante Piggee appeals the trial court's denial of h is      CrR 3.6

motion to suppress evidence obtained subsequent to search. Deputy Nix heard a

dispatch that a man in the International District light rail station had   refused to show

identification to fare enforcement officers when confronted about a        possible fare
evasion. Deputy Nix then saw Piggee leave the International District st&tion and step

into the street, with two fare enforcement officers looking right at Pigge^ Deputy Nix
grabbed Piggee's arm and detained him.

       The State contends Deputy Nix conducted a valid Terry1 stop of Piggee based on
the information he heard in the dispatch. An officer may conduct a Terry stop where the

officer has a reasonable and articulable suspicion, based on specific arjd objective
facts, that the person seized has committed or is about to commit a crirtie. A mere

hunch is inadequate. Failure to pay a fare is a civil infraction, although failure to pay a


        Terry v. Ohio. 392 U.S. 1, 88 S. Ct. 1868, 20 L Ed. 2d 889 (1968).
No. 69218-6-1/2


fare more than once within a 12-month period can be the basis for a criminal

misdemeanor. The State presented no evidence to demonstrate Deputy Nix had any

specific facts that Piggee's alleged failure to pay fare was criminal rathe^ than civil.
Deputy Nix's mere hunch that Piggee may have evaded paying a fare more than once in

12 months was inadequate for a Terry stop. We reverse.

                                           FACTS

       On December 6, 2011, Deputy Robert Nix of the King County Sheriff's Office was

working the Metro Transit beat. Deputy Nix received a dispatch from transit security

that two fare enforcement officers had contacted an individual who was being

uncooperative, refusing to provide identification, and leaving the International District

Station. The two fare enforcement officers reported they were following      a black adult

male northbound away from the station, and that they suspected a possible fare

evasion.

       Deputy Nix was about three blocks from the International District Station     when he


heard the dispatch and responded to the call. Deputy Nix testified that     he noticed a


black adult male, later identified as Piggee, stepping into the street against traffic, mid-

block, walking away from the International District station. Deputy Nix dbserved the two

fare enforcement officers looking right at Piggee as he crossed. He deckided to stop

Piggee because he "fit the description" and was "crossing unusually against traffic."2

Deputy Nix then told Piggee that he wanted to speak with him and asketi him to stop.

Deputy Nix intended to identify him and investigate a possible fare violation


       2 Report of Proceedings (RP) (July 19, 2012) at 26. Deputy Nix       estified there
were other black male adults in his vicinity, but Piggee was the   only onefe that the fare
enforcement officers were staring at, and the only one crossing against the light.
No. 69218-6-1/3


       Deputy Nix tried to grab Piggee's hand, but Piggee ignored Deputy Nix and
continued walking away. At that point, Deputy Nix grabbed Piggee's ar(n , pulled him

toward the car and told him to put his hands on the car. Piggee told Debuty        Nix that he

had his light rail ticket and tried to pull away, and the interaction resultep in a large

struggle. Deputy Nix then arrested Piggee, with the assistance of the tvi/o fare

enforcement officers.

       In a search subsequent to arrest, police found Piggee in possession        of


marijuana. The State charged Piggee with one count of third degree assault and          one


count of violation of the uniform controlled substances act for possessing marijuana with

the intent to manufacture or deliver.


       Piggee moved to suppress the evidence obtained subsequent to search, arguing

Deputy Nix did not have adequate grounds for a Terry stop. The court <|lenied Piggee's

motion, concluding "Deputy Nix' initial detention of the defendant was     su   pported by

sufficient information to warrant an investigatory stop of the defendant." A jury found

Piggee not guilty of assault in the third degree and convicted him of the    violation of the


uniform controlled substances act violation. Piggee now appeals.

                                        DISCUSSION


       Warrantless searches and seizures are per se unreasonable and violate the

Fourth Amendment and article 1, section 7 of our state constitution.4      One of the


carefully drawn exceptions to this rule is an investigative stop pursuant o Terry. The

State has the burden to show the seizure in question falls within the exception .5 We


       3Clerk's Papers at 28.
       4 State v. Duncan, 146Wn.2d 166, 171, 43 P.3d 513 (2002).
       5 Id. at 172.
No. 69218-6-1/4


review de novo conclusions of law from an order pertaining to the suppression of
evidence.6

      A valid Terry stop requires the officer to have a reasonable and Articulable

suspicion, based on specific, objective facts, that the person seized has   committed or is


about to commit a crime.7 A mere hunch that the individual is involved in criminal
                                                                              linal


conduct is inadequate.8 Innocuous facts alone do not justify a stop.9 Pjggee contends
that Deputy Nix had no basis on which to suspect him of committing criminal      conduct,


At the time Deputy Nix stopped Piggee, Deputy Nix knew that fare enforcement officers

had reported an uncooperative individual who had refused to show identification      and


was leaving the station.

      The State argues that Deputy Nix' seizure of Piggee was a perm ssible Terry

stop because Nix was aware that a fare evasion could lead to criminal liability. Deputy

Nix knew that a single instance of fare evasion is the basis for a civil infraction,10but

that multiple fare evasions could be a gross misdemeanor.11,12 He testified that "it's
                                                                        led




      6State v. Mendez. 137 Wn.2d 208, 214, 970 P.2d 722 (1999), overruled on other
grounds by Brendlin v. California. 551 U.S. 249, 127 St. Ct. 2400, 168 \\. Ed. 2d 132
(2007).
      7 Duncan, 146 Wn.2d at 172 (citing Terry, 392 U.S. at 21).
      8State v. Doughty. 170 Wn.2d 57, 63, 239 P.3d 573 (2010). A hiinch alone does
not warrant police intrusion into people's everyday lives.
       9State v. Tiierina. 61 Wn. App. 626. 629, 811 P.2d 241 (1991).
       10 RCW 81.112.220(2).
       11 The criminal code does not explicitly state that a person who has evaded fares
multiple times is guilty of criminal conduct. Rather, RCW 81.112.230(1) states that
nothing in chapter 81.112 RCW precludes law enforcement from prosecuting for theft          or
other charges an individual who "[fjails to pay the required fare on more than one
occasion within a twelve-month period."
       12 Deputy Nix did not suspect thata felony had occurred or would occur.
No. 69218-6-1/5


possible that itwas a gross misdemeanor, but I didn't know at the time."13

       Deputy Nix did not have any basis on which to suspect Piggee had evaded a fare

before—the only fact that distinguishes criminal and noncriminal behavior in this

context.14 Each of the facts that Deputy Nix knew when he grabbed Piggee's arm is
equally consistent with a first-time fare evasion as with a subsequent fare evasion:

(1) failure to cooperate with fare enforcement officers; (2) refusal to show identification;

(3) departure from the station; and (4) stepping into the street mid-bloch;. Because there

are no specific or objective facts in the record15 to support a reasonable and articulable
suspicion that Piggee had already evaded paying a fare once before, Deputy Nix

conducted the Terry stop on a purely theoretical possibility of criminal conduct. While a

determination that reasonable suspicion exists need not rule out the possibility of

innocent conduct,16 the limited facts presented by the State at the suppression hearing
fail to demonstrate Deputy Nix had any reasonable suspicion of criminal conduct.

Deputy Nix had no more than a hunch that the conduct might be a misqemeanor, and

his detention of Piggee was not a valid Terry stop.17


       13 RP (July 19, 2012) at 29.
       14 The State presents no other argument or evidence that the Terry stop was
based on a suspicion of any other type of criminal conduct.
       15 The State included in its brief evidence presented at trial. We consider only
the evidence before the trial court at the suppression hearing.
       16 State v. Marcum, 149 Wn. App. 894, 907, 205 P.3d 969 (2009ft
       17 Our Supreme Court in Duncan declined to extend Terry to general civil
infractions. Duncan, 146 Wn.2d at 174-75. The court reasoned, "When investigating a
civil infraction an officer is not seeking to arrest an individual, but rather to issue a
citation. In light of the lower risk to society involved with civil infractions ... a less
intrusive procedure would be more acceptable than with the commission of a felony or
even a misdemeanor." jd.at177. The court held that detention of Duncan for violation
of an open container ordinance, a civil infraction, was not justified because the alleged
infraction had not occurred in the officers' presence. ]d. at 178-79 (exp aining the
No. 69218-6-1/6


       We note the trial court's legitimate concern about individuals whcj refuse to

cooperate with fare enforcement officers or law enforcement personnel. But here, the

State relied exclusively on the theory that the possibility of a fare evasio^i supported a
Terry stop. The State has not presented other possible theories that might support a

detention to obtain identification information from a person suspected of fare evasion.18



officers had only seen Duncan standing near an open container, and th&re was           no

evidence of constructive possession). Had the infraction occurred in thf       officers'
presence, the officers could have detained Duncan under RCW 7.80. 050(2), which
provides "a notice of civil infraction may be issued by an enforcement officer when the
civil infraction occurs in the officer's presence." Id. at 178. Alternatively the court
explained, if the infraction does not occur in the officer's presence, "'[a] fcourt may issue
a notice of civil infraction if an enforcement officer files with the court a written statement
that... the officer has reasonable cause to believe that a civil infraction   was

committed.'" Id, at 178 (alteration in original) (quoting RCW 7.80.050(3))
       18 For example, RCW 7.80.060 provides that "[a] person who is           receive a

notice of civil infraction under RCW 7.80.050 is required to identify himself or     herself to
the enforcement officer by giving his or her name, address, and date of birth. Upon the
request of the officer, the person shall produce reasonable identification including a
driver's license or identicard."

       RCW 7.80.040 defines "enforcement officer" as "a person authorized to enforce
the provisions of the title or ordinance in which the civil infraction is established
Further, both fare enforcement and law enforcement officers have the authority to detain
a person who is unable or unwilling to reasonably identify himself or herlself for "a period
of time not longer than is reasonably necessary to identify the person for purposes of
issuing a civil infraction." RCW 7.80.060: see also Duncan. 146 Wn.2d at 178-79.
       In addition to the authority provided to fare enforcement and law      enforcement
officers under chapter 7.80 RCW, RCW 81.112.210 permits enforcement officers of
regional transit authorities (like Sound Transit) to request identification from a
passenger who does not produce proof of payment, and to issue a citation in
conformance with RCW 7.80.070.
       However, the State has not argued that Deputy Nix or the fare enforcement
officers who ultimately assisted Deputy Nix in arresting Piggee were attempting to
detain Piggee under RCW 7.80.060 to obtain identification. In fact, the State expressly
argues that Piggee waived his right to challenge his seizure under chapter 7.80 RCW
because the suppression motion and hearing concerned only the legitimacy of the
seizure as a Terry stop.
       Finally, the State did not pursue any charges for Piggee's refusa to show
identification to either the fare enforcement officers or Deputy Nix. SeeJ e.g.,
No. 69218-6-1/7


       Based on the narrow argument offered by the State, we reverse     tie trial court's

ruling on Piggee's motion to suppress and vacate Piggee's conviction.




WE CONCUR:




                                                  iflcjfcg £,               ^




RCW 9.91.025(1 )(p); RCW 9A.76.020. Nor did the State argue Deputy Nix had the right
to detain Piggee and obtain identification to issue a citation for jaywalking when Deputy
Nix observed Piggee step into the street mid-block.
