                                                                                                               FILEN
                                                                                                        COURT OF APPEA,I- S
                                                                                                             DIVIISJO!, iI

                                                                                                      201 i JU1. 21   Ari 9: 28
                                                                                                      STAT     1 rV AS I iGT0?4


                                                                                                                FP    TY     1
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                                 DIVISION II

 STATE OF WASHINGTON,                                                              No. 46395 -4 -II .


                                      Respondent,


          V.




 CHRISTOPHER LOUIS WITHERS,                                                  UNPUBLISHED OPINION




         LEE, J. —     Christopher Louis Withers appeals his convictions of unlawful possession of a


controlled substance ( methamphetamine) and making a false or misleading statement to a public

servant. Withers contends that the trial court erred in denying his motion to suppress because the

evidence leading to his convictions resulted from an unlawful seizure. We hold that the interaction

between Withers and the officers was a social contact that did not amount to a seizure. We uphold


the trial court' s suppression ruling and affirm the convictions.

                                                       FACTS


         Cowlitz County Deputy Sheriff Derrick Baker was driving in Kelso when he heard a radio

report   from the Kelso Police Department.             An off-duty deputy reported a possible bicycle theft

after   seeing two     men     riding bicycles   and   pulling   a   third   bicycle   with   them.   Baker was not


dispatched to investigate the call, but he looked for individuals fitting the men' s descriptions

because he     was   in the   area.
No. 46395 -4 -II




           Baker, soon saw two men riding bicycles and wheeling a third bicycle. Withers was one of

those men. Baker drove past them and pulled into a parking lot. Baker' s patrol car did not impede

or block the men' s travel, and Baker did not turn on the car' s lights or siren. Baker was in uniform,

but he did not draw his weapon as he approached the men on foot.


           Baker initiated contact by asking the men how they were doing and whether he could speak

with them. Both men stopped and spoke to Baker while remaining on their bicycles. Baker spoke

to the    men   for   a   few   minutes about     the Kelso   report   concerning the third bicycle.       During that

questioning, Withers put his hands in his pockets, and Baker instructed him to keep his hands

visible.    When Baker asked the men for their names, Withers identified himself as Jamey Leeroy

Withers but had trouble remembering his birthdate. Baker looked up Jamey Leeroy Withers in his

computer system and noticed that Withers did not match Jamey Withers' physical description.

           Shortly    thereafter, Kelso Police Officer.Tim Gower            arrived at   the   scene.   Gower saw that


the two men were not handcuffed and that they were seated on their bicycles while Withers talked

with Baker. Baker advised Gower of the discrepancy in the physical descriptions of Withers and

Jamey      Withers.        Gower checked additional computer records and found that Withers had


previously used Jamey Withers' name and that there was an outstanding warrant for Withers'

arrest.    Gower      arrested    Withers   and   his   companion   left the   scene.   During a search incident to

arrest, Gower found a.vial of methamphetamine in Withers' shirt pocket.


           The State charged Withers with unlawful possession of a controlled substance and first


degree     criminal       impersonation.     Withers moved to suppress the methamphetamine and his




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No. 46395 -4 -II



misidentification statement,            arguing that both   resulted    from    an unlawful       Terry   stop.'   The State


conceded that Deputy Baker did not have the legal basis for a Terry stop but argued that Baker' s

encounter with       Withers        was a social contact   that did   not amount    to   an unlawful seizure.        During

the suppression hearing, the officers and Withers testified to the facts set forth above, and Withers

admitted that he had lied about his identity.

          The trial court denied the motion to suppress after concluding that the interaction between

the officers and the men was a permissible social contact rather than a seizure, and the court entered

written   findings      of   fact   and conclusions of     law to     support   its ruling.      The State then filed an


amended information charging Withers with unlawful possession of a controlled substance and

making a false or misleading statement to a public servant., After Withers agreed to a bench trial

on stipulated facts, the trial court found him guilty as charged. Withers appeals the denial of his

suppression motion.



                                                      ANALYSIS


A.        CHALLENGED FINDINGS OF FACT AND CONCLUSIONS OF LAW


          Withers argues that the evidence does not support some of the trial court' s factual findings.


Following the denial of a suppression ruling, we review challenged findings of fact for substantial

evidence.       State   v.   Garvin, 166 Wn.2d 242, 249, 207 P. 3d 1266 ( 2009).                  Evidence is substantial


when    it is   sufficient " to persuade a    fair- minded   person of    the truth   of   the   stated premise."    Id. We


review conclusions of law de novo, but when a conclusion contains an assertion of fact, it functions




    A Terry stop allows a police officer to briefly detain and question an individual if the officer has
a   reasonable     and articulable suspicion of criminal          activity.     Terry v. Ohio, 392 U.S. 1, 21, 20 L.
Ed. 2d 889, 88 S. Ct. 1868 ( 1. 968).



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No. 46395 -4 -II




as a   finding   of   fact   and    is   reviewed under      the   substantial evidence rule.     Id.; State v. Luther, 157


Wn.2d 63, 78, 134 P. 3d 305,               cert.   denied, 549 U.S. 978 ( 2006). Unchallenged findings of fact are


verities   on   appeal.      State v. Pierce, 169 Wn. App. 533, 544, 280 P. 3d 1158, review denied, 175

Wn.2d 1025 ( 2012).


           Withers challenges the factual support for parts of two findings of fact and one conclusion


of law. First, he challenges finding of fact 6:

           Deputy Baker approached both subjects and asked to speak to them. Both subjects
           voluntarily stopped and talked to Deputy Baker. Neither subjects were detained,
           cuffed, or placed under arrest. Both subjects remained with their bicycles. The

           defendant was one of the two subjects contacted by Deputy Baker.

Clerk' s Papers ( CP)         at   36- 37 ( emphasis       added).   Withers argues that the evidence does not support


a finding that he and his friend voluntarily stopped.

           Deputy Baker testified that when he got out of his car and approached Withers and his

companion, the two men stopped. He testified that he did not order them to stop or stay and that

he did not block their path. He added that Withers never indicated that he wanted to leave or did

not want     to talk.        Withers testified that Baker sought permission to ask some questions before


talking    to him     and    his friend     about    the   report    concerning the   stolen   bike.   Substantial evidence


supports the statement in finding of fact 6 that Withers and his friend voluntarily stopped before

talking with the deputy.

           Second, Withers challenges finding of fact 9:

           Deputy Baker thought it was suspicious that the defendant had trouble remembering
           the correct date of birth and looked up Jamey Leeroy Withers in his computer
           system. The defendant did not match the physical descriptions for Jamey Leeroy

           Withers.




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No. 46395 -4 -II



CP   at   37 ( emphasis      added).    Withers argues that the evidence does not support the finding that he

did not match the physical descriptions of Jamey Leeroy Withers.

           Deputy Baker testified that when he checked his computer for information about Jamey

Withers, "[ t] he     physicals saw --      they didn' t quite match up           either."   Verbatim Report of Proceedings


 VRP)      at   10.   Officer Gower testified that he checked other computer records " and looked at the


record     of   the   name   he   gave      and     the   picture    was   kind   of close   but   wasn'    t him."'     VRP at 48.


Substantial evidence supports the statement in finding of fact 9 that Withers did not match the

physical descriptions for Jamey Withers.

           Third, Withers challenges conclusion of law 3:


           Deputy Baker' s actions had all the hallmark[ s] of a social contact, except for his
           instruction for the defendant to keep his hands visible. Deputy Baker was justified
           in instructing the defendant to keep his hands visible for officer safety reasons and
           the instruction did not transform a social contact into a seizure.


CP   at   38 ( emphasis    added).      Withers argues that the factual findings do not support this conclusion.


           Withers' criticism of this conclusion is based partly on the principle that it contains a

factual    finding     and should      be   scrutinized      for    substantial evidence.      Withers argues that there was


no factual justification for Deputy Baker' s instruction to Withers to keep his hands visible.2 He

adds that this conclusion contradicts the State' s claim that the interaction amounted only to a social

contact.




2
    Withers does       not assign      error   to   finding   of    fact 8,   which states   in   part   that "[   d] uring the course
of the initial 5 minutes [ sic] conversation, the defendant placed his hands in his pockets and was
         by Deputy Baker to keep his hands out of his pockets for officer safety reasons."
instructed                                                                                                                      CP at
37. Unchallenged findings of fact are verities on appeal. Pierce, 169 Wn. App. at 544.


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No. 46395- 4- 11



             When defense counsel asked Withers why Baker asked him to keep his hands visible,

Withers testified       as   follows: " Because there       was—       there was two of us, you know what I mean?


So, I' m— I' m pretty         sure   for his   personal              rights   he didn' t   want— he   didn' t   want us— our
                                                          safety


hands   where     he   could see     them."    VRP at 32. This testimony supports the statement in conclusion

of law 3 that Baker instructed Withers to keep his hands out of his pockets for safety reasons.

             Withers' additional complaint about this conclusion focuses on his assertion that the


deputy' s instruction converted the contact into a seizure. We address this question of law below.

B.           SOCIAL CONTACT OR SEIZURE?


             Whether    police   have       seized   a person   is    a mixed     question    of   law   and    fact.   State v.


Harrington, 167 Wn.2d 656, 662, 222 P. 3d 92 ( 2009). The trial court' s factual findings are entitled


to great deference, but the ultimate determination of whether those facts constitute a seizure is a

question of law that we review de novo. Id. at 662- 63.

             The Fourth Amendment to the United States Constitution and article I, section 7 of the


Washington Constitution protect a citizen' s right to be free from unreasonable search and seizure.


State   v.   Fortun- Cebada, 158 Wn.           App.   158, 168, 241 P. 3d 800 ( 2010). A seizure occurs when an


individual' s freedom of movement is restrained and the individual would not believe that he is free


to leave or decline a request due to an officer' s use of force or display of authority. State v. O' Neill,

148 Wn.2d 564, 574, 62 P. 3d 489 ( 2003).                  This determination is made objectively by looking at

the   officer' s actions.      State   v.   Rankin, 151 Wn.2d 689, 695, 92 P. 3d 202 ( 2004).                     The relevant


question is whether a reasonable person in the individual' s position would feel he or she was being

detained. Harrington, 167 Wn.2d at 663.




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No. 46395 -4 -II



            A " social   contact"   is   not a seizure.    State v. Guevara, 172 Wn. A0p. 184, 188, 288 P. 3d

1167 ( 2012).       Where an officer suspects the possibility of criminal activity, he may question an

individual and ask for identification without effecting a seizure. O' Neill, 148 Wn.2d at 577; State

v.   Mote, 129 Wn.       App.   276, 282, 120 P. 3d 596 ( 2005). A social contact rests " someplace between


an officer' s saying `hello' to a stranger on the street" and an investigative detention. Harrington,

167 Wn.2d at 664. Police actions likely to trigger a seizure rather than social contact include the

presence of several officers, an officer' s display of a weapon, some physical touching of the

citizen, or the use of language or tone of voice indicating that compliance with the officer' s request

might be compelled. Guevara, 172 Wn. App. at 188.

            Withers argues that several facts show that his interaction with Deputy Baker amounted to

a seizure rather than mere social contact: Baker approached without any reason to believe Withers

had acted illegally, Baker explained that he was investigating a possible theft, Baker instructed

Withers to take his hands out of his pockets, Baker asked for identification, and a second officer

arrived at the scene.


            The fact that Baker approached the two men after hearing of a possible crime in the vicinity

did not make his contact a seizure. Nor did the contact turn into a seizure after Baker explained


that   he   was   investigating     a possible    theft.   An officer' s suspicions regarding the possibility of

criminal activity do not convert a social contact into a seizure. O' Neill, 148 Wn.2d at 574- 75; see

also Mote, 129 Wn. App. at 282 ( officers must be able to approach citizens, and inquire into

whether      they   will answer questions as part of         their community caretaking functions).   Whether a


person has been restrained by an officer must be determined by their interaction rather than the

officer' s motives.       O' Neill, 148 Wn.2d at 575.




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No. 46395 -4 -II



            We have already explained that Deputy Baker' s request for identification was a permissible

part of     the   social contact.    Id.   at   577. As for the arrival of a second officer, Officer Gower came


to the scene voluntarily after hearing the dispatch report, and he helped Baker check the

identification that Withers provided. This assistance did not transform the contact into a seizure.

See Harrington, 167 Wn.2d at 669- 70 ( arrival of second officer did not convert contact into

seizure).




            As the trial court recognized, the key issue is whether Deputy Baker' s instruction to

Withers to        keep   his hands   out of     his   pockets rendered    the   contact a seizure.   Our Supreme Court


addressed this issue in Harrington, where the defendant was walking in public when officers

stopped and questioned him. Id. at 661- 62. The officer asked the defendant to remove his hands


from his pockets and to consent to a search as another officer arrived. Id. at 662.

            The Harrington court noted that lower Washington courts have found that an officer' s


request to keep hands out of one' s pockets does not independently rise to the level of a seizure.

Id.   at   666- 67 ( citing State    v.   Nettles, 70 Wn.    App.     706, 712, 855 P. 2d 699 ( 1993), review denied,


123 Wn.2d 1010 ( 1994)).             The Harrington court then cited cases from other jurisdictions holding

that an officer' s direction to a defendant to remove hands from pockets falls short of a seizure. Id.


at 667 ( citing Duhart v. United States, 589 A.2d 895, 898 ( D.C. App. 199 1) and United States v. .

Barnes, 496 A.2d 1040, 1044- 45 ( D. C.                  App.   1985)).   Nevertheless, asking a person to remove

hands from pockets adds to the officer' s progressive intrusion and moves the interaction further

from       a valid social    contact.      Id. The interaction in Harrington did not mature into a seizure,


however, until the officers made the request to frisk. Id. at 669- 70; see also Guevara, 172 Wn.


App. at 190 ( request to search is inconsistent with social contact).



                                                                 M.
No. 46395 -4 -II



         Other cases. support the conclusion that without additional coercive measures, a request to


keep hands   visible   does   not convert a contact     into    a seizure.   In Nettles, the officer called out to


the defendant as he was walking away that she would like to speak with him. .70 Wn. App. at 708.

When he stopped and turned around, the officer told him to remove his hands from his pockets

and come toward the patrol car. Id. As he did so, he threw a baggie under the patrol car. Id. The

Nettles court affirmed the denial of the motion to suppress, holding that a seizure does not occur

 when a police officer merely asks an individual whether he or she will answer questions or when

the   officer makes some   further   request   that falls   short of   immobilizing the   individual." Id. at 71.0.


The court concluded that telling the defendant to remove his hands from his pockets did not convert

the encounter into a seizure. Id. at 712.


         The Fortun-Cebada court cited Nettles in holding that an officer' s instruction to an

individual to remove his hands from a pocket did not turn the contact into a seizure. 158 Wn. App.

at 169. In Fortun-Cebada, the officer asked a suspected drug buyer for permission to speak to him

before telling the buyer to take his hands           out of     his    sweatshirt pocket.   Id. It was otherwise


undisputed that the buyer was under no obligation to talk to the officer and could have walked


away. Id. In Fortun- Cebada, as in Nettles, the direction to remove hands from a pocket did not

convert a permissible social contact into a seizure. Id. at 169- 70.

         We reach the same result here. Deputy Baker' s instruction to Withers to keep his hands




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No: 46395 -4 -II




visible   did   not   transform a   social contact   into   a seizure.   We uphold the trial court' s denial of


Withers' suppression motion and affirm his convictions.


          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,


it is so ordered.




                                                                                    Lee, J..
 We concur:




                         Maxi   P. J.




                          Su    n— —.,




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