IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                             )        No. 71711-1-1
                      Respondent,
                                             )        DIVISION ONE
             V.

                                             )        UNPUBLISHED OPINION"            '%
SHELLY BERNARD FORD III,                                                         51   ~i

                      Appellant.             )        FILED: April 27,   2015



      Appelwick, J. — Ford appeals his conviction for possession of a

controlled substance, arguing that the court should have suppressed the drug

evidence as the product of an unlawful seizure and detention.            The police

conducted a lawful Terry stop and detention. Terry v. Ohio, 392 U.S. 1, 88 S. Ct.

1868, 20 L. Ed. 2d 889 (1968). Therefore, the trial court properly denied Ford's

motion to suppress. We affirm.

                                     FACTS


      Based on evidence recovered after police seized and detained Shelly Ford

III, the State charged him with possession of a controlled substance. Prior to

trial, Ford moved to suppress the controlled substance as the product of an

unlawful detention.

      At the motion hearing, Everett Police Officer Tim Collings testified that on

January 29, 2012, he responded to a report of a residential disturbance. The

person reporting the disturbance said the perpetrator was a man named "Shelly

Ford." While en route to the residence, Officer Collings received dispatch reports

indicating the suspect was a 32 year old black male who had left the scene on
No. 64218-9-1/2




foot. Officer Collings also learned of an outstanding misdemeanor warrant for a

man named "Shelly Bernard Ford III." The warrant described him as a black

male born in 1978.


      When Officer Collings arrived at the scene of the disturbance, he noticed a

black male, later identified as Ford, walking a few blocks away.       As Officer

Collings approached Ford in his patrol car, Ford began to run. Officer Collings

activated his emergency lights and notified dispatch that he "saw a male

matching the description." He yelled at Ford to stop running.      Ford complied.

Officer Collings then asked Ford for his name.      Ford replied, "Shelly." Ford

glanced around as if "looking for an avenue of escape." Because Officer Collings

was alone and Ford had already fled once, he ordered Ford to drop to his knees

"to prevent him from running again." He then called for back-up.

      When another officer arrived, Officer Collings confirmed Ford's name and

warrant status. He then removed Ford's backpack, handcuffed him, and placed

him under arrest. As Officer Collings carried the backpack to his patrol car, a

prescription pill bottle containing a controlled substance, Oxycodone, fell out of

the backpack. Ford did not have a prescription for Oxycodone.

      In support of the motion to suppress, defense counsel argued that a Terry

stop was not justified until Officer Collings confirmed Ford's full name. Counsel

maintained that prior to receiving that information, Officer Collings lacked an
No. 64218-9-1/3




articulable suspicion that the Shelly Ford he was pursuing was the Shelly Ford III

described in the outstanding warrant. The court disagreed, stating in part:

      I find that this was in fact a valid fTerrvl stop, that the reasonable
      articulable facts that the officer had in his possession at the time
      that he made the stop were numerous. He had a name. He has
      the race of the individual. He had the sex of the individual, the age
      of the individual. The fact that he's traveling on foot, and lastly,
      within the 2004 block of Columbia.        At the time he made contact
      with the defendant, he was able to confirm the same race, the
      same sex, same approximate age, the fact that the person was on
      foot, and only a half a mile away from the location of the alleged
      disturbance. Those are enough facts for him to have made a stop.

          To the extent that he was required to turn on his lights and
      command the defendant to stop when the individual began running
      is not unreasonable.     I don't find that there was an unreasonable
      amount of force used and that for officer safety it was reasonable
      for him to ask the defendant to wait on his knees while backup
      came. The [Terry] stop was not unusual in its length. There were
      no facts presented that this went on for a very long period of time,
      or that there was a significant amount of time between the time of
      the   call   and   the time   of the   contact such   that   it would   be
      unreasonable to believe that the defendant would be the person
      who would still be in the area.

             Finally, the officer verified fairly quickly the name of the
      individual. Upon making the fTerrvl stop he was able to confirm
      there was a warrant out for his arrest, and then at that time, once
      he was lawfully under arrest, pills were spilled out of the backpack
      through no fault of the officer. To the extent pills were found by the
      officer, they were either in plain view or they were found incident to
      a lawful search pursuant to the arrest. Therefore, the defendant's
      motion is denied.

      The case proceeded to a bench trial on stipulated facts. The court found

Ford guilty as charged. He appeals.




                                         -3
No. 64218-9-1/4




                                   DECISION

      Warrantless seizures are per se unreasonable and violate both the Fourth

Amendment and article I, section 7 of the Washington State Constitution. State

v. Williams. 102 Wn.2d 733, 736, 689 P.2d 1065 (1984). However, there are a

few "'jealously and carefully drawn exceptions' to the warrant requirement." Id.

(quoting State v. Houser. 95 Wn.2d 143, 149, 622 P.2d 1218 (1980)). These

include an investigatory detention, or Terry stop, if police have "a reasonable

suspicion, grounded in specific and articulable facts that the person stopped has

been . . . involved in a crime." State v. Acrev. 148 Wn.2d 738, 746-47, 64 P.3d

594 (2003).    The level of suspicion necessary to support an investigatory

detention is a "substantial possibility that criminal conduct has occurred or is

about to occur."   State v. Kennedy. 107 Wn.2d 1, 6, 726 P.2d 445 (1986).

Whether an officer's suspicion is reasonable is determined by the totality of the

circumstances known to the officer at the inception of the stop. State v. Rowe.

63 Wn. App. 750, 753, 822 P.2d 290 (1991). Whether circumstances justify a

Terry stop is a question of law that we review de novo. State v. Bailey. 154 Wn.

App. 295, 299, 224 P.3d 852.        We review findings of fact for substantial

evidence. State v. Hill. 123 Wn.2d 641, 647, 870 P.2d 313 (1994).

      Ford contends the Terry stop in this case was unlawful in several

respects. First, he contends Officer Collings lacked the requisite suspicion of

criminal activity because the tip police received regarding the disturbance was
No. 64218-9-1/5




not reliable.    This contention was not raised below.       We need not consider

grounds for suppression that are raised for first time on appeal.             State v.

Garbaccio. 151 Wn. App. 716, 731, 214 P.3d 168 (2009).

         Second, Ford contends his flight from Officer Collings was insufficient to

justify a Terry Stop. While flight from police is insufficient by itself to support an

investigatory detention, it is a factor courts consider in assessing the totality of

the circumstances. State v. Little. 116 Wn.2d 488, 504, 806 P.2d 749 (1991).

Here, the circumstances included: (i) the suspect matched the age, race, gender,

and location of a man identified in the dispatch report as Shelly Ford, (ii) the

reported age, race, and name of the suspect matched the warrant subject's

description, and (iii) the suspect fled in the presence of police. Taken together,

these circumstances supported an articulable suspicion that Ford was the person

named in the warrant.


         Third, Ford claims his detention was unlawful because it "was significantly

longer and more intrusive than necessary to dispel or verify any suspicion of

criminal activity." The trial court found that "ftjhe Terry stop was not unusual in its

length. There were no facts presented that this went on for a very long period of

time."    (Emphasis added.)     We have reviewed the record and also find no

evidence supporting Ford's claim. The record does not indicate how much time

elapsed between his seizure and the confirmation of his warrant status at the

scene. In addition, his claim that it was "not necessary to wait for a cover officer
No. 64218-9-1/6




to arrive to confirm [his] identity" ignores the evidence that he was a flight risk

and posed safety concerns for an officer working alone at night.

       Ford's detention was also not unreasonably intrusive. Intrusive measures

such as drawn weapons, handcuffs, and positioning suspects on the ground or

on their knees may be appropriate in a Terry stop. State v. Belieu. 112 Wn.2d

587, 602, 773 P.2d 46 (1989); State v. Mitchell. 80 Wn. App. 143, 145-46, 906

P.2d 1013 (1995) (handcuffing, secluding suspect, and drawing guns may be

appropriate).     Circumstances bearing on the reasonableness of such actions

include the nature of the crime, the degree of suspicion, the location of the stop,

the time of day, the number of officers present, and the reaction of the suspect to

the police.     Belieu. 112 Wn.2d at 600; Washington v. Lambert. 98 F.3d 1181,

1189-90 (9th Cir. 1996).     Intrusive techniques may be reasonable "where the

suspect is uncooperative or takes action at the scene that raises a reasonable

possibility of danger or flight."   Washington v.    Lambert. 98 F.3d at 1189

(emphasis added); Abbott v. Sangamon County. Illinois. 705 F.3d 706, 724 (7th

Cir. 2013).

       Officer Collings was alone at night with a suspect who had already fled

once and was preparing to flee again. In addition, Collings confirmed after the

stop that the suspect's name was "Shelly."       This bolstered Officer Collings's

degree of suspicion that Ford was the Shelly Ford described in the warrant. In
No. 64218-9-1/7




these circumstances, directing Ford to stay on his knees until back-up arrived

was reasonable.


      Affirmed.




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