        Fl LE
        IN CLERICS O,JCE                                               This opinion wu ftled for record
IUPREME' COURT, STATE OF 'IMIIJNITON                                   at 8:00itQ:\     on Maef·1.2Q6.
              MAY 0 7 2015
                                                                            &---~
      DATE


~~9                                                                       .&u;:,Ronald R:CarPirlfar
                                                                              Supreme Court Clark


              IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,                                  )
                                                      )       No. 90039-6
                            Respondent,               )       (consolidated with No. 90270-4)
                                                      )
         v.                                           )
                                                      )
MARISA MAY FUENTES,                                   )
                                                      )
                            Petitioner.               )       EnBanc

STATE OF WASHINGTON,                                  )
                                                      )
                            Respondent,               )
                                                      )
         v.                                           )
                                                      )
STEVEN PAUL SANDOZ,                                   )       Filed:      MAY 0 7 2015
                                                      )
                            Petitioner.               )




         MADSEN, C.J.-These consolidated cases require the court to resolve whether

the totality of circumstances in each case provided law enforcement with reasonable

suspicion of criminal activity to conduct a Terry stop. 1 Both cases involve the stop of a

defendant after the defendant entered a high-crime apartment complex and visited an


1
    Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
No. 90039-6 (consol. wiNo. 90270-4)


apartment occupied by a suspected drug dealer. However, other circumstances

distinguish the cases and lead to different results. Because the circumstances include a

particularized suspicion of criminal activity in State v. Fuentes, noted at 179 Wn. App.

1030,2014 WL 546587, at *4, we affirm the court of appeals in that case, but we reverse

the appellate court in State v. Sandoz, noted at 180 Wn. App. 1032, 2014 WL 1600596, at

*4, because, in contrast to Fuentes, there are insufficient facts to give rise to

individualized suspicion.

                                            FACTS

       State v. Sandoz

       Around 11:30 p.m., Officer Chris Pryzgocld drove his patrol car past a six-unit

apartment building in SeaTac. A high number of documented criminal incidents

occurred in the area of this apartment building, including drug-related activity. Because

of the high incidence of crime, the owner of the complex gave the King County Sherriff s

Office signed, written permission to investigate people who loiter on the property. The

officer testified, however, that a person did not commit a violation merely by visiting an

apartment. The officer knew the apartment building and its tenants well because the

building was deemed part of a "Problem Solver project," 2 which resulted in the officer

regularly patrolling the complex. Verbatim Report of Proceedings (VRP) (Jan. 3, 2013)

at 14-15. The officer patrolled the complex for four months, and consequently, he knew

the tenants and knew the vehicles that they owned. He also knew that four of the tenants


2
  After an area receives this designation, law enforcement then focuses on that area, attempting
to reduce crime.


                                                2
No. 90039-6 (consol. wiNo. 90270-4)


had convictions for drug-related crimes-either possession or possession with intent to

distribute.

       While on patrol, Officer Pryzgocki saw a white Jeep-a vehicle the officer knew

did not belong to any of the tenants-parked illegally. 3 The driver of the Jeep slumped

down, as ifto hide from the officer's view, as the officer drove by. The officer parked

his marked patrol car about 20 yards away and observed the Jeep for about 15 minutes.

       Nobody left the vehicle, which contained three people, so the officer got out of his

car and walked up to the driver. The officer asked the driver what he was doing there.

The driver said he was there because his friend called him for a ride. The driver,

however, did not explain why he slumped down as the officer drove by. The officer then

waited on the passenger side of the vehicle. He observed Steven Sandoz leaving the

apartment of Jennifer Meadows, who the officer knew had a conviction for possession of

narcotics with intent to distribute. Over the course of four months, the officer had seen

approximately 60 people coming and going from her apartment but observed none on the

evening in question.

        Sandoz walked with his head down and his hands in his pockets toward the Jeep.

When he looked up and saw the officer, Sandoz's eyes got big as he entered the backseat

of the Jeep. The officer asked Sandoz what was going on, and Sandoz replied that his

friend gave him a ride to collect $20 from Ms. Meadows. Sandoz was visibly shaking,




3
  The officer described the spot as a "no parking, fire, handicapped area." VRP (Jan. 3, 2013) at
 18.


                                                 3
No. 90039-6 (consol. wiNo. 90270-4)


and his face looked pale and thin. The officer, however, did not attribute Sandoz's

appearance to drug use or to any specific cause.

       The officer believed that Sandoz's story for being at the apartment contradicted

the driver's story. He asked Sandoz if he would mind stepping out of the vehicle. The

officer again asked Sandoz what was going on, and Sandoz said he was there to collect

$20 from Ms. Meadows. 4 After more conversation, Sandoz admitted that he had a drug

problem and said that he had a crack pipe in his pocket. Sandoz took out the pipe, and

the officer arrested Sandoz for possession of drug paraphernalia. During a search

incident to arrest, the officer felt something in Sandoz's groin area. The officer read

Sandoz his Miranda 5 rights, and Sandoz admitted that he had two small envelopes of

cocaine in his underwear.

       The State charged Sandoz with possession of cocaine. At pretrial, Sandoz moved

to suppress his statements and the cocaine. Sandoz argued that a seizure occurred when

the officer asked Sandoz to get out of the Jeep and that reasonable suspicion of criminal

activity did not support the seizure.

       The trial court disagreed, concluding that specific and articulable facts supported

the seizure: (1) the officer knew the area had extremely high drug activity based on 911

calls and drug dealing investigations, (2) the officer knew that the apartment Sandoz


4
  Although the officer testified that what Sandoz said outside the vehicle contradicted what he
said while sitting in the Jeep, the officer's testimony did not reveal any contradiction. Compare
VRP (Jan. 3, 2013) at 23, with VRP (Jan. 3, 2013) at 21. The State claims that the officer's
incident report, which the trial court did not admit into evidence, reveals different statements.
Because the incident report was marked but not admitted into evidence, we do not consider it.
5
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


                                                4
No. 90039-6 (consol. w/No. 90270-4)


exited belonged to Ms. Meadows, who had numerous drug-related convictions, including

possession with intent to deliver, (3) the officer had express authority from the complex

owner to trespass nonoccupants for "loitering" at the complex, (4) the Jeep did not belong

to any of the tenants at the complex, (5) the driver of the Jeep slouched down when the

officer drove past, (6) the driver and Sandoz had conflicting stories for why they were in

the area, (7) Sandoz looked surprised when he saw the officer, and (8) Sandoz visibly

shook and looked pale when the officer talked to him. Clerk's Papers at 53. On these

facts, the trial court denied Sandoz's motion to suppress.

       After a bench trial on stipulated facts, the trial court found him guilty of cocaine

possession. In an unpublished opinion, the court of appeals affirmed. Sandoz, 2014 WL

1600596, at *4. -Sandoz petitioned this court for discretionary review, which we granted.

State v. Sandoz, 180 Wn.2d 1028,331 P.3d 1173 (2014).

       State v. Fuentes

       On October 5, 2011, 6 Officer Roman Trujillo and Officer Shirrell Veitenheimer of

the Kennewick Police Department went to a Kennewick apartment as part of an

apprehension team to look for a wanted person. The apartment belonged to Richard

Fenton. In November 2010, 11 months before, police made controlled purchases of

methamphetamine from Fenton. Police subsequently executed a search warrant on the

apartment, where they found methamphetamine and related materials. Police suspected




6
 The officers first visited the apartment after midnight on October 5, 2011, and returned around
10 p.m. later that night.


                                                5
No. 90039-6 (consol. wiNo. 90270-4)


that Fenton was still selling narcotics based on recent interviews with individuals arrested

for narcotics-related offenses.

       Approaching Fenton's apartment, officers saw two people on the steps who turned

and went into the apartment when they saw the police. Police knocked on the door, but

nobody answered, so the police left and returned that evening around 10 p.m. to set up

surveillance on the apartment.

       During two hours of surveillance, police observed approximately 10 people enter

and leave the apartment, each person staying inside between 5 and 20 minutes. Officer

Trujillo testified that this behavior indicated narcotics activity: people arrive, make a

purchase, and leave. VRP (Feb. 29, 2012) at 9. This observed behavior especially

indicated narcotics activity because of the recent search warrant that uncovered narcotics

at this apartment and because of the late hour of the short visits on a weeknight. See id.

at 9-10, 30-31,44-46.

       Around midnight, police saw Maris a Fuentes park her car across the street from

the apartment. She walked up to the apartment, entered, stayed for about five minutes,

and returned to her car. She opened the trunk of her car and removed a small plastic bag.

The bag contained something about the size of a small football. Then Fuentes reentered

the apartment, stayed for about five minutes, and returned to her car with a bag that had

noticeably less content than when she entered the apartment.

       Based on what officers observed, police stopped Fuentes' car on suspicion of

narcotics activity. An officer advised Fuentes that he needed to talk with her. For safety




                                               6
No. 90039-6 (consol. wiNo. 90270-4)


reasons, the officer requested that Fuentes come to the police vehicle, which she did. The

officer read Fuentes her Miranda rights. Fuentes waived those rights and admitted that

she had just delivered marijuana to Fenton's apartment.

       The State charged Fuentes with delivery of marijuana. Fuentes moved to suppress

evidence uncovered from the investigative stop of her car, including her statement about

delivering marijuana, arguing that the police lacked reasonable suspicion to justify the

Terry stop of her vehicle. The trial court concluded that officers had reasonable

suspicion to stop the vehicle and therefore denied the motion to suppress. Fuentes was

subsequently convicted of delivery of marijuana at a stipulated facts trial. She appealed.

In an unpublished opinion, the court of appeals affirmed. Fuentes, 2014 WL 546587, at

*4. We granted Fuentes' petition for discretionary review. State v. Fuentes, 180 Wn.2d

1027, 328 P.3d 904 (2014).

                                           ANALYSIS

       In reviewing the denial of a motion to suppress, we review the trial court's

conclusions of law de novo and its findings of fact used to support those conclusions for

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

       Generally, under the Fourth Amendment to the United States Constitution and

article I, section 7 of Washington's constitution, an otlicer may not seize 7 a person

without a warrant. State v. Garvin, 166 Wn.2d 242, 248, 207 P.3d 1266 (2009). But a


7
 Under article I, section 7 of the Washington Constitution, a person is "seized" when an officer
restrains-physically or by a show of authority-that person's freedom of movement to such an
extent that a reasonable person would not feel free to leave or to decline the officer's request and
terminate the encounter. State v. O'Neill, 148 Wn.2d 564, 574, 62 P~3d 489 (2003).


                                                  7
No. 90039-6 (consol. wiNo. 90270-4)


few carefully drawn exceptions exist. ld. We have recognized the Terry investigative

stop as one ofthe exceptions. See State v. Day, 161 Wn.2d 889, 895, 168 P.3d 1265

(2007). Under this exception, an officer may, without a warrant, briefly detain a person

for questioning if the officer has reasonable suspicion that the person stopped is or is

about to be engaged in criminal activity. ld. Additionally, an officer may conduct a brief

frisk for weapons, but only if a reasonable safety concern exists to justify the protective

frisk. ld.

       A valid Terry stop requires that the officer have reasonable suspicion of criminal

activity based on specific and articulable facts known to the officer at the inception of the

stop. See State v. Gatewood, 163 Wn.2d 534, 539-40, 182 P.3d 426 (2008); State v.

Glover, 116 Wn.2d 509, 513-14, 806 P.2d 1068 (1992). In evaluating the reasonableness

of the officer's suspicion, the reviewing court looks at the totality of the circumstances

known to the officer. Glover, 116 Wn.2d at 514. The totality of circumstances includes

the officer's trah1ing and experience, the location of the stop, the conduct of the person

detained, the purpose of the stop, and the amount of physical intrusion on the suspect's

liberty. State v. Acrey, 148 Wn.2d 738, 746-47, 64 P.3d 594 (2003).

        We must determine if the officers had reasonable suspicion of criminal activity

under the totality of circumstances to support the stops of Sandoz and Fuentes. If the

officers did not, the evidence uncovered from the stops must be suppressed. See State v.

Doughty, 170 Wn.2d 57, 65, 239 P.3d 573 (2010).




                                              8
No. 90039-6 (consol. wiNo. 90270-4)


       Reasonable suspicion did not justify a Terry investigative stop of Sandoz

       Under the totality of the circumstances, we hold that the officer did not have

reasonable suspicion of criminal activity individualized to Sandoz to justify his Terry

stop. See State v. Thompson, 93 Wn.2d 838, 841,613 P.2d 525 (1980) (holding that

suspicion must be individualized).

       The police relied on five facts to justify the Terry stop involving Sandoz: (1)

Sandoz's surprise when he saw the officer, (2) the "conflicting" stories between Sandoz

and the driver, (3) Sandoz's pale appearance and shaking, (4) the officer did not

recognize the Jeep, and (5) the officer had authority to admonish nonoccupants for

"loitering" under a trespass agreement.

       While we evaluate the totality of the circumstances to determine whether a

reasonable suspicion of criminal activity exists, we do so, in part, by examining each fact

identified by the officer as contributing to that suspicion.

       As to the fact of surprise, this encounter was late at night: Sandoz was walking

with his head down, and he registered surprise when he looked up to see the officer

standing by the Jeep he was about to enter. Sandoz's surprise at seeing the officer did not

suggest criminal behavior. See State v. Gatewood, 163 Wn.2d 534, 540, 182 P.3d 426

(2008) ("Startled reactions to seeing the police do not amount to reasonable suspicion.").

       Next, the driver's story did not conflict with Sandoz's story. The driver said that

his friend called him for a ride, and Sandoz said his friend gave him a ride to the

apartment to collect $20. Rather than conflict, the stories confirmed one another.




                                               9
No. 90039-6 (consol. wiNo. 90270-4)


       As to his physical appearance, the officer did not attribute Sandoz's pallor or

shaking to drugs or to any illicit conduct. Thus, this fact does not add to circumstances

that suggest criminal activity.

       The fact that the officer did not recognize the Jeep might justify the officer's

contact with the driver, but the oflicer did not connect this fact with anything the officer

observed about Sandoz.

       Finally, the officer also considered the trespass agreement that allowed him to

investigate people who "loiter"; he also believed he had reasonable suspicion to detain

Sandoz for drug-related loitering under SeaTac Municipal Code (STMC) 8.05.380(C).

The word "loiter" is undefined in the statute. See STMC 8.05.380; RCW 69.50.101.

When a statute does not define a term, the court may consider the plain and ordinary

meaning of the term in a standard dictionary. State v. Bah!, 164 Wn.2d 739, 754, 193

P.3d 678 (2008)~ Sandoz did not loiter. 8 "Loiter" means "to remain in or near a place in

an idle or apparently idle manner." WEBSTER'S THIRD NEW INTERNATIONAL

DICTIONARY 1331 (2002). Sandoz did not remain idle: he left the apartment and walked

immediately to the Jeep without stopping. Although the individuals in the Jeep may have

loitered, that issue is not before the court. Similarly, Sandoz did not appear to trespass:

he entered a tenant's apartment, stayed inside at least 15 minutes without any known

discord, and left directly to the Jeep. The facts suggest that Sandoz was an invited guest




8
  This analysis also applies to the argument that the officer suspected Sandoz of drug-related
loitering under STMC 8.05.380(c). If Sandoz did not "loiter," the statute does not apply.


                                                10
No. 90039-6 (consol. wiNo. 90270-4)


of Ms. Meadows, and as the officer stated, simply going into an apartment does not equal

wrongdoing.

       In analyzing the circumstances that supported reasonable suspicion, the trial court

also considered the fact that the driver of the Jeep slumped down as the officer drove by.

Again, this behavior understandably raised concerns in the officer's mind about the driver

and, because the vehicle was parked illegally, justified the officer's inquiry of the driver.

However, nothing in the behavior that the officer observed-the driver's activity-

connected with anything the officer subsequently observed about Sandoz to suggest that

Sandoz engaged in criminal activity.

       The trial court also cited the fact that Sandoz was visiting the apartment of a

suspected drug dealer late at night in a high-crime area. However, without more, this fact

does not justify a Terry stop. See Doughty, 170 Wn.2d at 62-63, 60 (holding police may

not seize a person who visits a suspected drug house late at night and who stays for only

two minutes based only on neighbor's complaints of short-stay traffic and where there is

no "actual evidence of drugs, controlled buys, reports of known drug users or dealers

frequenting the house, and so forth"). Other facts must exist to suggest criminal

behavior. See id.

       In this case, the officer merely acted on a hunch when he stopped Sandoz. The

officer admitted that he did not have facts to believe Sandoz engaged in drug activity; he

just felt "the entire circumstance was suspicious." VRP (Jan. 3, 2013) at 40. But an

officer's suspicion must be of criminal activity and it must be reasonable. Doughty, 170




                                              11
No. 90039-6 (consol. wiNo. 90270-4)


Wn.2d at 63. An officer's hunch does not justify a stop. !d. The totality of the

circumstances in this case do not justify a Terry stop.

       Reasonable suspicion existed to stop Fuentes' car

       In contrast to Sandoz, when evaluating the totality of the circumstances leading to

the Terry stop of Fuentes' car, we hold that the police had reasonable suspicion of

criminal activity particularized to Fuentes before the stop occurred. See Glover, 116

Wn.2d at 514.

       We agree with the Court of Appeals that State v. Kennedy, 107 Wn.2d 1, 726 P.2d

445 (1986), provides an apt analogy. Early in the morning, the officer in Kennedy went

to investigate neighbor complaints about short-stay foot traffic going in and out of the

"Smith house." !d. at 3. The officer had information from a reliable informant that

Smith used this house to sell drugs. !d. The officer saw Kennedy leave the house and get

into a maroon car, but the officer did not see anything in Kennedy's hands or see other

suspicious activity. !d. at 3, 8. Nevertheless, the officer stopped Kennedy on suspicion

of purchasing marijuana. !d. Although the informant told the officer that Kennedy

bought marijuana from Smith in the past, only went to Smith's house to buy drugs, and

drove a maroon car, the officer had no specific information that Kennedy bought drugs or

intended to buy drugs that particular morning. Nevertheless, we held that reasonable

suspicion supported the stop based on the present information about possible ongoing

drug activity that morning-the short visits-and information about past drug

transactions at Smith's house. See id. at 8-9.




                                              12
No. 90039-6 (consol. wiNo. 90270-4)


       The facts in this case closely parallel those in Kennedy. The officers in this case

knew about past drug activity at Fenton's apartment. Police made controlled buys from

Fenton and conducted a search of the apartment 11 months before and found drugs. The

officers also testified they had recent information from individuals arrested on drug-

related charges that Fenton was still dealing drugs. Additionally, officers observed short-

stay foot traffic that morning (10 visits between 10 p.m. and midnight) that suggested

ongoing drug transactions, like the neighbor complaints suggested in Kennedy.

       But this case presents a more compelling circumstance than the facts present in

Kennedy. While the officer in Kennedy had information that Kennedy had previously

purchased drugs at Smith's house, nothing suggested that Kennedy purchased drugs on

the morning of the stop-except for complaints about ongoing short-stay traffic. Here, in

addition to short-stay traffic, officers could reasonably infer that Fuentes participated in

the ongoing drug transactions: Fuentes entered the apartment briefly, then returned to her

car. She then carried a plastic bag into the apartment, and she left with a bag that had

noticeably less content. Her stay lasted approximately five minutes. From these

observations, officers could form a reasonable suspicion that Fuentes made a delivery at

the apartment. Given the context of her short-stay visit to an apartment with known drug

use-after officers observed short-stay traffic consistent with drug transactions-and her

delivery, officers could reasonably suspect that Fuentes delivered drugs. Although the

bag may have contained innocent content, officers do not need to rule out all possibilities

of innocent behavior before they make a stop. I d. at 6.




                                              13
No. 90039-6 (consol. w/No. 90270-4)


       Fuentes relies on Richardson and argues that a person's mere proximity to another

independently suspected of criminal activity-in this case, Fenton-does not justify a

stop. See State v. Richardson, 64 Wn. App. 693, 697, 825 P.2d 754 (1992) (defendant

was walking in a high-crime area near ~omeone the officer suspected of drug dealing).

But officers observed more than Fuentes' mere proximity to Fenton. They observed her

make a short-stay visit to Fenton's apartment, carry a bag into his apartment, and leave

with the bag altered in its shape.

       Fuentes also compares her circumstances to Doughty, where we held an officer

lacked reasonable suspicion to stop the defendant's car after the defendant merely visited

a "suspected" drug house. 170 Wn.2d at 60. In that case, an officer saw the defendant

park his car outs:ide a suspected drug house at 3:20a.m. !d. The defendant approached

the house, returned to his car two minutes later, and drove away. !d. The officer did not

see any of the defendant's actions at the house, including whether he entered the house.

Id. Based on what the officer observed-the defendant's short-stay at a "suspected" drug

house early in the morning-the officer stopped the defendant's car on suspicion of drug

activity. Id.

       Three facts differentiate this case from Doughty and lead to a different result.

       First, we noted that police labeled the house in Doughty as a "drug house" based

only on neighbor complaints about large numbers of short-stay traffic. !d. at 60. The

police had nothing concrete, such as actual evidence of drugs, controlled buys, or reports

of known drug dealers or users visiting the apartment. !d. Here, police had considerable




                                             14
No. 90039-6 (consol. wiNo. 90270-4)


evidence that Fenton used his apartment for drug-related activity. Officers made

controlled buys from Fenton, who still lived in the apartment, and conducted a search of

the apartment 11 months before and found drugs. Additionally, police also had

information suggesting Fenton was still dealing drugs.

       Second, the officer in Doughty did not observe the defendant carry any unusual

objects or have any idea about what, if anything, the defendant did at the house. Id. at

64-65. Here, officers saw Fuentes carry a plastic bag. And they had a well-founded idea

of what Fuentes did at the apartment based on the alteration in the bag: she made a

delivery.

       Third, the officer in Doughty did not observe any short-stay traffic at the house

that evening other than the defendant's two-minute stay. Id. at 60. Here, police observed

approximately 10 people enter and leave the apartment over a period of two hours. This

activity suggested ongoing drug transactions, and Fuentes' delivery reasonably appeared

part of that illicit stream of commerce. Based on the totality of the circumstances, we

hold that the officers had reasonable suspicion of criminal activity to justify the Terry

stop of the Fuentes vehicle.

                                      CONCLUSION

       We affirm the Court of Appeals in Fuentes because, under the totality of

circumstances, the officers had individualized reasonable suspicion of criminal activity.

In contrast, the officer did not have reasonable suspicion that Sandoz engaged in criminal

activity. Therefore, we reverse the Court of Appeals in Sandoz.




                                              15
No. 90039-6 (consol. wiNo. 90270-4)




                                           .   (


WE CONCUR:




                                      16
State v. Fuentes, No. 90039-6 (Gonzalez, I. concurring/dissenting)




                                     No. 90039-6



       GONZALEZ, J. (concurring in part and dissenting in part)-Officers of the

law stopped and searched both Steven Sandoz and Marisa Fuentes, without

warrants, largely because each of them had been seen at a building that was

under police surveillance. Sandoz was seized near the building; Fuentes was

followed by police and seized as she pulled into the driveway of a home. The

State contends that both seizures were lawful under Terry v. Ohio, 392 U.S. 1,

21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), which empowers officers to make

brief, warrantless searches and seizures under limited circumstances. Since

officers seized and searched both Sandoz and Fuentes without warrants, the

State bears the burden of showing the seizures were justified. I concur with the

majority that the State has not met this burden as to Sandoz. But the State has

also· failed to show sufficient lawful grounds to seize Fuentes. To the extent the

majority finds otherwise, I respectfully dissent.

        Our constitution protects us from being disturbed in our private affairs

without authority oflaw. WASH. CONST. art. I, § 7. If officers of the State

violate this constitutional precept, the fruits of that violation are inadmissible in



                                             1
State v. Fuentes, No. 90039-6 (Gonzalez, J. concurring/dissenting)


court. State v. Doughty, 170 Wn.2d 57, 65, 239 P.3d 573 (2010) (citing State v.

Garvin, 166 Wn.2d 242, 254, 207 P.3d 1266 (2009)).

       The State does not have authority of law to seize people merely because

they know someone or go somewhere associated with criminal activity. We do

not indulge in guilt by association in our state, and a person does not become a

criminal simply by being with people or in places that are or are perceived to be

associated with criminal activity. See id. at 62 ("A person's presence in a high-

crime area at a 'late hour' does not, by itself, give rise to a reasonable suspicion

to detain that person." (citing State v. Ellwood, 52 Wn. App. 70, 74, 757 P.2d

547 (1988))); State v. Thompson, 93 Wn.2d 838, 841, 613 P.2d 525 (1980)

(finding that "mere proximity to others independently suspected of criminal

activity does not justify the stop" (citing Ybarra v. Illinois, 444 U.S. 85, 100 S.

Ct. 338, 62 L. Ed. 2d 238 (1979))). I respectfully disagree with the majority

that it is appropriate to put so much weight on the fact Fuentes visited "a high-

crime apartment complex." Majority at 1. Under article I, section 7 of our

state constitution, searches must be based on individualized suspicion. In re

Pers. Restraint of Nichols, 171 Wn.2d 370,377-78,256 P.3d 1131 (2011)

(citing City ofSeattle v. Mesiani, 110 Wn.2d 454,755 P.2d 775 (1988); Yorkv.

Wahkiakum Sch. Dist. No. 200, 163 Wn.2d 297, 178 P.3d 995 (2008)). As it is

not a crime to be with people suspected of criminal activities or in places that

may have crime, such facts alone cannot justify a Terry stop, and those living in

or traveling through such places do not have a reduced expectation of privacy.

Doughty, 170 Wn.2d at 62 (citing Ellwood, 52 Wn. App. at 74; Thompson, 93

Wn.2d at 841 ).

                                             2
State v. Fuentes, No. 90039-6 (Gonzalez, J. concurring/dissenting)


       Instead, Terry stops must be reasonable and based on "'specific and

articulable facts"' that are individualized to the person the police seek to stop.

!d. at 62 (quoting Terry, 392 U.S. at 21), 63. The trial court made 32 findings

of fact relating to the officers' search and seizure of Fuentes. Twenty of those

findings were entirely neutral, most having to do with things that happened

after Fuentes was seized. Eleven of the findings concerned either Richard

Fenton, the primary subject of their surveillance, or his apartment. Only one of

the findings was individualized to potentially suspicious conduct by Fuentes.

The trial court found that she

       approached the apartment in an unusual manner: she climbed the stairs
       to the door, then went back to the car and retrieved a bag from the trunk;
       then, went to the door again, remained for a short period of time and then
       exited again with a now empty or nearly-empty bag. She placed the bag
       in the trunk and departed.
Clerk's Papers at 78. Even taken in the context of the fact she was close to a

house being observed (without a warrant and with the assistance of night vision

goggles), this fact alone simply cannot justify a seizure.

        The majority seems to suggest the fact that a "recent" search warrant had

found narcotics in Fenton's apartment was relevant to whether police had

reasonable suspicion of Fuentes. Majority at 6 (citing Verbatim Report of

Proceedings (Jan. 3, 2013) at 9-10). The record suggests that warrant was

issued in November 20 10. Fuentes was arrested in October 20 11, 11 months

later. I respectfully disagree that this can be properly characterized as "recent."

        But even if Fuentes's visit to an apartment building while carrying a

grocery bag alone could justify the stop, I find it remarkable that officers did


                                             3
State v. Fuentes, No. 90039-6 (Gonzalez, J. concurring/dissenting)


not seize Fuentes either at that time or right after she left the immediate area.

Instead, she was followed by different officers than the ones who observed her

at Fenton's home (who seem to have lost sight of her for some time) and

stopped as she was about to pull into the driveway of a home where her

boyfriend, among others, was in the front yard. Nothing in the record suggests

anything happened that would warrant police attention from the time she drove

away from the first home until she pulled into the driveway at the second, and

the judge noted specifically that she was not stopped for a traffic infraction.

       I respectfully disagree with the majority that the facts in this case are

analogous to those in State v. Kennedy, 107 Wn.2d 1, 726 P.2d 445 (1986). In

Kennedy, a police officer was investigating complaints from neighbors

regarding high levels of traffic at Rob Smith's home. Id. at 3. Additionally,

that officer had received a tip from a reliable informant "that Michael Kennedy

regularly purchased marijuana from Smith, that Kennedy only went to Smith's

house to buy drugs, and that Kennedy usually drove either a light green pickup

truck or a maroon Oldsmobile." Id. at 3. That officer was driving by Smith's

house when he saw a maroon Oldsmobile parked nearby. He stopped, saw

Kennedy leave the house, get into the Oldsmobile, and drive away. Id. The

officer pulled Kennedy over, saw him "lean forward as if to put something

under the seat," and asked him to step out of the car. Id. The officer found

marijuana under the seat. !d. at 4. We found the officer had "sufficient

articulable suspicion to stop Kennedy as he drove away from the Smith house."

Id. at 8.




                                             4
State v. Fuentes, No. 90039-6 (Gonzalez, J. concurring/dissenting)


       In contrast, nothing in the record before us suggests the officers had an

informant's tip that Fuentes was buying or selling drugs herself at Fenton's

home or that she went to Fenton's home only for such purposes. Nor, unlike

Kennedy, did she appear to secrete anything in the car when stopped. Kennedy

is not an apt analogy. Instead, this case is much more like Doughty. Doughty,

like Fuentes, made a brief stop late at night at a house that was under

surveillance. 170 Wn.2d at 60. Shortly after and by the same officer who had

observed him at the house, he was stopped, searched, found to be in possession

of drugs, and arrested. !d. We found that the State had failed to show

"sufficient specific and articulable facts" to justify the seizure and suppressed

the fruits of the search. !d. at 65.

       The majority makes much of the fact that Doughty was not seen to have

anything in his hands, while Fuentes did. I do not find this fact persuasive.

First, we noted in Doughty that the most persuasive element in Kennedy was

the reliable informant's tip, not the fact the defendant's hands were empty. Jd.

at 64 (citing Kennedy, 107 Wn.2d at 6-8). Second, people often carry small

things in their hands, from phones to footballs. This is, at best, only weakly

suggestive of criminal behavior.

       People in our state do not lose their legitimate expectation of privacy

merely because they are seen near people or places suspected of criminal

activities. I find the State has not met its burden of establishing officers had

specific and articulable facts, individualized to the defendants, that gave rise to

a reasonable suspicion in either case. To the extent the majority finds that it

has, I respectfully dissent.

                                            5
State v. Fuentes, No. 90039-6 (Gonzalez, J. concurring/dissenting)




                                             6
