.'~"=! an
issuer cia AFP€.,=_'-¢,. _:j_:'~'_z
ama cr i‘ip\€:».~z;~ l en

ZGii JL?l_ 17 i.§"z §= l7

lN THE COURT OF APPEALS OF THE STATE OF WASHlNGTON

STATE OF WASHINGTON,
No. 75451-3-|
Responden`t,
D|VlSlON ONE
v.
UNPUBL|SHED OP|N|ON
RANDY D. ANDREWS JR.,
B.D. 01/21/00,

FlLED: July17, 2017

VVVVVVVV`/v

Appe||ant. `

 

APPELwlCK, J. - Andrews was convicted of robbery in the first degree after
the trial court denied his motion to suppress evidence stemming from an
investigatory detention. He argues that the trial court erred in concluding that there
was reasonable articulable suspicion for a `Le__rg stop,1 that the detention did not
exceed the permissible scope of a leg stop, and that officers later had probable
cause to arrest him. We aftirm.

FACTS

On October 9, 2015, Eleuterio Orazon was sitting next to a fountain in the
middle of Cal Anderson Park, which is located in Seattle’s Capito| Hill
neighborhood . He was accompanied by his teenage nephew, Jayden Orazon, and

their friendl Josh Hamlin.

 

1 Ter[y v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

No. 75451-3-|/2

A group of young men approached them. One young man asked to see
Eleuterio’s2 phone. Eleuterio declined, and the man punched him in the face. The
man took Eleuterio’s phone,` punched him several more times, and hit Eleuterio in
the head with a nearby portable speaker.

At the same time, another member of the group demanded that Jayden
hand over his phone and backpack. This person may have been holding a knife.
Jayden dropped his belongings and ran away. Hamlin fled as well.

Bystanders called 911, beginning at 8:29 p.m. Two officers from the Seattle
Po|ice Department responded to the 911 cal|s: Officers Taylor Moreland and
Vaughn McKee. The officers began to assemble a description of the suspects.
The ochers called the initial suspect description "horrible.”

After several minutes, the witnesses regained their composure and gave
more detailed descriptions of the suspects. From this information,- Ofticer
Moreland compiled a description of the suspects and communicated it to his fe|iow
officers. He described the suspects as: an “ ‘18-20 year old Native American male
wearing a white shirt, pants, with a long black ponytail’ ” and a " ‘[t]eenage black
ma|e, approximately 5’10," thin bui|d, with 2-inch curly black hair, wearing a black
sweater.’ ” Officer Moreland mentioned that the two young men were possibly
accompanied by two other unidentified suspects. And, he included that an il°hone

was stolen and a knife was used in the robbery.

 

2 For clarity’s sake, we refer to the Orazons by their first names. No
disrespect is intended.

NO. 75451-3-|/3

Upon hearing the suspect descriptions, Officer Anthony Ducre believed that
he had seen the robbery suspects earlier that evening. Officer Ducre was in plain
clothes, working as part of Seattle’s Anti-Crime Team that evening. Sometime
shortly before 8:25 p.m., a group of young men approached Officer Ducre in Cal
Anderson Park. Based on the group’s behavior, Officer Ducre believed that the
young men intended to rob him. An obviously underage member of the group
offered to sell Officer Ducre stolen alcohol. Officer Ducre exaggerated his
movements to convince the group to back off. The group walked away to the north,
toward the large fountain in the middle of the park.

After the robbery, police officers in the Capitol Hil| area were watching for
anyone who resembled the description of the robbery suspects. Around 12:30
a.m. on October 10, Officers Jamison Maeh|er and Mika Harmon noticed two
young men near 10th Avenue and Pike Street. The men were Randy Andrews
and Timmothy Miller. The officers noticed that both men appeared underage,
which looked out of place in the nightclub district.

At 2123 a.m., Officer Ducre saw Andrews and Miller in the same area. He
recognized them as part of the group he interacted with minutes before the
robbery. He alerted Ochers Maeh|er and Harmon.

Officers Maeh|er and Harmon approached Andrews and Miller. The ochers
identified themselves and told the young men that they were being detained
because they matched the description of robbery suspects. Knowing that a knife
was used during the robbery, the officers patted down both suspects. A large

metal object was found in Miller’s pocket. lt was an iPhone 68 P|us. Miller was

No. 75451-3-|!'4

already holding a separate phone in his hand. Officer Harmon asked Miller where
he got the iPhone. Miller responded that he “found it."

While Andrews and Miller were being detained, Officer Dung Do attempted
to locate Eleuterio so they could complete a “show-up" identification procedure.
With his lights and siren on, Officer Do drove to Harborview Medical Center. But,
Eleuterio had afready been released Officer Do returned to where the suspects
were being detained to obtain additional information. He was given Eleuterio’s
address He drove to Eleuterio’s address, arriving at about 3:00 a.m. He drove
Eleuterio and Jayden to the areal where Andrews and Miller were being detained
Eleuterio and Jayden completed the show-up identification procedure They both
identified Andrews as Eleuterio’s attacker. Jayden identified Miller as being
involved in the attack.

At that pointl Officers Moreland and Maehler arrested Andrews and Millerl

searched them, and read them the l\/liranda3 warnings. While Andrews was being

 

processed at the police precinct, officers observed a possible bloodstain on
Andrews’s white shirt. Later testing revealed that the stain consisted of Eleuterio’s
blood.

Andrews was charged with robbery in the first degree He moved to
suppress all evidence stemming from the investigatory detention. The trial court
held a CrR 3.6 hearing Andrews agreed to a stipulated tria|, permitting the trial

court to decide the case based on the police reports, information, certification for

 

3 Miranda v. Arizona, 334 u.s. 436, 467-68, ss s. ct. 1602, 16 L. Ed. 2d
694 (1966).

No_ 75451-3-|!5

determination of probable cause,l incident reports, witness statements, laboratory
reports, and photographs.

The findings of fact and conclusions of law entered by the trial court covered
both the CrR 3.6 hearing and the trial. The court concluded that the initial detention
was supported by a well-founded `belief that Andrews had been involved in a
criminal act, and the length of the:detention wasjustified. lt concluded that officers
had probable cause to arrest Andrews and Miller after the iPhone recovered from
Miller’s pocket was determined to be the victim’s stolen phone4 lt concluded that
Andrews and Miller were functionally under arrest when they were placed in
handcuffs and surrounded by officers. But, the court suppressed the show-up
identification procedure because Officer Do’s language prior to the show-up was
unduly suggestive

The court concluded that Andrews was guilty of robbery in the first degree
Andrews appeals.

. D|SCUSS|ON

Andrews asserts that the officers did not originally have a reasonable
articulable suspicion tojustify the stop. Therefore, he contends that the trial court
erred by admitting evidence obtained after the investigatory detention. Second|y,
he alleges that the detention exceeded the permissible scope of an investigatory

stop. He argues that he was functionally under arrest when he was placed in

 

4 Andrews challenges a finding of fact supporting this conclusion and the
conclusion itse|f. The State concedes that evidence at the CrR 3.6 hearing did not
establish that the iPhone was positively identified as Eleuterio’s phone during the
investigatory stop.

No. 75451-3-|/6

handcuffs and surrounded by police officers, yet the police did not have probable
cause to arrest him.
l. Reasonab|e Articu|ab|e Susgicion

Andrews contends that the trial court erred in concluding that the officers
had a reasonable suspicion to seize him. He argues that the court improperly
considered the fruits of the seizure in determining whether the seizure was lawful.
He asserts that the court relied on findings that are not supported by substantial
evidence in reaching this conclusion. And, he argues that the remaining facts are
not sufficient to establish reasonable articulable suspicion.

We review conclusions of law from an order pertaining to the suppression
of evidence de novo. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002).
We review findings of fact entered following a motion to suppress for substantial
evidence State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Evidence is
substantial when it is enough to persuade a fair-minded person of the truth of the
stated premise State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
Uncha||enged findings are considered verities on appea|. State v. O’Neill, 148
Wn.2d 564, 571, 62 P.3d 489 (2003).

The Fourth Amendment to the United States Constitution protects against
unlawful searches and seizures. Article l, section 7 of the Washington Constitution
protects against unwarranted government intrusions into private affairs. Article l,
section 7 provides greater protection than`guaranteed by the Fourth Amendment.

State v. Parker, 139 Wn.2d 486, 493-94, 987 P.2d 73 (1999).

No. 75451-3-|/7

Warrantless searches are per se unreasonable State v. Doughty, 170
Wn.2d 57, 61, 239 P.3d 573 (2010). The State has the burden to demonstrate that
a warrantless search falls within an exception to the rule |d_. The State must
establish the exception to the lwarrant requirement by clear and convincing
evidence M, 166 Wn.2d at 250. `

One such exception to the warrant requirement is the leg stop. A police
officer may briefly stop and detain a person for investigation without a warrant if
the ofEcer reasonably suspects that the person is engaged or is about to engage

in criminal conduct. Garvin, 166 Wn.2d at 250. Officers may briefly frisk the

 

individual for weapons if there is a reasonable safety concern. State v. Day, 161
Wn.2d 889, 895, 168 P.3d 1265 (2007). l

To justify a le_rry stopl “the police officer must be able to point to specific
and articulable facts which, taken together with the rational inferences from those
facts, reasonably warrant that intrusion." le_rg(, 392 U.S. at 21. ln reviewing the
merits of an investigatory stop. courts evaluate the totality of the circumstances
available to the investigating ofticer. State v. Glover, 116 Wn.2d 509, 514, 806
P.2d 760 (1991).

Andrews first argues that the trial court improperly relied on the fact that he
lacked a legitimate basis to be in the area at the time. But, evidence suggesting
that Andrews lacked a legitimate basis to be in the area was available prior to the
w stop. Officer Maeh|er testified that at about 11:00 p.m., he saw two
individuals potentially matching the robbery suspects’ description on the corner of

10th and Pike. Officer lV|aehler statedl “And they appeared to be juveniles, so we

NO. 75451-3-|/8

wanted to go contact them to see why they’re out so late due to the nature of that
it’s only bars really open." When Ocher Maeh|er later succeeded in contacting the
two individuals, they were outside Neumos, a bar which does not admit anyone
under the age of 21. Officer Harmon noted that she saw two people who appeared
to be younger than 21 outside Neumos around midnight. She wondered why they
were in the bar district, since they were underage And, Officer Ducre testified that
at around 2:15 a.m., he saw two young men that he believed were the people he_
saw in the park immediately before the robbery. He informed Officers Maeh|er and
Harmon that he believed the young men were the robbery suspects. Andrews and
Miller were not stopped by the police until after 2123 a.m.

v Thus, substantial evidence supports the finding that prior to the T__egy stop.
officers believed Andrews and Miller were underage and lacked a legitimate
reason to be in the area.

Andrews next argues that the trial court’s finding that the suspect
descriptions were “detailed" is not supported by substantial evidence He contends
that because the suspect descriptions did not include information about the
suspects’ height, weight, facial l hair, or headgear, they cannot be considered
“detailed."

|nitially, the officers did not have a firm description of the robbery suspects.
ln-car video captured Officer Moreland telling Officers Harmon and Maeh|er when
they first arrived on scene that the descriptions were “horrible." Officer Moreland

said that he was giving the witnesses some time to calm down, but that Jayden

No. 75451-3-|/9

had the best description at the time Jayden’s initial description was that it was a
group of black males, and one of them was light skinned.

But, the evidence shows that once the witnesses regained their composure,
they gave more detailed descriptions of the suspects. Officer Moreland
synthesized these descriptions in his field report, which was completed by 10:28
p.m. on October 9. The descriptions he relayed to other officers were: an “ ‘18-20
year old Native American male wearing a white shirt, pants, with a long black
ponytail’ ” and a “ ‘[t]eenage black male, approximately 5’10,” thin build, with 2-inch
curly black hair, wearing a black sweater.’ "

This description identified key details that set the suspects apart from other
people in the vicinity. Officer Maeh|er testified that since it was October and the
weather was cooler, most people were wearing sweatshirts, so the tee shirt was a
helpful identifier. And, Officer Maeh|er testified that the color white tends to stand
out in a crowd. Because the description given to other officers included
distinguishing characteristics of race, age, sex, hairstyle, and clothing, we
conclude that the finding that the description was “detailed" is supported by
substantial evidence

Andrews also argues that substantial evidence does not support the finding
that he closely matched the suspect descriptions Andrews points out that
witnesses described the suspect as between 18 to 20 years old, while he was just

15 years old at the time of the seizure He notes that he was wearing a baseball

cap, which was not included in the description. Thusl Andrews contends that the

No. 75451-3-|/10

only similarities between himself and the suspect description was that he was a
young Native American man with a long ponytail in the company of black men.

Andrews argues that his racial characteristics are insufficient to provide
reasonable articulable suspicion to detain him. He cites to United States v.
Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000) and United State v. Logez, 482
F.3d 1067 (9th Cir. 2007) to support his argument |n Montero-Camargo, Border
Patrol agents stopped two cars about 50 miles north of the Mexico border. 208
F.3d at 1126. The district court determined that there was reasonable suspicion
for the stop, in part because the people who were stopped appeared to be
Hispanic. g at 1131. The Ninth Circuit held that the Hispanic appearance of the
defendants could not be considered as a relevant factor in the determination of
particularized suspicion. _lg at 1132, 1135. But, the court noted that it did not
preclude the use of racial or ethnic appearance as one factor relevant to
reasonable suspicion if a specific suspect has been identified as having a particular
racial or ethnic appearance |d_. at 1134 n.21.

in L_gge_z, officers were searching for a man who had allegedly attempted to
shoot police ofncers. 482 F.3d at 1069-70. The suspect was described as an adult
Hispanic male in his 20s with a thin build, taller, wearing a white sweater, and
armed with a firearm. |_d; at 1069. Officers apprehended Lopez after observing
him with the driver of the getaway car. lg; at 1070. The Ninth Circuit concluded
that the police lacked probable cause to believe that Lopez was the attempted

shooter. |d_. at 1073. While Lopez was a young Hispanic male, he lacked the

10

NO. 75451-3-|/11

specific descriptors associated with the attempted shooter: he was only 5’6", he
was not wearing a sweater, he was unarmed, and he wore glasses. l_d_.

Neither case prohibits the consideration of racial characteristics as one
factor in considering whether the officers had a reasonable suspicion to detain
Andrews. Unlike in M, Andrews bore a substantial similarity to multiple
descriptors: he appeared Native Americanl was wearing a white tee shirt, had long
black hair in a ponytail, was under the age of 21, and was accompanied by a
teenage black male with short black hair, Andrews's perceived race was just one
characteristic that matched the description of the robbery suspects.

Evidence from the CrR 3.6 hearing supports the trial court's finding that
Andrews and Miller bore a striking similarity to the robbery suspects. Officer
Maeh|er testified that around 11:00 p.m., he saw a light-skinned, potentially Native
American male with long black hair in a ponytail wearing a white shirt. He was with
a shorter black male with short black hair wearing all black clothing. Officer
Maeh|er noted that both appeared to bejuveniles. Officer Maeh|er testified that he
and Officer Harmon contacted these two individuals at about 2:30 a.m., because
Officer Ducre stated that he believed they were the robbery suspects. Officer
Ducre testified that when he observed Andrews and Miller standing in front of
Neumos around 2:15 a.m., he positively identified them as members of the group
he saw in the park shortly before the robbery occurred. He stated that based on

the description of the robbery suspects, he believed the individuals he saw in the

11

NO. 75451-3-|/12

park had committed the robbery. `Substantial evidence supports the trial court’s
finding that Andrews and Miller bore a striking similarity to the robbery suspects.5

Uncha||enged findings based on evidence at the CrR 3.6 hearingl included
a finding that Officer Ducre interacted with a group of young men immediately
beforethe robbery occurred. He believed they intended to rob`him. He witnessed
them walk off toward the large fountain in the middle of the park. Eleuterio was
robbed by that fountain immediately afterward. When Officer Ducre later heard
the description of the robbery suspects, he believed that the description matched
the group of young men with whom he interacted earlier. Other descriptions of
Andrews and Miller reveal similarities between the two individuals and the
descriptions of the robbery suspects, And, Andrews and Miller were observed in
the vicinity of the robbery hours aftenivard, even though they appeared to be too
young to enter the establishments open in the area.

Based on this evidence without consideration of any evidence gathered
after detention, the trial court did not err in concluding that the officers had a

reasonable articulable suspicion to conduct ‘a Ter[y stop.

 

5 That Andrews was only 15 while the robbery suspect was described as 18
to 20, and wearing a hat while the suspect was not described as wearing one, does
not detract from the fact that many other characteristics matched. Andrews could
have easily put on a hat in the hours that passed between the robbery and his
apprehension And, while the witnesses estimated that the suspect was between
18 and 20, officers took into consideration the fact that Andrews appeared to be
under 21 in a nightclub district. His youth thus played a role' in matching him to the
robbery suspect.

12

NO. 75451-3-|/13

l|. Probable Cause

Andrews argues that the officers exceeded the permissible scope of a legg
stop by handcuffing him and detaining him for 40-45 minutes. But, once officers
have probable cause to arrest an individual, a ]"_eg stop may be converted into an
indefinite detention for officers to gather evidence See State v. Williams. 102
Wn.2d 733, 741, 689 P.2d 1065 (1984) (holding that police actions exceeded the
scope of a Eg stop and therefore would be justified only if supported by probable
cause for an arrest); State v. King, 89 Wn. App. 612, 624, 949 P.2d 856 (1998)
(“Once probable cause is acquired, a temporary initial detention may be converted
into an indefinite detention for prosecutorial and evidential purposes."). Thus,
whether the detention exceeded the scope of a La_g stop is irrelevant if the police
acquired probable cause to arrest Andrews during the detention.

Here, the trial court found that Andrews and Miller were handcuffed while
they were being detained, waiting for the show-up procedure The court found that
the handcuffing occurred after the iPhone was found in Miller’s pocket. The court
found that once they were handcuffed, Andrews-and Miller were functionally under
arrest. Because Andrews and Miller were functionally under arrest prior to the
show-up identification, the court concluded that the admissibility of the show-up
procedure had no bearing on the validity of the arrest.

Andrews argues that the trial court correctly determined that he was
functionally under arrest once he was handcuffed and surrounded by multiple _
officers. But, he contends that the ochers did not have probable cause to arrest

him at that point. The State, on the other hand, asserts that Andrews was not

13

NO. 75451-3-|/14

under arrest until after the show-up identincation procedure Even so, it contends
that the officers had probable cause to arrest Andrews when the iPhone was found
in Miller’s pocket.

An arrest takes place when an officer demonstrates an intent to take a
person into custody and actually seizes or detains the person. State v. Patton,
167 Wn.2d 379, 387, 219 P.3d 651 (2009). To determine whether a person is in
custody at a particular time, the test is whether a reasonable person in the person's
position would have thought so. \State v. Rivardl 131 Wn.2d 63, 75, 929 P.2d 413
(1997). This is an objective test. State v. Reichenbach, 153 Wn.2d 126, 135, 101
P.3d 80 (2004). lt does not depend on the subjective intent of the officer, but
instead turns on manifestations of the arresting officer's intent. State v. Salinas,
169 Wn. App. 210, 218, 279 P.3d 917 (2012). Typical manifestations of this intent
include handcuffing the suspect,` placing the suspect in the patrol car, and telling
the suspect that he or she is under arrest. State v. Radka, 120 Wn. App. 43, 49-
50, 83 P.3d 1038 (2004).

Here, officers did not originally place Andrews and Miller under arrest.
When they first contacted the suspects, Officers Maeh|er and Harmon identified
themselves as police and told Andrews and Miller that they were being detained
because they matched the description of robbery suspects, Officers frisked the
suspects and found that Miller had two phones, one of which was an iPhone 68
P|us. During the time between the frisk and the show-up procedure Andrews and
Miller were detained at 10th and Pike for about 40 to 45 minutes. While they were

being detained, up to six additional officers arrived on the scene The officers

14

No. 75451-3-|/15

surrounded Andrews and Miller. Multiple patrol cars were in the area where
Andrews and Miller were being detained. And, ofncers handcuffed Andrews and
Miller to prevent them from fleeing.

At first, the officers manifested an intent to briefly detain Andrews and Miller.
But, once surrounded by approximately eight police officers and multiple patrol
cars, placed in handcuffs, and detained, a reasonable person would believe
themselves to be in custody. The trial court did not err in concluding that Andrews
was functionally under arrest at this point.

A custodial arrest must be supported by probable cause State v. Conner,
58 Wn. App. 90, 97, 791 P.2d 261 (1990). Probable cause exists when the
arresting officer is aware of facts and circumstances, based on reasonably
trustworthy information that would be suchient for a person of reasonable caution
to believe that a crime has been committed State v. Gaddy, 152 Wn.2d 64, 70,
93 P.3d 872 (2004). Whether probable cause exists is determined by an objective
standard. g

Here, the trial court concluded that the officers had probable cause to arrest
Andrews and Miller once the iPhone recovered from Miller’s pocket was

determined to be the victim's stolen phone. ln'support of this conclusion, the trial

court found that an iPhone 68 Plus was found in Miller’s back pocket, and he was

15

No. 75451-3-|/16

already holding a different phone in his hand. Officer Harmon asked Miller where
he had gotten the iPhone, and Miller replied that he had “found it."6

The evidence supports the existence of probable cause here ln
determining whether probable cause exists, we look at all of the facts and
circumstances available to the arresting officers-including those that provided a
reasonable articulable suspicion for the m stop. w M, 152 Wn.2d at 70.
Andrews and Miller fit the description of the robbery suspects that the victims
provided Officer Ducre recognized them as members of a group that was acting
suspiciously in Cal Anderson'Park shortly before the robbery occurred. He
believed they matched the suspect descriptions. Andrews and lV|il|er remained in
the area until 2:23 a.m., even though they were underage and had no reason to
be in an area with only bars open.

Additionally, the phone stolen from Eleuterio was an iPhone 63 P|us.
Immediately before he was robbed1 Eleuterio heard the group whisper that he was
hoiding a new iPhone 68 P|us. He told the officers that his iPhone was stolen in
the robbery. Officer Moreland communicated to other officers that an iPhone was
stolen. When Andrews and Miller were stopped, Miller possessed a phone that

matched the manufacturer and type of the stolen phone He was already holding

 

6 The court also found that, “Officers dialed the number associated with
Eleuterio’s stolen iPhone and the phone recovered from [l\ili||er’s] pocket rang." .

This finding (finding of fact 38) is not supported by substantial evidence from
the CrR 3.6 hearing. No officers testified that the phone recovered from Miller’s
pocket was called at any point. The trial court asked both defense counsel and
the State about this. The State conceded that no such testimony was presented.
On appeall the State again concedes that no testimony was presented at the CrR
3.6 hearing that would support this finding

16

NO. 75451-3-|/17

a different phone in his hand, and stated that he “found” the iPhone. The trial court
found that Miller’s account of how he came to possess the iPhone was not credible

Considering all of these facts together, a reasonable person would believe
that Andrews and Miller had acted together to commit a crime Therefore, the trial
court correctly concluded that the police officers had probable cause to arrest
Andrews at the time he was handcuffed

Andrews argues that the '_l'_eg stop exceeded the permissible scope, and
therefore, evidence obtained as a result of the detention should have been
suppressed But, probable cause supported Andrews's arrest when he was
handcuffed At that point, the detention was no longer a Beg stop, so we need
not address this issue.

We affirm.

(/
wE coNcuR:

M,/. ~ j
7 f

17

