                                                                         FILED 

                                                                       MAY 21, 2015 . 

                                                                In the Office of the Clerk of Court 

                                                              WA State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                            )
                                                )      No. 32233-5-111
                      Appellant,                )
                                                )
      v.                                        )
                                                )
CODY RAY FLORES,                                )      UNPUBLISHED OPINION
                                                )
                      Respondent.               )

      FEARING, J. -    We address under what circumstances and to what extent a law

enforcement officer may detain and search a companion of another engaged in criminal

activity. The trial court suppressed evidence of a gun on the person of Cody Flores, who

accompanied one accused of a crime. Although the law enforcement officer had cause to

detain Flores, the officer lacked reason to order Flores to walk toward him and to search

him. We affirm the trial court.

                                         FACTS

       On November 2,2013, Moses Lake police dispatch sent all available patrol

officers to 1120 Alderwood Drive. Dispatch relayed an anonymous report that Giovanni

Powell held a gun to somebody's head at that address. Dispatch also reported an

outstanding warrant for the arrest of Powell.
No. 32233-5-II1
State v. Flores


       Officer Kyle McCain arrived at 1120 Alderwood Drive first and espied Giovanni

Powell ambling with Cody Flores north of the address. The anonymous caller had not

mentioned Flores. Officer McCain knew Powell to be a member of the "Base Block"

gang. McCain identified Powell from pictures on Facebook, whereon Powell or his

friends held firearms. McCain also knew Powell from the latter's testimony as a material

witness after one of Powell's best friends was shot and killed in a fight at a Spokane

motel. Officer McCain did not recognize or know Cody Flores.

      After spotting Giovanni Powell, Officer Kyle McCain exited his car and drew his

gun aimed at the ground or at a low ready position. An officer employs the low ready

position when he has not identified a specific violent threat, but knows that danger may

await in his immediate area. Kyle McCain ordered Giovanni Powell and Cody Flores to

stop walking. Powell and Flores complied. Officer McCain ordered each man to place

his respective hands on his head, face away from McCain, and kneel on the sidewalk.

Powell and Flores obeyed and kneeled about five to seven feet from each other.

      Office Kyle McCain stood next to his patrol car and utilized the car as cover,

while he paused for other officers to arrive. Giovanni Powell and Cody Flores spoke to

each other, and McCain ordered them to cease talking. Kyle McCain directed Flores to

move further from Powell, and Flores complied while still on his knees. Another four

officers arrived at the Alderwood address, and each drew his gun. Officer McCain and

other officers ordered Powell to approach them by walking backward with his hands on

                                             2

No. 32233-5-III
State v. Flores


his head. Powell obeyed, and the officers arrested him without harm. Cody Flores never

obstructed in the detaining of Giovanni Powell.

       Moses Lake Officer Paul Oiumette was one of the other officers who arrived at the

Alderwood address. Oiumette assumed control over Cody Flores, who remained

kneeling on the street comer with his hands up, facing away from the officers. He had no

knowledge of Cody Flores engaging in criminal activity. Nevertheless,Oiumette

believed Flores to be involved in the gun incident that prompted the anonymous call to

dispatch. Officer Oiumette drew his gun and held it at the low ready position. He

instructed Flores to keep his hands where Oiumette could see them and to walk backward

to the sound of his voice. Cody Flores rose from his knees and complied. As Flores

walked backward, he saw Officer Oiumette's drawn gun.

       After Cody Flores walked ten to fifteen feet and neared within twenty feet of

Officer Paul Oiumette, Flores peered over his shoulder and notified the officer that

Giovanni Powell gave him a gun. Oiumette commanded Flores to keep walking

backward. Oiumette asked Flores about the location of the gun, and Flores responded

that he carried the firearm in his pants under his jacket. Flores continued to promenade

backward. When Flores approached within feet of Officer Oiumette, the officer ordered

Flores to kneel, and other officers approached Flores and secured him in handcuffs. With

his gun drawn, Oiumette removed the gun from Cody Flores' pants and detained Flores

in the back of a patrol car.

                                            3

Ii
l
j    No. 32233-5-111
     State v. Flores

II          Moses Lake law enforcement officers reviewed Cody Flores' criminal history and

!    discovered a conviction in October 2012 for residential burglary, a felony disqualifying

     Flores from possessing a firearm.

                                           PROCEDURE

            The State of Washington charged Cody Flores with unlawful possession of a

     firearm in the first degree, in violation ofRCW 9.41.040(l)(a). Cody Flores filed a CrR

     3.6 motion to suppress the gun found on his person as the product of an unlawful seizure.

     Flores argued that the Moses Lake officers lacked an articulable suspicion essential to

     justify detaining him. At the motion to suppress hearing, Officers Kyle McCain and Paul

     Oiumette testified. Thereafter the trial court issued a letter opinion, including findings of

     fact and conclusions of law. Among other findings, the trial court found that the officers

     lacked individualized articulable suspicion to suspect Cody Flores of criminal activity.

            The trial court granted Cody Flores' motion to suppress evidence of the gun found

     on his person and dismissed the charge against him without prejudice. In the letter

     opinion, the trial court observed that federal law assumes that all arrestee companions are

     dangerous and thus are subject to search, The court continued:

                    In Washington, however, while a reasonable concern for officer
            safety justifies a brief detention and protective frisk of an arrestee's
            companion, proximity to the arrestee, even coupled with general
            circumstances, such as being in a high crime [area], are insufficient to
            create a reasonable concern. State v. Adams, 144 Wn. App. 100, 106-07,
            181 P.3d 37 (2008). Rather, there must be articulable circumstances


                                                  4

No. 32233-5-II1
State v. Flores


       particular person in the arrestees company poses a threat to officer safety
       to justifY that person's detention and frisk. Id.
                Here, Mr. Flores was compliant, made no furtive movements, and
       there is no evidence the officers during the relevant time period were aware
       of any violent propensities the Defendant may have had. There were,
       therefore, no grounds under Washington law to detain the Defendant. His
       motion to suppress is granted.

Clerk's Papers at 56.

                                 LAW AND ANALYSIS

       We outline the arguments raised by the parties in order to circumscribe our

analysis. The State of Washington argues that a concern for officer safety justified the

detention of Cody Flores and later seizure of the gun on Flores' person. The State

contends that Officer Paul Oiumette had a legitimate concern that Giovanni Powell could

have passed his gun to Cody Flores. The State, however, does not argue that the Terry

investigatory stop rule validated Officer Oiumette's search of Flores' person. Terry v.

Ohio, 392 U.S. 1, 16,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968)

       The State of Washington analogizes this appeal to a case involving the detaining

of a passenger in a stopped car. We agree with this analogy, but our agreement harms,

not advances, the State's position.

       When reviewing claims of unlawful searches and seizures, we often must isolate

discrete actions ofa police officer during an extended encounter, as if the actions are

separate frames in a movie. Cody Flores does not argue that Officer Kyle McCain lacked

reason to detain him until officers accomplished the arrest of Giovanni Powell. Flores

                                             5

No. 32233-5-II1
State v. Flores


does not need to assert this argument to be successful. Flores contends that Officer Paul

Oiumette lacked grounds, after the arrest of Powell, to require him to walk toward the

officer and to search his person. Flores emphasizes that he informed Oiumette of the gun

on his person only after Oiumette unlawfully directed him to parade carefully toward the

officer.

       Cody Flores also argues that the law enforcement officers lacked reasonable

suspicion to legitimize a Terry stop of Flores. We agree with the State that this latter

contention is irrelevant since the State does not substantiate the detention and search of

Flores under Terry.

       As the trial court did, we rely on the Washington constitution, not the Fourth

Amendment to the United States Constitution. Article I, section 7, provides that "[n]o

person shall be disturbed in his private affairs, or his home invaded, without authority of

law." That protection encompasses and exceeds the protection guaranteed in the Fourth

Amendment of the United States Constitution. State v. Horrace, 144 Wn.2d 386,392

n.2, 28 P.3d 753 (2001); State v. Parker, 139 Wn.2d 486,493-94,987 P.2d 73 (1999).

       The State of Washington does not assign error to any finding of fact of the trial

court. Unchallenged findings, entered after a suppression motion hearing, are verities on

appeaL State v. O'Neill, 148 Wn.2d 564,571,62 P.3d 489 (2003); State v. Hill, 123

Wn.2d 641, 647,870 P.2d 313 (1994).




                                             6

No. 32233-5-II1
State v. Flores


       Whenever a police officer accosts an individual and restrains his freedom to walk

away, he has seized the person. Terry v. Ohio, 392 U.S. at, 16 (1968). Once an officer

seizes an individual, no subsequent events or circumstances retroactively justity the

seizure. State v. Mendez, 137 Wn.2d 208,224, 970 P.2d 722 (1999), abrogated on other

grounds by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132

(2007).

       As a general rule, warrantless searches and seizures are per se unreasonable, in

violation of the Fourth Amendment and article I, section 7 of the Washington State

Constitution. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). There are five

jealously and carefully drawn exceptions to the warrant requirement, which include

exigent circumstances, searches incident to a valid arrest, inventory searches, plain view

searches, and Terry investigative stops. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d

1266 (2009). The State bears the burden of demonstrating that a warrantless seizure falls

into a narrow exception to the rule. State v. Doughty, 170 Wn.2d 57, 61, 239 P.3d 573

(2010). This is a strict rule. State v. White, 135 Wn.2d 761, 769, 958 P.2d 982 (1998).

Exceptions to the warrant requirement are limited and narrowly drawn. White, 135

Wn.2d at 769. Whereas, Washington courts repeatedly herald these principles, a court

rarely hinges a decision thereon. The principles should teach us that in close calls

challenged evidence should be suppressed.




                                             7

I    No. 32233-5-III

I    State v. Flores



I
I
            Washington courts have not announced under which of the five exceptions to a

!    search warrant arrestee companion search and seizure fall. One court refused to
,i
~




     characterize a companion search as a search incident to arrest, since this exception only

     justifies the search of the arrestee and his immediate vicinity. State v. Parker, 139 Wn.2d

     at 497 (1999). When a person is not under arrest, there can be no search incident to

     arrest. Parker, 139 Wn.2d at 497. Perhaps the companion search should fall under the

     exigent circumstances exception or be its own exemption category.

            We now outline those detailed rules that control our decision. Merely associating

     with a person suspected of criminal activity does not strip away the protections of the

     constitution. State v. Broadnax, 98 Wn. 2d 289, 296, 654 P.2d 96 (1982), abrogated on

     other grounds by Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d

     334 (1993). In order for police to lawfully seize an otherwise innocent individual present

     with an arrestee, the arresting officer must articulate an "objective rationale" predicated

     specifically on safety concerns, for officers or other citizens to satisfy article I, section 7.

     State v. Mendez, 137 Wn.2d at 220 (1999). This "objective rationale" criterion is a less

     demanding standard than needed for a Terry stop. To justify a Terry stop, the police

     officer must identify specific and articulable facts which, taken together with rational

     inferences from those facts, reasonably warrant an intrusion. Terry, 392 U.S. at 21; State

     v. Armenta, 134 Wn.2d 1, 10,948 P.2d 1280 (1997).




                                                    8

No. 32233-5-III
State v. Flores


       The law recognizes that under certain circumstances, unarrested individuals may

pose a threat to officer safety in an arrest situation. State v. Horrace, 144 Wn.2d at 392­

93; State v. Kennedy, 107 Wn.2d 1, 11,726 P.2d 445 (1986). An officer conducting a

stop may be endangered not only by the suspect but by companions of the suspect.

Kennedy, 107 Wn.2d at 11. This threat does not justify unlimited intrusions into the

companion's privacy, however. To automatically authorize the search of non arrested

individuals because those individuals happen to be associated with the arrestee, or within

the vicinity of the arrest, would distort the narrow limits of the warrant exceptions and

offend fundamental constitutional principles. State v. Parker, 139 Wn.2d at 497 (1999).

The authority to conduct a full blown evidentiary search cannot constitutionally derive

from the need to secure officer safety alone. Parker, 139 Wn.2d at 499. Because the

privacy interest of a non arrested individual remains largely undiminished, full blown

evidentiary searches of nonarrested individuals are constitutionally invalid even when

officers may legitimately fear for their safety. Parker, l39 Wn.2d at 499. A generalized

concern for officer safety has never justified a full search of a nonarrested person.

Parker, 139 Wn.2d at 501.

       When stopping a car for a traffic violation, the officer may take whatever steps

necessary to control the scene, including ordering the driver to stay in the vehicle or exit

it, as circumstances warrant. State v. Mendez, 137 Wn.2d at 220. But with regard to

passengers, an officer must be able to articulate an objective rationale predicated

                                              9

No. 32233-5-III
State v. Flores


specifically on safety concerns for ordering a passenger to stay in the vehicle or to exit

the vehicle to satisfy article I, section 7. Mendez, 137 Wn.2d at 220. Whether such an

articulable, objective rationale exists depends on the circumstances at the scene of the

traffic stop. Mendez, 137 Wn.2d at 221.

       If the officer arrests the driver, the officer may then order an occupant from the

car. State v. Parker, 139 Wn.2d at 502. Nevertheless, when the purpose of the officer's

interaction with the passenger is investigatory, the officer must meet the higher Terry

standard. Mendez, 137 Wn.2d at 220. Stated differently, if the officer searches the

person of the nonarrested passenger, the officer must have objective suspicions that the

person searched may be armed and dangerous. State v. Parker, 139 Wn.2d at 502. When

the suspicion that an individual may be armed is based in part on the observable actions

of others in a particular context, the officer must point to specific, articulable facts tying

those observable movements and their circumstances directly and immediately to the

individual to be frisked. State v. Horrace, 144 Wn.2d at 399-400 (2001). When officers

do not have an articulable suspicion that an individual is armed or dangerous and have

nothing to independently connect such person to illegal activity, a search of the person is

invalid under article I, section 7. State v. Parker, 139 Wn.2d at 498.

       Most, if not all, Washington decisions address the stop and frisk of an arrestee's

companion in the context of a passenger in a car, rather than one walking on a sidewalk

with the arrestee. We consider the passenger cases controlling.

                                              10 

No. 32233-5-III
State v. Flores


       In State v. Mendez, 137 Wn.2d 208 (1999), police officers detained a car for

failing to stop at a stop sign. The car's passenger, Efrain Mendez, exited the vehicle and

quickly walked from the scene. Mendez did not heed an officer's command to return to

the car and reached inside his shirt two times while running away. Officers chased

Mendez, grabbed him, placed him under arrest, and searched him. During the search,

they found a marijuana pipe. After denying a CrR 3.6 motion to suppress the marijuana

pipe, the trial court found Mendez guilty of possessing paraphernalia.

       In reversing the trial court's denial of Efrain Mendez's motion to suppress, the

Supreme Court held that the arresting officers possessed neither an objective rationale

that would allow them to order Mendez back into the vehicle in order to secure the scene,

nor a reasonable suspicion that Mendez had engaged or was about to engage in criminal

conduct. Mendez's running from the scene, without evidence that he committed a crime

or posed a threat to public safety, did not justifY his detention. Moreover, Mendez's

gesture of reaching inside his jacket while walking away with his back to the officers

occurred after he had been seized by the officer's command to return to the car.

       Moses Lake officers possessed reason to seize Cody Flores in order to secure the

scene of Giovanni Powell's arrest. Officer McCain initially approached Powell and

Flores alone and was entitled to take limited measures to ensure Flores would not

interfere in his arrest of Powell. Nevertheless, the seizure exceeded the permissible scope

of the objective rationale standard. Contrary to what the State asserts, the officers'

                                             11 

No. 32233-5-III
State v. Flores


objective rationale for detaining Flores does not ripen into a reasonable suspicion of

criminal activity sufficient to justify an investigatory seizure. Once Powell was safely in
  •
custody, the officers' objective rationale for seizing Flores evaporated, and the officers

could no longer lawfully detain and search Flores because, as the trial court correctly

found, they lacked a reasonable suspicion that Flores had committed, or was about to

commit, a crime, or was a danger to the officers.

       Cody Flores exhibited no threatening or aggressive behavior toward the officers.

He immediately complied with Officer McCain's every command. Officer Oiumette

testified that Flores was in a position of disadvantage by the time he arrived, kneeling on

the ground with his hands behind his head, facing away from the officers. The

anonymous tip made no mention of Flores, nor did any of the responding officers have

reason to believe Flores had dangerous propensities.

      Even though arresting law enforcement officers believed Giovanni Powell passed

his gun to Flores after they could not find a gun on Powell's person, the record does not

show officers forwarded this information to Officer Paul Oiumette. Anyway, any

suspicion on Oiumette's part would not validate Terry'S reasonable suspicion standard,

because Paul Oiumette had no reason to believe Flores could not lawfully possess a

weapon. Officer Oiumette testified that he continued to detain Flores after others arrested

Powell because he responded to a call about a firearm and he believed Flores was

involved with the gun. Officer Oiumette thus admitted that Flores' extended detention

                                             12 

I
II 	
       No. 32233-5-III
       State v. Flores


       was premised on the same anonymous call that the State admits is insufficient to justifY a

       Terry stop. 


!
j             The trial court relied heavily on State v. Adams, 144 Wn. App. 100, 181 P.3d 37 


       (2008). The State argues that the trial court misinterpreted Adams as establishing a bright

       line rule that an officer must have individualized suspicion to seize an arrestee's

       companion in order for that seizure to comport with Washington's Constitution. We

       disagree that the trial court misapplied Adams.

              In State v. Adams, we reversed a trial court's denial of a motion to suppress

       brought by the passenger of a vehicle detained by officers on suspicion of being stolen.

       144 Wn. App. at 107. The arresting officer handcuffed both passenger and driver. He

       asked the passenger, Jennifer Adams, if anything would poke him if he frisked her

       person. Adams responded that she carried a syringe in her coat pocket, and she gave the

       officer permission to remove the syringe. When the officer reached in her pocket to

       retrieve the syringe, the officer found a bag of methamphetamine. The trial court denied

       her motion to suppress the drug evidence. In reversing the trial court, we held that, when

       a seized passenger poses no immediate threat to an officer's safety, nor appears armed,

       Terry requires the officer to '" point to specific, articulable facts giving rise to an

       objectively reasonable belief that the passenger could be armed and dangerous'" in order

       to justifY a protective frisk. Adams, 144 Wn. App. at 105 (quoting State v. Horrace, 144

       Wn.2d 386,399-400,28 P.3d 753 (2001). Adams supports our holding in this appeal.

                                                      13 

I
j
:i   No. 32233-5-III
I
i
     State v. Flores




 I          The State of Washington relies on State v. Horrace, 144 Wn.2d 386, in which the

     state Supreme Court affirmed the conviction of a car passenger for possession of a

 I   concealed weapon. The court sanctioned the pat-down frisk of the passenger because,



I,   while the officer returned to his patrol car to check for warrants for the driver, the officer

     noticed furtive movements between the driver and his passenger, Ronald Horrace. In this

     appeal, no Moses Lake officer saw Giovanni Powell hand Cody Flores an object, nor did

     Powell or Flores engage in furtive movements.

                                           CONCLUSION

            We affirm the trial court's suppression of evidence and dismissal of charges

     against Cody Flores.

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

     Washington Appellate Reports, but it will be filed for public record pursuant to RCW

     2.06.040.




     I CONCUR: 





                                                   14 

                                       No. 32233-5-111

       BROWN, A.C.J. (concurring in result) -    First, Mr. Flores' case was decided by the

trial court applying solely the investigative stop principles of Terry v. Ohio, 392 U.S. 1,

88 S. Ct. 1868,20 L. Ed. 2d 889 (1968). While fact finding, the judge unsuccessfully

searched the record for "articulable circumstances indicating the particular person in the

arrestee's company poses a threat to officer safety to justify that person's detention and

frisk." Clerk's Papers (CP) at 56. The judge did not find facts justifying Mr. Flores'

continued detention and search after Mr. Powell's arrest. The judge applied Terry as

did State v. Adams, 144 Wn. App. 100, 107, 181 P.3d 37 (2008), a passenger search

case. But passenger cases are not distinct from Terry or separately "controlling" as the

majority reasons. We should not depart from the principles established in Terry.

       Second,' we should defer to the trial court's discretionary fact finding and witness

credibility decisions in both letter and spirit. The judge found Mr. Flores was ordered to

"walk" backward and did not describe the walk as a "promenade" or "parade." CP at 61.

The judge did not criticize the officers' need to safely control Mr. Powell's arrest scene

and briefly detain his walking companion, Mr. Flores. Initial police interactions with

individuals in Terry situations are generally and neutrally described as stops or

encounters; thus in Terry situations, a police officer initially stops or encounters rather
No. 32233-5-111
State v. Flores - Concurrence


than "accosts" individuals. "Accost" connotes challenging and aggressive, which is not

always true in police encounters. I cannot join in the noted incorrect descriptions.

      Accordingly, for these two reasons, I must respectfully concur solely in the result.




                                                  Brown, A.C.J.




                                            -2­
