 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                No. 68057-9-1


                           Respondent,              DIVISION ONE

             v.                                     PUBLISHED OPINION

JOSE MANUEL CARDENAS-MURATALLA,
AKA JOSE MANUEL CARDENAS-MURALTA,
                                                    FILED: February 3, 2014
                           Appellant.

      Grosse, J. —To be valid under both state and federal law, a warrantless,

investigatory stop, or Terry1 stop, must be reasonable, and it is the State's
burden to prove reasonableness.         An investigatory stop is reasonable if the

arresting officer can testify to specific and objective facts that provide a

reasonable suspicion that the person stopped has committed or is about to

commit a crime.     In determining whether an investigatory stop and frisk is

reasonable, courts look at the totality of the circumstances. The circumstances

must suggest a substantial possibility that the particular person has commiled ai
specific crime or is about to do so. Here, an anonymous tip reporting conduct not^
 r                                                                            CO   Z~'-Q

constituting a crime did not suffice to justify a Terry stop. Accordingly wgg
                                                                              CD   B^;
reverse.                                                                      en   3~

                                        FACTS

      At about 9:45 p.m. on December 7, 2010, Seattle Police Department

Officers Christopher Myers and Chriseley Lang handled a nuisance call near

Second Avenue and Main Street in Seattle. As the officers were completing the

call, they heard a broadcast of a 911 call of a man with a gun in the area ofThird

1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
No. 68057-9-1/2


Avenue and Yesler Way. At that time of night, that area is "an extremely high

drug area, high weapons area, and high crime area." The broadcast did not give

the identity of the person who reported seeing the man with the gun, but

described the suspect as a Hispanic male wearing a light blue hoodie and

described the gun as having a silver handle. The caller reported the suspect

displayed the gun; the caller did not say that the suspect pointed the gun at

anybody or threatened anybody. The officers never learned the identity of the

911 caller.

       Traveling along Third Avenue, the officers saw a person who matched the

description of the suspect. Officer Myers testified that the suspect, later identified

as appellant Jose Cardenas-Muratalla, looked surprised to see a patrol car,

straightened his posture, had an "oh, crap" look on his face, and began "fluffing"

behavior. Fluffing is when a person grabs the front of his or her sweatshirt and

pulls it down and away from his or her body. Officer Myers testified that by

fluffing, a person is "telegraphing that he has something to hide" and

"telegraphing . . . that it is right there in the front waistband." Another reason for

fluffing is to make sure the gun is not tangled up in clothing and is accessible.

       Officer Myers made a hard leftturn to bring the patrol car across two lanes

of traffic and shined the spotlight on Cardenas-Muratalla. At the time, Cardenas-

Muratalla was holding a cell phone to his head with his right hand. The officer

got out of the car, drew his handgun, and yelled at Cardenas-Muratalla, who had
started to walk away, to get down on the ground. Cardenas-Muratalla did not

comply with the officer's instruction.
No. 68057-9-1 / 3



      Officer Lang's testimony differed from Officer Myers' testimony. Officer

Lang testified that she had a clear view of Cardenas-Muratalla and that when the

officers spotted him, he was not doing anything suspicious with his hands and

was not doing anything with his hands, body, or expression that raised her level

of alarm.   The officer testified that her suspicions were aroused only when

Cardenas-Muratalla began to "shuffle" away and did not respond to Officer

Myers' direction to stop. She testified that Cardenas-Muratalla was talking on a

cell phone as the officers approached and was still talking on the phone when he

shuffled away.

      Officer Lang got out of the patrol car, went northbound on Third Avenue,

and blocked Cardenas-Muratalla's avenue of escape.        She had her handgun

pointed at Cardenas-Muratalla as he walked toward her.

       Officer Myers watched Cardenas-Muratalla heading northbound. Officer

Myers testified that Cardenas-Muratalla began to walk more quickly and that his

arm was pinned against his side. This behavior indicated to the officer that

Cardenas-Muratalla was attempting to hold something in place and also that he

was getting ready to break into a run. Officer Myers returned his gun to his

holster and drew his taser. He discharged the taser, discarded it, and drew his

handgun again.

       The taser hit Cardenas-Muratalla's left arm.      After he had been hit,

Cardenas-Muratalla turned around and headed away from Officer Lang and

toward Officer Myers. As he walked, Cardenas-Muratalla kept his right hand

down by his side, which Officer Myers thought was an attempt to pull a gun out of
No. 68057-9-1 / 4


his clothing. Officer Myers shot Cardenas-Muratalla and he fell to the ground

and was handcuffed.       Officer Myers recovered a handgun from Cardenas-

Muratalla's front waistband. The gun was black, not silver as the 911 caller had

described, and was not loaded.

      Cardenas-Muratalla, who had a prior conviction for conspiracy to deliver

heroin, was charged with first degree unlawful possession of a firearm. Prior to

trial, Cardenas-Muratalla moved to suppress the gun the officers recovered from

his waistband. After a hearing, the trial court denied the motion. The matter

went to trial and Cardenas-Muratalla was convicted as charged.

                                    ANALYSIS

       On appeal, Cardenas-Muratalla challenges the trial court's denial of his

motion to suppress the gun. We review findings of fact on a motion to suppress

for substantial evidence and review the suppression order's conclusions of law

de novo.2

       It is well established that a police officer does not need a warrant to

conduct a Terry stop if it is based on "specific and articulable facts which, taken

together with rational inferences from those facts," give rise to a reasonable

suspicion of criminal activity.3 The officer must have some suspicion of a
particular crime or a particular person, and some connection between the two.

We have repeatedly stated that "articulable reasons" or "particularized suspicion"
of criminal activity must be based on the police officer's assessment of the totality


2 State v. Duncan, 146Wn.2d166, 171,43 P.3d 513 (2002).
3Jerry, 392 U.S. at 21.
4 State v. Martinez. 135 Wn. App. 174, 180, 143 P.3d 855 (2006).
No. 68057-9-1 / 5


of circumstances with which he is faced.5 The officer's assessment must be such

that in the officer's experience and knowledge, together with rational inferences

drawn from those facts, reasonably warrant the limited intrusion upon an

individual's freedom.6 The totality of circumstances test of Illinois v. Gates7 has
replaced the two-pronged test of Aauilar-Spinelli8 in evaluating reasonable
articulable suspicion taking into consideration both the quality and quantity of

information known to the police.9       Under the "total circumstances" test, we
consider "the particular circumstances facing the law enforcement officer"

including the seriousness of the offense and any threat to public safety.10 The
presence of a firearm in public alone is insufficient for an investigatory stop,11 but
a report of actual or threatened use of a firearm can present a significant risk to

public safety supporting an investigatory stop.12


5 State v. Marcum. 149 Wn. App. 894, 205 P.3d 969 (2009); State v. Randall, 73
Wn. App. 225, 228, 868 P.2d 207 (1994).
6 Terry, 392 U.S. at 21.
7462 U.S. 213, 103 S. Ct. 2317, 76 L Ed. 2d 527 (1983).
8 Aauilar v. Texas. 378 U.S. 108, 84 S. Ct. 1509, 12 L Ed. 2d 723 (1964);
Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L Ed. 2d 637 (1969).
9 Randall, 73 Wn. App. at 228.
10 State v. Lesnick. 84 Wn.2d 940, 944, 530 P.2d 243 (1975) ("[N]o single rule
can be fashioned to meet every conceivable confrontation between police and
citizen. . . . [E]ach case must be considered in light of the particular
circumstances facing the law enforcement officer. In this case, the suspected
crime . . . posed no threat of physical violence or harm to society or the
officers."); State v. Franklin. 41 Wn. App. 409, 412-13, 704 P.2d 666 (1985)
("[Cjourts have recognized the need for an immediate investigatory stop when an
anonymous informant of undetermined reliability states that he or she observed a
suspect carrying or displaying a gun in a public place.").
11 Florida v.J.L. 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000).
12 See generally State v Wakelev. 29 Wn. App. 238, 242, 628 P.2d 835 (1981)
(pre-J.L decision upholding investigatory stop based on three individuals' phone
reports that they heard three gunshots; "[t]he officers' decision to adopt an
immediate response was reasonable because crimes involving firearms present
No. 68057-9-1 / 6


      Officers investigating reports of emergent risks of imminent violence do

not have the opportunity to make detailed inquiries to establish the veracity or


a serious threat of physical injury."); Franklin. 41 Wn. App. at 412-13 (pre-vLL
decision "courts have recognized the need for an immediate investigatory stop
when an anonymous informant of undetermined reliability states that he or she
observed a suspect carrying or displaying a gun in a public place").
         See also 4 W. LaFave, Search and Seizure § 9.5(i), at n.543 (2013):
   Robinson v. Howes. 663 F.3d 819 (6th Cir. 2011); United States v.
   Gomez. 623 F.3d 265[, 267, 270] (5th Cir. 2010) (assuming the informant
   was only an "anonymous tipster," caller "was not reporting a concealed
   weapon" but rather [sic] described person was "brandishing" a pistol and
   was "threatening individuals"); United States v. Hampton. 585 F.3d 1033[,
   1038] (7th Cir. 2009) ("Smith and other callers reported multiple gunshots
   fired in broad daylight and a gunman on the loose"; "J.L does not apply to
   emergency situations, so because we conclude that Smith's call reported
   an ongoing emergency, JLL does not help Hampton."); United States v.
   Simmons. 560 F.3d 98[, 105] (2d Cir. 2009) ("that an anonymous 911 call
   reporting an ongoing emergency is entitled to a higher degree of reliability
   and requires a lesser showing of corroboration than a tip that alleges
   generally criminality"); United States v. Wooden. 551 F.3d 647[, 650] (7th
   Cir. 2008) (where anonymous 911 caller reported an armed domestic
   quarrel and said he saw defendant draw a gun from holster, provided
   grounds for an investigatory stop; there was "a need for dispatch" even
   though the scene was calm when police arrived); United States v.
   Whitaker. 546 F.3d 902[, 909] (7th Cir. 2008) (police responding to a 911
   call regarding "an ongoing altercation," involving defendant threatening
   another with a gun; cases in accord collected); United States v. Hicks. 531
   F.3d 555[, 560] (7th Cir. 2008) (collecting other cases caller "gave the 911
   operator enough information to identify him and his location, and because
   he reported an ongoing emergency," namely that armed man was
   presently beating a woman); United States v. Elston. 479 F.3d 314[, 318-
   19] (4th Cir. 2007) (the informant "was reporting an imminent threat to
   public safety—an individual who had expressly threatened to shoot
   someone in the very near future," as "emergency"; anonymous report here
   "bore strong indicia of reliability" because of "wealth of detail" based on
   "her contemporaneous personal observation"); People v. Dolly. 40 Cal. 4th
   458, [461, 465, 469,] 53 Cal. Rptr. 3d 803, 150 P.3d 693 (2007) ("an
   anonymous 911 tip contemporaneously reporting an assault with a firearm
   and accurately describing the perpetrator, his vehicle, and its location is
   likewise sufficient to justify an investigatory detention," as that
   "defendant's conduct in pointing a revolver at the caller in an apparent
   threat to shoot him posed a grave and immediate risk not only to the caller
   but also to anyone nearby," and "the caller supplied a plausible
   explanation for wanting to remain anonymous").
No. 68057-9-1 / 7


vantage point of individuals reporting suspicious activity.13 An informant's tip
alone may provide the necessary reasonable suspicion to justify an investigatory

stop. But, in order to do so, the tip must at least be reliable. In Florida v. J.L.14
the United States Supreme Court held that an anonymous tip that a person is

carrying a gun is not, without more, sufficient to justify a police officer's stop and

frisk of that person. In that case, an anonymous caller reported to the police that

a young black male standing at a particular bus stop and wearing a plaid shirt

was carrying a gun. Nothing was known about the informant. Two officers went

to the bus stop and saw three black males standing there.          One of the three

males was wearing a plaid shirt. Apart from the tip, the officers had no reason to

suspect any of the three of illegal conduct. The male in the plaid shirt made no

threatening or other unusual movements. One of the officers frisked the male

and seized a gun from his pocket.

       The Court stated that an anonymous tip, standing alone, seldom

demonstrates the informant's basis of knowledge or reliability.            If suitably

corroborated, however, the tip can have sufficient indicia of reliability to provide

an officer with reasonable suspicion to make an investigatory stop.15 In the case
before it, the Court held that the tip was not reliable:

       The reasonableness of official suspicion must be measured by
       what the officers knew before they conducted their search. All the


13 Randall. 73 Wn. App. at 230 ("An officer acting on a tip involving the threat of
violence and rapidly developing events does not have the opportunity to
undertake a methodical, measured inquiry into whether the tip is reliable.").
14 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000).
15 See Alabama v. White. 496 U.S. 325, 331-32, 110 S. Ct. 2412, 110 L Ed. 2d
301 (1990) (holding Terry stop justified where an anonymous tip contained both
innocent details and predictive information that was corroborated).
No. 68057-9-1 / 8


        police had to go on in this case was the bare report of an unknown,
        unaccountable informant who neither explained how he knew about
        the gun nor supplied any basis for believing he had inside
        information about [the defendant].[161
        The Court stated that an informant's accurate description of a subject's

readily observable location and appearance is reliable in that it can help the

police correctly identify the person about whom the informant is speaking. Such

a tip does not, however, "show that the tipster has knowledge of concealed

criminal activity. The reasonable suspicion here at issue requires that a tip be

reliable in its assertion of illegality, not just in its tendency to identify a

determinate person."17
        Similarly, in State v. Gatewood.18 two officers in a marked patrol car were
driving on Rainier Avenue South shortly after midnight and spotted three or four

people, including Gatewood, sitting in a bus shelter. One of the officers testified

that Gatewood's eyes got big and he looked surprised to see the patrol car and

that he twisted his body to the left as if trying to hide something. The officers

decided to circle back to the bus shelter to investigate. By the time they got back

to the bus shelter, Gatewood had left and was walking down the street.          He

jaywalked, turned onto another street, and continued walking. One of the officers

told Gatewood to stop because he wanted to talk to him. Gatewood turned

around, walked away, and ignored the officer's repeated order to stop.

Gatewood walked to some bushes, bent over, pulled something out of his

waistband and threw it into the bushes, and then complied with the officer's


16 J.L, 529 U.S. at 271.
17 J.L, 529 U.S. at 272.
18
     163 Wn.2d 534, 182 P.3d 426 (2008).


                                           8
No. 68057-9-1 / 9


request to stop. One officer handcuffed Gatewood and the other recovered a

handgun in the bushes. The officers found marijuana on Gatewood's person,

and a search of the bus stop yielded cocaine.

        The Supreme Court held that the officers were not justified in making the

Terry stop. The officers' actions had to be justified at the time they made the

stop which, in the case before the court, was when the officer told Gatewood to

stop so he could talk to him. At that point, the facts known to the officers were:

Gatewood's widened eyes when he saw the patrol car, his twisting as if to hide

something, his departure from the bus shelter, and his jaywalking. The court

held that these facts were insufficient for a Terry stop because a startled reaction

to seeing a patrol car does not amount to reasonable suspicion, the officers did

not see what, if anything, Gatewood was trying to hide when he twisted around,

and Gatewood did not "flee" from the police simply because he walked away

from the bus stop. The court concluded that although it was proper to circle back

and investigate further, the officers' seizure of Gatewood was premature and not

based on specific, articulable facts indicating criminal activity.19 These are
essentially the facts in the instant matter.

        Here, neither the informant nor the informant's tip was reliable.       The

officers knew nothing about the 911 caller. The caller did not give his name, and

the 911 operator was unable to reach the caller on a call-back. Further, the tip

was not the report of any criminal activity.       The informant said Cardenas-

Muratalla showed him his gun, but that he (the informant) did not feel threatened.


19
     Gatewood. 163 Wn.2d at 540-42.
No. 68057-9-1/10


Carrying a firearm is a crime if it is carried or displayed in a manner that either

manifests an intent to intimidate another or that warrants alarm for the safety of

other persons,20 or if it is willfully discharged in a place where there is a
reasonable likelihood that humans, domestic animals, or property will be

jeopardized.21 There is no evidence in the record that the 911 caller reported
being intimidated or alarmed when the suspect showed him the gun or that the

suspect discharged the gun or pointed it at anyone. In fact, the caller told the

911 operator, "He didn't threaten me. It's just that he showed me. I seen it. . . .

Just calling to tell you, just calling to tell you." That is the only evidence in the

record about the emotional state of the 911 caller or about Cardenas-Muratalla's

actions that prompted the 911 call. The tip did not provide information raising a

reasonable suspicion of criminal activity. Moreover, the unreliable informant's tip

was not corroborated by any observations by the officers of suspected criminal

activity. Cardenas-Muratalla's presence in a high crime area at night, looking
startled upon seeing the patrol car, and walking away from the doorway while

talking on a cell phone do not justify a stop. Although Officer Myers claimed that
Cardenas-Muratalla "fluffed" his sweatshirt when he saw the officers, this claim

not only contradicts Officer Lang's testimony but also is not supported by the
video evidence in the record. Under the totality of the circumstances, the Terry

stop in this case was not reasonable. The trial court's findings of fact on
Cardenas-Muratalla's motion to suppress the gun are not supported by




20 RCW 9.41.270; see also RCW 9A.36.011, .021 (assault).
21 Seattle Municipal Code 12A.14.071.


                                         10
No. 68057-9-1 /11


substantial evidence. The trial court erred in denying the motion.22 Because the
gun was the basis for Cardenas-Muratalla's prosecution, his conviction of

unlawful possession of a firearm must be reversed.

      Reversed.




                                                                A
WE CONCUR:




      ^/.^^rf.C.v).                              ^W^y^-




22 We reject the State's argument that the officers had probable cause to arrest
Cardenas-Muratalla for assault or attempted assault. The trial court specifically
stated that it could not determine whether Cardenas-Muratalla intended to draw a
weapon. Based on the evidence in the record, we agree with the trial court.

                                       11
