                                                                     FILED 

                                                                   SEPT. 9, 2014 

                                                           In the Office of the Clerk of Court 

                                                         W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 32294-7-III
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
SAMUEL BLACK FOSTER, JR.,                     )

                                              )

                     Appellant.               )


      LA WRENCE-BERREY, J. - Samuel Foster was charged and convicted of unlawful

possession of a controlled substance, methamphetamine. Prior to conviction, Mr. Foster

filed a motion to suppress the evidence which was found on his person. The court

denied the motion, concluding that the officer lawfully seized Mr. Foster based upon

(1) concerns for officer safety and also (2) articulable suspicion of criminal activity. We

determine that Mr. Foster was lawfully seized for officer safety only, but that law

enforcement's decision to keep him handcuffed indefmitely instead of checking for

weapons turned an otherwise lawful seizure into an unlawful one. Because of how Mr.

Foster's consent to search was obtained, we hold that his motion to suppress should have

been granted. We therefore reverse the lower court's order denying Mr. Foster's motion
No. 32294-7-III
State v. Foster


to suppress.

                                         FACTS

       On October 7, 2012, Officer Brenda Anderson was patrolling an area of Olympia,

Washington, known to have a high number of burglaries and bicycle thefts. Todd Adams

flagged down Officer Anderson. Mr. Adams explained to Officer Anderson that he had

been the victim of a residential burglary the day before and had fought with the suspect

before the suspect ran from the garage. Mr. Adams further explained that his neighbor

was also a victim on that same day and a tent was among the items stolen from the

neighbor's garage. No bicycles were reported stolen from either house.

       Mr. Adams showed Officer Anderson a picture taken by the neighbor earlier that

morning. The neighbor was walking on a nearby trail and came upon a group of three

people. The neighbor immediately noticed that a man in this group was carrying the

stolen tent. The neighbor took a picture of the group and sent it to Mr. Adams. Mr.

Adams recognized the man with the tent as the same person Mr. Adams came in contact

with during the burglary of his home.

       While viewing the photograph, Mr. Adams pointed out to Officer Anderson that a

man standing across the street, Mr. Foster, was one of the men in the photograph. The

photograph did not show a clear image of Mr. Foster's face. However, Officer Anderson



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 No. 32294-7-III
 State v. Foster


 identified Mr. Foster as the same subject in the picture because his clothing matched the

 clothing worn in the photograph taken earlier that day.

        In an effort to gain more information about the stolen tent, Officer Anderson

 crossed the street to speak with Mr. Foster. Mr. Foster was sitting on one bicycle and

 holding another, facing away from Officer Anderson and toward the trailhead. Officer

 Anderson told Mr. Foster that she wanted to talk to him. He turned and saw Officer

 Anderson. When Officer Anderson approached Mr. Foster, he was handling something in

 his sweatshirt pocket. Concerned for her safety, Officer Anderson asked Mr. Foster to

 take his hand out of his pocket. He did not. Officer Anderson grabbed Mr. Foster's hand

 and placed him in handcuffs as a safety precaution. She then noticed that one of the two

. bicycles had its serial number obscured.

        Sergeant Matt Renschler arrived to assist as Mr. Foster was being handcuffed. He

 recognized Mr. Foster from previous contacts and knew his prior criminal history

 included property crimes and controlled substance abuse violations. Officer Anderson

 briefly informed Sergeant Renschler about Mr. Foster's association with a recent burglary

 suspect, and her investigation into that. She also mentioned that one of the bicycles had

 an obscured serial number, and thought that perhaps it was stolen. Officer Anderson did

 not check Mr. Foster for weapons, nor did she inform Sergeant Renschler that she had



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No. 32294-7-III
State v. Foster


handcuffed Mr. Foster for officer safety concerns. At this time, both victims of the prior

day's burglaries approached Officer Anderson, and she left Mr. Foster to speak with them

and also to determine whether either bicycle matched a description of any stolen bicycle.

       Sergeant Renschler began a casual discussion with Mr. Foster. Mr. Foster

remained in handcuffs. After a period of time, the casual discussion turned to questions

concerning the bikes and drugs. The sergeant explained:

       We were talking about the bikes, and knowing his history, knowing the
       history that I'm aware of ... although it wasn't with me personally, I knew
       that he was known for controlled substances violation arrests, property
       crime arrests. I asked him if he was going to have any narcotics on his
       person, and he said no. So then I asked if he would be willing for me to go
       ahead and check, and he said "Go ahead."

Report of Proceedings at 42-43. During the search, Sergeant Renschler found a small bag

of methamphetamine inside a pack of cigarettes in Mr. Foster's pocket.

       Mr. Foster was charged with unlawful possession of a controlled substance-

methamphetamine. He moved to suppress the evidence found in the search. He

contended that Officer Anderson's stop was an unlawful seizure, which tainted the

consent to search and the evidence found as a result of the search. The trial court denied

the motion to suppress. In its oral ruling, the court determined that a seizure had occurred

at or just prior to Officer Anderson handcuffing Mr. Foster, and that the seizure was

lawful because of officer safety concerns. In its written findings and conclusions, the

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No. 32294-7-111
State v. Foster


court added an additional basis for the seizure, that the officers had a reasonable suspicion

that Mr. Foster was engaged in criminal activity, i.e., theft of the bicycles.

       A bench trial was held, and Mr. Foster was convicted of the crime charged. Mr.

Foster appeals. He contends that the trial court erred by failing to suppress the evidence

discovered as a result of an unlawful seizure and search.

                                         ANALYSIS

       "When reviewing the denial of a suppression motion, an appellate court determines

whether substantial evidence supports the challenged findings of fact and whether the

findings support the conclusions oflaw." State v. Garvin, 166 Wn.2d 242,249,207 PJd

1266 (2009). Evidence is substantial if it is enough'" to persuade a fair-minded person of

the truth of the stated premise.'" Id. (quoting State v. Reid, 98 Wn. App. 152, 156,988

P .2d 1038 (1999)). Conclusions of law relating to the suppression of evidence are

reviewed de novo. Id.

       Under the Fourth Amendment to the United States Constitution and article I,

section 7 of the Washington Constitution, warrantless searches and seizures are per se

unreasonable. Garvin, 166 Wn.2d at 249. Evidence obtained in violation of these

constitutional provisions must be suppressed, and evidence obtained as a result of a

subsequent search must also be suppressed as the fruit of the poisonous tree. State v.



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No. 32294-7-II1
State v. Foster


Kennedy, 107 Wn.2d 1,4, 726 P.2d 445 (1986) (citing Wong Sun v. United States, 371

U.S. 471, 487-88,83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)). However, evidence will not be

excluded if the seizure and subsequent search fall into one or more of the narrowly drawn

exceptions to the warrant requirement. Garvin, 166 Wn.2d at 249-50. The State has the

burden to show by clear and convincing evidence that an exception applies. Id. at 250.

       Under an exception to the warrant rule, a police officer can conduct a Terry)

investigative stop. Id. The Terry stop exception allows officers to briefly seize a person

if specific and articulable facts, in light of the officer's training and experience, give rise

to a reasonable suspicion that the person is involved in criminal activity. State v. Glover,

116 Wn.2d 509,514,806 P.2d 760 (1991) (citing Terry v. Ohio, 392 U.S. 1,21,88 S. Ct.

1868,20 L. Ed. 2d 889 (1968)). In evaluating the lawfulness of the Terry stop, this court

inquires whether the temporary seizure was justified at its inception, and whether the stop

was reasonably related in scope to the circumstances which justified the initial

interference. State v. Williams, 102 Wn.2d 733, 739, 689 P.2d 1065 (1984).

       A Terry stop must be reasonable under the circumstances. State v. Doughty, 170

Wn.2d 57, 62, 239 P.3d 573 (2010). The reasonableness of the officer's actions is viewed

in light of the facts the officer knew at the time of the stop. Kennedy, 107 Wn.2d at 6. A


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

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No. 32294-7-III
State v. Foster


court may consider factors such as the officer's training and experience, the location of

the stop, and the conduct of the person detained. State v. Pressley, 64 Wn. App. 591, 596,

825 P.2d 749 (1992). "The reasonableness ofa stop is a matter or probability, not a

matter of certainty." State v. Bray, 143 Wn. App. 148, 153, 177 P.3d 154 (2008).

"[P]olice may stop a suspect and ask for identification and an explanation of his or her

activities if they have a well-founded suspicion of criminal activity." [d.

       In determining whether the scope of the stop was excessively intrusive, relevant

factors include "the purpose of the stop, the amount of physical intrusion upon the

suspect's liberty, and the length of time the suspect is detained." Williams, 102 Wn.2d at

740. Officers may frisk and handcuff a person during a Terry stop if the officer has a

reasonable fear of danger, such as a reasonable belief that the person is armed. State v.

Mitchell, 80 Wn. App. 143, 145-46,906 P.2d 1013 (1995).

       Officer Anderson stated at the suppression hearing that Mr. Foster was not free to

leave once she raised her voice for him to remove his hand from his pocket. The trial

court correctly determined that Mr. Foster was seized at or near the time he was

handcuffed. Because the trial court's written conclusions provide two distinct bases for

the seizure, we analyze the sufficiency of each basis separately.




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No. 32294-7-III
State v. Foster


       Reasonable Suspicion ofCriminal Activity. Officer Anderson testified about the

factual bases of her decision to investigate the possible bicycle thefts. She testified that

she was in a high crime area where many bicycles had been stolen. She also testified that

Mr. Foster was in possession of two bicycles, and one of the bicycle's serial number was

obscured. The written conclusions add two more reasons to justifY the detention: Mr.

Foster was photographed with a suspected thief earlier in the day, and Mr. Foster's hand

was inside his pocket. Clerk's Papers at 34 (conclusion of law 3).

       The first basis for the Terry stop is insufficient: Simply because a person is in a

high crime area does not establish a reasonable, articulable suspicion that the person is

engaging in criminal activity. Doughty, 170 Wn.2d at 62. Similarly, the second basis for

the Terry stop is insufficient because Mr. Foster was handcuffed (and thus seized) prior

to Officer Anderson noticing that one of the bicycle's serial number was obscured.

Additionally, Mr. Foster being with a suspected burglar earlier in the day and having his

hand in his pocket when approached by Officer Anderson does not support a reasonable,

articulable suspicion that Mr. Foster was engaged in criminal activity. We hold that law

enforcement's seizure of Mr. Foster was not legal as a Terry stop. Rather, we agree with

the trial court's oral decision that the true reason for the seizure related to officer safety.




                                                8

No. 32294-7-111
State v. Foster


         Officer Safety. In City ofSeattle v. Hall, 60 Wn. App. 645, 806 P.2d 1246 (1991),

the court held that when objective facts raise a reasonable suspicion in the mind of an

officer that a person is armed and dangerous, and the officer is legitimately concerned

about his or her safety, the officer may frisk the person for weapons; and that such a

protective search may occur in the absence of an officer's reasonable, articulable

suspicion that the person is engaged in criminal activity. We agree with the trial court

that Officer Anderson properly placed Mr. Foster in handcuffs for her safety. A number

of reasons support Officer Anderson's reasonable suspicion that Mr. Foster was armed

and dangerous. First, Officer Anderson was investigating two burglaries that occurred

just one day earlier, and Mr. Foster had associated that morning with the suspected

burglar. Second, Officer Anderson was in a high crime area, known for bicycle thefts,

and Mr. Foster had two bicycles in his possession. Third, and most important, Mr. Foster

failed to remove his hand from his pocket after Officer Anderson directed him to remove

his hand. Although the above three considerations do not provide a basis for a Terry stop,

we will not second guess an officer's reasonable response when his or her safety is at

Issue.

         Pursuant to City ofSeattle v. Hall, Officer Anderson was entitled to handcuff Mr.

Foster and frisk for weapons. But she did not. Nor did she convey to her sergeant why



                                              9

No. 32294-7-III
State v. Foster


Mr. Foster was handcuffed so he could frisk for weapons. Rather, she left Mr. Foster in

her sergeant's charge, and continued investigating the prior day's burglaries and whether

the bicycles in Mr. Foster's possession were reported stolen. If Mr. Foster was a suspect

in the prior day's burglaries, we could find a basis for the continued seizure. If the officer

had a sufficient reason to detain Mr. Foster to investigate the possible bicycle thefts, we

could find a basis for his continued seizure. However, because the only legal basis to

seize Mr. Foster was officer safety, we are constrained to hold that the officer's decision

to forego frisking Mr. Foster amounts to continued detainment without a legal basis.

       Vitiation a/Voluntary Consent. In State v. Soto-Garcia, 68 Wn. App. 20, 841 P.2d

1271 (1992), the court considered under what circumstances evidence must be suppressed

because of an illegal search, despite the defendant's voluntary consent to search. The

court began its analysis by quoting Wong Sun v. United States:

       "We need not hold that all evidence is 'fruit of the poisonous tree' simply because
       it would not have come to light but for the illegal actions of the police. Rather, the
       more apt question in such a case is 'whether, granting establishment of the primary
       illegality, the evidence to which instant objection is made has been come at by
       exploitation of that illegality or instead by means sufficiently distinguishable to be
       purged of the primary taint.'"

Soto-Garcia, 68 Wn. App. at 26 (emphasis omitted) (quoting Wong Sun, 371 U.S. at 487­

88).




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No. 32294-7-111
State v. Foster


       Soto-Garcia reiterated a four-part test to assist in determining whether a consent to

search is tainted by the prior illegality: (1) temporal proximity of the illegality and the

subsequent consent, (2) the presence of significant intervening circumstances, (3) the

purpose and flagrancy of the official misconduct, and (4) the giving of Miranda 2

warnings. Soto-Garcia, 68 Wn. App. at 27.

       Applying the above factors, there was little time and no significant intervening

circumstance between when Officer Anderson left Mr. Foster in handcuffs and when

Sergeant Renschler began asking whether Mr. Foster had narcotics on his person, and

whether he could search him. Moreover, Sergeant Renschler did not advise Mr. Foster

that he could refuse to be searched, nor did he provide Mr. Foster with Miranda

warnings. Although Officer Anderson's choice not to frisk Mr. Foster for weapons was

not flagrant official misconduct, her failure to remove the handcuffs once she opted not to

search for weapons prevented Mr. Foster from leaving. This directly led to Sergeant

Renschler questioning Mr. Foster about narcotics and his request to search Mr. Foster's

person. We conclude that Mr. Foster's consent to search was obtained by exploitation of

his prior illegal seizure, and as a result, the evidence obtained as a result of his consent to

search must nevertheless be suppressed. The trial court thus erred by denying Mr.



       2   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                              11 

No. 32294-7-II1
State v. Foster


Foster's motion to suppress. We reverse.

      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.


                                           Lawrence-Berrey, J.

WE CONCUR:




Siddoway, C.J.                             Fearing, J.




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