             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                              )       No. 78958-9-I
                                                  )
                         Respondent,              )
                                                  )       DIVISION ONE
                         v.                       )
                                                  )
KRISTOPHER CHARLES MARTIN,                        )       PUBLISHED OPINION
                                                  )
                         Appellant.               )
                                                  )

       MANN, C.J. — Absent an applicable exception, warrantless searches and

seizures are per se unreasonable and violate both the United States and Washington

Constitutions. While asleep in a Starbucks store, Kristopher Martin was subjected to a

warrantless search. Based on the search, Martin was charged with and found guilty of

possession of a controlled substance.

       Martin appeals his conviction and contends that the trial court erred by denying

his motion to suppress because the search did not meet either the Terry1 stop or

community custody exceptions to the warrant requirement. We agree, vacate Martin’s

conviction, and remand to the trial court for further proceedings consistent with this

opinion.


       1
           Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
No. 78958-9-I/2


                                               I.

       On December 11, 2017, at 8:27 a.m., Officer Nicholas Bickar responded to a

911 call from a Starbucks employee, requesting assistance with the removal of a

sleeping person inside the store. When Bickar arrived, he saw Martin sleeping in a

chair. Bickar gestured to the Starbucks employee and received a responsive gesture

from the employee that Martin was the person identified in the 911 call.

       When Bickar approached Martin, he noticed Martin was wearing multiple jackets

that had pockets. Bickar attempted to wake Martin, first by raising his voice and then by

squeezing and shaking his left shoulder. Martin remained unresponsive. Trying not to

startle Martin, Bickar then performed a “light sternum rub,” using his knuckles to rub

Martin’s sternum. While Bickar attempted to wake Martin, he would briefly gain

consciousness, but quickly lose consciousness before Bickar could communicate with

him.

       Bickar began to suspect that Martin was under the influence of drugs. Bickar

determined that he would need to use a “hard sternum rub,” but feared Martin might

react violently because hard sternum rubs can be painful and startling for a person

sleeping. During this encounter, Bickar noted that there were Starbucks customers

sitting within four feet of Bickar and Martin and there were between seven and eight

people, not including staff, in Starbucks.

       Before Bickar proceeded with the hard sternum rub, Bickar noticed the end of a

metal utensil sticking out of Martin’s pocket. Bickar worried that the metal utensil could

be a knife or another utensil sharpened into a weapon. Bickar also expressed concerns

about sharp needles. Without feeling the outside of the pocket, Bickar removed the

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utensil. The utensil was a cook spoon, had burn marks on the bottom, and a dark

brown residue on the inside. At that point, Bickar determined that he had probable

cause to arrest Martin for possession of drug paraphernalia and continued searching

Martin. While searching Martin, Bickar found methamphetamine, heroin, cocaine, and

other drug paraphernalia.

       After removing the drugs from Martin, Bickar conducted a hard sternum rub.

Once Martin woke up, Bickar told him that he was under arrest, proceeded to handcuff

him, and brought him to an aid car. Because Martin did not wake up easily, he was

transported to the hospital. Bickar called the aid car sometime prior to waking up

Martin.

       Martin moved to suppress all evidence collected as a result of the unlawful

detention and search. The court heard testimony from Officer Bickar and denied

Martin’s motion to suppress concluding, “[c]ommunity caretaking and Terry authorized

Officer Bickar to take necessary precautions to protect himself and others from a

potentially dangerous situation. Officer Bickar was authorized to pat the Defendant

down for potential weapons.”

       Martin proceeded to a stipulated bench trial on the charge of unlawful possession

of a controlled substance. The court found Martin guilty. The court sentenced Martin to

30 days of confinement. Martin appeals.

                                             II.

       The Washington Constitution commands: “No person shall be disturbed in his

private affairs, or his home invaded, without authority of law.” Wash. Const. art. I, § 7.

The United States Constitution also protects people from unreasonable searches and

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seizures. U.S. Const. amend. IV. Absent an applicable exception, warrantless

searches and seizures are per se unreasonable, and violate these provisions. State v.

Russell, 180 Wn.2d 860, 867, 330 P.3d 151 (2014). “The State bears a heavy burden

to prove by clear and convincing evidence that a warrantless search falls within one of

those exceptions.” Russell, 180 Wn.2d at 867.

       When reviewing the denial of a motion to suppress, the appellate court

determines whether substantial evidence supports the trial court’s findings of fact and

whether the findings of fact support the trial court’s conclusions of law. State v.

Boisselle, 194 Wn.2d 1, 14, 448 P.3d 19 (2019). We review the trial court’s conclusions

of law de novo. Boisselle, 194 Wn.2d at 14.

                                             A.

       Martin first contends that the trial court erred in finding the search permissible

under Terry because “[f]irst, there was [no] reasonable suspicion that Mr. Martin was

engaged in criminal activity. Second, there were not specific and articulable reasons to

believe Mr. Martin was armed and dangerous. And third, even if Terry applied, the

officer exceeded the lawful scope of the frisk.”

        The State argued before the trial court and in its brief before this court, that the

search was lawful under Terry. At oral argument, however, the State conceded that the

search was not lawful under Terry because Bickar did not testify that he was conducting

a criminal trespass investigation.

       We accept the State’s concession that the search was not valid as a Terry stop.

Terry stops are an exception to the warrant requirement. In a Terry stop, “[o]fficers may

briefly, and without warrant, stop and detain a person they reasonably suspect is, or is

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about to be, engaged in criminal conduct.” State v. Day, 161 Wn.2d 889, 895, 168 P.3d

1265 (2007). “While Terry does not authorize a search for evidence of a crime, officers

are allowed to make a brief, nonintrusive search for weapons if, after a lawful Terry

stop, ‘a reasonable safety concern exists to justify the protective frisk for weapons’ so

long as the search goes no further than necessary for protective purposes.” Day, 161

Wn.2d at 895. In making this determination, “we consider the totality of the

circumstances, including the officer’s subjective belief.” Day, 161 Wn.2d at 896.

       A protective frisk does not violate a defendant’s rights when (1) the initial stop is

legitimate, (2) a reasonable safety concern exists to justify a protective frisk for

weapons, and (3) the scope of the frisk is limited to the protective purpose. State v.

Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993). “The failure of any of these makes

the frisk unlawful and the evidence seized inadmissible.” State v. Setterstrom, 163

Wn.2d 621, 626, 183 P.3d 1075 (2008). “A reasonable safety concern exists, and a

protective frisk for weapons is justified, when an officer can point to ‘specific and

articulable facts’ which create an objectively reasonable belief that a suspect is ‘armed

and presently dangerous.’” Collins, 121 Wn.2d at 173. Further, “[t]he officer need not

be absolutely certain that the individual is armed; the issue is whether a reasonably

prudent person in the circumstances would be warranted in the belief that his or her

safety or that of others was in danger.” Collins, 121 Wn.2d at 173.

       This search fails to meet the requirements under Terry. Starbucks is open to the

public. The record does not support the trial court’s finding that Bickar was conducting

a criminal investigation for trespass because there is no evidence in the record that

Starbucks had trespassed Martin from the premises. Also absent from the record is

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evidence supporting Bickar’s claim that Martin sleeping created a reasonable safety

concern. Bickar performed a hard sternum rub with several people seated in close

proximity to Martin. While Bickar stated that, based on his training and experience as

an officer, he feared Martin would react violently once awake, Bickar’s actions do not

support his attestation. Bickar did not ask patrons sitting less than three feet from

Martin to move away before using a hard sternum rub to wake Martin.

       Finally, even if Bickar were conducting a criminal investigation for trespass, the

search exceeded the scope of a frisk under Terry. An officer may “conduct a limited

pat-down of the outer clothing of a person in an attempt to discover weapons that could

cause harm.” State v. Russell, 180 Wn.2d 860, 867, 330 P.3d 151 (2014). “The officer

may not slide, squeeze or in any other manner manipulate the object to ascertain its

incriminating nature. Such manipulation of the object will exceed the scope of a Terry

frisk.” State v. Garvin, 166 Wn.2d 242, 251, 207 P.3d 1266 (2009). Bickar did not pat-

down the outside of Martin’s pocket where the utensil handle was protruding. Instead,

Bickar removed the utensil because he thought it could have been a knife or a metal

utensil that had been sharpened into a weapon. Had Bickar felt the outside of Martin’s

pocket, he would have learned it was a spoon and not a sharp object. Removing the

spoon without a pat down exceeded the scope of a Terry frisk.

       The search was not lawful under Terry because there was no reasonable

suspicion that a crime had been committed, there was not a reasonable safety concern,

and the search exceeded the lawful scope of a frisk.




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                                             B.

       Martin next contends that the community caretaking exception to the warrant

requirement is also not applicable. We agree.

       Recently, the Washington Supreme Court clarified the appropriate factors for

determining whether an officer has exercised his or her emergency aid community

caretaking function. Boisselle, 194 Wn.2d at 10. “[I]n order for the community

caretaking exception to apply, a court must first be satisfied that the officer’s actions

were ‘totally divorced’ from the detection and investigation of criminal activity.”

Boisselle, 194 Wn.2d at 10. The threshold issue for the court is “whether the

community caretaking exception was used as a pretext for a criminal investigation

before applying the community caretaking exception test.” Boisselle, 194 Wn.2d at 11.

       Once the court is satisfied that officers did not use the exception as pretext for

criminal investigation, the court must next determine whether the warrantless search

was reasonable. Boisselle, 194 Wn.2d at 10. “When a warrantless search falls within

an officer’s general community caretaking function, such as the performance of a

routine check on health and safety, courts must next determine whether the search was

reasonable.” Boisselle, 194 Wn.2d at 11-12. “Where . . . an encounter involves a

routine check on health and safety, its reasonableness depends upon a balancing of a

citizen’s privacy interests in freedom from police intrusion against the public’s interest in

having police perform a ‘community caretaking function.’” Boisselle, 194 Wn.2d at 12.

       “An officer’s emergency aid function, however arises from a police officer’s

community caretaking responsibility to come to the aid of persons believed to be in

danger of death or physical harm.” Boisselle, 194 Wn.2d at 12 (internal quotations

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omitted). “Compared with routine checks on health and safety, the emergency aid

function involves circumstances of greater urgency and searches resulting in greater

intrusion.” Boisselle, 194 Wn.2d at 12. “Accordingly, courts apply additional factors to

determine whether a warrantless search falls within the emergency aid function of the

community caretaking exception.” Boisselle, 194 Wn.2d at 12.

       In Boisselle, the court clarified that the three-part emergency aid test announced

in State v. Kinzy, 141 Wn.2d 373, 386-87, 5 P.3d 668 (2000) is the applicable test, but

amended the three-part test “to make clear that there must be a present emergency for

the emergency aid function test to apply.” Boisselle, 194 Wn.2d at 13. Thus, the

exception applies when “(1) the officer subjectively believed that an emergency existed

requiring that he or she provide immediate assistance to protect or preserve life or

property, or to prevent serious injury, (2) a reasonable person in the same situation

would similarly believe that there was a need for assistance, and (3) there was a

reasonable basis to associate the need for assistance with the place searched.”

Boisselle, 194 Wn.2d at 13-14. “If a warrantless search falls within the emergency aid

function, a court resumes its analysis and weighs the public’s interest against that of a

citizen’s.” Boisselle, 194 Wn.2d at 12.

       In balancing Martin’s privacy interests against the public’s interest in having the

police perform a community caretaking function, we conclude that removing the spoon

from Martin’s pocket was unreasonable. There is insufficient evidence in the record to

find that Bickar was conducting a routine check on health and safety or rendering

emergency aid. Bickar stated that he was dispatched to Starbucks “for an individual

they wanted to leave, who was sleeping.” Absent from the record is any evidence

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tending to show that Bickar was dispatched to assist with an unresponsive customer or

customer in need of emergency aid. Bickar indicated that he could tell Martin was

breathing and therefore, did not check his pulse. After Bickar performed a light sternum

rub, Martin opened his eyes, but fell back to sleep before Bickar could communicate

with Martin. Bickar did not feel like he needed to perform lifesaving maneuvers. Other

Starbucks customers sat a few feet away from Martin as he slept and Bickar did not

indicate that any customers or employees expressed concern that Martin was in danger

of death or physical harm. Finally, Bickar did not ask the other Starbucks customers to

back away from the area where Martin slept before performing the hard sternum rub.

Bickar did not subjectively believe an emergency existed and a reasonable person in

the same situation would not believe there was a need for assistance.

       Furthermore, even if the community caretaking exception applied to this search,

a simple pat-down on the outside of Martin’s coat pocket would have alleviated any

concern that the metal utensil was a sharp object or weapon. See State v. Acrey, 148

Wn.2d 738, 754, 64 P.3d 594 (2003) (concluding that a pat-down of a juvenile before

putting him in a patrol car was reasonable for officer safety while performing their

community caretaking function of transporting the juvenile home after his mother’s

request for officer assistance). Removing the spoon violated Martin’s right to be free

from unreasonable searches and seizures.

       We vacate Martin’s conviction and remand to the trial court for further

proceedings consistent with this opinion.




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WE CONCUR:




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