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                                                                2015 JAN 20 AH 9:1*1




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                   DIVISION ONE

STATE OF WASHINGTON,                            No. 70929-1-1


                    Respondent,

          v.



WYATT JAMES HENDERSON,
DOB 10/16/95,                                    UNPUBLISHED OPINION


                    Appellant.                  FILED: January 20, 2015


      Verellen, J. — Wyatt Henderson appeals from his juvenile adjudication for two

counts of Violation of the Uniform Controlled Substances Act, chapter 69.50 RCW. He

argues the trial court erred in denying his motion to suppress evidence, contending that

he was subject to an unlawful seizure and search. Because the officer had specific and

articulable facts that criminal conduct had occurred or was about to occur and had a

reasonable belief that Henderson might be armed and presently dangerous, we affirm.

                                         FACTS

      On the afternoon of July 2, 2011, Seattle Police Officer Christopher Brownlee

was in uniform and patrolling Cal Anderson Park on his bicycle. Brownlee has

extensive training and experience recognizing street level drug sales, including buying

drugs as an undercover officer. Because the park was known to officers to be a

"hotspot" of criminal activity, including sales of heroin and methamphetamines,

Brownlee was routinely deployed "to do proactive enforcement to actively seek out
No. 70929-1-1/2


crimes as they are occurring."1 The park spans two city blocks and contains tennis

courts, soccer fields, a playground and a wading pool, but the northwest corner of the

park is largely empty and secluded. Brownlee identified this northwest corner as one of

the areas with the highest amount of criminal activity.

       As Brownlee rode into the northwest corner, he saw two males, Henderson and

Peter Hakala, standing very close together, face-to-face, slightly offset from each other,

with their hands down close to their waistbands. According to Brownlee, during a hand-

to-hand drug transaction, the buyer and seller typically stand "face-to-face and in close

proximity so that a casual passerby could not see what was actually transpiring."2

Brownlee saw the tip of what he believed to be a plastic baggie in Hakala's left hand,

and was aware that street-level narcotics are often packaged in plastic baggies. Based

on his training and experience, Brownlee believed that Henderson and Hakala were

about to engage in a hand-to-hand drug transaction. As Brownlee rode closer, Hakala

caught sight of him. Hakala's eyes widened and "he kind of got a 'dam it' look on his

face."3 Henderson and Hakala immediately turned their bodies away from Brownlee

and obscured their hands.


       Brownlee approached the males, saying, "Hey, what are you doing?"4

Henderson responded that he was "hanging out" and that Hakala was telling him to

"stay away from tweakers."5 Because Henderson appeared to be a juvenile, Brownlee



       1 Report of Proceedings (RP) (Sept. 10, 2013) at 8-9.
       2 id, at 15.
       3 Id at 17.
       4 id, at 27.
       5 Id.
No. 70929-1-1/3


asked his name and age. Henderson responded that his name was Tyler J. Hanson,

that he was 15 years old and from Stanwood. Brownlee knew most of the homeless

youth that frequented the park and did not recognize Henderson Suspecting that

Henderson was a runaway, Brownlee decided to have dispatchers run the name and

date of birth Henderson gave him through a database to determine if he had been

reported missing. Brownlee typically received a result in less than two minutes.

        As Brownlee used his radio to contact dispatch, Henderson began to shuffle his

feet back and forth and cast his eyes about from left to right. In Brownlee's experience,

these movements can be indicators of an impending attack. Brownlee asked

Henderson to stop moving around, and Henderson complied. Henderson then put his

hands underneath his shirt. Brownlee again ordered Henderson to stop moving.

Brownlee then noticed that Henderson had the word "Peace" and a phone number

written in marker on his arm. Brownlee knew an individual with the street name of

Peace as a methamphetamine dealer who had been involved in a ring of burglaries.

Brownlee asked Henderson, "All right, so what kind of drugs are you using now?"6

Henderson admitted that he had used heroin that morning. Because Brownlee had

previously had drug users brandish needles at him as a makeshift weapon, Brownlee

asked Henderson if he had any needles on him. Henderson stated that he was not

sure.



        Based on Henderson's body posturing, body movements, and the possibility that

Henderson had needles on his person, Brownlee proceeded to pat Henderson down for

weapons. Brownlee felt a bulge in Henderson's pocket and asked if it was a wallet.


        6 Id. at 36.
No. 70929-1-1/4


Henderson responded that it was. Because Brownlee had not yet heard back from

dispatch, he suspected that Henderson had given him a false name. Brownlee asked if

he could remove Henderson's wallet from his pocket and Henderson agreed. Brownlee

saw what appeared to be an identification card sticking out of the wallet. He asked

Henderson if he could take it out of the wallet, and Henderson responded, "I would

rather you didn't."7 Brownlee said, "You lied to me about your name, didn't you?"8

Henderson admitted that he had lied and that he had two outstanding warrants.

Brownlee placed Henderson under arrest. Brownlee verified the warrants and read

Henderson his Miranda rights.9 Brownlee searched Henderson and found a

methamphetamine pipe. During a subsequent search of Henderson's backpack,

Brownlee also found heroin, several used syringes, and paraphernalia used to cook

heroin.


          The State charged Henderson with two counts of Violation of the Uniform

Controlled Substances Act, RCW 69.50.4013. Henderson moved to suppress the

statements and physical evidence obtained following his seizure. After a CrR 3.6

hearing, the trial court denied the motion and found that the seizure, protective frisk, and

search of Henderson's backpack were lawful. Following a bench trial on stipulated

facts, the trial court found Henderson guilty as charged. Henderson appeals.

                                        DISCUSSION

          Henderson contends that the trial erred by denying his motion to suppress

because the seizure and the subsequent protective frisk were unlawful. We review a


          7 id, at 42.
          8id,
          9 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 70929-1-1/5


trial court's ruling on a motion to suppress to determine whether substantial evidence

supports the trial court's factual findings and whether its factual findings support its

conclusions of law.10 "Evidence is substantial when it is enough 'to persuade a fair-

minded person of the truth of the stated premise.'"11 Unchallenged findings of fact are

verities on appeal.12 We review conclusions of law de novo.13

                                           Seizure

       A seizure occurs when, "considering all the circumstances, an individual's

freedom of movement is restrained and the individual would not believe he or she is free

to leave or decline a request due to an officer's use of force or display of authority."14

This is an objective standard that looks to the law enforcement officer's actions and

asks whether a reasonable person in the individual's position would feel he or she was

being detained.15

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

section 7 of the Washington State Constitution, a warrantless seizure is considered per

se unconstitutional.16 If a seizure is unlawful, the subsequent search and fruits of that




       10 State v. Garvin. 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
       11 id (quoting State v. Reid. 98 Wn. App. 152, 156, 988 P.2d 1038 (1999)).
       12 State v. Valdez. 167 Wn.2d 761, 767, 224 P.3d 751 (2009). Henderson
challenges only Finding of Fact 14, which reads: "At this point, [when Brownlee decided
to check Henderson's name in the computer database], Henderson was free to end
their conversation and could have walked away." Clerk's Papers at 63.
       13 Garvin, 166 Wn.2d at 249.
       14 State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004).
       15 id,
       16 Id.
No. 70929-1-1/6


search are inadmissible.17 However, officers may conduct a brief investigatory

detention of a person, commonly called a Terry18 stop, absent a warrant.19 The officer

must have "a reasonable suspicion, grounded in specific and articulable facts, that the

person stopped has been or is about to be involved in a crime."20 "A reasonable,

articulable suspicion means that there 'is a substantial possibility that criminal conduct

has occurred or is about to occur.'"21 We determine the reasonableness of the officer's

suspicion based on the totality of the circumstances.22 In reviewing those

circumstances, we may consider such factors as the officer's training and experience,

the location of the stop, and the conduct of the person detained.23

       Here, the unchallenged findings of fact support the trial court's denial of

Henderson's motion to suppress.24 Henderson was in an isolated corner of Cal

Anderson Park, which was known for a high incidence of narcotics use and delivery.

Henderson and Hakala were standing face-to-face with their hands near their waists, a



      17 State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986).
      18 Terry v. Ohio. 392 U.S. 1.88S. Ct. 1868, 20 L Ed. 2d 889 (1968).
      19 State v. Acrev. 148 Wn.2d 738, 746-47, 64 P.3d 594 (2003).
      20 id, at 747.
      21 State v. Snapp. 174 Wn.2d 177, 197-98, 275 P.3d 289 (2012) (quoting
Kennedy, 107 Wn.2d at 6).
      22 Id, at 198.
      23 State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991).
       24 The trial court concluded that up until the point where Brownlee contacted
dispatch with Henderson's name and date of birth to determine if he was a runaway,
Brownlee and Henderson's interaction constituted a "social contact," not a seizure.
However, Henderson argues, and the State agrees, that Henderson was seized once
Brownlee approached and asked, "What are you doing?" We need not address this
issue because Brownlee had a reasonable, articulable suspicion to conduct a Terry stop
at that point. We may affirm the denial of a suppression motion on any ground that is
supported by the record. State v. Avery. 103 Wn. App. 527, 537, 13 P.3d 226 (2000).
No. 70929-1-1/7



posture typically used in hand-to-hand drug transactions to conceal the exchange from

passers-by. Brownlee saw the tip of a plastic baggie, commonly used to package

drugs, in Hakala's hand. As Brownlee approached, Hakala appeared startled, and both

Henderson and Hakala turned away to hide their hands. The totality of the

circumstances, combined with Brownlee's training and experience, gave rise to a

reasonable suspicion that Henderson was about to buy or sell drugs, thereby justifying a

Terry stop.

       Henderson argues that this case is similar to State v. Gatewood.25 State v.

Doughty26 and State v. Richardson,27 three cases in which a defendant's actions were

deemed insufficient to justify a Terry stop. None of these cases are comparable.

       In Gatewood. officers on patrol drove by a bus shelter where the defendant was

sitting. The defendant's eyes widened and he twisted his body as though to hide

something. He left the bus shelter and jaywalked across the street, where the officers

stopped him.28 The court held that "[sjtartled reactions to seeing the police do not

amount to reasonable suspicion."29 In Doughty, an officer saw the defendant approach

and leave a suspected drug house late at night.30 The court noted that a defendant's

mere presence in a high crime area, late at night, did not provide the legal basis for a

Terry stop.31 In Richardson, officers were patrolling an area late at night known for high


      25 163 Wn.2d 534, 182 P.3d 426 (2008).
      26 170 Wn.2d 57, 239 P.3d 573 (2010).
      27 64 Wn. App. 693, 825 P.2d 754 (1992).
      28 Gatewood, 163 Wn.2d at 537.
      29 id, at 540.
      30 Doughty, 170 Wn.2d at 59-60.
      31 Id. at 62.
No. 70929-1-1/8


drug activity, when they observed a man engaging in suspicious behavior: approaching

cars to talk to their occupants, then walking away when officers approached.32 The

officers later saw the man with the defendant.33 The court held "an individual's mere

proximity to others independently suspected of criminal activity" does not justify an

investigative stop.34

       But here, Brownlee did not stop Henderson based solely on a nervous

expression, as in Gatewood, on his presence in a high-crime area, as in Doughty, or for

his proximity to Hakala, as in Richardson. Brownlee stopped Henderson because the

totality of those circumstances supported Brownlee's reasonable suspicion. The stop

was not unlawful.


                                        Protective Frisk

       As part of a Terry stop, an officer may conduct a protective frisk for weapons

when the officer has a reasonable concern for his safety.35 A reasonable safety

concern exists "when an officer can point to 'specific and articulable facts' which create

an objectively reasonable belief that a suspect is 'armed and presently dangerous.'"36

"'[Cjourts are reluctant to substitute their judgment for that of police officers in the field.

A founded suspicion is all that is necessary, some basis from which the court can

determine that the [frisk] was not arbitrary or harassing.'"37 We must consider the


       32 Richardson, 64 Wn. App. at 694.
       33 id, at 694-95.
       34 id, at 697.
       35 State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993).
       36 id, (quoting Terry, 392 U.S. at 21, 24).
      37 id, (emphasis omitted) (alterations in original) (internal quotation marks
omitted) (quoting State v. Belieu, 112 Wn.2d 587, 601-02, 773 P.2d 46 (1989)).
No. 70929-1-1/9



entirety of the circumstances in determining the validity of a protective frisk.38

       The unchallenged findings of fact support the trial court's conclusion that the frisk

was lawful. As Brownlee talked to Henderson, Henderson shuffled his feet, darted his

eyes around, and reached under his shirt. Brownlee was concerned that these

movements could signify that Henderson was preparing to access a weapon to attack

him. Henderson admitted that he had used heroin that morning. When Brownlee asked

Henderson if he had needles on him, Henderson stated he was not sure. Brownlee had

experience with drug users brandishing needles and other drug paraphernalia at him as

a weapon. These were specific and articulable facts that supported a founded

suspicion that Henderson may be armed and dangerous. Under the circumstances,

Brownlee's protective frisk of Henderson was justified.

      Affirmed.




WE CONCUR:




    1/<<>kt y . ^




      38 State v. Glossbrener, 146 Wn.2d 670, 679, 49 P.3d 128 (2002).


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