IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                                                    • c..1
                                                   DIVISION ONE                   4::::,
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                        Appellant,                                                mc pi c::,
                                                   No. 77720-3-I                  =,•
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                                                   PUBLISHED OPINION                    3>  -Tort
                                                                                        cdnrn,-,
 LOUIS EARL JOHNSON JR.,                                                           x"'
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                        Respondent.                FILED: May 6, 2019                ,.....   r...,.....",•

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       DWYER, J. — Our society and the law that reflects its organizing principles
assume that citizens will trust law enforcement and believe the things that police

officers tell them. For instance, when a police officer enters a schoolhouse and

announces that an active shooter is nearby, society desires that those so

informed believe the officer and act accordingly. Similarly, when a homeowner is

awakened in the night by a police officer at the front door who announces that a

wildfire is fast approaching, society desires that the officer be believed and that

the homeowner acts accordingly. Indeed, examples of this societal desire seem

endless.

       Nevertheless, case law makes clear that a police officer, in the course of

investigating criminality, does not violate either the federal or state constitution by

lying to a potential suspect or witness. The need to sometimes do so has been

repeatedly accommodated by the courts. But when police officers do choose to

lie, they must recognize and accept the logical consequences of that decision.

       One such consequence arises in the context of constitutional seizure
No. 77720-3-1/2


analysis. This jurisprudence provides that, in a police-citizen encounter, no

seizure of the person occurs unless—objectively viewed and under the totality of

the circumstances—a reasonable person would not believe that he or she was

free to terminate the encounter or decline the officer's requests. In analyzing the

circumstances of such an encounter, a reasonable person is an innocent person.

And reasonable innocent persons may be assumed to believe the truth of that
                             _
which the police tell them.

       In this case, Louis Johnson Jr. was found to be in unlawful possession of

a firearm. Prior to that discovery, however, the police encounter with him had

reached the point where—under the totality of the circumstances and objectively

viewed—he had been seized. And, at the time of his seizure, the police lacked a

lawful basis to seize him. Thus, the trial court properly granted his motion to

suppress evidence of the gun found in his possession. We affirm.

                                          I

       Two Lynnwood police officers, Zach Yates and James George, were

engaged in a proactive patrol late at night in an area known to have a high rate of

criminal activity. The officers observed a silver vehicle enter a motel parking lot

and park in a stall. After the vehicle came to rest, about a minute and a half

passed without any person entering or leaving the vehicle. The officers became

suspicious that its occupants were using drugs.

       The officers, both of whom were armed and in uniform, approached the

vehicle on foot and stood on opposite sides adjacent to the driver's and

passenger's doors. They shined flashlights into the vehicle's interior to enable


                                         2
No. 77720-3-1/3


them to see the vehicle's occupants and ensure that neither was holding

anything that could put the officers in danger. Because the vehicle was also

flanked on both sides by cars parked in adjoining stalls, the officers had minimal

space to move. Officer Yates did not see any drugs or drug paraphernalia when

he shined his flashlight inside the passenger compartment. Inside were Johnson

and a female passenger.

       Officer Yates stood on the passenger side while Officer George stood

adjacent to the driver's door. Yates sought to start a conversation with Johnson,

who was in the driver's seat, and did so by asking, "Hey, is this Taylor's vehicle?"

In fact, there was no "Taylor"; the ruse was intended to make Johnson feel more

comfortable, in the hope that he would talk with the officer. Johnson appeared

confused by the question, and Yates asked, again, whether the vehicle was

"Taylor Smith's vehicle." In response, Johnson stated that the vehicle was his

own and that he had recently purchased it.

       Yates then asked for Johnson's name, whether Johnson had a driver's

license, and if he would mind whether the officer looked at it. When Johnson

stated that he had an identification card, both officers became suspicious that his

license might be suspended. Officer Yates received the identification card from

Johnson and used information from it to request a check of Johnson's warrant

history and license status from police dispatch. Meanwhile, Officer George, who

was leaning over the driver's side door, noticed a handgun placed between the

driver's seat and the door.

       George alerted Yates to the presence of the firearm, drew his own


                                         3
No. 77720-3-1/4


handgun, opened the driver's door and removed the weapon from Johnson's

vehicle. Subsequently, Johnson was removed from the vehicle. Meanwhile,

police dispatch informed the officers that Johnson's driver's license was

suspended in the third degree, and that he had an outstanding arrest warrant and

a felony conviction. The officers then informed Johnson that he was being

detained but not placed under arrest and advised him of his Mirandal rights.

       Eventually, Johnson was charged with unlawful possession of a firearm in

the first degree. Before trial, Johnson moved to suppress the evidence of the

gun found in his possession, contending that it was found attendant to his

unlawful seizure. After an evidentiary hearing, the trial court granted Johnson's

motion. However, the judge did not make a determination as to whether Johnson

was seized prior to the discovery and removal of the firearm, instead ruling that

the encounter was a "social contact" and that "law enforcement had an

insufficient basis to initiate a social contact." The trial court further acknowledged

that granting the motion to suppress essentially terminated the State's case. The

State appeals from the order granting Johnson's motion.



       The State challenges the trial court's ruling that the police officers had an

"insufficient basis" to initiate a social contact with Johnson. The State asserts,

correctly, that there is no constitutional requirement for police officers to have

articulable reasons for simply engaging in conversation with members of the

public. Johnson does not dispute this but, rather, insists that the encounter



       1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
                                            -4 -
No. 77720-3-1/5


became a seizure commenced without a lawful basis. He asks that we affirm the

suppression order on this ground, as we may affirm a trial court decision on any

basis supported by the evidence and the record. State v. Rafav, 167 Wn.2d 644,

655, 222 P.3d 86(2009)(citing State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d

638 (2003)). For its part, the State asserts that the encounter was a social

contact, rather than a seizure, because none of the officers' actions or

statements prior to the discovery of the firearm amounted to a show of authority

that would cause a reasonable person to feel not free to leave the scene or to

disregard the officers' requests. Johnson's analysis of the encounter is well-

taken.

                                          A

         In a constitutional sense, the term "social contact" is meaningless. The

term has been adopted by lawyers and judges to describe circumstances that do

not amount to a seizure. But it never matters whether an encounter can be

called a social contact. In seizure analysis, what matters is whether a person is

seized. If not, the inquiry ends regardless of whether the encounter can be said

to have been a social contact. If so, the requirements for a lawful seizure

apply—again without concern for any claimed "social" purpose for the "contact."

         To be sure, "social contact" discussions have entered our case law. In

such discussions, a social contact is said to rest "someplace between an officer's

saying 'hello' to a stranger on the street and, at the other end of the spectrum, an

investigative detention (i.e., Terry stop)." State v. Harrington, 167 Wn.2d 656,

664, 222 P.3d 92(2009)(citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.


                                          5
No. 77720-3-1/6


Ed. 2d 889 (1968)). "The term 'social contact' does not suggest an investigative

component." Harrington, 167 Wn.2d at 664.

       Fortunately, seizure jurisprudence is well-developed. "Article!, section 7

does not forbid social contacts between police and citizens: '[A] police officer's

conduct in engaging a defendant in conversation in a public place and asking for

identification does not, alone, raise the encounter to an investigative detention."

State v. Young, 135 Wn.2d 498, 511, 957 P.2d 681 (1998)(alteration in original)

(quoting State v. Armenta, 134 Wn.2d 1, 11, 948 P.2d 1280 (1997)). m[N]ot

every encounter between a police officer and a citizen is an intrusion requiring an

objective justification." Young, 135 Wn.2d at 511 (quoting United States v.

Mendenhall, 446 U.S. 544, 553, 100 S. Ct. 1870,64 L. Ed. 2d 497 (1980)).

Thus, "the police are permitted to engage persons in conversation and ask for

identification even in the absence of an articulable suspicion of wrongdoing."

Young, 135 Wn.2d at 511. Moreover, "[w]hile most citizens will respond to a

police request, the fact that people do so, and do so without being told they are

free not to respond, hardly eliminates the consensual nature of the response."

Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216, 104 S. Ct.

1758, 80 L. Ed. 2d 247(1984).

       A sufficient suspicion of wrongdoing, meanwhile, is required only to justify

a seizure. As stated, a social contact is simply a term for an encounter that does

not amount to a seizure.2 Thus, to determine whether such justification was


        2 Of course, an encounter that begins as other than a seizure may become a seizure.
When engaged in a totality of the circumstances analysis, a tipping point may be reached
whereby the cumulative weight of the circumstances leads from one conclusion (no seizure) to
the other (seizure). See Harrington, 167 Wn.2d at 660.
                                             -6 -
No. 77720-3-1/7


lacking in Johnson's situation, we must first determine when Johnson was

seized.

      "Whether police have seized a person is a mixed question of law and fact."

Harrington, 167 Wn.2d at 662. "The rule in Washington is that challenged

findings entered after a suppression hearing that are supported by substantial

evidence are binding, and, where the findings are unchallenged, they are verities

on appeal." State v. O'Neill, 148 Wn.2d 564, 571,62 P.3d 489 (2003).

              Under article I, section 7, a person is seized "only when, by
      means of physical force or a show of authority," his or her freedom
      of movement is restrained and a reasonable person would not have
      believed he or she is (1)free to leave, given all the circumstances,
      State v. Young, 135 Wn.2d 498, 510, 957 P.2d 681 (1998)(quoting
      State v. Stroud, 30 Wn. App. 392, 394-95, 634 P.2d 316(1981) and
      citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct.
      1870, 64 L. Ed. 2d 497 (1980)), or (2)free to otherwise decline an
      officer's request and terminate the encounter, see Florida v.
      Bostick, 501 U.S. 429, 436, 111 S. Ct. 2382, 115 L.Ed.2d 389
      (1991);[State v.] Thorn, 129 Wn.2d [347,] 352[, 917 P.2d 108
      (1996), overruled on other grounds by State v. O'Neill, 148 Wn.2d
      564]. The standard is [] "a purely objective one, looking to the
      actions of the law enforcement officer." Young, 135 Wn.2d at 501
      (emphasis added).
O'Neill, 148 Wn.2d at 574.

      "[T]he 'reasonable person' test presupposes an innocent person." Bostick,

501 U.S. at 438. "The Constitution does not require the utilization of an objective

'reasonable criminal' test." State v. Butler, 2 Wn. App. 2d 549, 556 n.1, 411 P.3d

393(2018).

       The defendant "bears the burden of proving a seizure occurred in violation

of article 1, section 7." Harrington, 167 Wn.2d at 664; accord O'Neill, 148 Wn.2d

at.574. As the United States Supreme Court has observed,


                                        7
No. 77720-3-1/8


              Our cases make it clear that a seizure does not occur simply
      because a police officer approaches an individual and asks a few
      questions. So long as a reasonable person would feel free "to
      disregard the police and go about his business," California v.
      Hodari D., 499 U.S. 621, 628[, 111 S. Ct. 1547, 113 L. Ed. 2d 690]
      (1991), the encounter is consensual and no reasonable suspicion is
      required. The encounter will not trigger Fourth Amendment scrutiny
      unless it loses its consensual nature. The Court made precisely
      this point in Terry v. Ohio, 392 U.S. [at] 19, n.16 (1968): "Obviously,
      not all personal intercourse between policemen and citizens
      involves 'seizures' of persons. Only when the officer, by means of
      physical force or show of authority, has in some way restrained the
      liberty of a citizen may we conclude that a 'seizure' has occurred."
Bostick, 501 U.S. at 434.
      Washington courts have adopted the Mendenhall test of a seizure to

analyze a disturbance of a person's private affairs under our state constitution.

            A person is "seized" within the meaning of the Fourth
            Amendment only when, by means of physical force or a
            show of authority, his freedom of movement is
            restrained. . . . There is a "seizure" when, in view of all
            the circumstances surrounding the incident, a
            reasonable person would have believed that he was not
            free to leave.

      State v. Stroud, 30 Wn. App. 392, 394-95, 634 P.2d 316 (1981)
      (footnote omitted)(citing United States v. Mendenhall, 446 U.S.
      544, 554, 100 S. Ct. 1870,64 L. Ed. 2d 497(1980), review denied,
      96 Wn.2d 1025 (1982); accord State v. Thorn, 129 Wn.2d 347, 351-
      52, 917 R2d 108 (1996).
             Washington search and seizure law stemming from Terry
       and proceeding through Mendenhall is well-established.
Young, 135 Wn.2d at 510 (alteration in original).
       In Young, our Supreme Court confirmed that Mendenhall's approach to

Fourth Amendment seizure analysis remains applicable to article I, section 7

seizure analysis.

      "Examples of circumstances that might indicate a seizure, even
      where the person did not attempt to leave, would be the threatening

                                       -8-
No. 77720-3-1/9


        presence of several officers, the display of a weapon by an officer,
        some physical touching of the person of the citizen, or the use of
        language or tone of voice indicating that compliance with the
        officer's request might be compelled. . . . In the absence of some
        such evidence, otherwise inoffensive contact between a member of
        the public and the police cannot, as a matter of law, amount to a
        seizure of that person."
Young, 135 Wn.2d at 512 (alteration in original)(quoting Mendenhall, 446 U.S. at

554-55). Our Supreme Court continues to apply the Mendenhall formulation to

state constitutional seizure analysis, see, e.g., Harrington, 167 Wn.2d at 664;

State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202(2004); O'Neill, 148 Wn.2d at

574, as do we. See, e.g., Butler, 2 Wn. App. 2d at 561; State v. Mote, 129 Wn.

App. 276, 283, 120 P.3d 596 (2005).3

        Seizure analysis under the federal and state constitutions differs in only

one pertinent respect. "In Young, Washington adopted the test for Fourth

Amendment 'seizure' in United States v. Mendenhall, as the test for seizure

analysis under Washington Constitution article I, section 7." Rankin, 151 Wn.2d

at 710 (Ireland, J., dissenting)(citations omitted). However, after Mendenhall,

the United States Supreme Court held that a seizure for purposes of the Fourth

Amendment can occur only where the subject actually yields to an officer's

physical force or show of authority. Hodari D., 499 U.S. at 626-28.

        Subsequently, our Supreme Court rejected the application of this test to

article I, section 7 seizure analysis, instead applying a purely objective standard,

Young, 135 Wn.2d at 509-11, which focuses not on whether the subject

perceived that he or she was being ordered to restrict his or her movement but,


        3 "In a challenge to the validity of a Terry stop, article 1, section 7 generally tracks the
Fourth Amendment analysis." State v. Z.U.E., 183 Wn.2d 610, 617, 352 P.3d 796 (2015).
                                                 -9-
No. 77720-3-1/10


rather, on whether the officer's words and actions would have conveyed that

meaning to a reasonable person. Young, 135 Wn.2d at 506. Thus, cases

applying Fourth Amendment seizure analysis continue to be applicable to an

article I, section 7 analysis, so long as they do not involve an application of the

Hodari D. "subjectivity" test.

       Several Washington cases applying this seizure analysis guide our

thinking. Johnson was the occupant of an automobile parked in a public place.

As such, he was constitutionally indistinguishable from a pedestrian. O'Neill, 148

Wn.2d at 579.

   In Thorn, 129 Wn.2d 347, a suspect in a parked vehicle in an otherwise

empty lot was found not to have been seized when asked an accusatory question

by a lone police officer. As described therein,

       While on routine patrol in a marked patrol car shortly after midnight,
       Spokane Police Officer K. Peden observed three people seated in a
       car that was legally parked in the parking lot of Friendship Park in
       suburban Spokane. The officer also observed a flicker of light
       emanate from within the parked car and believed that the light was
       a flame being used to ignite a drug pipe. . . .
              Officer Peden stopped, exited the patrol car, and
       approached the parked car on foot. The officer asked the driver of
       the parked car,"Where is the pipe?" . . . . In response to the
       question, the driver, James Thorn, removed a pipe from his coat
       pocket and handed it to Officer Peden.

Thorn, 129 Wn.2d at 349. Psilocybin mushrooms, a controlled substance, were

discovered in a subsequent search incident to Thorn's arrest. Thorn, 129 Wn.2d

at 349.

       On appeal, Thorn claimed that he was illegally seized when the officer

asked,"Where is the pipe?" The Supreme Court disagreed, citing Bostick and


                                        -10-
No. 77720-3-1/11


Mendenhall for the proposition that an officer does not seize a person merely by

striking up a conversation or asking questions. Thorn, 129 Wn.2d at 352.

        The court noted that the required analytical approach was to consider the

totality of the circumstances. Thorn, 129 Wn.2d at 352-53. The court concluded

that the posing of the question, in the circumstances described, did not "create[]

a coercive environment" such that Thorn was seized. Thorn, 129 Wn.2d at 354.4

        However, officers need not create a complete obstruction of an individual's

movements in order for the encounter to become a seizure. The test is whether

a reasonable person faced with similar circumstances would feel free to leave or

otherwise terminate the encounter. In this regard, an opinion from Division Two

of our court, State v. Young, 167 Wn. App. 922, 275 P.3d 1150 (2012), is

informative. In that case, two police officers exited separate patrol vehicles and

followed Young into an alley behind a building, believing that she had been

acting suspiciously. Young, 167 Wn. App. at 925-26. While Young was leaning

against a wall, the officers approached her, stood five feet away from her at 45-

degree angles, and asked for the last four digits of her Social Security number.

Young, 167 Wn. App. at 926, 928. Using this information, the officers learned

that Young had an outstanding arrest warrant. They then arrested her and, in a

search incident to the arrest, found methamphetamines. Young, 167 Wn. App. at

926-27.

        The trial court denied Young's suppression motion, reasoning that she had



        4 Thorn was decided on Fourth Amendment grounds. It did not, however, involve an
application of the Hodari D. "subjectivity" test and, therefore, retains its validity for purposes of
both state and federal constitutional analysis. Thorn, 129 Wn.2d at 351-52.
No. 77720-3-1/12


been free to leave and, thus, the encounter was not a seizure. Young, 167 Wn.

App. at 927-28. Division Two reversed, holding that the contact became a

seizure and not a consensual encounter, because "[a]ny reasonable person in

Young's position, with her back to a wall and police officers on either side of her,

would not have felt free to walk away without first answering the officers'

questions." Young, 167 Wn. App. at 931.

                                          B

       We now analyze the circumstances presented herein in light of the

foregoing discussion. Johnson was seated in a parked vehicle with a passenger

at 2:00 in the morning. Because a grass median was in front of the vehicle, the

vehicle could only have exited the stall by backing out. Two police officers

approached Johnson's vehicle, with one standing on each side of the vehicle

adjacent to the vehicle doors. Cars were parked in each of the adjoining spaces,

limiting the space available for movement. The two uniformed officers

approached the vehicle less than two minutes after it had been parked. The

officers shined flashlights inside the passenger compartment. In the substantially

full parking lot, with vehicles parked on either side of Johnson's vehicle, there

was minimal space for either officer to move. Because the officers were standing

adjacent to the vehicle's doors, neither Johnson nor his passenger would have

been able to open the doors and walk from the vehicle without the officers

moving or giving way. The testimony did not indicate whether any other people

were present in the lot.




                                       - 12-
No. 77720-3-1/13


       Officer Yates asked Johnson whether the vehicle belonged to "Taylor."

When Johnson appeared confused by this question, the officer repeated the

question, inquiring whether the vehicle belonged to "Taylor Smith." Johnson then

stated that the vehicle was his and that he had recently purchased it. In

response Officer Yates asked Johnson for his name. He then asked Johnson to

prove his identity, by requesting his driver's license.

       Although asking the question, "Is this Taylor's car?" was a ruse made for

the sake of initiating a conversation, its effect on a reasonable person in these

circumstances would be to create the impression that the police were conducting

an ongoing investigation concerning the vehicle. Indeed, Johnson manifested

confusion as a result of the question, likely because he had no reason to believe

that the question was not sincere. The repetition of the question underscored its

apparent sincerity. The further inquiries into Johnson's name, whether Johnson

had a driver's license, and whether Johnson would prove his identity by

presenting his identification document to Officer Yates further advanced the

impression that a police investigation was ongoing and that Johnson was a

suspect.

       It is so that the police do not violate either the state or federal constitutions

simply by lying to potential suspects or witnesses. Lewis v. United States, 385

U.S. 206, 208-09, 87 S. Ct. 424, 17 L. Ed. 2d 312(1966); State v. Hashman,46

Wn. App. 211, 216, 729 P.2d 651 (1986). Indeed, courts have repeatedly

accommodated the legitimate law enforcement interest in employing subterfuge

or untruths. State v. Hastings, 119 Wn.2d 229, 233, 830 P.2d 658 (1992); accord


                                        -13-
No. 77720-3-1/14


State v. Johnson, 104 Wn. App. 489, 503, 17 P.3d 3(2001). However, when the

police do choose to lie, they must accept both the benefits and the detriments of

that choice.

       We have previously noted that the police are not required to distrust

ordinary citizens, and "'[c]ourts are not required to sever the relationships that

citizens and local police forces have forged to protect their communities from

crime." State v. Lee, 147 Wn. App. 912, 919, 199 P.3d 445(2008)(alteration in

original)(quoting United States v. Christmas, 222 F.3d 141, 145 (4th Cir. 2000)).

A corollary to this principle is that ordinary citizens are not required to distrust the

police, and a reasonable innocent person is entitled to believe that he or she is

being dealt with honestly by law enforcement. In the context of constitutional

seizure jurisprudence, one consequence of a police lie is plain: whether a person

has been seized is a purely objective inquiry; an objective inquiry focuses on the

perceptions of a reasonable person; a reasonable person is an innocent person;

and reasonable innocent people can be assumed to believe that which the police

tell them.

       Taken in their totality, the circumstances existing at the moment Officer

Yates requested possession of Johnson's identification document would have

caused a reasonable innocent person to believe that ignoring the officer's

requests, terminating the encounter, or leaving the scene were not viable

options. The sudden presence of two uniformed officers so soon after the

vehicle had parked, the shining of flashlights into the vehicle, the question,

repeated, as to whether the vehicle belonged to Taylor Smith, and the request for


                                         - 14 -
No. 77720-3-1/15


the driver's name and proof of his identity would lead a reasonable innocent

person to believe that the vehicle, and by extension its driver, was the subject of

an ongoing criminal investigation.

       Johnson was not at that time in the presence of other members of the

public—the parking lot, although filled with vehicles, was not a scene of activity at

2:00 in the morning. The presence of two officers flanking the vehicle in a tight

spot affording limited movement meant that neither Johnson nor his passenger

would have been able to open a vehicle door and walk away from the vehicle

without either making physical contact with an officer or requiring the officer to

give way. Johnson also could not drive forward due to the berm. Neither could

he move his vehicle in reverse without risking his car making contact with one or

both of the officers. Indeed, such vehicle movement would likely seem—to a

reasonable innocent person under the circumstances—to constitute an

aggressive move of a type that would promote an aggressive response from the

officers. The shining of flashlights by both officers, while possibly a benign

practice by itself, would further a reasonable innocent person's impression that

the police were conducting an active investigation centering on the vehicle.

Finally, in addition to the ruse, the request for Johnson's name and for proof of

his identity would indicate to a reasonable innocent person that the officers were

unwilling to take that person at his word—either as to his statement concerning

the vehicle's ownership or as to his identity.

       A totality of the circumstances analysis is a cumulative analysis, not a

"divide-and-conquer" analysis. See United States v. Arvizu, 534 U.S. 266, 274,


                                       -15-
No. 77720-3-1/16


122 S. Ct. 744, 151 L. Ed. 2d 740 (2002); State v. Marcum, 149 Wn. App. 894,

907, 205 P.3d 969 (2009). Thus, the State's reliance on cases in which a single

circumstance was deemed insufficient to constitute a seizure—be it the use of a

flashlight in O'Neill, 148 Wn.2d at 578, the questioning of a suspect in a parked

car in Mote, 129 Wn. App. at 289, or the request for a suspect's identification in

Armenta, 134 Wn.2d at 11—is uncompelling.

        Under the totality of the circumstances then existing, the request for proof

of Johnson's identity became the tipping point at which the weight of the

circumstances transformed a simple encounter into a seizure. At that stage of

the encounter, a reasonable innocent person in Johnson's position would not

have felt free to leave the scene, to disregard the officer's requests, to ignore the

officers, or to otherwise terminate the encounter. See Young, 167 Wn. App. at

930-31. Johnson was seized at that time.5

                                               Ill


        Having determined that Johnson was seized and when he was seized, the

next question is whether the seizure of Johnson was lawful. Johnson asserts

that it was unlawful. We agree.




         5 Johnson, citing United States v. Smith, 794 F.3d 681 (7th Cir. 2015), also argues that
we should consider racial dynamics as part of the totality of the circumstances, because Johnson,
as a black man in a high-crime area, would not feel free to ignore the two white officers standing
next to his vehicle. The court in Smith ultimately found that a seizure existed based on an
objective reasonable person analysis without accounting for the defendant's race. Smith, 794
F.3d at 687-88. The standard utilized to determine whether a seizure took place is an objective
one, based on a reasonable innocent person's perceptions—not the subjective impressions of the
defendant. While we would not assert that race could never be a factor, here it is clear that the
officers had no idea as to Johnson's race when they made the decision to initiate the encounter.
                                             - 16-
No. 77720-3-1/17


       Warrantless seizures are presumed to be unlawful and the State bears the

burden of proving that a seizure falls within an exception to the warrant

requirement. Z.U.E., 183 Wn.2d at 617. The authority for a warrantless

investigative detention is derived from Terry v. Ohio, 392 U.S. at 21. State v.

Kennedy, 107 Wn.2d 1, 5-6, 726 P.2d 445 (1986). A Terry stop is justified if an

officer can articulate a reasonable suspicion that the person stopped has been or

is about to be involved in criminal activity. State v. Acrey, 148 Wn.2d 738, 746-

47,64 P.3d 594 (2003). A reasonable suspicion must "be grounded in 'specific

and articulable facts." Z.U.E., 183 Wn.2d at 617 (quoting Terry, 392 U.S. at 21).

An investigative detention cannot be predicated upon speculation or "mere

hunches." State v. Doughty, 170 Wn.2d 57, 63, 239 P.3d 573 (2010); accord

State v. Larson, 93 Wn.2d 638, 643, 611 P.2d 771 (1980); see also State v.

Fuentes, 183 Wn.2d 149, 161, 352 P.3d 152(2015)("An officer's hunch does not

justify a stop."); State v. Gatewood, 163 Wn.2d 534, 542, 182 P.3d 426(2008)

("Officers seized Gatewood to conduct a speculative criminal investigation. Our

constitution protects against such warrantless seizures and requires more for a

Terry stop."). Furthermore, under article!, section 7, the facts available to an

officer must connect the seized person to the particular crime that the officer

seeks to investigate. Z.U.E., 183 Wn.2d at 618.

       A suspicion is reasonable when it is based upon the "substantial possibility

that criminal conduct has occurred or is about to occur." Kennedy, 107 Wn.2d at

6. A reasonable suspicion analysis is based upon the totality of the

circumstances, with officers being allowed to make inferences from known facts,


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No. 77720-3-1/18


drawing on their experience and specialized training. Arvizu, 534 U.S. at 273;

State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). "[T]he determination

of reasonable suspicion must be based on commonsense judgments and

inferences about human behavior." Illinois v. Wardlow, 528 U.S. 119, 125, 120

S. Ct. 673, 145 L. Ed. 2d 570 (2000); accord Lee, 147 Wn. App. at 917. Factors

courts will look to in a totality of the circumstances analysis include, among

others, the detaining officer's experience and training, the location of the

investigatory detention, and the suspect's conduct. Glover, 116 Wn.2d at 514.

       Several opinions illustrate circumstances which were, in their totality,

insufficient to support reasonable suspicion. In State v. Richardson, 64 Wn. App.

693, 694, 825 P.2d 754 (1992), an officer was on patrol in an area known for high

drug activity. He observed one individual who, over a period of several hours,

acted in a manner suggestive of being a drug runner. This person absented

himself whenever the officer approached. Richardson, 64 Wn. App. at 694.

When the officer later saw Richardson walking with the suspected drug runner,

he pulled up next to them and exited his patrol car. Richardson, 64 Wn. App. at

694-95. In short order, he asked the two men if he could talk to them, had them

empty their pockets, and had them place their hands, along with whatever was in

their pockets, on his patrol car. Richardson, 64 Wn. App. at 695. The officer

subsequently searched Richardson's pockets and found cocaine. Richardson,

64 Wn. App. at 695.

       The Court of Appeals held that the men were seized when the officer had

them empty their pockets and place their hands on his vehicle. Richardson, 64


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Wn. App. at 696. The court then analyzed whether reasonable suspicion existed

to justify the seizure. The court observed that, based on existing case law,

neither presence in a high crime area nor mere proximity to others independently

suspected of criminal activity were sufficient to constitute reasonable suspicion.

Richardson, 64 Wn. App. at 697. It then noted that these were the only things

known to the officer at the time of the seizure. The officer had not overheard any

conversation or seen any suspicious activity taking place between the men.

Richardson, 64 Wn. App. at 697. The court concluded that the officer's suspicion

was not reasonable and the seizure was unlawful. Richardson, 64 Wn. App. at

697.

       Another opinion, State v.Doughty, 170 Wn.2d 57, is similarly informative.

Therein, police stopped Doughty's vehicle after he was observed entering and

exiting a house within a two-minute period around 3:20 a.m. Doughty, 170

Wn.2d at 59-60. The house was suspected of being a drug house based on an

informant's tip and on complaints from neighbors of short-stay traffic. Doughty,

170 Wn.2d at 60. After stopping Doughty, a records check revealed to the officer

that his driver's license was suspended. He was arrested. Doughty, 170 Wn.2d

at 60. A search incident to this arrest revealed him to be in possession of

methamphetamine. Doughty, 170 Wn.2d at 60.

       Our Supreme Court concluded that the officer's decision to detain Doughty

was based on the officer's "incomplete" observations. Doughty, 170 Wn.2d at

64. In holding that these observations were insufficient to justify seizing Doughty,

the court reasoned,


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      [P]olice never saw any of Doughty's interactions at the house. . . .
      The two-minute length of time Doughty spent at the house—albeit a
      suspected drug house—and the time of day do not justify the
      police's intrusion into his private affairs.

Doughty, 170 Wn.2d at 64.

       In the wake of Doughty, the Court of Appeals applied that opinion's

reasoning to an analogous set of facts in State v. Diluzio, 162 Wn. App. 585, 254

P.3d 218 (2011). There, an officer was on patrol in the late evening in a high

crime area known for prostitution. Diluzio, 162 Wn. App. at 589. No bus stops

existed in the area and no businesses were open at that hour, nor were any

residences nearby. Diluzio, 162 Wn. App. at 589, 593. The officer saw Diluzio's

vehicle stopping on the side of the road, where Diluzio, still in his vehicle, spoke

with a female pedestrian. Diluzio, 162 Wn. App. at 588-89. The pedestrian then

entered the vehicle. Diluzio, 162 Wn. App. at 589.

       Subsequently, the officer stopped the vehicle. After asking Diluzio for his

identification, he learned of an outstanding warrant for Diluzio's arrest. The

officer arrested Diluzio and a search incident to this arrest yielded

methamphetamine and heroin. Diluzio, 162 Wn. App. at 589. In its decision, the

appellate court noted that the officer only observed Diluzio talking with a woman

before allowing her into his vehicle—the officer did not act on any tip, overhear

any conversation, or see any money change hands. Diluzio, 162 Wn. App. at

593. The court concluded,

              Even with the officer's 13 years of experience, the location of
       the stop, and the lack of open businesses or residences, the totality
       of the circumstances do not support a conclusion of a reasonable
       suspicion of criminal activity.


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Diluzio, 162 Wn. App. at 593.

       The period of observation before Officers Yates and George chose to

approach Johnson was less than two minutes. In those two minutes, the

following was known to the officers: the immediate area—the Rodeo Inn parking

lot—was in a high crime area and Johnson parked and remained in his vehicle

for over one minute. In the officers' experience, they testified, people who

remained in parked vehicles could be using illegal drugs. This is a generalization

that amounts to nothing more than a hunch. When the officers approached the

vehicle and initiated a conversation with Johnson, they saw him seated with a

female passenger. Neither officer observed any signs of drug use. Johnson was

cooperative with Officer Yates and answered his questions. Beyond the

aforementioned hunch, the officers were aware of nothing that constituted a

reasonable, articulable suspicion of potential criminal activity.

       Thus, the seizure was unlawful. The trial court did not err in granting

Johnson's motion to suppress evidence of the subsequently discovered firearm.

       Affirmed.


We concur:




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