 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON
                                                  No. 70123-1-
                     Respondent
                                                  DIVISION ONE
      v.
                                                  UNPUBLISHED OPINION
T.G., DOB 3/12/97,

                     Appellant.                   FILED: June 9, 2014


       Leach, J. — T.G. appeals his juvenile court adjudication and disposition

for attempted residential burglary. He contends that the court erred in refusing to

suppress the fruits of an unlawful Terry1 stop and that an impermissibly

suggestive showup violated his right to due process. But the specific facts and

circumstances known to the police officers who detained T.G. supported a

reasonable suspicion that he was involved in a recent attempted burglary. The

record also supports the court's determination that the showup procedure was

reliable and did not create a substantial likelihood of misidentification. We affirm.




    1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
No. 70123-1-1/2




                                      FACTS


       Shortly before 9:50 a.m. on May 3, 2013, Erin Waldon heard "insistent

doorbell ringing" and pounding on the front door of her Kent home. Waldon, who

was home alone, thought her husband might have forgotten his key and walked

toward the front door. Because she noticed the doorknob turning, she looked out

the kitchen window.     There she saw two teenaged boys standing outside the

window and facing her. The window screen was gone, and one of the boys was

trying to slide open the window.

       Waldon stood about two feet from the window.        Although the window

blinds were down, the slats were turned horizontally, and Waldon had "an

unobstructed view" of the boys' faces. Upon seeing Waldon, the boys appeared

surprised, and their eyes widened. Waldon looked at the boys for "[a]t least a

good three seconds, if not longer" before they turned and ran away.

       At 9:50 a.m., Waldon called 911 and reported the incident. She described

one of the suspects, later identified as T.G., as "5'8", approximately 14-15 years

old, very thin, reddish brown hair, possibly wearing a backpack, wearing dark

clothing."   She described the other suspect, later identified as D.G., as "5'8",

approximately 14-15 years old, very thin, dark black hair, and Asian." Waldon

explained that she had described one of the boys as Asian in response to the

911 operator's suggestion of the "closest nationality." Waldon acknowledged that
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she "got a better look" at the boy with the darker hair and complexion but

maintained she had a "reasonable identifying look" at the other boy.

         Kent Police Officer John Ross arrived at Waldon's home at 9:53 a.m.

After speaking briefly with Waldon, Officer Ross left and searched the immediate

area for the suspects. Waldon thought the boys had fled in a northerly direction,

but Ross thought they might be high school students and drove south toward

Kent-Meridian High School, which was about one-third of a mile from Waldon's

house.


         At 10:03 a.m., Ross drove by a bus stop shelter near the school and saw

two teenaged boys who generally matched Waldon's description.          One of the

boys was tall and skinny with "possibly reddish hair." The other boy "had [an]

olive type of complexion that could have . .. been an Asian male description."

Both boys were wearing light-colored T-shirts and had backpacks. Ross radioed

that he had found two possible suspects.

         Ross parked his patrol car in a nearby parking lot and walked over to the

boys. Because it was raining and cold, Ross thought it unusual that both boys

were wearing only T-shirts. He also noticed that both boys had wet hair but that

their T-shirts were dry. Based on his experience, Ross suspected that they had

recently removed some clothing.




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       Ross asked the boys to move a short distance away from the other people

in the bus shelter so that he could speak with them in private. They identified

themselves as T.G. and D.G. and said they attended Kent-Meridian High School.

Ross called the school resource officer and confirmed the information. The boys

said they were on their way to school after retrieving a book that D.G. had left at

a friend's house. Ross found the explanation odd because the boys had been

standing in the bus shelter, even though the school was only a few hundred

yards away.

       Ross asked T.G. if he would "mind" opening his backpack "to make sure

there's just school stuff in there." T.G. opened his backpack, revealing a dark

jacket that was wet on one side.

       At 10:07 a.m., Officer Jason Jones arrived at Ross's location with Waldon

for a showup identification.    Before transporting Waldon, Jones read her the

standard instructions for field identification procedures:

             You'll be asked to look at the person or persons we have
       stopped. The fact that we have this person stopped and may be
       handcuffed, should not influence your judgment.

               You should not conclude or guess a person is the one who
       committed the crime. You are not obligated to identify anyone. It's
       just as important to free innocent persons from suspicion, as it is to
       identify guilty parties.

Waldon responded that she understood.
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       While sitting in the patrol car about 45 feet away, Waldon looked at T.G.

and D.G. through the front passenger window. Waldon told Jones that "they kind

of look like the boys," but she was not 100 percent sure. Waldon testified that

her view was obscured by the distance and the rain on the window and that "I

didn't want to identify someone if it wasn't the actual person that had tried to

break in."


       Without any further discussion, Officer Jones got out of the patrol car and

joined the other officers. Jones and another officer spoke with T.G. and D.G.

individually. Jones also photographed the boys.

       After about 10 minutes, Jones returned to the patrol car and planned to

transport Waldon back to her home. Waldon asked Jones if he "could bring the

boys closer, so she could get a better look." Officer Ross then brought T.G. and

D.G. to within 25 feet of the front windshield of the patrol car.         Waldon

immediately yelled, "That's them." She said that she had not gotten a good look

at the suspects' clothing, but that she would never forget their faces. Waldon

added that she was "100 percent sure."

       At 10:25 a.m.,     Officer Jones informed the other officers of the

identification. The officers then arrested T.G. and D.G.

       The State charged T.G. in juvenile court with one count of attempted

residential burglary. T.G. moved to suppress evidence seized following his initial
No. 70123-1-1/6




detention, including custodial statements. The juvenile court denied the motion,

concluding that police officers lawfully detained T.G. prior to his arrest. The court

admitted Waldon's out-of-court and in-court identifications of T.G. but excluded

certain custodial statements.    At the fact-finding hearing, Dr. Geoffrey Loftus

testified   about various   factors   that   affect the   reliability   of   eyewitness

identifications.


        The juvenile court found T.G. guilty as charged and imposed a disposition

of 5 days in juvenile detention, 15 days of electronic home monitoring, 6 months

of probation, and 16 hours of community service. T.G. appeals, challenging the

court's denial of his suppression motion

                             STANDARD OF REVIEW


        We review the trial court's decision on a motion to suppress to determine

whether substantial evidence supports the findings of fact and whether those

findings, in turn, support the conclusions of law.2       Here, the majority of the

juvenile court's findings of fact are unchallenged and are therefore verities on

appeal.3 We review challenged conclusions of law de novo.4




     2 State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
     3 See State v. Broadawav, 133 Wn.2d 118,131, 942 P.2d 363 (1997).
     4 State v. Armenta, 134Wn.2d 1,9, 948 P.2d 1280(1997).
No. 70123-1-1/7




                                    ANALYSIS


      T.G. contends that Officer Ross lacked an articulable suspicion that he

was involved in the attempted burglary and that his detention was therefore

unlawful from its inception. He further maintains that even if the initial stop was

lawful, the officers exceeded its permissible scope when they continued to detain

him after Waldon failed to identify him during the first showup.

       Consistent with the Fourth Amendment and article I, section 7 of the

Washington State Constitution, police officers may conduct an investigatory stop

if the officers have a reasonable and articulable suspicion that an individual is

involved in criminal activity.5 The necessary level of articulable suspicion is "a

substantial possibility that criminal conduct has occurred or is about to occur."6

       We review the reasonableness of the officer's suspicions by considering

the totality of the circumstances known to the officer at the time of the stop.7 The

determination of reasonable suspicion "'must be based on commonsense

judgments and inferences about human behavior.'"8

       Within 10 minutes of responding to Waldon's 911 call, Officer Ross

noticed the two teenaged boys standing in the bus shelter.         The shelter was


    5 State v. Sieler, 95 Wn.2d 43, 46, 621 P.2d 1272 (1980): see also Terry. 392
U.S. at 21.
    6 State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986).
    7 State v. Lee, 147 Wn. App. 912, 917, 199 P.3d 445 (2008).
    8 Lee, 147 Wn. App. at 912 (quoting Illinois v. Wardlow, 528 U.S. 119, 125,
120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)).
No. 70123-1-1/8




about one-third of a mile from Waldon's home and within easy walking distance.

The boys also matched several specific details of Waldon's description. T.G.

was 15 with brown hair that Officer Ross thought might be reddish, about 5'10"

tall, and skinny. D.G. was apparently somewhat shorter and, according to Ross,

had an "olive type of complexion that could have, I thought, . .. been an Asian

male description." Both boys were wearing backpacks.

       Waldon told the 911 operator that the suspects were wearing dark

clothing.   Both T.G. and D.G. were wearing light-colored T-shirts in the bus

shelter. Officer Ross noticed that both boys had wet hair, but their T-shirts were

dry, even though it was raining. Based on his experience, Ross suspected that

the boys had removed some outer clothing.

       Considered together and in light of the officer's experience, the suspects'

resemblance to the reported descriptions, the location and time of the encounter,

and the discrepancies between the weather conditions and the suspects' clothing

constituted specific and articulable facts supporting an inference that T.G. may

have been involved in the attempted burglary. The officer's decision to detain the

boys for further investigation was reasonable.




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No. 70123-1-1/9




      T.G. contends that even if the initial stop was lawful, the officers exceeded

the permissible scope of an investigatory detention. The scope of a permissible

investigatory stop necessarily depends on the specific facts of each case.9

                A lawful Terry stop is limited in scope and duration to
      fulfilling the investigative purpose of the stop. If the results of the
      initial stop dispel an officer's suspicions, then the officer must end
      the investigative stop. If, however, the officer's initial suspicions are
      confirmed or are further aroused, the scope of the stop may be
       extended and its duration may be prolonged.[10]

The investigative methods "must be the least intrusive means reasonably

available to verify or dispel the officer's suspicion in a short period of time."11

Relevant factors for determining the permissible scope of an investigatory

detention 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."12

       Here, the officers' detention of T.G. was directly related to their

investigation of an attempted burglary. Although Officer Ross moved T.G. and

D.G. away from the bus shelter to talk to them in private, he did not draw his

weapon, conduct a pat-down, handcuff them, or physically confine them during

the questioning.    The investigation was relatively brief, lasting about 20-25




    9 State v. Bray, 143 Wn. App. 148, 154, 177 P.3d 154 (2008).
    10 State v. Acrev, 148 Wn.2d 738, 747, 64 P.3d 594 (2003) (footnote
omitted).
    11 State v. Williams. 102 Wn.2d 733, 738, 689 P.2d 1065 (1984).
    12 Williams, 102 Wn.2d at 740.
No. 70123-1-1/10




minutes from the initial detention until Waldon positively identified T.G. and D.G.

during the second showup.

      Significantly, Officer Ross's suspicion was aroused almost immediately

when the boys confirmed they attended Kent-Meridian High School and claimed

they were on their way to the nearby school, even though they had been

standing in the bus shelter.   Ross also suspected that the boys had recently

changed their outer clothing because their hair was wet and their T-shirts were

dry. Ross's suspicion was reinforced when T.G. opened his backpack to reveal a

dark jacket that was wet on one side.

       Finally, contrary to T.G.'s assertion, Waldon's response to the initial

showup did not automatically require his release.         Upon seeing the suspects

initially from a greater distance, Waldon indicated a possible identification but

acknowledged that she was not positive.              Given the other circumstances,

Waldon's reaction did not necessarily dispel the officers' suspicions, and the

decision to continue the detention briefly to interview the two suspects separately

was reasonable.     That questioning lasted no more than 10 minutes before

Waldon positively identified both suspects.

       Under the circumstances, the brief detention was directly related to the

investigation of the attempted burglary and used minimally intrusive means to




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No. 70123-1-1/11




verify or dispel the officers' suspicions in a short period of time. The officers did

not exceed the permissible scope of the investigatory detention.

       T.G. contends that the discovery of the wet jacket in his backpack did not

justify his detention because the evidence fails to support the juvenile court's

finding that he voluntarily consented to the search. But T.G. failed to challenge

the search of his backpack either in his written motion to suppress or in argument

to the juvenile court.

       Generally, this court will decline to consider a suppression argument that

is raised for the first time on appeal.13 T.G.'s challenge to the voluntariness of

consent does not fall within the limited exceptions to the general rule.14 Nor does

he contend that the issue involved a manifest constitutional error warranting

review for the first time on appeal under RAP 2.5(a).

       The voluntariness of a consent to search is a highly fact-specific

determination.15 Because T.G. failed to raise the issue, the juvenile court had no

opportunity to consider all of the relevant circumstances and enter the findings of

fact necessary to permit meaningful appellate review. Accordingly, we decline to

address the issue.




    13 State v. Garbaccio, 151 Wn. App. 716, 731, 214 P.3d 168 (2009)
(declining to address alleged erroneous statement in search warrant affidavit).
    14 See State v. Robinson, 171 Wn.2d 292, 305, 253 P.3d 84 (2011).
    15 See State v. O'Neill, 148 Wn.2d 564, 588, 62 P.3d 489 (2003).


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No. 70123-1-1/12




       Moreover,        even   without   the   evidence   in   T.G.'s   backpack,   the

circumstances known to the officers, including the boys' physical appearance,

their explanation for their presence in the bus shelter, and the discrepancies

between the weather and their clothing, justified a brief extension of the initial

stop for further investigation.      Consequently, even if the juvenile court had

suppressed the contents of T.G.'s backpack, the investigatory detention did not

exceed its lawful scope.

       T.G. next contends that the showup procedures were impermissibly

suggestive, making both Waldon's initial identification and later in-court

identification unreliable and inadmissible. We disagree.

       An out-of-court identification procedure violates due process if it is so

impermissibly suggestive as to give rise to "a substantial likelihood of irreparable

misidentification."16    A defendant claiming a due process violation must first

establish that the identification procedure was "unnecessarily suggestive."17 If

the defendant satisfies this threshold burden, the court then assesses whether,

under the totality of the circumstances, the procedure was so suggestive as to

create a substantial likelihood of irreparable misidentification.18




    16 State v. Linares, 98 Wn. App. 397, 401, 989 P.2d 591 (1999).
    17 State v. Guzman-Cuellar. 47 Wn. App. 326, 335, 734 P.2d 966 (1987); see
also State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 58 (2002).
    18 Vickers, 148 Wn.2d at 118.


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No. 70123-1-1/13




       The key factor in determining admissibility is whether sufficient indicia of

reliability supported the identification despite any suggestiveness.19 In making

this determination, the court considers all relevant factors, including (1) the

opportunity of the witness to view the suspect at the time of the crime, (2) the

witness's degree of attention, (3) the accuracy of the witness's prior description of

the suspect, (4) the level of certainty demonstrated at the confrontation, and (5)

the time between the crime and the confrontation.20


       T.G. asserts that the showup was impermissibly suggestive because

officers told Waldon that they had two suspects in custody before the

identification, Waldon viewed the two suspects together, and the officers

continued their interrogation after Waldon failed initially to make a positive

identification. But showup identifications are not per se impermissibly suggestive

merely because the witness understands that the police are holding possible

suspects.21

       As the juvenile court noted, Waldon indicated her understanding of Officer

Jones's detailed admonishment that she was not obligated to identify anyone and




    19 State v. Rogers, 44 Wn. App. 510, 515-16, 722 P.2d 1349 (1986) (citing
Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140
(1977)).
    20 Linares. 98 Wn. App. at 401: Neil v. Biggers, 409 U.S. 188, 198-200, 93 S.
Ct. 375, 34 L. Ed. 2d 401 (1972).
   21 Guzman-Cuellar. 47 Wn. App. at 336 (defendant standing handcuffed and
about 15 feet from police car did not render showup unnecessarily suggestive).


                                           -13-
No. 70123-1-1/14




that the showup procedures should not influence her judgment.               Waldon

emphasized that she did not want to make a positive identification until she was

certain. Waldon paid no particular attention to Jones's actions after he left the

car. Although she saw that the officers had contact with T.G. and D.G. after

Jones left the car, that interaction was brief and noncoercive.      Nothing in the

record suggests that the officers or the circumstances of the investigation exerted

any direct or indirect pressure on Waldon to make the identification.

      The evidence also supports the court's determination that the identification

procedure was reliable despite any suggestiveness. First, Waldon was only two

feet away from the kitchen window, where the two suspects stood. The blinds

were down, but the slats were positioned horizontally, giving her a relatively

unobstructed view of both boys' faces.

      Second, although Waldon estimated she saw the suspects for only about

three seconds, an estimate that the court found credible, she was able to note

their facial expressions, relative positions, and the attempt to slide open the

window. Waldon acknowledged that she focused on the suspect later identified

as D.G., but she insisted that she also "got a reasonable identifying look" at T.G.

       Third, contrary to T.G.'s assertions, Waldon provided a reasonably

accurate description of the suspects, including their age, height, general build,

and complexion.    Waldon also observed that at least one of the boys had a




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No. 70123-1-1/15




backpack.    Although she erroneously described D.G. as Asian, she explained

that the 911 operator had suggested this as a possibility. Waldon emphasized

that she was attempting to describe the slightly darker complexion of one of the

suspects. Minor discrepancies do not negate the general accuracy of Waldon's

description or preclude admissibility of her identification.22

       Fourth, Waldon called 911 at 9:50 a.m., shortly after the boys fled. Officer

Ross contacted T.G. and D.G. at 10:03 a.m.              No more than 30-35 minutes


elapsed between Waldon's view of the boys and her identification.23

       Finally, when Waldon viewed the suspects at a closer distance through

the cleared windshield, she recognized them immediately and stated that she

was "100 percent sure."

       Viewed together, the foregoing circumstances supported the juvenile

court's determination that Waldon's identification was reliable and admissible.


       T.G.'s reliance on the testimony of Dr. Loftus is misplaced.               Loftus

identified   the   general   circumstances     and      situations   that   may   render

identifications unreliable, but he did not review or address the specific factors of

Waldon's identification. The juvenile court carefully considered his testimony and

noted that several circumstances here, including the relative safety of Waldon's


    22 See Manson, 432 U.S. at 116-17 (weight to be given identifications with
some questionable features is for the trier of fact).
    23 See Rogers, 44 Wn. App. at 516 (6-hour delay between incident and
showup was within permissible range).


                                             -15-
No. 70123-1-1/16




viewing point, the lack of direct physical contact with the suspects, and the

absence of significant post-event memory contamination, differed from those that

Loftus characterized as unreliable.     Under the circumstances, the weight to be

accorded his testimony was an issue of credibility that this court cannot review.24

       T.G. also suggests that the juvenile court failed to give proper

consideration to the cross-racial aspects of Waldon's identification.25             But

Waldon's identification of T.G. was not a cross-racial identification.      Nothing in

the record supports T.G.'s claim that Waldon's view of both suspects together in

the showup made it more "likely that the cross-racial risks of misidentifying D.G.

carried over to T.G."


       Affirmed.




WE CONCUR:




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    24 See State v. Walton. 64 Wn. App. 410, 415-16, 824 P.2d 533 (19
(appellate court defers to trier of fact on issues of conflicting testimony, credibifi
of witnesses, and the persuasiveness of the evidence).
    25 See generally State v. Allen, 176 Wn.2d 611, 294 P.3d 679 (2013).


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