Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 66318-1
Title of Case: State of Washington
v.
Efrain Mendez
File Date: 01/28/99
Oral Argument Date: 09/23/98
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
Yakima County;
96-8-00460-1
Honorable Michael E. Schwab, Judge.
JUSTICES
--------
Authored by Philip A. Talmadge
Concurring: Barbara Durham
James M. Dolliver
Charles Z. Smith
Richard P. Guy
Charles W. Johnson
Barbara A. Madsen
Gerry L. Alexander
Richard B. Sanders
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Hugh M. Spall Jr.
109 E 3rd Ste 4
P O Box 831
Ellensburg, WA 98926-0831
Counsel for Respondent(s)
Lauri M. Boyd
Yakima Co Crths-Appel Div
128 N 2nd St Ste 211
Yakima, WA 98901-2631
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, ) NO. 66318-1
)
v. ) En Banc
)
EFRAIN MENDEZ, )
)
Petitioner. ) Filed January 28, 1999
)
TALMADGE, J. -- In a case where police officers had probable cause to
detain a driver of an automobile for a traffic infraction, we must decide
the scope of the officers' authority over the passengers of that
automobile. Under art. I, sec. 7 of the Washington Constitution with its
more extensive protection of private affairs than the federal constitution,
we hold an officer has the authority to order the driver of a vehicle
detained for a traffic infraction to remain in the vehicle or to leave the
vehicle in furtherance of the officers' need to control the scene of the
traffic stop. With respect to the passengers, however, an officer must
have an articulable rationale predicated upon safety considerations to
order the passengers out of the car or to remain in the car.
Under the facts of this case where the officers could articulate no
reason for ordering Mendez, a passenger, to remain in the vehicle during
the traffic stop, we hold the evidence generated from Mendez's detention
and search should have been suppressed. We reverse the judgment of the
trial court and the order denying the motion to suppress, and remand the
case to the trial court for proceedings consistent with this opinion.
ISSUE
Does Wash. Const. art. I, sec. 7 permit the police to detain a
passenger in an automobile at the scene of a traffic infraction if the
passenger wishes to depart, the police lack reasonable suspicion the person
is engaged in criminal activity, and the person poses no apparent danger to
the officer?
FACTS
On February 6, 1996, at approximately 12:50 in the afternoon, one of
two Yakima police officers in a patrol car on routine patrol observed a
vehicle fail to stop at a stop sign. The officers activated the patrol
car's overhead lights, and stopped the car that ran the stop sign. Both
officers exited the patrol car and approached the stopped vehicle. Efrain
Mendez, 16, was a passenger in the front seat of the stopped vehicle. Both
he and the driver got out of the vehicle as soon as it came to a stop. Both
officers testified Mendez then began walking away. One of the officers told
Mendez to get back into the vehicle, but Mendez turned, fumbled with his shirt
and reached inside his clothes more than once, and continued walking away.
He then ran, even after a subsequent command to return to the vehicle.
Officer Hartman chased Mendez on foot, caught him, and placed him
under arrest. Although the trial court described the chase as "brief,"
Hartman testified:
He ran south through Lions Park, and then he crossed eastbound across Fifth
Avenue, and then he went south to Tieton, and then when he went east on
Tieton towards Fourth Avenue I lost sight of him behind the credit union
building. I was about a -- I was back at Pine, so I just paralleled him
east on Pine, and picked him up again over by the trolley barns.
Report of Proceedings at 10. Upon arresting Mendez, the officer searched
him and found a pipe the officer believed was used to smoke marijuana.
The Yakima County Prosecutor charged Mendez with violation of RCW
9A.76.020(1), obstructing a public servant, alleging he did knowingly hinder,
delay, obstruct, a public servant, in the discharge of his/her official powers
and duties as a police officer, to-wit: ran from officers during a traffic stop.
Clerk's Papers at 2.1 Count II of the information charged Mendez with
possession of drug paraphernalia.
Mendez moved to suppress evidence of the marijuana pipe. The juvenile
division of the trial court combined the motion to suppress with a bench
trial on the merits on the same day. The court commissioner, the Honorable
Michael E. Schwab, denied the motion to suppress and found Mendez guilty of
both counts, concluding as a matter of law:
Efrain Mendez hindered, delayed and obstructed the officers in their
investigation of the traffic stop by running away from the scene. Mendez'
actions in reaching inside his clothing and disobeying the officer's
commands to stop were also specific, articulable facts which properly
aroused the officers' suspicion and distracted their traffic stop.
Clerk's Papers at 11. Mendez appealed his adjudication from juvenile court
and the Court of Appeals affirmed the judgment, adopting the rationale of
the United States Supreme Court in Pennsylvania v. Mimms, 434 U.S. 106, 98
S. Ct. 330, 54 L. Ed. 2d 331 (1977), and Maryland v. Wilson, 519 U.S. 408,
117 S. Ct. 882, 137 L. Ed. 2d 41 (1997), that ordering a passenger to stay
in a vehicle was a de minimis intrusion under the Fourth Amendment. Judge
Schultheis dissented, believing such an order must comply with the
standards of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968), and the order did not do so here. State v. Mendez, 88 Wn. App.
785, 947 P.2d 256 (1997). Mendez sought review by this Court, which we
granted.
ANALYSIS
We review findings of fact on a motion to suppress under the
substantial evidence standard. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d
313 (1994). Substantial evidence is evidence sufficient to persuade a fair-
minded, rational person of the truth of the finding. Id. at 644. We
review conclusions of law in an order pertaining to suppression of evidence
de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
A. FOURTH AMENDMENT ANALYSIS 2
The United States Supreme Court has developed a strong policy in its
Fourth Amendment jurisprudence conferring considerable authority upon
police officers at the scene of a traffic stop. In Pennsylvania v. Mimms,
434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977), the United States
Supreme Court approved of a police order to the driver of a car stopped for
a traffic infraction to get out of the car. Balancing the public interest
-- in this case, officer safety -- against "the individual's right to
personal security free from arbitrary interference by law officers," the
Court held the intrusion into the driver's right to privacy was "de
minimis." Not only is this not a serious intrusion on the sanctity of the
person, the Court held, but it "hardly rises to the level of a 'petty
indignity.' " Id. at 109, 111. The Mimms holding thus allows a limited
police intrusion into a person's freedom from interference in order to
preserve officer safety even in the absence of circumstances that would
justify an investigatory Terry stop. As the Ohio Supreme Court put it:
Mimms merely dispenses with the requirement that the police officer
possess reasonable suspicion of criminal activity {the Terry standard}
before the officer may order the driver out of an already lawfully stopped
vehicle. Accordingly, the ordering of defendant to get out of his car was
proper even if the officers were unable to articulate a reasonable
suspicion which prompted this action.
. . . It is so minimal and insignificant an intrusion that the Mimms
court refused to apply the requirements for an investigatory stop. Unlike
an investigatory stop, where the police officer involved "must be able to
point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion," Terry v.
Ohio (1968), 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906, a
Mimms order does not have to be justified by any constitutional quantum of
suspicion.
State v. Evans, 67 Ohio St. 3d 405, 618 N.E.2d 162, 166 (1993), cert.
denied, 510 U.S. 1166, 114 S. Ct. 1195, 127 L. Ed. 2d 544 (1994).
Just last year, the United States Supreme Court extended the Mimms
holding to include passengers as well as drivers in Maryland v. Wilson, 519
U.S. 408, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) (police officer may order
passenger of lawfully stopped vehicle to exit for safety purposes).
Numerous courts have followed Wilson.3
The State argues we should now extend Wilson and hold that after a
valid traffic stop an officer may, for the purpose of officer safety, order
a passenger to remain inside the stopped vehicle even in the absence of
factors justifying a Terry stop. Mendez correctly argues Wilson expressly
did not consider the validity of an order to remain inside a vehicle.
Wilson, 117 S. Ct. at 886 n.3. He also argues his situation was different
from Wilson because he was leaving the scene and neither did anything to
arouse suspicion nor constituted a threat to officer safety.
But we do not resolve this case on Fourth Amendment principles,
believing we should first attempt to resolve the case on the principles of
Wash. Const. art. I, sec. 7. State v. Hendrickson, 129 Wn.2d 61, 69, 917
P.2d 563 (1996); State v. Johnson, 128 Wn.2d 431, 909 P.2d 293 (1996);
State v. Young, 123 Wn.2d 173, 178-79, 867 P.2d 593 (1994).
B. ARTICLE I, sec. 7 ANALYSIS
After we granted the petition for review in this case, the State filed
a motion asking us to strike Mendez's argument regarding art. I, sec. 7
because it was not raised in the Court of Appeals. The State also asserted
that because Mendez failed to discuss the six independent state
constitutional analysis factors set forth in State v. Gunwall, 106 Wn.2d
54, 720 P.2d 808, 76 A.L.R. 4th 517 (1986), we should not reach the State
constitutional issue. We disagree. Mendez articulated the pertinent
Gunwall factors in his petition for review. We deny the State's motion
because Mendez raised the Gunwall factors, albeit late in the appellate
process, and the core issue is not new; only the application of the State
constitution to these facts is new. Given the preeminence of our State
constitution in matters of privacy, there is no valid reason why we should
not first consider art. I, sec. 7. Hendrickson, 129 Wn.2d at 70 n.1.
We have previously held the first, second, third, fifth and sixth
Gunwall criteria all lead to the conclusion art. I, sec. 7 provides greater
protection to privacy than the Fourth Amendment. Only the fourth Gunwall
factor -- preexisting state law -- needs to be addressed here. State v.
Young, 135 Wn.2d 498, 509, 957 P.2d 681 (1998).
Moreover, by analogy, we have often indicated art. I, sec. 7 provides
greater protection against warrantless searches of automobiles than the
Fourth Amendment. Hendrickson, 129 Wn.2d at 70 n.1 (and cases cited
therein).
We have addressed the specific question of whether an officer can
order a driver to leave the vehicle pursuant to a legitimate traffic stop.
We adopted the holding of Mimms in State v. Kennedy, 107 Wn.2d 1, 8, 726
P.2d 445 (1986), without extensive discussion of any art. I, sec. 7
implications. See also State v. Sykes, 27 Wn. App. 111, 116, 615 P.2d 1345
(1980); State v. Belieu, 112 Wn.2d 587, 594-95, 773 P.2d 46 (1989). No
Washington court has specifically discussed whether Mimms comports with the
greater privacy protections of art. I, sec. 7. Compare State v. Landry,
588 So. 2d 345, 346 (La. 1991) (adopting Mimms rationale for both driver
and passengers); People v. Harmelin, 176 Mich. App. 524, 440 N.W.2d 75,
(1989), aff'd, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991)
(Mimms does not offend greater privacy rights in Michigan constitution);
State v. Arthur, 149 N.J. 1, 16, 691 A.2d 808 (1997) (same for New Jersey
constitution); Commonwealth v. Rodriguez, 695 A.2d 864, 870 (Pa. Super. Ct.
1997) (same for Pennsylvania constitution), with State v. Kim, 68 Haw. 286,
711 P.2d 1291, 1294 (1985) (rejecting Mimms pursuant to Hawaii constitution
and requiring Terry stop justifications to order driver from car).
No Washington case has addressed the corollary question of whether an
officer with probable cause to detain a driver for a traffic infraction may
order a passenger to get out of the vehicle or remain in the vehicle. But
our prior cases have indicated that art. I, sec. 7 affords law enforcement
officers more limited authority over vehicle passengers. In State v.
Larson, 93 Wn.2d 638, 642, 611 P.2d 771 (1980), a case involving both the
Fourth Amendment and art. I, sec. 7, we said: "{A} stop based on a parking
violation committed by the driver does not reasonably provide an officer
with grounds to require identification of individuals in the car other than
the driver, unless other circumstances give the police independent cause to
question passengers." (Emphasis omitted.) See also State v. Broadnax, 98
Wn.2d 289, 295-96, 654 P.2d 96 (1982) (mere presence of defendant at
suspect's home being searched pursuant to search warrant did not justify
frisk of his person), abrogated on other grounds by Minnesota v. Dickerson,
508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). Except in unusual
circumstances, there will obviously be no probable cause to believe the
passenger, as well as the driver, was responsible for the traffic
infraction. No such circumstances appear in this case.
Mendez argues we should consider various traffic statutes in
determining preexisting Washington law for purposes of our Gunwall
analysis. He is correct in asserting that certain statutes provide for
significant protections to automobile drivers. See, e.g., RCW 46.64.015
(forbidding detention for issuing a traffic citation to last no more than a
reasonable amount of time). We would be oblivious to actual events,
however, were we say this is the only possible view of traffic laws. When
we interpreted RCW 46.61.021 in State v. Rife, 133 Wn.2d 140, 943 P.2d 266
(1997), to forbid warrants checks in traffic stops, the Legislature acted
with uncharacteristic dispatch in a special legislative session to amend
the statute to permit what we had deemed forbidden. Laws of 1997, Sp.
Sess., ch. 1, sec. 1. The amended statute became effective only three
weeks after we issued Rife. Demonstrably, statutes can be ephemeral and
are therefore not particularly helpful to Mendez's position. Immutable
constitutional principles provide more sturdy support.
In summary, preexisting Washington law indicates a general preference
for greater privacy for automobiles and a greater protection for passengers
than the Fourth Amendment, but Washington cases have adopted Mimms to
analyze the authority of officers to order a vehicle's driver out of the
car. Also, our statutes on traffic stops are not helpful for our Gunwall
analysis.
Our analysis under art. I, sec. 7 requires us to determine "whether
the State unreasonably intruded into the defendant's 'private affairs.' "
State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984). "The analysis
under article I, sec. 7 focuses, not on a defendant's actual or subjective
expectation of privacy but, as we have previously established, on those
privacy interests Washington citizens held in the past and are entitled to
hold in the future." State v. White, 135 Wn.2d 761, 768, 958 P.2d 982
(1998). Our task is to balance these privacy interests against concerns
for officer safety during traffic stops. Plainly, in any traffic stop,
concerns about officer safety and control of the situation are entirely
relevant. See Wilson, 117 S. Ct. at 885 (statistics detailing assaults on
officers during traffic stops). We can envision numerous factual
scenarios, only slightly different from the present case, with a high
potential for the situation spinning out of control and officer safety
being jeopardized.4
With these matters in mind, we conclude Washington's constitutional
policy of greater protection to the privacy of individuals in automobiles
than the Fourth Amendment provides must carry the day. We fashion rules
here to meet that State constitutional standard. Where the officer has
probable cause to stop a car for a traffic infraction, the officer may,
incident to such stop, take whatever steps necessary to control the scene,
including ordering the driver to stay in the vehicle or exit it, as circumstances
warrant. This is a de minimis intrusion upon the driver's privacy under art.
I, sec. 7. See Kennedy, 107 Wn.2d at 9.
However, with regard to passengers, we decline to adopt such a bright
line, categorical rule. A police officer should be able to control the
scene and ensure his or her own safety, but this must be done with due
regard to the privacy interests of the passenger, who was not stopped on
the basis of probable cause by the police. An officer must therefore be
able to articulate an objective rationale predicated specifically on safety
concerns, for officers, vehicle occupants, or other citizens, for ordering
a passenger to stay in the vehicle or to exit the vehicle to satisfy art.
I, sec. 7. This articulated objective rationale prevents groundless police
intrusions on passenger privacy. But to the extent such an objective
rationale exists, the intrusion on the passenger is de minimis in light of
the larger need to protect officers and to prevent the scene of a traffic
stop from descending into a chaotic and dangerous situation for the
officer, the vehicle occupants, and nearby citizens.
To satisfy this objective rationale, we do not mean that an officer
must meet Terry's standard of reasonable suspicion of criminal activity.
Terry must be met if the purpose of the officer's interaction with the
passenger is investigatory.
For purposes of controlling the scene of the traffic stop and to preserve
safety there, we apply the standard of an objective rationale. Factors
warranting an officer's direction to a passenger at a traffic stop may
include the following: the number of officers, the number of vehicle
occupants, the behavior of the occupants, the time of day, the location of
the stop, traffic at the scene, affected citizens, or officer knowledge of
the occupants. These factors are not meant to be exclusive; nor do we hold
that any one factor, taken alone, automatically justifies an officer's
direction to a passenger at a traffic stop. The inquiry into the presence
or absence of an objective rationale requires consideration of the
circumstances present at the scene of the traffic stop.5
C. APPLICATION OF ARTICLE I, sec. 7 TO THIS CASE
The trial court held, "The traffic stop of the Mendez vehicle
constituted a seizure of the vehicle and all of its passengers."
Conclusion of Law No. 4 (Clerk's Papers at 11). Mendez assigned error to
this conclusion of law, Br. of Appellant at 1, but then presented no
argument directly on this point. Mendez did argue he was entitled to walk
away from the vehicle after it was stopped, Br. of Appellant at 10, but did
not explain why he should have been able to do so after being seized, as
the trial court concluded he had been by the traffic stop. In any event,
the trial court's conclusion Mendez was seized by the traffic stop is
clearly wrong.
"{W}henever a police officer accosts an individual and restrains his
freedom to walk away, he has 'seized' that person." Terry v. Ohio, 392
U.S. 1,16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). We recently affirmed
the following rule stemming from Terry: " '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. 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) (footnote omitted))
(citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64
L. Ed. 2d 497 (1980).
Stopping the car in which Mendez was a passenger did not effect a
seizure of Mendez or the other passengers. While the operator of a vehicle
is seized when a police authority signals the operator to stop after a
traffic infraction, the privacy rights of passengers in that stopped
vehicle are not diminished by the stop. "There is probable cause to
believe that the driver has committed a minor vehicular offense, but there
is no such reason to stop or detain the passengers." Maryland v. Wilson,
519 U.S. 408, 117 S. Ct. 882, 886, 137 L. Ed. 2d 41 (1997).
The police did seize Mendez, but not by stopping the vehicle. Mendez
exited the stopped car and began immediately walking away before Officer
Hensley ordered him to stay in or return to the car. Officer Hartman
testified, "We had barely even time to stop our car, and two people were
out of the car." Report of Proceedings at 31. Thus, the seizure of Mendez
occurred when Officer Hensley first uttered the command for him to get back
into the car. As soon as Hensley gave the command, Mendez was no longer
free to leave; he was seized.
To justify a Terry stop under the Fourth Amendment and art. I, sec. 7,
a police officer must be able to "point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably
warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968); State v. Armenta, 134 Wn.2d 1, 20, 948 P.2d 1280
(1997). The level of articulable suspicion necessary to support an
investigative detention is "a substantial possibility that criminal conduct
has occurred or is about to occur." State v. Kennedy, 107 Wn.2d 1, 6, 726
P.2d 445 (1986). Probable cause is not required for a Terry stop because a
stop is significantly less intrusive than an arrest. Id.; Brown v. Texas,
443 U.S. 47, 50, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979) (same).
The trial court concluded there was substantial evidence to justify a
Terry stop:
Efrain Mendez hindered, delayed and obstructed the officers in their
investigation of the traffic stop by running away from the scene. Mendez'
actions in reaching inside his clothing and disobeying the officer's
commands to stop were also specific, articulable facts which properly
aroused the officers' suspicion and distracted their traffic stop.
Clerk's Papers at 11. Flight from officers where the officers have grounds
for a Terry stop and a refusal to halt at their order may constitute
obstruction of a public servant under former RCW 9A.76.020. State v.
Little, 116 Wn.2d 488, 496, 806 P.2d 749 (1991) (Seattle police had
agreement with public housing agency management to investigate trespassers
on grounds of public housing complex; complex had reported chronic trespass
problem and officers received report of juveniles loitering on complex
premises; juvenile properly convicted of obstruction when he fled after
uniformed officer identified himself and sought to stop juvenile pursuant
to Terry). See also State v. Graham, 130 Wn.2d 711, 927 P.2d 227 (1996)
(flight from police officers acting as a private security may be
obstruction of a public servant). But flight alone may not be enough to
justify a Terry stop.6
We hold the trial court erred in finding the stop of Mendez satisfied
Terry. We further hold the officers did not meet the objective rationale
test under art. I, sec. 7 we have articulated in this case that would allow
them to order Mendez back into the vehicle. Officer Hartman testified he
had no suspicions Mendez had engaged or was about to engage in criminal
conduct. Neither officer testified that Mendez's actions in reaching
inside his clothing aroused any suspicion. Besides, Mendez did not reach
inside his clothing until after he had been seized by Officer Hensley's
command to return to the car. "Obviously, once an individual is 'seized,'
no subsequent events or circumstances can retroactively justify the
'seizure.' " State v. Stinnett, 104 Nev. 398, 760 P.2d 124, 126 (1988).
Substantial evidence is lacking to support the conclusion Mendez
hindered, delayed, or obstructed the officers. Officer Hartman was rather
vague when asked about the basis for the decision to order Mendez back into
the vehicle:
Well, I felt he was putting us both at risk. I've had previous experiences
where people that have run from cars, there's been guns found in cars,
people have had warrants. And what we wanted to do was contact the driver.
And I felt he put us at unnecessary risk by running, putting us in that
situation.
Report of Proceedings at 30. Officer Hensley was clearer in positively
denying Mendez posed any risk by running, but he, too, could not justify
the order to require Mendez to stay in the car:
The only thing that would maybe be a hindrance would be, I was also
listening on the portable radio to Officer Hartman while he was in foot
pursuit, to see if he had apprehended -- which direction of travel he was
going, if anyone was coming to help him. So, maybe my attention wasn't
fully focused on the driver as it should have been. Or the other occupants
of the vehicle. . . .
Q. {by Mendez on cross-examination} Had Officer Hartman not given chase,
and specifically had the respondent simply walked away and kept on walking,
and Officer Hartman had stayed with you, can you describe in what way you
would have been hindered in going through the process that you described
with the driver? . . .
A. I don't know that I would have -- if -- I don't know that there would
have been any hindrance.
Report of Proceedings at 52. The officers' testimony does not provide
substantial evidence to support the trial court's conclusion that "Efrain
Mendez hindered, delayed and obstructed the officers in their investigation
of the traffic stop by running away from the scene" because they could not
articulate a reason for requiring Mendez to stay in the vehicle under the
limited standard we set forth here for traffic stop scenes or the standard
of Terry.
But, even after observing "there is no evidence in this record that
{Mendez} posed any real danger to the police," the Court of Appeals
concluded the police constitutionally ordered Mendez to return to the car,
holding "the benefit of increased police protection outweighs the intrusion
to passengers." Mendez, 88 Wn. App. at 792. We disagree.
The situation may well have been different had Mendez remained
standing by the passenger side door, had he behaved in any way the police
viewed as threatening or potentially dangerous, or had the scene at the
traffic stop required him to stay in the vehicle. But Mendez was already
walking away when he was told to stop. The officers were present in this
instance in broad daylight in Yakima. No specific safety concerns were
present at the scene. They had control of the situation as the driver
remained where he was directed. The other passengers remained in the
vehicle. Mendez had not committed a crime. Without more, and in view of
the officers' testimony that Mendez did not do anything to make them
fearful for their safety except run away, we cannot conclude, as the Court
of Appeals did, that "increased police protection" justified the seizure
and subsequent arrest of Mendez. The officers, the trial court, and the
Court of Appeals were unable to articulate an objective safety rationale
under art. I, sec. 7 of the officers ordering Mendez back into the vehicle
or a basis for a Terry stop.
CONCLUSION
Mendez was a passenger in a vehicle involved in a legitimate traffic
stop. After a police cruiser had made the vehicle stop for investigation
of a traffic infraction, Mendez exited and began walking away. The police
ordered him to stop. Mendez kept walking and eventually began running
away. The police caught him, searched him incident to the arrest, and
found a marijuana pipe.
The police were unable to articulate facts that reasonably suggested a
problematic situation at the scene of the traffic stop that warranted
stopping Mendez from leaving. Neither officer expressed concerns for their
safety from the fleeing Mendez. The police had no probable cause to
suspect Mendez of having committed a crime or any expectation he was about
to commit a crime.
The trial court should have suppressed the evidence of the marijuana
pipe the police found on Mendez in the search incident to his arrest
because the arrest was unconstitutional under art. I, sec. 7. We reverse
the judgment against Mendez and the order denying suppression of the
evidence, and remand the case to the trial court for proceedings consistent
with this opinion.
WE CONCUR:
FOOTNOTES
1 The statute provides, "(1) A person is guilty of obstructing a law
enforcement officer if the person willfully hinders, delays, or obstructs
any law enforcement officer in the discharge of his or her official powers
or duties."
2 We note at the outset this case is distinguishable from three other
cases we heard this term, State v. Parker, No. 66147-2; State v. Jines, No.
66522-2; and State v. Hunnel, No. 66523-1. In those cases, officers had
lawfully arrested an occupant of a vehicle. Safety concerns and concerns
for the destruction or hiding of evidence are different when an arrest has
occurred as compared to the present situation, a noncriminal traffic stop.
See Knowles v. Iowa, No. 97-7597, 1998 WL 840933, *3 (U.S. Dec. 8, 1998)
(same). The driver of the vehicle in which Mendez was a passenger was
stopped for running a stop sign. Such an infraction is not a criminal
offense. RCW 46.63.020; City of Bremerton v. Spears, 134 Wn.2d 141, 151,
949 P.2d 347 (1998) (Legislature has decriminalized many minor traffic
offenses, citing RCW 46.63.020).
3 See, e.g., United States. v. Coleman, 148 F.3d 897 (8th Cir.), cert.
denied, 119 S. Ct. 228 (1998); People v. Gonzalez, 294 Ill. App. 3d 205,
689 N.E.2d 1187, 1191, 228 Ill. Dec. 766, appeal allowed, 177 Ill. 2d 576,
698 N.E.2d 545, 232 Ill. Dec. 454 (1998); People v. Robinson, 74 N.Y.2d
773, 543 N.E.2d 733, 733-34, cert. denied, 493 U.S. 966, 110 S. Ct. 411,
107 L. Ed. 2d 376 (1989); State v. Shepard, 955 P.2d 352, 356 (Utah Ct.
App. 1998); Harris v. Commonwealth, 27 Va. App. 554, 500 S.E.2d 257 (1998).
But see State v. Morton, 151 Or. App. 734, 951 P.2d 179 (1997) (officer may
not ask passenger to leave stopped vehicle if officer has no safety
concerns).
4 Instead of a daylight stop in downtown Yakima of the car by two
officers, a stop of a car at night in a more isolated location would be
more menacing to a lone officer if all four passengers exited the vehicle
on his approach. Moreover, additional factors comprising the totality of
the circumstances, such as the time of day, location, that the officers
might have been responding to call for help in the neighborhood all might
be factors added to running away that might justify a Terry stop.
"{D}eliberately furtive actions and flight at the approach of strangers or
law officers are strong indicia of mens rea, and when coupled with specific
knowledge on the part of the officer relating the suspect to the evidence
of crime, they are proper factors to be considered in the decision to make
an arrest." Sibron v. New York, 392 U.S. 40, 66-67, 88 S. Ct. 1889, 20 L.
Ed. 2d 917 (1968). See also State v. Little, 116 Wn.2d 488, 806 P.2d 749
(1991); State v. Graham, 130 Wn.2d 711, 927 P.2d 227 (1996).
5 The New Jersey Supreme Court had adopted a similar rule for ordering
passengers to exit a stopped vehicle. Relying on the reasoning in Mimms,
the court in State v. Smith, 134 N.J. 599, 637 A.2d 158, 167 (1994), said:
To support an order to a passenger to alight from a vehicle stopped
for a traffic violation, therefore, the officer need not point to specific
facts that occupants are "armed and dangerous." Rather, the officer need
only point to some fact or facts in the totality of the circumstances that
would create in a police officer a heightened awareness of danger that
would warrant an objectively reasonable officer in securing the scene in a
more effective manner by ordering the passenger to alight from the car.
An application of this rule appears in a subsequent New Jersey case, State
v. Smith, 306 N.J. Super. 370, 703 A.2d 954 (1997). There, two troopers
stopped a vehicle they observed veering across lanes at least six times
within a mile. One trooper approached the car from the passenger side and
observed a plastic bag protruding from the passenger's right front pocket
that appeared to contain marijuana. He also smelled alcohol in the car.
The other trooper ordered the driver out of the car and ordered the
passenger to keep his hands on the dashboard. Despite that order, one
trooper observed the passenger move his hands from the dashboard and out of
sight. The trooper immediately went to the passenger side of the car and
observed two packages wrapped in duct tape between the passenger's legs.
Suspecting cocaine, the troopers arrested both passenger and driver.
Citing the earlier Smith case, the court held the order for the passenger
to keep his hands on the dashboard was "a valid measure to protect the
trooper's safety, especially in light of his strong suspicion of narcotics
in the car." Smith, 703 A.2d at 959. This case illustrates the necessity
for an objective rationale before an officer may intrude on the privacy
interests of a passenger in a vehicle stopped for a noncriminal traffic
violation.
6 Although "{f}light is an element of probable cause," State v.
Baxter, 68 Wn.2d 416, 421-22, 413 P.2d 638 (1966), "a suspect's leaving at
the time that a police cruiser arrives does not necessarily lead to the
conclusion that it is reasonable to suspect that person of a crime." State
v. Larson, 93 Wn.2d 638, 645, 611 P.2d 771 (1980). See State v. Thompson,
93 Wn.2d 838, 841, 613 P.2d 525 (1980) (hurried walking away without even
looking back not enough to create reasonable suspicion of criminal
conduct); State v. Walker, 66 Wn. App. 622, 629, 834 P.2d 41 (1992)
("flight alone" not enough to justify Terry stop).