109 Wn. App. 1, STATE v. BAILEY[No. 43866-2-I. Division One. June 5, 2000.]

The State of Washington, Respondent, v. Christopher Maurice Bailey, Appellant.

[1] Criminal Law - Evidence - Suppression - Findings of Fact - Failure To Assign Error - Effect. Findings of fact entered by a trial court following an evidence suppression hearing are verities before a reviewing court if no error is assigned to them.

[2] Arrest - Detention for Questioning - Validity - Test. An investigative stop is reasonable and constitutionally permissible if the stop is justified at its inception and reasonably related in scope to the circumstances that justified the interference in the first place.

[3] Arrest - Seizure - Warrantless Seizure - Validity - Test. A police officer's warrantless seizure of a person is reasonable and constitutionally permissible if the officer can point to specific and articulable facts giving rise to a reasonable suspicion that the person stopped is or is about to be engaged in criminal activity. The reasonableness of the officer's suspicion is determined by the totality of the circumstances known to the officer at the inception of the stop.

[4] Intoxicating Liquors - Arrest - Detention for Questioning - Articulable Suspicion - Liquor Violation - Factors. A police officer has sufficient justification to stop a person to investigate a suspected liquor violation where the person is seated on the ground in a public place, liquor bottles are sitting by the person's feet, and at least one of the bottles still contains liquor,

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regardless of whether the bottles actually belong to the person.

[5] Arrest - Detention for Questioning - Scope and Degree of Intrusion - Reasonableness. A police officer's interference with the freedom of a person stopped by the officer for investigative purposes must be reasonably related in scope to the circumstances that justified the interference in the first place.

[6] Searches and Seizures - Stop and Frisk - Protective Search or Seizure - Reasonable Safety Concern - In General. A person stopped by a police officer for investigative purposes may be subjected to a protective frisk for weapons if there exists a reasonable safety concern for doing so. The scope of the frisk must be limited to the protective purpose. A reasonable safety concern exists if the officer can point to specific and articulable facts that create an objectively reasonable belief that the person is armed and presently dangerous. The officer need not be absolutely certain that the person is armed; the test is whether a reasonably prudent person in the circumstances would be warranted in the belief that someone's safety is in danger. Courts are reluctant to substitute their judgment for that of police officers in the field; all that is necessary is a founded suspicion from which the court can determine that the search was not arbitrary and harassing.

[7] Searches and Seizures - Stop and Frisk - Protective Search or Seizure - Scope - Detecting Weapons. A valid weapons frisk conducted by a police officer pursuant to an investigatory stop is justified if its scope is limited to a patdown search of the outer clothing to discover weapons that might be used to assault the officer.

Eric J. Nielsen (of Nielsen, Broman & Associates, P.L.L.C.), for appellant.

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Norm Maleng, Prosecuting Attorney, and Erin E. Ehlert, Deputy, for respondent.

Grosse, J. - A Terry1 stop for further investigation of a liquor violation is permissible where the suspect is seated on the ground in a public place, liquor bottles are sitting by his feet, and at least one is wrapped in a brown paper bag. The police officers were also entitled to make a pat-down search for weapons. Accordingly, we affirm.

FACTS

Two Seattle police officers were on an emphasis patrol for crime. They observed four individuals at the edge of a public school parking lot near a public playground and basketball courts. The officers observed two liquor bottles next to Bailey. Suspecting a liquor violation, they approached him, did a protective frisk for weapons, and discovered a semiautomatic handgun in his possession. Bailey was arrested and charged with unlawful possession of a firearm in the first degree. At a pretrial hearing Bailey sought to suppress the weapon as the fruit of an illegal search. The motion was denied. Bailey was found guilty after a jury trial.

DISCUSSION

[1] This court reviews only those facts to which error has been assigned, and even challenged facts are binding on appeal where there is substantial evidence to support them.2 Here the findings of fact were not challenged and are

1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

2 State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). It should be noted that Hill effectively overruled a line of cases in Washington which held the appellate court will undertake an independent evaluation of the evidence when fundamental

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verities on appeal.

[2] "'"As a general rule, warrantless searches and seizures are per se unreasonable."'"3 One exception to the warrant requirement is a Terry investigative stop.4 Investigative stops are permissible only if (1) "'the officer's action was justified at its inception,'" and (2) "'it was reasonably related in scope to the circumstances which justified the interference in the first place.'"5

[3] "A seizure is reasonable if the [officer] can point to 'specific and articulable facts giving rise to a reasonable suspicion that the person stopped is, or is about to be, engaged in criminal activity.'"6 The reasonableness of the officer's suspicion is determined by the totality of the circumstances known to the officer at the inception of the stop.7

[4] Here the officers observed Bailey sitting on the ground at a school parking lot, near a public playfield and public basketball courts. The officers observed liquor bottles near Bailey, at least one of which still contained liquor. These articulable facts gave rise to a reasonable suspicion that Bailey was engaged in a liquor violation. The investigative stop was therefore justified, regardless of whether or not the bottles actually belonged to Bailey.

[5-7] Interference with a suspect's freedom must also be reasonably related in scope to those circumstances which

constitutional rights are involved. Hill, 123 Wn.2d at 645-47. Cf. State v. Gleason, 70 Wn. App. 13, 16, 851 P.2d 731 (1993); State v. Walker, 66 Wn. App. 622, 625-26, 834 P.2d 41 (1992); State v. Rowe, 63 Wn. App. 750, 753, 822 P.2d 290 (1991); State v. Mennegar, 114 Wn.2d 304, 309-10, 787 P.2d 1347 (1990).

3 State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999) (quoting State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996) (quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980))).

4 Ladson, 138 Wn.2d at 349; Hendrickson, 129 Wn.2d at 71.

5 Ladson, 138 Wn.2d at 350 (quoting Terry, 392 U.S. at 20).

6 State v. Armenta, 134 Wn.2d 1, 10, 948 P.2d 1280 (1997) (quoting Gleason, 70 Wn. App. at 17 (citing Terry, 392 U.S. at 21-22)).

7 State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991) (citing United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981)).

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justified the interference in the first place.8 "[A] reasonable safety concern must exist to justify a protective frisk for weapons, and . . . the scope of the frisk must be limited to the protective purpose."9

A reasonable safety concern exists "when an officer can point to 'specific and articulable facts' which create an objectively reasonable belief that a suspect is 'armed and presently dangerous.'"10 "'The officer need not be absolutely certain that the individual is armed[.]'"11 The test is whether a reasonably prudent person in those circumstances would be warranted in the belief that someone's safety was in danger.12

Courts are reluctant to substitute their judgment for that of police officers in the field, and a founded suspicion from which the court can determine that the search was not arbitrary and harassing is all that is necessary.13 A valid weapons frisk pursuant to a Terry stop is justified if its scope is limited to a pat-down search of the outer clothing to discover weapons that might be used to assault the officer.14

Here the officers were in an area where they were outnumbered. Even if the suspects had no connection to the liquor bottles, those bottles were handy to the suspects and could have been used as weapons. Therefore, the search for weapons did not violate the scope of the stop.

The officers complied with the law. Their search consisted of a pat-down of Bailey's exterior, with the officer checking

8 State v. Williams, 102 Wn.2d 733, 739, 689 P.2d 1065 (1984).

9 State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993).

10 Collins, 121 Wn.2d at 173 (quoting Terry, 392 U.S. at 21-24).

11 Collins, 121 Wn.2d at 173 (quoting Terry, 392 U.S. at 27).

12 Collins, 121 Wn.2d at 173 (citing Terry, 392 U.S. at 27); State v. Sweet, 44 Wn. App. 226, 233-34, 721 P.2d 560 (1986) (citing Terry, 392 U.S. at 27).

13 State v. Belieu, 112 Wn.2d 587, 601-02, 773 P.2d 46 (1989); Collins, 121 Wn.2d at 173-74.

14 State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994).

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in his pocket only after he felt the bulk of the gun and its protruding handle.

The decision of the trial court is affirmed.

Agid, C.J., and Cox, J., concur.