Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       No.  66107-8-I
                                            )
                       Respondent,          )       DIVISION ONE
                                            )
                      v.                    )
                                            )       UNPUBLISHED OPINION
M.P.,                                       )
DOB 06/12/94,                               )
                                            ) 
                         Appellant.         )       FILED:  March 19, 2012

       Schindler, J.  --  M.P. appeals his juvenile adjudication of harassment in violation of 

RCW 9A.46.020.  M.P. argues that because the police lacked reasonable suspicion to 
conduct a Terry1 stop to investigate an attempted vehicle prowl, the threat he made to kill

the police officer should have been suppressed.  The State concedes that the record does 

not support the conclusion that the officer had a reasonable, articulable suspicion to 

conduct a Terry stop.  But the State asserts that because the unchallenged findings show

the threat was distinguishable from the initial police illegality, the exclusionary rule does 

not require suppression of the threat.  We agree and affirm.

                                             FACTS

       The facts are undisputed.  At approximately 8:15 p.m. on November 8, 2009, 

Seattle Police Officer David Ellithorpe responded to the report of an attempted car prowl 

in the area of the 6800 block of Holly Park Drive South.  The suspects were described as

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

No.  66107-8-I/2

two black male teenagers dressed in dark clothing, who were last seen running south 

toward the basketball courts at John C. Little, Sr. Park.  When Officer Ellithorpe arrived 

approximately 15 minutes later, he saw two young black teenagers wearing dark clothing 

sitting on a park bench next to the basketball courts.  Officer Ellithorpe talked to one of the 

teenagers, later identified as M.P., while another officer talked to the other teenager.  

Officer Ellithorpe told M.P. that they were investigating a car prowl and asked whether he 

lived in the area.  M.P. "became very hostile and accused Officer Ellithorpe of racial

profiling."  

       Because M.P. was "verbally abusive and aggressive towards Officer Ellithorpe," the 

officer "patted [M.P.] down for the officer's safety," and placed him in the back of the patrol 

car.  After confirming that M.P. had no outstanding warrants, Officer Ellithorpe walked 

back to the park bench with M.P. and told him and the other teenager, "[Y]ou're free to 

leave but you don't live in the area.  My advice is to go, go home."  

       M.P. and the other teenager walked away, heading eastbound through the park.  

When M.P. was approximately 10 to 15 feet away, he turned around and told Officer 

Ellithorpe, "I'm gonna bust on you!" Based on his experience, Officer Ellithorpe

understood this statement to mean that M.P. "was going to shoot him." Officer Ellithorpe

said that based on M.P.'s "hostile and aggressive" behavior toward him, he took the threat 

seriously.

       The State charged M.P. as a juvenile with harassment.  The defense filed a CrR 

3.5 motion to suppress statements that M.P. made but did not file a CrR 3.6 motion to

suppress.  At the beginning of the adjudication, the defense agreed that a separate 

hearing was not necessary and the court could consider the CrR 3.5 motion as part of the 

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No.  66107-8-I/3

fact-finding hearing.  The only two witnesses who testified at the hearing were Officer 

Ellithorpe and M.P.

       Following Officer Ellithorpe's testimony, the defense made a "[CrR] 3.6 motion to 

dismiss" on the grounds that the investigative stop was not justified.  The defense argued 

that it was not reasonable for Officer Ellithorpe to suspect M.P. and the other young black 
teenager were involved in the attempted car prowl2 based on the "generic description" of 

two young black teenagers in dark clothing. 

       The court denied the motion, ruling that Officer Ellithorpe had a reasonable basis 

to conduct a Terry stop. The court found Officer Ellithorpe's testimony credible but 

rejected M.P.'s testimony as not credible.  The court concluded M.P. was guilty of 

harassment.

                                           DECISION

       On appeal, M.P. claims that the threat he made to Officer Ellithorpe must be 

suppressed because he made the statement "during" an unlawful investigatory Terry stop.  

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

the findings are supported by substantial evidence and whether those findings, in turn, 

support the conclusions of law.  State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003); 

State v. Broadaway, 133 Wn.2d 118, 130-31, 942 P.2d 363 (1997).  Where, as here, the 

findings are not challenged, the findings of fact are verities on appeal.  O'Neill, 148 Wn.2d 

at 571; Broadaway, 133 Wn.2d at 131.  We review conclusions of law de novo.  State v. 

Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).

       2 RCW 9A.52.100 defines the gross misdemeanor of "vehicle prowling" as entering a vehicle, other 
than a motor home or boat with a cabin, with intent to commit a crime.  An attempt to commit a gross 
misdemeanor is a misdemeanor.  RCW 9A.28.020(3)(e). 

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No.  66107-8-I/4

       The Fourth Amendment of the United States Constitution and article I, section 7 of 

the Washington State Constitution prohibit unreasonable searches and seizures.  Terry v. 

Ohio, 392 U.S. 1, 30-31, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Day, 161 Wn.2d 

889, 893, 168 P.3d 1265 (2007).  As a general rule, a warrantless seizure is per se 

unreasonable and the State bears the burden of demonstrating the applicability of a 

recognized exception. Day, 161 Wn.2d at 893-94. 

       A Terry stop is justified if the officer can point to specific and articulable facts

which, together with rational inferences from those facts, reasonably warrant the intrusion.  

Terry, 392 U.S. at 21; State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003).  Evidence 

is inadmissible as "fruit of the poisonous tree" where it has been obtained by exploitation 

of an officer's illegal conduct.  Wong Sun v. U.S., 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 

L. Ed. 2d 441 (1963).  "If the initial stop was unlawful, the subsequent search and fruits of 

that search are inadmissible."  State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986) 

(citing Wong Sun, 371 U.S. at 471).  

       Here, the State concedes that because the record is insufficient to determine 

whether Officer Ellithorpe had a reasonable, articulable suspicion to believe M.P. was 

involved in criminal activity, the Terry stop was not justified.  However, the State contends

that because the threat M.P. made to Officer Ellithorpe was unrelated to the illegality, it

should not be suppressed as fruit of the unlawful investigatory stop.

       Without citation to authority, M.P. argues the statement must be suppressed 

because "[h]e would not have made the statements if not for the unlawful stop." But as 

the State points out, "[t]here is no simplistic 'but for' analysis that applies in this area of 

the law," and the exclusionary rule does not require suppression of "evidence which is a 

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No.  66107-8-I/5

result of allegedly wilful acts of misconduct" unrelated to " 'exploitation' of the primary 

illegality."  State v. Mierz, 127 Wn.2d 460, 474, 901 P.2d 286 (1995)3 (quoting

Commonwealth v. Saia, 372 Mass. 53, 58, 360 N.E. 329 (1977). In Mierz, our supreme 

court held that the exclusionary rule did not preclude the admission of evidence of an 

assault against an officer because "the evidence of the assault did not arise due to 

exploitation of any unconstitutional entry or arrest."  Mierz, 127 Wn.2d at 475. 

       Here, contrary to M.P.'s unsupported claim that he made the statement "during" the 

stop, the investigatory stop was complete when M.P. threatened to kill Officer Ellithorpe.  

The unchallenged findings establish M.P. did not make his threatening statement until 

after Officer Ellithorpe told the two teenagers that they were free to leave and they began 

to walk away.  The court's findings establish that "[a]fter a brief investigation, Officer 

Ellithorpe told the respondent he was free to leave." After "[M.P.] started to walk away 

with the other male and continued to accuse Officer Ellithorpe of racial profiling[, h]e then 

turned around and yelled 'I'm gonna bust on you!' at Officer Ellithorpe."  The threat M.P.

made to Officer Ellithorpe as he was walking away was " 'sufficiently distinguishable' "

from any police illegality " 'to be purged of the primary taint.' "  Wong Sun, 371 U.S. at 488

(quoting John MacArthur Maguire, Evidence of Guilt:  Restrictions Upon Its Discovery or 

Compulsory Disclosure 221 (1959)).  The exclusionary rule does not require suppression 

of M.P.'s threat to kill Officer Ellithorpe, and we affirm.

       3 (Internal quotation marks omitted.)

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No.  66107-8-I/6

WE CONCUR:

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