Opinion
No. 63821-1-I.
January 4, 2010.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-1-05930-1, Thomas P. Larkin, J., entered April 18, 2008.
Affirmed by unpublished opinion per Becker, J., concurred in by Dwyer, A.C.J., and Appelwick, J.
Police found appellant Ronald Gunderson in tidal mud early one morning, removing a motor from a boat they suspected was not his. They arrested and handcuffed him and ordered him to lie down in the mud. Their suspicion was enough to justify detaining him for investigative purposes, but not for arresting him. Because the severity of the detention exceeded the permissible scope of an investigative stop, the trial court should have granted Gunderson's motion to suppress. But in light of overwhelming untainted evidence of his guilt, the error was harmless. We affirm.
According to unchallenged findings of fact entered by the trial court upon Gunderson's motion to suppress, Pierce County Sheriff's Deputies Lincoln Hales and David Plummer responded to a 911 call of burglary in progress just before 4:00 a.m. on July 6, 2007. The call was from Peter Wooding, who met the officers when they arrived. Wooding directed their attention to his neighbor's vacant house. The house had a "for sale" sign in front of it. The officers could see the moonlit silhouette of a person, later identified as Ronald Gunderson, on the beach in front of the house. He was standing at the stern end of a boat in the low tide mud some 50 to 75 yards away. They could hear a metallic clanging sound. It appeared that Gunderson was doing something with the outboard motor.
The officers moved to surround Gunderson so as to prevent him from fleeing. As they closed in, they could see that he was unfastening the motor mount bolts. The officers announced their presence and told Gunderson not to move. He dropped the wrench and was taken into custody. They searched him and located another wrench and screwdriver in his pocket and a flashlight on his belt. After searching Gunderson, Deputy Hales read him his rights.
Gunderson said he understood his rights and he agreed to speak with the deputy. He said he was working on the boat for a friend and fixing the motor. Asked why he was working on a complex piece of machinery in the dark, Gunderson said the motor had overheated and needed to be fixed right away. The officers noted that the motor was cool to the touch. Gunderson could not remember the name of his friend nor did he know what type of motor he was working on. Confronted with the difficulties in his story, Gunderson changed it and said that he had been digging for clams and the boat died. The officers could see no evidence of clamming equipment or activity.
The officers found the registration for the boat and learned it belonged to a Jeff Rankin. They contacted Rankin and learned the boat had been stolen from his dock sometime during the night. They also found an inflatable dinghy 50 yards up the beach.
The State charged Gunderson with first degree theft of the boat and motor and second degree theft of the dinghy. After a two day trial, a jury convicted Gunderson on the count of first degree theft. Gunderson appeals his conviction. He argues that the evidence seized from Gunderson's pocket in the search incident to his arrest, and the inconsistent statements he made during questioning after the arrest, should have been suppressed as the fruits of an unlawful arrest.
The State bears the burden of showing that any warrantless seizure fits one of a few limited and jealously guarded exceptions to the warrant requirement. State v. Williams, 102 Wn.2d 733, 689 P.2d 1065 (1984). The most fundamental of the exceptions to the warrant requirement is the detention of a person that an officer has probable cause to believe has committed a crime. A second, narrower exception is an investigative Terry stop of a person who the officer has a reasonable suspicion may be engaged in criminal activity. State v. Smith, 145 Wn. App. 268, 275, 187 P.3d 768 (2008), citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
After hearing the testimony of Deputy Hales at the suppression hearing, the trial court found that the officers had reason to believe "criminal activity was afoot" and therefore concluded that they had probable cause to arrest Gunderson. The trial court also found that they had "a reasonable suspicion" that Gunderson was engaged in criminal activity.
Gunderson first attacks the trial court's determination of probable cause. When, as here, no findings of fact are contested, this court reviews the finding of probable cause de novo as a legal conclusion. State v. Vasquez, 109 Wn. App. 310, 317, 34 P.3d 1255 (2001), aff'd, 148 Wn.2d 303, 59 P.3d 648 (2002).
"Probable cause exists when an officer has reasonable grounds to believe a suspect has committed or is committing a crime based on circumstances sufficiently strong to warrant that conclusion. The test is one of reasonableness, considering the time, place, and circumstances and the officer's special expertise in identifying criminal behavior." State v. Gonzales, 46 Wn. App. 388, 395, 731 P.2d 1101 (1986).
In Gonzales, when police seized Gonzales at 4:00 a.m., they knew he was driving a car containing items that he told implausible stories for possessing, and that he and his passenger, both dressed in dark clothes, had prior burglary convictions. But while detaining Gonzales for investigation was legitimate under these particular circumstances, probable cause did not arise until police confirmed a nearby house had been burglarized. For this reason, Gonzales' detention became an illegal arrest when police transported him to the station before confirming the burglary. Gonzales, 46 Wn. App. at 396.
Here, the officers had even less knowledge of criminal activity when they arrested Gunderson than the police did in Gonzales when they transported Gonzales to the station. They had not confirmed that the boat Gunderson was working on was stolen. He had not yet told them inconsistent or implausible stories.
The State virtually concedes that the officers lacked probable cause to arrest Gunderson for theft when they seized him on the mud flats. The State instead defends the conviction on appeal on the basis that the detention can be justified as a Terry stop. This issue too is reviewed de novo. State v. Bray, 143 Wn. App. 148, 152, 177 P.3d 154 (2008). An investigative Terry stop may be based upon less evidence than is needed for probable cause. Under Terry, police are permitted to briefly seize an individual for questioning based on "specific and articulable objective facts that give rise to a reasonable suspicion that the individual has been or is about to be involved in a crime." Smith, 145 Wn. App. at 275.
The trial court did not err in ruling that the deputies had an articulable suspicion of criminal activity. They could see that Gunderson was removing the motor from a boat in front of a vacant house in tidal mud with no light at 4:00 a.m. See Bray, 143 Wn. App. 148. An articulable suspicion is not, however, enough to justify in hindsight a seizure that was carried out as an arrest. As the State acknowledges, the reason probable cause is not required for a Terry stop is because a stop for investigative purposes is significantly less intrusive than an arrest. State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986). Whether the detention of Gunderson can be legitimately characterized as merely a Terry stop is analyzed under State v. Williams, 102 Wn.2d at 736.
In Williams, an officer responded to a radio dispatch to investigate a silent burglary alarm. As he arrived at the residence, the officer observed Williams turn on his headlights and attempt to pull away from in front of the house. The officer called for backup, blocked the car from leaving, ordered Williams out of the car, handcuffed him, and placed him in the back of the patrol car. Before asking Williams who he was and why he was in the area, the officer investigated the house and called a canine unit.
The Supreme Court concluded the police actions "so exceeded the proper purpose and scope of a Terry stop as to be justified only if supported by probable cause sufficient to arrest petitioner." Williams, 102 Wn.2d at 741. The court evaluated "the purpose of the stop, the amount of physical intrusion upon the suspect's liberty, and the length of time the suspect is detained." Williams, 102 Wn.2d at 740. First, detaining Williams was not done for the purpose of investigating Williams because police did not question him until after they had conducted an initial exploration of the crime scene. Second, handcuffing and secluding Williams in the patrol car at gunpoint amounted to a physical intrusion on Williams' liberty inappropriate in the absence of any facts or reason to believe he was dangerous. Third, the length of Williams' detention, nearly 35 minutes, bordered on excessive. Williams, 102 Wn.2d at 740-41.
In this case, the first and third Williams factors are consistent with a Terry stop. The officers focused their investigation directly on Gunderson and his activities. And no significant time elapsed between his seizure and when the contested statements and search occurred. The real issue is the second factor, whether the extent of physical intrusion on Gunderson's liberty was reasonable without probable cause. The trial court made no findings of fact concerning the extent of physical intrusion, but the undisputed testimony of Deputy Hales establishes that the deputies carried out a full blown custodial arrest when they seized Gunderson.
Deputy Hales testified that he and Deputy Plummer announced their presence, likely with their guns drawn, and told Gunderson not to move and to show his hands. Gunderson straightened and dropped the wrench and a couple of bolts, folded his arms, and waited. The officers ordered Gunderson to lie face down in the low tide mud, handcuffed him, searched him, and then read him his rights.
Deputy Hales testified that Gunderson complied with all instructions. Officer Hales did not identify any facts that might indicate Gunderson was armed or dangerous. In the absence of such facts, making Gunderson lie down in the mud and handcuffing him exceeded the scope of a Terry stop and required probable cause.
Because probable cause was lacking, we agree with Gunderson that the statements he made and the tools found after his illegal seizure should have been suppressed. State v. Franklin, 41 Wn. App. 409, 704 P.2d 666 (1985) (holding that statements made and articles seized after an unlawful arrest must be suppressed as fruits of the unlawful arrest). Failure to suppress evidence obtained in violation of a defendant's Fourth Amendment rights is constitutional error and is presumed to be prejudicial. Such error is harmless only if the State shows beyond a reasonable doubt that any reasonable jury would have reached the same result without the error. State v. McReynolds, 117 Wn. App. 309, 326, 71 P.3d 663 (2003).
Gunderson likens the error in his case to State v. Romero, 113 Wn. App. 779, 54 P.3d 1255 (2002). The credibility of Romero's testimony was directly undermined when a detective impermissibly testified that Romero exercised his right to silence when arrested and thus was uncooperative. The court reversed the conviction upon determining that the error was central to Romero's case. Romero, 113 Wn. App. at 795. Gunderson claims the tainted evidence here is similarly central to his case. He argues that without the statements he made to the officers and the evidence they seized from his pockets, the State could only prove that he possessed stolen goods. Proof of possession of recently stolen property is not prima facie evidence of theft or burglary unless accompanied by other evidence of guilt, such as the giving of a false or improbable explanation. State v. Mace, 97 Wn.2d 840, 843, 650 P.2d 217 (1982). Here, the explanations Gonzales gave upon being arrested were highly improbable, but that evidence may not be considered because his statements should have been suppressed.
Nevertheless, the untainted evidence shows more than mere possession of a recently stolen boat. The boat's owner testified that his boat was tied securely to his dock the night before and that he did not give Gunderson permission to possess or work on the boat. Gunderson was caught removing the motor with a wrench only 600 yards from where the boat was stolen. A car registered to Gunderson's mother was parked at the vacant house. Gunderson offered no conflicting testimony or alternate explanation of the events as in Romero. Beyond a reasonable doubt, any reasonable jury would have found Gunderson guilty of theft based solely on the untainted evidence.
Affirmed.
WE CONCUR: