IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 78958-9-I ) Respondent, ) ) DIVISION ONE v. ) ) KRISTOPHER CHARLES MARTIN, ) PUBLISHED OPINION ) Appellant. ) ) M ANN , C.J.

— Absent an applicable exceptio n, warrantless searches and seizures are per se unreasonable and violate both the United States and Washington Constitutions. While asleep in a Starbucks st ore, Kristopher Martin was subjected to a warrantless search. Based on the search, Martin was charged with and found guilty of possession of a controlled substance. Martin appeals his conviction and contends that the trial cour t erred by denying his motion to suppress because the search did not meet either the Terry 1 stop or community custody exceptions to the warrant requirement. We agr ee, vacate Martin’s conviction, and remand to the trial court fo r further proceedings consistent with this opinion.

1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).No. 78958-9-I/2

-2- I. On December 11, 2017, at 8:27 a. m., Officer Nicholas Bickar responded to a 911 call from a Starbucks employee, requesti ng assistance with the removal of a sleeping person inside the stor e. When Bickar arrived, he saw Martin sleeping in a chair. Bickar gestured to the Starbucks employee and received a responsive gesture from the employee that Ma rtin was the person identif ied in the 911 call. When Bickar approached Martin, he noticed Ma rtin was wearing multiple jackets that had pockets. Bickar attempt ed to wake Martin, first by raising his voice and then by squeezing and shaking his left shoulder. Martin remained unresponsive. Trying not to startle Martin, Bickar then performed a “light sternum rub,” using his knuckles to rub Martin’s sternum. While Bickar attempt ed to wake Martin, he would briefly gain consciousness, but quickly lose conscious ness before Bickar could communicate with him. Bickar began to suspect that Martin was under the influence of drugs. Bickar determined that he would need to use a “hard sternum rub,” but f eared Martin might react violently because hard sternum rubs can be painful and startling for a person sleeping. During this encounter, Bickar not ed that there were Starbucks customers sitting within four feet of Bickar and Martin and there were between seven and eight people, not including staf f, in Starbucks. Before Bickar proceeded with the hard st ernum rub, Bickar noticed the end of a metal utensil sticking out of Martin’s pocket. Bickar worried that the metal utensil could be a knife or another utensil s harpened into a weapon. Bickar also expressed concerns about sharp needles. Without feeling the outside of the pocket, Bickar removed theNo. 78958-9-I/3

-3- utensil. The utensil was a cook spoon, had burn marks on the bottom, and a dark brown residue on the inside. At that poi nt, Bickar determined that he had probable cause to arrest Martin for possession of drug paraphernalia and continued searching Martin. While searching Ma rtin, Bickar found methamphetami ne, heroin, cocaine, and other drug paraphernalia. After removing the drugs from Martin , Bickar conducted a hard sternum rub. Once Martin woke up, Bickar told him t hat he was under arrest, proceeded to handcuff him, and brought him to an aid car. Becaus e Martin did not wake up easily, he was transported to the hospital. Bickar called the aid car sometime prior to waking up Martin. Martin moved to suppress all evidence collected as a result of the unlawful detention and search. The court heard testimony from Officer Bickar and denied Martin’s motion to suppress concluding, “[ c]ommunity caretaking and Terry authorized Officer Bickar to take necessary precauti ons to protect himself and others from a potentially dangerous situation. Officer Bi ckar was authorized to pat the Defendant down for potential weapons.” Martin proceeded to a stipulated bench tr ial on the charge of unlawful possession of a controlled substance. The court found Ma rtin guilty. The court sentenced Martin to 30 days of confinement. Martin appeals. II. The Washington Constitution commands: “No person shall be disturbed in his private affairs, or his home in vaded, without authority of law.” Wash. Const. art. I, § 7. The United States Constitution also prot ects people from unreasonable searches andNo. 78958-9-I/4

-4- seizures. U.S. Const. amend. IV. Abs ent an applicable exce ption, warrantless searches and seizures are per se unreasonable, and violate t hese provisions. State v. Russell, 180 Wn.2d 860, 867, 330 P.3d 151 (2014) . “The State bears a heavy burden to prove by clear and convincing evidence t hat a warrantless search falls within one of those exceptions.” Ru ssell, 180 Wn.2d at 867. When reviewing the denial of a motion to suppress, the appellate court determines whether substantial evidence supports the trial court’s findings of fact and whether the findings of fact support the trial court’s conclu sions of law. State v. Boisselle, 194 Wn.2d 1, 14, 448 P.3d 19 (2019). We review the trial court’s conclusions of law de novo. Boisselle, 194 Wn.2d at 14. A. Martin first contends that the trial cour t erred in finding the search permissible under Terry because “[f]irst, there was [no] reasonable suspicion that Mr. Martin was engaged in criminal activity. Second, there we re not specific and articulable reasons to believe Mr. Martin was armed and dangerous. And third, even if Terry applied, the officer exceeded the lawful scope of the frisk.” The State argued before the tr ial court and in its brief be fore this court, that the search was lawful under Terry. At oral ar gument, however, the State conceded that the search was not lawful under Terry because Bi ckar did not testify that he was conducting a criminal trespass investigation. We accept the State’s conce ssion that the search was not valid as a Terry stop. Terry stops are an exception to the warrant r equirement. In a Terry stop, “[o]fficers may briefly, and without warrant, st op and detain a person they reasonably suspect is, or isNo. 78958-9-I/5

-5- about to be, engaged in criminal conduct.” St ate v. Day, 161 Wn. 2d 889, 895, 168 P.3d 1265 (2007). “While Terry does not authorize a search for evi dence of a crime, officers are allowed to make a brief, nonintrusive s earch for weapons if, after a lawful Terry stop, ‘a reasonable safety concern exists to ju stify the protective frisk for weapons’ so long as the search goes no further than necessa ry for protective purposes.” Day, 161 Wn.2d at 895. In making this determinat ion, “we consider the totality of the circumstances, including the officer’s subjecti ve belief.” Day, 161 Wn.2d at 896. A protective frisk does not violate a def endant’s rights when (1) the initial stop is legitimate, (2) a reasonable safety concern ex ists to justify a pr otective frisk for weapons, and (3) the scope of the frisk is limit ed to the protective purpose. State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993). “The failure of any of these makes the frisk unlawful and the evidence seized in admissible.” State v. Setterstrom, 163 Wn.2d 621, 626, 183 P.3d 1075 (2008). “A reas onable safety concern exists, and a protective frisk for weapons is justified, when an officer can point to ‘specific and articulable facts’ which create an objectively reasonable belief that a suspect is ‘armed and presently dangerous.’” Collins, 121 Wn.2d at 173. Further, “[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent person in the circumstances would be warranted in the belief that his or her safety or that of others was in danger.” Collins, 121 Wn.2d at 173. This search fails to meet the requirements under Terry. Starbucks is open to the public. The record does not support the tria l court’s finding that Bickar was conducting a criminal investigation for trespass because there is no evidence in the record that Starbucks had trespassed Martin from the prem ises. Also absent from the record isNo. 78958-9-I/6

-6- evidence supporting Bickar’s claim that Mart in sleeping created a reasonable safety concern. Bickar performed a hard sternum rub with several people seated in close proximity to Martin. While Bickar stated that, based on his trai ning and experience as an officer, he feared Martin would react viol ently once awake, Bickar’s actions do not support his attestation. Bickar did not a sk patrons sitting less than three feet from Martin to move away before using a hard sternum rub to wake Martin. Finally, even if Bickar were conducting a cr iminal investigation for trespass, the search exceeded the scope of a frisk under Terry. An o fficer may “conduct a limited pat-down of the outer clothing of a person in an attempt to discover weapons that could cause harm.” State v. Russell, 180 Wn. 2d 860, 867, 330 P.3d 151 (2014). “The officer may not slide, squeeze or in any other manner manipulate t he object to ascertain its incriminating nature. Such manipulation of the object will exceed the scope of a Terry frisk.” State v. Garvin, 166 Wn.2d 242, 251, 207 P.3d 1266 (2009). Bickar did not patdown the outside of Martin’s pocket where th e utensil handle was protruding. Instead, Bickar removed the utensil because he thought it could have been a knife or a metal utensil that had been sharpened into a weapon. H ad Bickar felt the outside of Martin’s pocket, he would have learned it was a spoo n and not a sharp object. Removing the spoon without a pat down exceeded the scope of a Terry frisk. The search was not lawful under Te rry because there was no reasonable suspicion that a crime had been committed, t here was not a reasonable safety concern, and the search exceeded the lawful scope of a frisk.No. 78958-9-I/7

-7- B. Martin next contends that the community caretaking exception to the warrant requirement is also not applicable. We agree. Recently, the Washington Supreme Court clarified the appropr iate factors for determining whether an officer has exerci sed his or her emergency aid community caretaking function. Boisselle, 194 Wn. 2d at 10. “[I]n order for the community caretaking exception to apply, a court must fi rst be satisfied that the officer’s actions were ‘totally divorced’ from the detection and investigation of criminal activity.” Boisselle, 194 Wn.2d at 10. The threshold issue for the court is “whether the community caretaking exception was used as a pretext for a criminal investigation before applying the community caretaking excepti on test.” Boisselle, 194 Wn.2d at 11. Once the court is satisfied that officers did not use the exception as pretext for criminal investigation, the court must next determine whether the warrantless search was reasonable. Boisselle, 194 Wn.2d at 10. “When a warrantless search falls within an officer’s general community caretaking f unction, such as the performance of a routine check on health and safety, courts mu st next determine whether the search was reasonable.” Boisselle, 194 Wn.2d at 11-12. “Where . . . an encounter involves a routine check on health and safety, its r easonableness depends upon a balancing of a citizen’s privacy interests in freedom from po lice intrusion against the public’s interest in having police perform a ‘community caretaking function.’” Boisselle , 194 Wn.2d at 12. “An officer’s emergency aid function, how ever arises from a police officer’s community caretaking responsibility to come to the aid of persons believed to be in danger of death or physical harm.” Boisse lle, 194 Wn.2d at 12 (internal quotationsNo. 78958-9-I/8

-8- omitted). “Compared with r outine checks on health and safety, the emergency aid function involves circumstances of greater urgency and searches resulting in greater intrusion.” Boisselle, 194 Wn. 2d at 12. “Accordingly, courts apply additional factors to determine whether a warrantless search falls within the emergency aid function of the community caretaking exception.” Boisselle, 194 Wn.2d at 12. In Boisselle, the court clarified that the three-part emergency aid test announced in State v. Kinzy, 141 Wn. 2d 373, 386-87, 5 P.3d 668 (2000) is the applicable test, but amended the three-part test “to make clear that there must be a present emergency for the emergency aid function test to apply.” Boisselle, 194 Wn.2d at 13. Thus, the exception applies when “(1) t he officer subjectively believed that an emergency existed requiring that he or she provi de immediate assistance to prot ect or preserve life or property, or to prevent serious injury, (2) a reasonable pe rson in the same situation would similarly believe that there was a need for assist ance, and (3) there was a reasonable basis to associate the need for a ssistance with the pl ace searched.” Boisselle, 194 Wn.2d at 13-14. “If a warrantless search falls within the emergency aid function, a court resumes its analysis and weighs the public’s interest against that of a citizen’s.” Boisselle, 194 Wn.2d at 12. In balancing Martin’s privacy interests agai nst the public’s interest in having the police perform a community caretaking function, we conclude that removing the spoon from Martin’s pocket was unreaso nable. There is insufficient evidence in the record to find that Bickar was conducting a routine check on health and safety or rendering emergency aid. Bickar stated that he was dispatched to St arbucks “for an individual they wanted to leave, who was sleeping.” Absent from the record is any evidenceNo. 78958-9-I/9

-9- tending to show that Bickar was dispatched to assist with an unresponsive customer or customer in need of emergency aid. Bickar indicated that he could tell Martin was breathing and therefore, did not check his pulse. After Bi ckar performed a light sternum rub, Martin opened his eyes, but fell back to sleep before Bickar could communicate with Martin. Bickar did not feel like he neede d to perform lifesavin g maneuvers. Other Starbucks customers sat a few feet away from Martin as he slept and Bickar did not indicate that any customers or employees ex pressed concern that Martin was in danger of death or physical harm. Finally, Bickar di d not ask the other Starbucks customers to back away from the area where Martin slept before performing the hard sternum rub. Bickar did not subjectively believe an em ergency existed and a reasonable person in the same situation would not believe there was a need for assistance. Furthermore, even if the community careta king exception applied to this search, a simple pat-down on the outside of Martin’s coat pocket would have alleviated any concern that the metal utensil was a sharp object or weapon. See State v. Acrey, 148 Wn.2d 738, 754, 64 P.3d 594 (2003) (concluding that a pat-down of a juvenile before putting him in a patrol car was reasonable fo r officer safety while performing their community caretaking function of transporti ng the juvenile home after his mother’s request for officer assistance). Removing t he spoon violated Martin’s right to be free from unreasonable searches and seizures. We vacate Martin’s conviction and remand to the trial court for further proceedings consistent with this opinion.No. 78958-9-I/10

-10- WE CONCUR: