IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. BRIAN JEFFERY KEMNOW, Appellant. NO. 73012-6-1 DIVISION ONE

UNPUBLISHED OPINION FILED: May 9, 2016 Leach, J. — Brian Kemnow appeals his conviction for possession of a controlled substance—methamphetamine. He challenges the validity of the search leading to the discovery of drugs on his person. He claims the search violated the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution. Because the police seized Kemnow and the State cannot showthat an exception to the warrant requirement applies, the results of the search must be suppressed as fruit of the poisonous tree. We reverse and remand for further proceedings consistent with this opinion. FACTS 

### On May 2, 2014, at about 10:32 p.m., Officer James Hannawalt of the Sedro-Woolley Police Department responded to a citizen report that two 

### bicyclists, a red Nissan, and a pickup truck had congregated in the BethlehemNO. 73012-6-1/2

Lutheran Church parking lot. The caller gave his name to a 911 dispatcher and reported that he believed a drug deal was taking place. He said that he had seen the vehicles in the past but did not see anything exchanged. Officer Hannawalt did not know the informant, only the name the dispatcher provided. He was familiar with other calls about the area and understood it to be a place where drug activity occurred after hours. The parking lot had two parallel entrances: an eastern entrance and a western entrance, both connecting the parking lot to Wicker Road. Officer Hannawalt entered the eastern entrance. At this time, a pickup truck, driven by Brian Kemnow, was leaving the parking lot on the same driveway. At the same time orjust a little bit later, Officer Hannawalt's backup, Officer Heather Sorsdal, entered from the western entrance, checked the parking lot, and then went to Officer Hannawalt's location, also making contactwith Kemnow. Because itappeared to Officer Hannawalt that the pickup truck was trying to go around his patrol car, he shined a spotlight on Kemnow's truck as it approached his vehicle to see the driver. Kemnow stopped the truck before he passed Officer Hannawalt's car in the narrow driveway. Officer Hannawalt parked, walked to Kemnow, told Kemnow that he was investigating a possible drug deal, and described the information that the informant had provided.

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Kemnow told the officerthat he had seen the bikes and a vehicle but was not involved in a drug deal. OfficerHannawalt asked Kemnow for identification. Kemnow said that he did not have a driver's license but provided an identification card. Officer 

### Hannawalt may havetold Kemnow hecould not drive away because hedid not have a license. OfficerHannawalt discovered that Kemnow had an outstanding warrantfor his arrest. OfficerHannawalt arrested Kemnow, handcuffed him, and searched him. He found two small bags of methamphetamine in Kemnow's pockets. 

### The State charged Kemnow with possession of a controlled substance. 

### Kemnow moved to suppress the evidence on the basis that the State obtained the evidence as a result of an unlawful seizure. The trial court found that Officer 

### Hannawalt's shining ofhis spotlight did not constitute a seizure andifit did, an articulable reasonable suspicion supported a briefdetention. Ajury convicted
Kemnow. STANDARD OF REVIEW We review a trial court's denial of a motion to suppress to determine if 

### substantial evidence supports the challenged factual findings and if those 

### findings support the trial court's conclusions of law.1 "Evidence is substantial
1State v. Russell, 180 Wn.2d 860, 866, 330 P.3d 151 (2014). -3-NO. 73012-6-1/4


### when it isenough 'to persuade a fair-minded person of thetruth of the stated 

### premise.'"2 We review conclusions of law de novo, including the question of whetherthe facts may becharacterized as aseizure.3 ANALYSIS Kemnow contends that Officer Hannawalt unlawfully seized him. The 

### Stateresponds inthealternative: itdid notseizeKemnow, andithad asufficient
basis for a briefseizure. Our state and the federal constitution each prohibitwarrantless searches 

### and seizures "unless the State proves that one of the few 'carefully drawn and 

### jealously guarded exceptions' applies."4 Ifanencounterdoes notfall within an exception to the warrant requirement, the exclusionary rule prohibits the introduction of evidence gathered by the State during a warrantless search or seizure.5 Terrv v. Ohio6 provides a narrow exception to the warrant rule that 

### allows a police officer to conduct a limited search of an individual when that officer has a reasonable, articulable suspicion of criminal behavior. Courts commonly refer to this as a Terrv stop. 2Russell, 180Wn.2d at 866-67 (internal quotation marks omitted)(quoting State v. Garvin, 166Wn.2d 242, 249, 207 P.3d 1266 (2009)). 3 Russell, 180 Wn.2d at 866-67; State v. Gantt, 163 Wn. App. 133, 138, 257 P.3d 682 (2011). 4State v. Bvrd, 178Wn.2d.611, 616, 310 P.3d 793 (2013) (quoting State v. Bravo Ortega, 177 Wn.2d 116, 122, 297 P.3d 57 (2013)). 5State v. Harrington, 167 Wn.2d 656, 664, 222 P.3d 92 (2009). 6392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). -4-NO. 73012-6-1/5 

### Although article I, section 7 provides greater protection to individual 

### privacyrightsthanthe FourthAmendment, itgenerallytracks FourthAmendment analysis in achallengeto thevalidityofaTerrvstop.7 To determine ifthe State seized a person, the courtlooks to thetotality of the circumstances to decide if "a reasonable person in the defendant's position would have believed he or she was free to go or otherwise terminate the 

### encounter, given theactions oftheofficer."8 The court must lookto anofficer's 

### objective actions, such as an officer's use of physical force or display of authority.9 The person challenging police conduct on the basis of unlawful seizure has theburdentoprovethat a seizureoccurred.10 Kemnow asserts that the trial court did not consider the totality of the circumstances when it decided that Officer Hannawalt did not seize Kemnow 

### when he shined his spotlight. Washington jurisprudence has developed a nonexclusive list ofpolice displays ofauthority that may amount to a seizure, 

### includingthepresenceofseveralofficers, displayofanofficer'sweapon, physical

7State v.Z.U.E., 183 Wn.2d 610, 617, 352 P.3d 796 (2015). 8State v. O'Neill, 148 Wn.2d 564, 577, 62 P.3d 489 (2003); Harrington, 167 Wn.2d at 669-70. 

### 9Gantt, 163 Wn. App. at 139 (quoting Statev. Beito, 147 Wn. App. 504, 

### 508, 195 P.3d 1023 (2008)); Statev. Young, 135 Wn.2d 498, 510-11, 957 P.2d 681(1998). 10 Young, 135 Wn.2d at 510. -5-NO. 73012-6-1/6 

### touching ofthedetained person, and language requiring anindividual tocomply with an officer's request.11 

### Apolice officer may engage in social contact with a person without that contact constituting seizure,12 but "'social contact' does not suggest an 

### investigative component."13 Also, social contact may become a seizure when individual police actions thatwould pass constitutional muster togetherconstitute 

### a display of authority amounting to seizure.14 In State v. Harrington,15 Washington's Supreme Court concluded that when an officer approached Harrington onfoot and engagedhim in conversation, he had meresocial contact. But the arrival of a second police officer, requests that Harrington remove his 

### hands from hispockets, and a request to frisk, togetherformed a "progressive intrusion substantial enough to seize Harrington."16 Kemnow contends that undisputed facts, viewed together, similarly show that OfficerHannawaltseized Kemnow. We agree. Officer Hannawalt shined his 

### spotlight on Kemnow's moving vehicle as hepartly obstructed its path with his 

### patrol car. As Officer Hannawalt testified, "[l]t was tight, and very slow maneuverability in the area." During this time, Officer Sorsdal entered the 11 Gantt, 163 Wn.App. at 140(quoting Young, 135Wn.2d at 512). 12 Harrington, 167 Wn.2d at 664-65. 13 Harrington, 167 Wn.2d at 664. 14 Harrington, 167 Wn.2d at 668-70. 15 167Wn.2d 656, 665-66, 222 P.3d 92 (2009). 16 Harrington, 167 Wn.2d at 669-70. -6-NO. 73012-6-1/7 

### parking lotfrom the onlyotherexitavailableto Kemnow, and aftershe searched the parking lot, she joined Officer Hannawalt and Kemnow. Kemnow found himselfunder a police spotlightwith limited ability to pass while in the presence of twoofficers. Partial obstruction of his vehiclein these circumstances suggests 

### a reasonable personwould notbelievethat he was free toleave. 

### Next, Officer Hannawalt questioned Kemnow about the alleged drug 

### activity under investigation. This investigative questioning made the contact 

### something more than social. Thus, before Officer Hannawalt ever asked Kemnow for hisidentification, the police displayed sufficient authority to make a reasonable personin Kemnow's positionfeel notfree toleave. The State relies on State v.Young17 and Statev. O'Neill18 to show that an 

### officer's use of a spotlight and request for identification together are not a seizure. In Young, the Supreme Court decided that the shining of a spotlight 

### onto anindividualwalking atnight "reveal[s] onlywhatwas already in plain view" and doesnotamountto aperse intrusion into private affairs withoutmore, such 

### as "some positive command" from the officer.19 Then, in O'Neill, the Supreme Court, citing its decision in Young, decided that an officer did not unconstitutionally intrude into O'Neill's private affairs when the officer shined a
17 135Wn.2d 498, 957 P.2d 681 (1998). 18 148 Wn.2d 564, 62 P.3d 489 (2003). 19 Young, 135 Wn.2d at 513-14. -7-NO. 73012-6-1/8 

### spotlight on O'Neill's parked vehicle, approached the carusing a flashlight to illuminate the interior, asked O'Neill to roll down his window, and asked for his identification.20 The court looked at the officer's actions in their totality and 

### determined thatonly when the officer asked O'Neill to step out of the car after 

### learning thatO'Neill was driving with a suspended license did theofficer seize O'Neill.21 

### But additional facts distinguish this case from Young and O'Neill. Here, unlike inO'Neill, Kemnow's vehicle was moving when Officer Hannawalt shined 

### his spotlight on it. Kemnow's counsel asked Officer Hannawalt on crossexamination during the CrR 3.6 suppression hearing what percentage oftime 

### another car stopswhen he uses his spotlight. Officer Hannawalt responded, "I 

### think just because of natural—I mean, I do the same with bicyclists or 

### pedestrians, because ofhours ofdarkness, they would pause, orstop, sothey wouldwonder, you know, what's going on." As OfficerHannawaltacknowledges,
a reasonable person driving in the dark would usually not drive on when an 

### officershines aspotlightonhis vehicle. The State doesnotclaimthatKemnow's statementthat he did not have a license gave it reason to detain him, norwould 

### Kemnow's lack of a license justify a seizure that occurred before the officer
asked for identification. 20O'Neill, 148 Wn.2d at 578-81. 21 O'Neill, 148 Wn.2d at 582. -8-NO. 73012-6-1/9
The State also argues that Kemnowcannot show seizure because Officer Hannawalt did not block in Kemnow's truck. Indeed, Kemnow had space to
maneuver around Officer Hannawalt's vehicle and exit the parking lot. But to determine if a seizure occurred, we do not look to see if an officer created a complete obstruction. Rather, we look to see ifa reasonable person faced with
some obstruction, however great, would feel free to pass. In a Division Two case, State v. Young,22 two police officers followed Young behind a building because she was acting suspicious. They approached her, stood at 45-degree 

### angles from her while she had her back to the wall, and asked for her social securitynumber.23 Division Two decided that the officers had unlawfully seized herbecause "[a]ny reasonable person in Young's position,with her back to awall and police officers on either side of her, would not have felt free to walk away 

### without first answering the officers' questions."24 Thus, a barrier created by an officer need not be absolute for officers to demonstrate authority enough to constitute a seizure. Officer Hannawalt's use of a spotlight on Kemnow's moving vehicle, his 

### partial obstruction of Kemnow's path, his questions to Kemnow about a drug investigation, together with Officer Sorsdal's presence and obstruction of the
22 167 Wn. App. 922, 931, 275 P.3d 1150 (2012). 23 Young, 167 Wn. App. at 931. 24 Young, 167 Wn. App. at 931. -9-NO. 73012-6-1/10

second driveway, amounted to a sufficient display of authority to cause a reasonable person in Kemnow's position not to feel free to leave. Thus, Kemnow's encounter with the police before Officer Hannawalt ever asked Kemnow for identification was a seizure for purposes of article I, section 7 and
the Fourth Amendment. 

### Next, we consider ifthis seizure was reasonable and thus constitutional.25 An officer's seizure of a person "is valid only where there are 'specific and articulable facts which, taken together with rational inferences from those facts, 

### reasonably warrant' the detention of the person."26 The State must prove by clear and convincing evidence that a warrantless seizurefallswithin an exception to the constitutional protection.27 When reviewing challenges to a Terrv stop under article I, section 7, this court's analysis generally tracks that of the Fourth Amendment, except that our state constitution requires a stronger showing that an officer grounded his 

### suspicion in specific and articulable facts.28 The State must show facts that connect a particular person to the particular crime that the officer seeks to

25O'Neill, 148 Wn.2d at 576. 26 O'Neill, 148 Wn.2d at 576 (quoting Terrv, 392 U.S. at 21). 27 Russell, 180 Wn.2d at 867. 28Z.U.E., 183 Wn.2d at 617-18. -10-NO. 73012-6-1/11 

### investigate rather than facts that merely substantiate an officer's general suspicion about aperson.29 Here, the State claims that the call it received from the citizen informant 

### provided Officer Hannawalt with facts that justify a Terrv stop of Kemnow. 

### Washington courts apply a totality of the circumstances test to determine ifthe State has adequately shown that an informant's tip bears some "'indicia of 

### reliability.'"30 The State must show either "(1) circumstances establishing the informant's reliability or (2) some corroborative observation, usually by the officers, that shows either (a) the presence of criminal activity or (b) that the informer's information was obtained in a reliable fashion."31 The State offers several facts to support its claims meetthis test and thus show Officer Hannawalt's had the required level of reasonable suspicion. It 

### argues that the informant was reliable because the information about drug activity camefrom a self-identified citizen and theofficer believed it camefrom the citizen's observation. The State also argues that Officer Hannawalt 

### corroborated the description given by the informantwhen he saw thetruckinthe 

### parking lot, when Kemnow confirmed he had seen the bicycles and another vehicle in the parking lot, and because the information was consistent with

29 Z.U.E., 183 Wn.2d at 617-18. 30 Z.U.E., 183 Wn.2d at 618-19. 31 Z.U.E., 183 Wn.2d at 618-19. -11-NO. 73012-6-1/12
Officer Hannawalt's knowledge that the parking lot was known for its nighttime drug activity. First, Kemnow challenges the court's factual finding that "[fjrom the information he received, Officer Hannawalt believed that the reporting party had witnessed the transaction." The evidence directly contradicts this finding. Officer Hannawalt's affidavit states that an informant "reported he believed there was a 

### drug deal... butdid not see anything exchanged." And Officer Hannawalt's testimony shows that he believed the informant hadwitnessed only "agroup of 

### people in a dark parking lot, late atnight." Thus, no evidence supports thetrial court's challenged finding. Neither the officer's affidavit nor his testimony 

### supports the State'sassertion in its briefthatOfficerHannawaltbelieved that the informant had witnessed a drug transaction. 

### And, as Kemnow notes, the State fails to distinguish this case from the 

### state SupremeCourt's decision in Statev. Sieler.32 In Sieler, aninformantparent 

### reported a carin a school parking lot atnoon that hebelieved wasinvolved in a 

### drug sale, providing his name and a description of the vehicle.33 Officers, believing drug sales were not unusual in the parking lot at noon, detained the occupants of a vehicle matching the informant's description, discovering drugs

32 95 Wn.2d 43, 621 P.2d 1272 (1980). 33 Sieler, 95 Wn.2d at 44-45. -12-NO. 73012-6-1/13

and obtaining confessions.34 The court held that the State may not simply rest
on an informant's given name to establish the informant's reliability when the informant is otherwise unknown.35 It also held that an informant's bare conclusion that a drug sale had occurred in a vehicle similar in description to the
one police encountered did not warrant police detention of the vehicle's occupants.36 Rather, the court required that "[sjome underlying factual justification for the informant's conclusion must be revealed so that an assessment of the probable accuracy of the informant's conclusion can be made."37 In Sieler, the State did not show that the officers corroborated the informant's tip with its evidence that the officers arrived on the scene, approached the vehicle, and did not see any illegal activity.38 Nor could it show that officers had corroborated that the informant had reliably obtained his information when the officers merely saw a vehicle conforming to the informant's description ofthe vehicle.39 Inthe Supreme Court's recent decision, State v. Z.U.E.,40 it revisited the reasoning in Sieler. Itapplied a totality of the circumstances test and similarly

34Sieler, 95 Wn.2d at 45-46. 35 Sieler. 95 Wn.2d at 48. 36 Sieler, 95 Wn.2d at48. 37 Sieler, 95 Wn.2d at 48. 38 Sieler, 95 Wn.2d at 49. 39 Sieler, 95 Wn.2d at 49. 40 183 Wn.2d 610, 352 P.3d 796 (2015). -13-NO. 73012-6-1/14
found that when informants only gave their names, where the Statecould pointto 

### no observations supporting reasonable suspicion of a crime, and where officers did not contact witnesses who had called 911 and were only able to verify that a 

### female matching thedescription given by an informantwas located inthe general 

### area, policedid nothave sufficientindiciaofreliabilitytodetainthatperson.41 Here, the informant gave his name and reported that he saw bicyclists, a 

### car, and a truck in a parking lot afterhours, asserting that this was a drug deal. 

### He gave nofurther information supporting his conclusion. The State does not 

### identify any evidence ofcriminal activity. It shows only thatOfficer Hannawalt saw a trucksimilarin description and location to that described by the informant. Kemnow's confirmation that he had seen bicyclists and a Nissan matching the informant's information did not amount to evidence of criminal activity, nor is it 

### relevant to this court's inquiry because this occurred after Officer Hannawalt 

### seized Kemnow. Finally, Officer Hannawalt did not contact the informant to corroborate that the informant reliably obtained the information he reported. 

### Thus, when Officer Hannawalt seized Kemnow, he had no reasonablesuspicion ofcriminal activity.

41 Z.U.E., 183 Wn.2d at 623. -14-NO. 73012-6-1/15

We thus conclude that the State failed to prove any constitutional justification for Officer Hannawalt's seizure of Kemnow. The evidence found in the ensuing search must be suppressed. CONCLUSION Because Officer Hannawalt seized Kemnow and because the State fails to show that Officer Hannawalt had reasonable, articulable suspicion to justify the seizure, the evidence the officer found after an unconstitutional seizure must be suppressed as fruit of the poisonous tree. We reverse and remand for further proceedings consistentwith this opinion.

WE CONCUR: 

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