IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, 

### ) ) No. 77480-8-I Appellant, 

### ) DIVISION ONE v. 

### ) ) UNPUBLISHED OPINION JESUS J. VILLARREAL, 

### )

Respondent. 

### ) Filed: September30, 2019
LEACH, J.

— The State appeals the trial court’s suppression of drug evidence obtained from Jesus Villarreal’s car. It challenges the trial court’s findings offact and conclusions of lawand asserts the evidence was notthefruit ofan illegal seizure. Substantial evidence supports the findings offact, which in turn support the trial court’s conclusion that police unlawfully seized Villarreal. Becausethe illegal seizure resulted in the finding ofthe drug evidence, we affirm thetrial court. FACTS On February5, 2016, Whatcom CountySheriff’s DeputyJason Nyhuswas on routine patrol along the Guide Meridian in Bellingham with his K-9 deputy partner, Hyde. Nyhus was wearing a uniform, carrying a gun, baton, and stun gun, and driving a marked patrol car.No. 77480-8-I I2

At approximately 11:30 p.m., Nyhus saw headlights on Thomas Road. He could not tell ifthe carwas moving. Thomas Road is a dead-end gravel street that connects to the Guide Meridian and lies west of Meridian Street. The area contains a few commercial buildings and a residence. Nyhus described it as industrial and not well lit. And he had ‘never seen any activity at these businesses atthat late hour.” Also, city officers had told Nyhus abouta series of commercial burglariesthatoccurred in the region at leasta month earlier. Nyhus watched the car from the Guide Meridian. He saw the car come outtothe Guide, pass him, and drive onto Meridian Street. Nyhus turned around and pulled behind it, going south. The carturned intothe Intercontinental Market parking lot. Nyhus followed and parked between one-and-a-half to two car lengths behind it. Nyhus testified that he was “not really blocking it in” because the parking lotwas about60feetwide and ifthe driver“turned [his] wheelstothe right, [he] would have been able to back out” without Nyhus moving his car. Nyhus did not activate his overhead lights or his siren. He did not recall running
a license plate check. When Nyhus walked up to the car, Villarreal opened the door on the driver’s side. Nyhus stood “well outside [from] where the door would swing,” about 6 to 10 feet away from Villarreal, who remained seated. He did not tell Villarreal to “stop or move or physically change his location in anyway.” Nyhus
-2-No. 77480-8-I I 3

did not make physical contact and recalls speaking in a “normal conversational tone.” He described the occupants as “pleasantto talkto.” He did not “feel any sort of risk of.

. . threats” to himself, and he was not “giving any orders or anything likethat.” Nyhus stated that Villarreal “seemed very nervous and seemed evasive.” He had “sores on hisfacethatwould be consistentwith methamphetamine use.” And “his mannerisms were jerking and kind of robotic-like which is consistent with narcotics use.” Nyhus was “concerned about his impairment since he was driving.” He also had concerns that because ofthe signs of methamphetamine use, “there may have been some kind of crime being committed thatthey could have been leaving from.” Nyhus talked to the occupants about their activities on Thomas Road. The driversaid hewas “just picking up something atafriend’s.” Nyhus asked the friend’s name and address. Villarreal gave a first name but did not have a last
name oraddress forthe friend. Nyhus “asked again if he had a contact number where [Nyhus] could call the person and just ask were these gentlemen just at your house.” Villarreal did not provide any contact information forthe friend and did not initiallytell Nyhuswhat he had picked up.

-3-No. 77480-8-I /4 Nyhus asked Villarreal and his passenger for identification. Villarreal produced a Washington identification card and said he did not have a driver’s license. Nyhus asked the passenger to speak with him at the patrol car so Villarreal could not hear the conversation. The passenger agreed. He gave answers inconsistent with Villarreal’s.1 Nyhus’s routine check of Villarreal’s license showed that it was suspended/revoked in the third degree. He then called for backup. At least two deputies arrived while Nyhus was talking to the passenger by his patrol car, the first approximately 10-15 minutes afterthe initial contact. After Nyhusfinished questioning the passenger, hetold him hewasfree to go. Nyhus told Villarreal that hewas underarrestfordriving with a suspended license and advised him of his Miranda2 rights. During this conversation, Villarreal said he had methamphetamine in the car. He also asked Nyhus the purpose ofthe contact. Nyhus said he “basicallyexplained to [Villarreal] why [he] had so many questions

. . . and why [Villarreal] was being contacted.” Nyhus then asked for consent to search the car. Nyhus testified that Villarreal asked why Nyhus wanted to search the carand whether he would be arrested if he did

1 Nyhus did nottestifyaboutthe contentofthe passenger’s statements. 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). -4-No. 77480-8-I I 5

not consenttothe search. Nyhus did notfeel atthat pointthat consentwould be voluntary. Villarreal was detained in an additional deputy’s patrol car. K-9 Hyde inspected the exteriorofthevehicle. Hyde alerted tothe odorof narcotics in the car near the driver’s door. Nyhus had the car impounded. Following execution of a search warrant, investigators searched the car and found methamphetamine. The State charged Villarreal with unlawful possession of methamphetamine. Villarreal asked the trial court to suppress the evidence found in his car as the fruit of an illegal seizure. After a hearing, the trial court granted his request to suppress evidence and entered findings of fact and conclusions of lawexplaining its decision. The State appeals. ANALYSIS The State challenges the trial court’s decision to suppress the drug evidencefound in Villarreal’s car. We rejectthis challenge. When this court reviews a trial court’s suppression decision, it examines whether substantial evidence supports the challenged findings and whether the conclusions of law flow from the findings.3 Substantial evidence is evidence sufficientto persuade a reasonable person ofthe truth ofthefinding.4 This court considers unchallenged findings of facts as true on appeal.5 Because it is a

~ Statev. Ross, 106Wn. App. 876, 880, 26 P.3d 298 (2001).

~ Statev. Vickers, 148Wn.2d 91, 116, 59 P.3d 58(2002). 5Statev. Gaines, 154Wn.2d 711, 716,116 P.3d 993 (2005). -5-No. 77480-8-I /6

question of law, we reviewwhetherthefindings supportthe legal conclusions de novo.6 We also reviewthe constitutionalityofawarrantless stop de novo.7

Substantial Evidence Supportsthe Challenged Findings The State first contends that substantial evidence does not support this findings offact: 7. Deputy Nyhus engaged in a conversation with Mr. Villarreal about where they were, where they were coming from, and whattheywere doing. Mr. Villarreal indicated he had picked something up from a friend, but was unable to provide the friend[’}s address, phone number, last name, or indicate what he had picked up. Nyhus testified that he spoke to Villarreal about “where theywere coming from, what they were doing.” He stated thatVillarreal told him he had been “at the dead end offthe roadjust picking up something atafriend’s.” Nyhus testified that he “asked for the friend’s name or address” but that Villarreal could not “provide a last name” or an address. Nyhus’s report states thatwhen he asked for a phone number, Villarreal “said he did not think it was necessary.” And Nyhustestified that initiallyVillarreal did notshow, tell, orgive him “any indication
as to what he had picked up.” This evidence is substantial evidence that supportsthe challenged finding.

6 State v. Weyand, 188 Wn.2d 804, 811, 399 P.3d 530 (2017); State v. lB., 187Wn. App. 315, 319-20, 348 P.3d 1250 (2015).

~ Statev. Gatewood, 163Wn.2d 534, 539, 182 P.3d 426 (2008). -6-No. 77480-8-I I 7 The State also challenges thefollowing finding offact ifthis court“accepts [Villarreal’s] interpretation” ofit: 9. Deputy Nyhus asked to speakwith the passengerand asked the passengerto get out ofthe car. The passenger spoke with Deputy Nyhus near Deputy Nyhus’[s] patrol car in order to be out of earshot of Mr. Villarreal. The passenger provided information inconsistent with the information provided by Mr. Villarreal. It is unclear from the testimony whether the deputy talked to the passenger before or after he learned that Mr. Villarreal’s license was suspended. The passengerwastold hewasfreeto leave. Villarreal interprets thisfinding to mean that “before Nyhus requested [his] identification,” Nyhus “elevated the encounter by removing the passenger and questioning him separately by the patrol car.” But Nyhus testified that he requested Villarreal’s identification and Villarreal told him that he did not have a valid license before Nyhus asked the passengertotalkwith him nextto his patrol
car. The record does not support Villarreal’s interpretation. Because the State onlychallenged Villarreal’s interpretation ofthisfinding, which we reject, we need notaddressthis issuefurther.Nyhus Seized Villarreal The State next contests when Nyhus’s contact stopped being a social one and became a seizure. The Fourth Amendment to the United States Constitution and article I, section 7 oftheWashington State Constitution prohibit any unreasonable search and/or seizure. A court presumes that a warrantless seizure is unreasonable -7-No. 77480-8-I I 8

unless the State shows that one of a few very limited exceptions applies.8 Because article I, section 7 oftheWashington State Constitution “grants greater protection to individual privacy rights than the Fourth Amendment,” this court evaluateswhethera seizure occurred undertheWashington Constitution.9 A seizure occurs when, “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”~° Because the test is objective, ifthe officerdoes not use physical force the question is whether, given all the circumstances, a reasonable person would have felt free to end the encounter.11 The test relies upon an analysis of “the interaction between the person and the officer” and not “the officer’s suspicions. “12 Courts in Washington distinguish between a social contact, which article I, section 7 generally permits, and a warrantless seizure, which it generally prohibits.13 Because courts have notdefined a social contact, theterm “occupies
an amorphous area

. . . , resting someplace between an officer’s saying ‘hello’ to

8 Statev. Acrey, 148Wn.2d 738, 746, 64 P.3d 594 (2003).

~ Statev. Flores, 186Wn.2d 506, 512, 379 P.3d 104 (2016) (quoting State v. Harrington, 167Wn.2d 656, 663, 222 P.3d 92 (2009)).

~° United States v. Medenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980).

~ State v. O’Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003); State v. Young, 135Wn.2d 498, 510-11, 957 P.2d 681 (1998).

12 O’Neill, 148Wn.2d at575. 13 Harrington, 167 Wn.2d at 664; State v. Nettles, 70 Wn. App. 706, 712, 855 P.2d 699 (1993). -8-No. 77480-8-I I 9

a stranger on the street and, at the other end ofthe spectrum,’ a seizure.14 A reasonable person would not expect a social contact to have an ‘investigative component.”15 Examples of interactions that courts have considered social contacts include officers asking for identification orbirth data and checking foroutstanding warrants.16 The fact that an officer is in uniform or carrying a firearm does not elevate an interaction from a social contact to a seizure.17 During a social contact, an officer need not warn the citizen of his right to remain silent orwalk away.18 An interaction becomes a seizure ifthe officer demands information from the person, commands the person to halt, or orders the person to wait while checking the person’s warrant status.19 And a social contact may become a seizure ifthe officer“blocks the defendantfrom leaving.”20 Also, factors such as “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of

14 Harrinqton, 167Wn.2d at664. 15 Harrinqton, 167Wn.2d at664. 16 O’Neill, 148Wn.2d at570; Statev. Armenta, 134Wn.2d 1, 11, 948 P.2d 1280 (1997); Statev. Hansen, 99Wn. App. 575, 577, 994 P.2d 855 (2000). 17 Statev. Belanqer, 36Wn. App. 818, 820, 677 P.2d 781 (1984). 18 Statev. Mote, 129Wn. App. 276, 281, 120 P.3d 596 (2005). 19 O’Neill, 148 Wn.2d at 581; State v. Beito, 147 Wn. App. 504, 508-09, 195 P.3d 1023 (2008); State v. Ellwood, 52 Wn. App. 70, 73, 757 P.2d 547 (1988).20 Statev. Coyne, 99Wn. App. 566, 573, 995 P.2d 78 (2000). -9-No. 77480-8-I / 10

language or tone of voice indicating that compliance with the officer’s request might be compelled”weigh in favorofa contact being aseizure.21 Single actions by an officerthat might by themselves be a social contact, iftaken sequentially and viewed cumulatively, mayconstitute an unlawful seizure.22 The State challengesthesetwo conclusions oflaw: 2. Deputy Nyhus’[s] contact with Mr. Villarreal was not an innocent social contact as the reason for such contact was based solely on generalized, non-specific suspicion surrounding Mr. Villarreal’s presence on Thomas Road, the information the deputy had from one or two months prior about burglaries in the north part of the city, and Mr. Villarreal’s abrupt entry into the parking lot of the market where hewas contacted.

5. A reasonable person in JesusVillarreal’s situation on August 5, 2016 would not have felt free to terminate the encounter with Deputy Nyhus or leave. Therefore, Mr. Villarreal was seized. Deputy Nyhus’[s] contact with Mr. Villarreal’s passenger, in conjunction with all of the circumstances of this contact, elevated the contact to a Terry[23~ stop with insufficientspecificand particularized reasonable suspicion. The State disagrees with the trial court’s conclusion about when Nyhus seized Villarreal. It contends that until Nyhus “had reasonable, specific evidence that [Villarreal] was driving without avalid license and possessed methamphetamine,”
a person in Villarreal’s situation would have felt free to leave. It relies on these

21 Harrinqton, 167 Wn.2d at 664 (internal quotation marks omitted) (quoting Young, 135Wn.2d at512). 22 Harrington, 167Wn.2d at668. 23Terrvv. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968). -10-No. 77480-8-I /11



### facts: (1) Nyhus did not physically prevent Villarreal from driving away or fully block Villarreal’s car, (2) Nyhus walked up to speak to Villarreal, and (3) he neither turned on his overhead lights or sirens nor made any other show of authoritybeforetalking toVillarreal. But the totality of the circumstances shows that the trial 

### court correctly decided that a reasonable person would not have felt free to leave. Unchallenged findingsstatethat Nyhus parked behind Villarreal and walked up to the driver’s side ofthe carand Villarreal opened his door. Nyhus parked his car one to two car lengths behind Villarreal so ifVillarreal wanted to drive away, he would have to close his door on Nyhus and turn his wheel to the right to avoid hitting the patrol car. Finding 7 states that Nyhus asked Villarreal questions about “where they were, wheretheywere coming from, and whattheywere doing.” In addition, this finding states thatVillarreal “was unable to provide the friend[’s] address, phone number, [or] last name.” As discussed above, substantial evidence supports finding 7. Nyhus testified that he asked for the first and last name and phone number of the friend Villarreal claimed to be visiting because he wanted to corroborateVillarreal’s description ofhis activities earlierin theevening.24

24Thetrial courtdid not make this finding, butthis court “mayaffirm atrial court’s decision on a different ground if the record is sufficiently developed to considerthe ground fairly.” Statev. Sonderqaard, 86Wn. App. 656, 657-58, 938 P.2d 351 (1997). —11—No. 77480-8-I /12 Given the totality ofthe circumstances, once Nyhus asked forthe friend’s contact information and indicated his intent to contact people about Villarreal’s behavior, anysocial contactended and the interaction became a seizure. Atthat point, Nyhus’s actions would “create the impression [in the mind ofa reasonable person] thatthe police were conducting an ongoing investigation concerning the vehicle” and would indicate to Villarreal that he was not free to leave.25 So the record supports the trial court’s conclusion that “[a] reasonable person in Jesus Villarreal’s situation on August 5, 2016 would not have feltfree to terminate the encounterwith Deputy Nyhus orleave.” Apartfrom this statement, the trial court misapplied the lawto the facts in these two challenged conclusions of law. First, the trial court concluded thatthe interaction was a social contact because Nyhus contacted Villarreal “based solely
on generalized, non-specific suspicion.” But a court does not consider an officer’s personal suspicions and intentions to determine whether an interaction
was aseizure.26 Second, the trial court concluded thatthe interaction was a seizure based
on “Deputy Nyhus’[s] contact with Mr. Villarreal’s passenger, in conjunction with all of the circumstances of this contact.” But the court also found that it was “unclearfrom thetestimonywhetherthe deputytalked tothe passengerbefore or

25 Statev. Johnson, 8Wn. App. 2d 728, 742-43, 440 P.3d 1032 (2019). 26 O’Neill, 148Wn.2d at575. -12-No. 77480-8-I / 13

after he learned that Mr. Villarreal’s licensewas suspended.” Because an officer may seize a person observed driving with a suspended license, the court’s uncertainty about when Nyhus learned that Villarreal’s license was suspended
means insufficientevidence supports its conclusion thatthe conversation with the passengerled to an unlawful seizure.27 This court “may affirm a trial court’s decision on a different ground ifthe record is sufficiently developed to consider the ground fairly.”28 The record shows that Nyhus seized Villarreal when he asked forVillarreal’s friend’s phone numberwith the stated intent ofcontacting him. So we reviewthe lawfulness of this seizure.Nyhus Did Not Have Sufficient GroundsTo SeizeVillarreal The State contends that at the point the interaction became a seizure, Nyhus had groundsforan investigative stop. Briefquestioning during aTerry29 investigative stop is one exception tothe warrant requirement. In general, a court’s analysis ofaTerrystop is similar under both article I, section 7 and the Fourth Amendment.3° The State must showthat the officer reasonably suspected thatthe person was engaged in, orwas about to engage in, criminal activity.31 Reasonable suspicion is a lowerstandard than

27 See, e.g., O’Neill, 148Wn.2d at581-82. 28 Sondergaard, 86Wn. App. at657-58. 29Terry, 392 U.S. at30-31. 30 Statev. Z.U.E., 183Wn.2d 610, 617, 352 P.3d 796 (2015). 31 Terry, 392 U.S. at30-31; Weyand, 188Wn.2d at811. -13-No. 77480-8-I /14

probable cause, but the officer’s reasonable suspicion must be based upon “specific and articulable facts[ j thatthe person stopped has been or is about to be involved in a crime.”32 Article I, section 7 requires that the State show the officer was investigating a particular crime rather “than a mere generalized suspicion thatthe person detained is ‘upto no good.”33 To determine the reasonableness of a seizure, a court evaluates the totality ofthe circumstances.34 Factors a court considers includethetraining and experience of the officer, the seizure’s location, purpose, and duration, the intrusiveness of the seizure on the suspect’s liberty, and the conduct of the suspect.35 Ifa courtfinds thatthe seizurewas unlawful, the court generally must suppress all evidencethe search produced.36 “The Supreme Courtembraced theTerry ruleto stop policefrom acting on mere hunches.”37 “Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a resultthis Court has consistently refused to sanction.”38 Washington courts have concluded that “[a] person’s presence in a high-crime area at a ‘late hour’ does

32Acrey, 148Wn.2d at747. 33Z.U.E., 183Wn.2d at618.

~ Weyand 188 Wn.2d at 811-12 (quoting State v. Fuentes, 183 Wn.2d 149, 158, 352 P.3d 152 (2015)).

~Acrey, 148Wn.2d at747. 36 Wong Sun v. United States, 371 U.S. 471, 484-85, 83 5. Ct. 407, 9 L. Ed. 2d. 441 (1963); Statev. Larson, 93Wn.2d 638, 645-46, 611 P.2d 771 (1980).

~ Statev. Doughty, 170Wn.2d 57, 63, 239 P.3d 573 (2010). 38Terry, 392 U.S. at22. -14-No. 77480-8-I /15

not, by itself give rise to a reasonable suspicion to detain that person.”39 Similarly, a person’s “awkward behavior” or surprise at seeing a police officer is insufficientto provide groundsforaTerrystop.4° The State challengesthe conclusion thatstates, 4. General and non-specific, non-particularized information, based on a briefing one to two months before the subject incident, indicating a rash of burglaries in northern Bellingham did not give Deputy Nyhus a reasonable suspicion, derived from specific, articulable facts, that criminal activity was afoot. Accordingly, the seizure of Mr. Villarreal was unlawful. The State contends that Nyhus had reasonable, articulable suspicion to detain Villarreal because Villarreal admitted to not having a driver’s license after Nyhus observed him driving, Nyhus knewthere had been burglaries in the area, and he thought that Villarreal’s appearance and behavior was consistent with methamphetamine use. But, as discussed above, Nyhus learned Villarreal did not have avalid license only afterthe contact had become a seizure. And courts have made clear that neither a person’s presence in an area where criminal activity has occurred nor “suspicious” affect provides sufficient grounds for a Terry stop.41 Villarreal’s seizure was unlawful. The trial court properly suppressed the drug evidence as afruitofthis unlawful seizure.

~ Doughty, 170Wn.2d at62 (citing Ellwood, 52Wn. App. at 74). 40 State v. Young, 167 Wn. App. 922, 931-32, 275 P.3d 1150 (2012); Gatewood, 163Wn.2d at540-41. 41 See, e.g., Doughty, 170 Wn.2d at 62 (citing Ellwood, 52 Wn. App. at 74). -15-No. 77480-8-I / 16 CONCLUSION Nyhus seized Villarreal when he asked for Villarreal’s friend’s contact information accompanied by his statement that he intended to check on Villarreal’s activities. Nyhus did not have sufficient grounds to seize Villarreal because he did not have a reasonable, articulable suspicion that Villarreal had been orwas going to be engaged in criminal activity. We affirm.

17~~ WE CONCUR: 

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