### FILED FEB 11,2014 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III

IN THECOURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 30983-5-III Respondent, ) ) 

### v. ) ) MARISAMAYFUENTES, ) UNPU6LISHED OPINION ) Appellant. ) KORSMO, C.J.

- MarisaFuentes challengesthetrial court's suppressionrulings arising from an investigative stop. We concludethatthe officers had articulable suspiciontojustifythe stop and affIrm. FACTS This case has its genesis in aNovember2010 investigationbytheKennewick PoliceDepartment. Officersperformed a series ofcontrolled drugbuys at an apartment occupiedbyRichardFenton. Thesedealings ledto a searchwarrant and the recovery of illegal drugs and drugparaphernalia from the apartment. Almost a year later, officers knew that Richard Fentonwas still atthe apartment and also suspectedthatotherwanted

### No. 30983-5-111 State 

### v. Fuentes
individuals frequented the apartment. Based on this information, officers set up a stakeout outside. On the night ofthe stakeout-October 5-6, 20Il-officers first observed two people outside the apartment. When the officers approached the people to ask ifany of thewanted individuals were present, the two ran inside and would not answer the door. Later during the stakeout, officers observed 

### 8to 

### 10 people come and go from the apartment between 10 p.m. and 12 a.m. All ofthese people stayed between 5 and 20 minutes. Itwas also a weeknight. In the officers' training and experience, this activity
was consistent with illegal drug dealing. Just after midnight, officers observed a woman, later identified as Marisa Fuentes, arrive at the apartment. Within five minutes ofentering the residence, Ms. Fuentes returned to her vehicle. She then retrieved from the trunk ofher car a white grocery bag with unidentified contents aboutthe size ofa small football. She then took the bag into the apartment and left within another five minutes. When Ms. Fuentes leftthe apartment, the bag was noticeably emptier. Suspecting that she hadjust delivered illegal drugs, the stakeout officers radioed for supporting officers to stop Ms. Fuentes on suspicion of delivery ofa controlled substance.



### 2No, 30983-5-111 State v, Fuentes
Officers stopped the car and advised Ms, Fuentes ofherMiranda' rights, She waived those rights andthe officers proceededto question her, In the course of questioning, Ms, Fuentes admitted that she hadjustdelivered marijuana to Mr, Fenton's apartment Based on this information, officers were able to obtain a search warrant for both Ms, Fuentes's car and Mr, Fenton's apartment The search ofthe apartment yielded methamphetamine, marijuana, and other illicit substances, The vehicle search yielded methamphetamine, Ms, Fuentes was charged with delivery ofmarijuana to the apartment; no charges
were filed relatedto the methamphetamine found in the car,2 Ms, Fuentes moved to suppress the evidence derived from the investigative stop ofhervehicle, includingher admission to delivering marijuana, The trial court ruled that officers made a valid stop of the vehicle, Ms. Fuentes then was convicted ofdelivering marijuana at a stipulated facts trial. She timely appealedto this court. ANALYSIS The sole issue in this appeal concerns whether officers hadreasonable suspicion to stop Ms. Fuentes as she drove away from the apartment. We agree with the trial court that the officers had articulable suspicionjustifyingthe stop.

, Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 

### L. Ed. 2d 694 (1966). 2The methamphetamine was found in herpurse, which was found in the white bag she hadplaced in the trunk. 

### 3No.30983-5-III 

### State 

### v. Fuentes
A finding ofreasonable suspicion presents a question oflaw that this court reviews de novo. 

### State v. 

### Johnson, 128 Wn.2d 431,443,909 P.2d 293 (1996). In reviewing the denial ofa suppression motion, conclusions oflaw are reviewed de novo and the findings offact used to supportthose conclusions are reviewed for substantial evidence. 

### State v. 

### Garvin, 166 Wn.2d 242,249,207 P.3d 1266 (2009). Because Ms. Fuentes only challenges whetherthe uncontested facts were legally sufficient to give rise to reasonable suspicion, ourreview is de novo. In the context ofa 

### TerrI stop, '"[t]he reasonableness ofthe officer's suspicion is determined by the totality ofthe circumstances known to the officer at the inception of the stop.'" 

### State v. 

### Lee, 147 Wn. App. 912, 917,199 P.3d 445 (2008) (quoting

### State v. 

### Rowe,63 Wn. App. 750, 753, 822 P.2d 290 (1991». We have noted that "the suspicion must be individualized." 

### State v. 

### Richardson, 64 Wn. App. 693, 697, 825 P.2d 754 (1992). Thus, ifofficers "have nothing to 

### independently connect suchpersonto illegal activity, a search ofthe person is invalid under article I, section 7 [ofthe Washington State Constitution]." 

### State v. 

### Parker, 139 Wn.2d 486,498,987 P.2d 73 (1999). Where a suspect's activity is consistent with both criminal and noncriminal activity, officers may stilljustifY a briefdetention under 

### Terry without first ruling out all possibilities of

3 

### Terry v. 

### Ohio, 392 U.S. 1,88 S. Ct. 1868,20 

### L. Ed. 2d 889 (1968). 4

### No. 30983-5-111 State v. Fuentes


### innocent behavior. State v. Kennedy, 

### 107 Wn.2d 1,6,726P.2d 445 (1986); State v. Anderson, 

### 51 Wn. App. 775, 780, 755 P.2d 191 (1988). In challenging the Terry 

### stop, Ms. Fuentes chiefly relies on two cases: Richardson 

### and State v. Doughty, 

### 170 Wn.2d 57, 239 P.3d 573 (2010). InRichardson, 

### Yakima officers were patrolling an area late at night known for high drug activity.- Richardson, 

### 64 Wn. App. at 694. Multiple times throughoutthe
course ofthe night, officers observed a man standing on a comer who would then approach cars and talk to their occupants. The man would then disappear and reappear at the same comer a little bit later. When officers would approach the man, he would walk away, disappear out ofview, and later show back up at the comer. Based ontheir training and experience, the officers believed the man's activity was consistent with drug dealing. 

### Id. at 694-95. When the man showed up again later, this time with another person-Richardson-officers stopped the two and detained them on suspicion ofdrug dealing. A search revealed that they were both in possession ofillegal drugs. 

### Id. at 695. This court ultimately reversed Richardson's conviction because the officers had no individualized evidence that he was involved in drug-related activity. 

### Id. at 697-98. Although Richardson was seen with a person reasonably suspected4 

### ofdrug-related activity, "an individual's mere proximity to others independently suspected ofcriminal

4 

### Although dicta, this court opined that officers had reasonable suspicion to detain the man on the comer. Richardson, 

### 64 Wn. App. at 697. 

### 5No.30983-5-III 

### State v. 

### Fuentes activityjustify an investigative stop; the suspicion must be individualized." 

### Id. at 697 (citing 

### State v. 

### Thompson, 93 Wn.2d 838,841,613 P.2d 525 (1980». In 

### Doughty, the appellant similarto here showed up to a suspected drug house late at night, stood there for two minutes, and then drove away. Officers then seized Mr. Doughty and found methamphetamine in his car. 

### Doughty, 170 Wn.2d at 59-60. The Supreme Courtreversed the conviction because the officers did not observe Mr. Doughty enterthe house or observe anyone come to the door and interact with him. 

### Id. at 64. The court also noted that Doughty was not seen carrying any unusual objects or otherwise acting suspiciously. 

### Id. at 65. While some parallels can be drawn from 

### Richardson and

### Doughtyto this case, the officers inthis case had more information on which to base their suspicions than in those
cases. In

### Richardson and

### Doughty, officers did not see the defendant actually interact withthe other suspectedparty. Here, Ms. Fuentes showed up with a suspicious package from hertrunk and left with the samepackage noticeably lighter. In

### Doughty, officers only had complaints thatthe house was a drug house. 

### Doughty, 170 Wn.2d at 60. Here, officers knew thatthe apartment hadbeen and currently appeared to be used for drug dealing. In

### Doughty, officers also did not see Mr. Doughty go inside or see anyone else acting suspiciously. Here, officers saw Ms. Fuentes enter and exittwice within minutes and also observed 8 to 10 otherpeople do the same earlier in the night. In the officers' training and experience, large numbers ofpeople do not show up one at a time late at 6No.30983-5-III State v. Fuentes night on a weeknight and stay for only minutes unless illegal activity is occurring. While such activity may in some circumstances be consistent with some noncriminal activities, the Constitution does not require officers torule out all possibility ofinnocentbehavior before making a briefinvestigatory stop. Anderson, 51 Wn. App. at 780; Kennedy, 107 Wn.2d at 6. The more apt analogy is to Kennedy. There, officers were investigating a house suspected ofbeing used for drug dealing based on complaints by neighbors that there was heavy traffic in and out ofthehouse bypeople who stayed only minutes. Kennedy, 107 Wn.2d at 3. One ofthe people that officers observed leave the house was Mr. Kennedy. Officers did not see Kennedy enter or leave with any objects or seehim otherwise acting suspiciously, but stopped him anyway after observing him leave the house. 

### Id. The one substantial difference between that case and this one is that officers had a tip from an informantthat Mr. Kennedy regularly purchased marijuana from the residence he was observed leaving. 

### Id. While an informant'stip is strong evidence supportingreasonable suspicion, nothing in the Kennedy opinion states or suggests that an informant's tip is an absolute minimum for establishing reasonable suspicion. Indeed, Kennedy noted that no such rule is possible, or even desirable: '" no single rule canbe fashioned to meet every conceivable confrontation betweenthe police and citizen. Evaluatingthe reasonableness ofthe police action and the extent ofthe intrusion, each case mustbe considered in light 7No. 30983-5-111 State 

### v. Fuentes
ofthe particular circumstances facing the law enforcement officer.'" Kennedy, 107 Wn.2d at 7 (quoting State 

### v. Lesnick, 84 Wn.2d 940,944,530 P.2d 243 (1975)). Looking at the facts ofthis case in light ofthe particular circumstances facing officers, we find that the additional facts separating this case from Richardson and Doughty sufficedto give officers individualized suspicionthatMs. Fuentes hadjustbeen involved in the drug dealing that was known totake place atMr. Fenton's apartment. Unlikethose cases, she was seen carrying a bag into the apartment and came out carrying something different in the bag. Unlike those cases, here, the officers' suspicionthat Mr. Fenton's apartment was a place ofdrug dealing was especially well founded, based on the search conducted a year earlier. She also wenttothe apartment after two hours of surveillance revealed that apparent drug activity was takingplace there that very evening shortly before her arrival at midnight on a weekday. 

### It was reasonable to inferthat she had arrivedto help resupply Mr. Fenton and/orwouldhave information about his activities that evening. There was articulable suspicion as well as individualized suspicion ofMs. Fuentes. The trial court correctly deniedthe motionto suppress. 

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# I I 8No.30983-5-III State v. Fuentes
Affinned. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but itwill be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR:

Brown, J.

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