### FILED MAY 21, 2015
. In the Office ofthe ClerkofCourt WA State CourtofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 32233-5-111 Appellant, ) ) 

### v. ) ) CODYRAYFLORES, ) UNPUBLISHED OPINION ) Respondent. ) FEARING, J.

- We address under what circumstances and to what extent a law enforcement officermay detain and search a companion ofanother engaged in criminal activity. The trial court suppressed evidence ofa gun on the person ofCody Flores, who accompanied one accused ofa crime. Althoughthe law enforcement officerhad cause to detain Flores, the officer lackedreason to orderFlores to walktowardhim and to search him. We affirm the trial court. FACTS On November 2,2013, MosesLakepolice dispatch sent all available patrol officers to 1120 AlderwoodDrive. Dispatch relayed an anonymous report that Giovanni Powell held a gun to somebody'shead at that address. Dispatch also reported an outstanding warrant for the arrest ofPowell.No. 32233-5-II1 State 

### v. Flores
OfficerKyle McCain arrived at 1120 Alderwood Drive first and espied Giovanni Powell ambling with Cody Flores north ofthe address. The anonymous callerhad not mentioned Flores. Officer McCain knew Powell to be a member ofthe "BaseBlock" gang. McCain identified Powell from pictures on Facebook, whereon Powell orhis friends held firearms. McCain also knew Powell from the latter's testimony as a material witness after one ofPowell'sbest friends was shot and killed in a fight at a Spokane motel. OfficerMcCain did not recognize orknow Cody Flores. After spotting Giovanni Powell, Officer Kyle McCain exitedhis car and drew his gun aimed at the ground or at a low ready position. An officer employs the low ready position whenhe has not identified a specific violent threat, butknows that dangermay await in his immediate area. Kyle McCain ordered Giovanni Powell and Cody Flores to stop walking. Powell and Flores complied. OfficerMcCain ordered each man to place his respective hands on his head, face away from McCain, and kneel onthe sidewalk. Powell and Flores obeyed and kneeled about five to seven feet from each other. Office Kyle McCain stood nextto his patrol carand utilized the car as cover, while he paused for other officers to arrive. Giovanni Powell and Cody Flores spoke to each other, and McCain ordered them to cease talking. Kyle McCain directed Flores to
move further from Powell, and Flores complied while still on his knees. Another four officers arrived at the Alderwood address, and each drew his gun. Officer McCain and other officers ordered Powell to approach them by walking backward with his hands on 2No. 32233-5-III State 

### v. Flores
his head. Powell obeyed, andthe officers arrested him without harm. Cody Flores never obstructed in the detaining ofGiovanni Powell. Moses Lake Officer Paul Oiumette was one ofthe other officers who arrived at the Alderwood address. Oiumette assumed control over Cody Flores, who remained kneeling on the street comerwith his hands up, facing away from the officers. He had no knowledge ofCody Flores engaging in criminal activity. Nevertheless,Oiumette believed Flores to be involved in the gun incidentthatprompted the anonymous call to dispatch. Officer Oiumette drew his gun and held it atthe low ready position. He instructed Florestokeep his hands where Oiumette could see them and to walk backward to the sound ofhis voice. Cody Flores rose from his knees and complied. As Flores walked backward, he saw Officer Oiumette's drawn gun. After Cody Flores walkedten to fifteen feet and neared within twenty feet of OfficerPaul Oiumette, Flores peered overhis shoulder and notified the officerthat Giovanni Powell gave him a gun. Oiumette commanded Flores tokeep walking backward. Oiumette askedFlores aboutthe location ofthe gun, and Flores responded that he carriedthe firearm in his pants under hisjacket. Flores continued to promenade backward. When Flores approached within feet ofOfficer Oiumette, the officer ordered Flores to kneel, and other officers approached Flores and secured him in handcuffs. With his gun drawn, Oiumette removedthe gun from Cody Flores' pants and detained Flores intheback ofapatrol car. 3

# I

l 

# i j No. 32233-5-111 

# I State v. Flores 

# I Moses Lake law enforcement officers reviewed Cody Flores' criminal history and 

# ! discovered a conviction in October 2012 for residential burglary, a felony disqualifying Flores from possessing a firearm. PROCEDURE The State ofWashington charged Cody Flores with unlawful possession ofa firearm in the first degree, in violation ofRCW 9.41.040(l)(a). Cody Flores filed a CrR 3.6 motion to suppress the gun found on his person as the product ofan unlawful seizure. Flores argued thatthe Moses Lake officers lacked an articulable suspicion essential to justify detaining him. Atthe motion to suppress hearing, Officers Kyle McCain and Paul Oiumette testified. Thereafterthe trial court issued a letter opinion, including findings of fact and conclusions oflaw. Among other findings, the trial court found that the officers lacked individualized articulable suspicion to suspect Cody Flores ofcriminal activity. The trial court granted Cody Flores' motionto suppress evidence ofthe gun found

on his person and dismissed the charge against him withoutprejudice. In the letter opinion, thetrial court observed that federal law assumes that all arrestee companions are dangerous and thus are subject to search, The court continued: In Washington, however, while a reasonable concern for officer safetyjustifies a briefdetention and protective frisk ofan arrestee's companion, proximity to the arrestee, even coupled with general circumstances, such as being in a high crime [area], are insufficientto create a reasonable concern. State v. Adams, 144 Wn. App. 100, 106-07, 181 P.3d 37 (2008). Rather, there must be articulable circumstances


### 4No. 32233-5-II1 State v. Flores particularperson in the arrestees company poses a threat to officer safety tojustifY thatperson's detention and frisk. Id. Here, Mr. Flores was compliant, made no furtive movements, and there is no evidence the officers during the relevant time periodwere aware ofany violentpropensitiesthe Defendant may have had. There were, therefore, no grounds underWashington law to detain the Defendant. His motionto suppress is granted. Clerk's Papers at 56. LAW AND ANALYSIS We outlinethe arguments raised by the parties in orderto circumscribe our analysis. The State ofWashington argues that a concern for officer safetyjustifiedthe detention ofCody Flores and later seizure ofthe gun on Flores' person. The State contends that OfficerPaul Oiumette had a legitimate concern that Giovanni Powell could havepassed his gun to Cody Flores. The State, however, does not argue thatthe Terry investigatory stop rule validated Officer Oiumette's search ofFlores' person. Terry v. 

### Ohio, 392 U.S. 1, 16,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968) The State ofWashington analogizes this appeal to a case involvingthe detaining ofa passenger in a stopped car. We agree withthis analogy, but our agreement harms, not advances, the State'sposition. When reviewing claims ofunlawful searches and seizures, we often must isolate discrete actions ofapolice officer during an extended encounter, as ifthe actions are separate frames in a movie. Cody Flores does not argue that OfficerKyle McCain lacked

reason to detain him until officers accomplishedthe arrest ofGiovanni Powell. Flores 5No. 32233-5-II1 State 

### v. Flores
does not need to assert this argument to be successful. Flores contends that OfficerPaul Oiumette lacked grounds, after the arrest ofPowell, to require him to walk toward the officer and to search his person. Flores emphasizes that he informed Oiumette ofthe gun
on his person only after Oiumette unlawfully directed him to parade carefully towardthe officer. Cody Flores also argues that the law enforcement officers lackedreasonable suspicion to legitimize a Terry stop ofFlores. We agree with the State that this latter contention is irrelevant since the State does not substantiate the detention and search of Flores under Terry. As the trial court did, we rely on the Washington constitution, notthe Fourth Amendment to the United States Constitution. Article I, section 7, provides that "[n]o person shall be disturbed in his private affairs, orhis home invaded, without authority of law." Thatprotection encompasses and exceeds the protection guaranteed in the Fourth Amendment ofthe United States Constitution. State v. Horrace, 144 Wn.2d 386,392 n.2, 28 P.3d 753 (2001); State v. Parker, 139 Wn.2d 486,493-94,987 P.2d 73 (1999). The State ofWashington does not assign error to any finding offact ofthe trial court. Unchallenged findings, entered after a suppression motion hearing, are verities on appeaL State v. O'Neill, 148 Wn.2d 564,571,62P.3d489 (2003); State v. Hill, 123 Wn.2d 641, 647,870 P.2d 313 (1994).



### 6No. 32233-5-II1 State v. Flores
Whenever a police officer accosts an individual and restrains his freedom to walk away, he has seizedthe person. Terry v. Ohio, 392 U.S. at, 16 (1968). Once an officer seizes an individual, no subsequent events or circumstances retroactivelyjustitythe seizure. State v. Mendez, 137 Wn.2d 208,224, 970 P.2d 722 (1999), abrogatedon other grounds byBrendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 

### L. Ed. 2d 132 (2007). As a general rule, warrantless searches and seizures are per se unreasonable, in violation ofthe Fourth Amendment and article I, section 7 ofthe Washington State Constitution. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). There are five jealously and carefully drawn exceptions to the warrantrequirement, which include exigent circumstances, searches incidentto a valid arrest, inventory searches, plain view searches, and Terry investigative stops. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). The State bears the burden ofdemonstrating that a warrantless seizure falls into a narrow exception to the rule. State v. Doughty, 170 Wn.2d 57, 61, 239 P.3d 573 (2010). This is a strict rule. State v. White, 135 Wn.2d 761, 769, 958 P.2d 982 (1998). Exceptions tothe warrantrequirement are limited and narrowly drawn. White, 135 Wn.2d at 769. Whereas, Washington courts repeatedly herald these principles, a court rarely hinges a decision thereon. Theprinciples shouldteach us that in close calls challenged evidence should be suppressed.

7

# I

I No. 32233-5-III State 

### v. Flores 

# I Washington courts have not announced under which ofthe five exceptions to a I

# ! i searchwarrant arrestee companion search and seizure fall. One court refused to 

### , characterize a companion search as a search incidentto arrest, since this exception only justifiesthe search ofthe arrestee andhis immediate vicinity. State v. Parker, 139 Wn.2d at 497 (1999). When a person is not under arrest, there can be no search incident to arrest. Parker, 139 Wn.2d at497. Perhapsthe companion search should fall under the exigent circumstances exception or be its own exemption category. We now outline those detailedrules that control our decision. Merely associating with a person suspected ofcriminal activity does not strip away the protections ofthe constitution. State v. Broadnax, 98 Wn. 2d 289, 296, 654 P.2d 96 (1982), abrogatedon othergrounds byMinnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). In order for police to lawfully seize an otherwise innocent individual present with an arrestee, the arresting officermust articulate an "objectiverationale"predicated specifically on safety concerns, for officers or other citizens to satisfy article I, section 7. State v. Mendez, 137 Wn.2d at 220 (1999). This "objectiverationale" criterion is a less demanding standard than needed for a Terry stop. Tojustify a Terry stop, the police officer must identify specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant an intrusion. Terry, 392 U.S. at 21; State

v. Armenta, 134 Wn.2d 1, 10,948P.2d 1280 (1997).



### 8No. 32233-5-III State v. Flores
The law recognizes that under certain circumstances, unarrested individuals may pose a threat to officer safety in an arrest situation. State v. Horrace, 144 Wn.2d at 392­ 93; State 

### v. Kennedy, 107 Wn.2d 1, 11,726 P.2d 445 (1986). An officer conducting a stop may be endangerednot only by the suspectbutby companions ofthe suspect. Kennedy, 107 Wn.2d at 11. This threat does notjustifyunlimited intrusions into the companion's privacy, however. To automatically authorize the search ofnonarrested individuals because those individuals happen to be associated with the arrestee, orwithin the vicinity ofthe arrest, would distort the narrow limits ofthe warrant exceptions and offend fundamental constitutionalprinciples. State v. Parker, 139 Wn.2d at497 (1999). The authority to conduct a full blown evidentiary search cannot constitutionally derive from the needto secure officer safety alone. Parker, 139 Wn.2d at 499. Because the privacy interest ofa nonarrested individual remains largely undiminished, full blown evidentiary searches ofnonarrested individuals are constitutionally invalid even when officers may legitimately fear for their safety. Parker, l39 Wn.2d at 499. A generalized

concern for officer safety has neverjustified a full search ofa nonarrestedperson. Parker, 139 Wn.2d at 501. When stopping a car for a traffic violation, the officermay take whatever steps necessaryto control the scene, including orderingthe driver to stay in the vehicle orexit 

### it, as circumstances warrant. State v. Mendez, 137 Wn.2d at 220. But with regard to passengers, an officermustbe able to articulate an objective rationale predicated 9No. 32233-5-III State 

### v. Flores specifically on safety concerns for ordering a passengerto stay in the vehicle orto exit the vehicle to satisfy article I, section 7. Mendez, 137 Wn.2d at 220. Whether such an articulable, objective rationale exists depends on the circumstances at the scene ofthe traffic stop. Mendez, 137 Wn.2d at 221. Ifthe officer arrests the driver, the officer may then order an occupant from the

car. State v. Parker, 139 Wn.2d at 502. Nevertheless, when the purpose ofthe officer's interaction withthe passenger is investigatory, the officer must meet the higher Terry standard. Mendez, 137 Wn.2d at 220. Stated differently, ifthe officer searches the person ofthe nonarrested passenger, the officer must have objective suspicions thatthe person searched may be armed and dangerous. State 

### v. Parker, 139 Wn.2d at 502. When the suspicion that an individual may be armed is based in part on the observable actions ofothers in a particular context, the officer must pointto specific, articulable facts tying those observable movements and their circumstances directly and immediatelytothe individual to be frisked. State v. Horrace, 144 Wn.2d at 399-400 (2001). When officers do not have an articulable suspicion that an individual is armed or dangerous and have nothingto independently connect suchpersonto illegal activity, a search ofthe person is invalid under article I, section 7. State v. Parker, 139 Wn.2d at498. Most, ifnot all, Washington decisions address the stop and frisk ofan arrestee's companion in the context ofa passenger in a car, ratherthan one walking on a sidewalk withthe arrestee. We consider the passenger cases controlling. 10No. 32233-5-III State v. Flores


### In State v. Mendez, 137 Wn.2d 208 (1999), police officers detained a car for failing to stop at a stop sign. The car'spassenger, EfrainMendez, exited the vehicle and quickly walked from the scene. Mendez did notheed an officer's commandto return to the car and reached inside his shirt two times whilerunning away. Officers chased Mendez, grabbed him, placedhim under arrest, and searched him. Duringthe search, they found a marijuanapipe. After denying a CrR 3.6 motion to suppress the marijuana pipe, the trial court found Mendez guilty ofpossessingparaphernalia. 

### In reversing the trial court's denial ofEfrainMendez's motion to suppress, the Supreme Courtheld that the arresting officerspossessed neither an objectiverationale that would allow them to orderMendez back into the vehicle in orderto secure the scene,
nor areasonable suspicion that Mendez had engaged or was about to engage in criminal conduct. Mendez'srunning from the scene, without evidencethat he committed a crime

orposed athreat topublic safety, did notjustifY his detention. Moreover, Mendez's gesture ofreaching inside hisjacketwhile walking away with his backto the officers occurred after he had been seized by the officer's command to return to the car. Moses Lake officers possessedreason to seize Cody Flores in orderto secure the

scene ofGiovanni Powell's arrest. OfficerMcCain initially approached Powell and Flores alone and was entitled to take limited measures to ensure Flores would not interfere in his arrest ofPowell. Nevertheless, the seizure exceededthepermissible scope ofthe objective rationale standard. Contrary to what the State asserts, the officers' 

### 11No. 32233-5-III State v. Flores objectiverationale for detaining Flores does notripen into a reasonable suspicion of criminal activity sufficienttojustify an investigatory seizure. Once Powell was safely in 

### • custody, the officers' objective rationale for seizingFlores evaporated, and the officers could no longer lawfully detain and search Flores because, as the trial court correctly found, they lacked a reasonable suspicion that Flores had committed, orwas about to commit, a crime, or was a dangertothe officers. Cody Flores exhibited no threatening oraggressive behaviortoward the officers. He immediately complied with OfficerMcCain's every command. Officer Oiumette testified that Flores was in a position ofdisadvantage by the time he arrived, kneeling on the ground withhis hands behind his head, facing away from the officers. The anonymous tip made no mention ofFlores, nor did any ofthe responding officers have

reason to believeFlores had dangerous propensities. Even though arresting law enforcement officers believed Giovanni Powell passed his gun to Flores after they could not find a gun on Powell'sperson, the record does not show officers forwarded this information to OfficerPaul Oiumette. Anyway, any suspicion on Oiumette's partwould notvalidate Terry'S reasonable suspicion standard, becausePaul Oiumette had no reason to believe Flores couldnot lawfully possess a weapon. Officer Oiumettetestifiedthat he continuedto detain Flores after others arrested Powell becausehe respondedto a call about a firearm and he believed Flores was involved with the gun. Officer Oiumette thus admitted thatFlores' extended detention 12

# I

I I No. 32233-5-III State 

### v. Flores

was premised on the same anonymous call thatthe State admits is insufficient tojustifY a 

# ! Terry stop. The trial courtrelied heavily on State v. Adams, 144 Wn. App. 100, 181 P.3d 37 j (2008). The State argues that the trial court misinterpretedAdams as establishing a bright line rule that 

### an officermust have individualized suspicionto seize an arrestee's companion in order for that seizure to comport with Washington's Constitution. We disagree that the trial court misappliedAdams. In State 

### v. Adams, we reversed a trial court's denial ofa motion to suppress broughtby the passenger ofa vehicle detained by officers on suspicion ofbeing stolen. 144 Wn. App. at 107. The arresting officerhandcuffedboth passenger and driver. He asked the passenger, JenniferAdams, ifanything would poke him ifhe frisked her person. Adams responded that she carried a syringe in her coatpocket, and she gave the officerpermission to remove the syringe. When the officerreached in herpocket to retrieve the syringe, the officer found a bag ofmethamphetamine. The trial court denied her motion to suppress the drug evidence. In reversing the trial court, we held that, when

a seized passengerposes no immediate threat to an officer's safety, nor appears armed, Terry requires the officerto '" pointto specific, articulable facts givingrise to an objectively reasonable beliefthatthe passenger could be armed and dangerous'" in order tojustifY a protective frisk. Adams, 144 Wn. App. at 105 (quotingState 

### v. Horrace, 144 Wn.2d 386,399-400,28 P.3d 753 (2001). Adams supports ourholding in this appeal. 13

# I j :i No. 32233-5-III 

# I State v. Flores i

# I The State ofWashington relies onState 

### v. Horrace, 144 Wn.2d 386, in which the state Supreme Court affirmedthe conviction ofa carpassenger for possession ofa 

# I concealed weapon. The court sanctionedthe pat-down frisk ofthepassenger because, while the officerreturned to his patrol car to check for warrants for the driver, the officer 

# I

, noticed furtive movements betweenthe driver and his passenger, Ronald Horrace. In this appeal, no Moses Lake officer saw Giovanni Powell hand Cody Flores an object, nor did Powell orFlores engage in furtive movements. CONCLUSION We affirm the trial court's suppression ofevidence and dismissal ofcharges against Cody Flores. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

I CONCUR:

14No. 32233-5-111 BROWN, A.C.J. (concurring in result) - First, Mr. Flores' case was decided by the trial court applying solely the investigative stop principles of Terryv. Ohio, 392 U.S. 1, 88 S. Ct. 1868,20 L. Ed. 2d 889 (1968). While fact finding, thejudge unsuccessfully searched the record for "articulable circumstances indicating the particular person in the arrestee's company poses a threat to officer safety tojustify that person's detention and frisk." Clerk's Papers (CP) at 56. Thejudge did not find facts justifying Mr. Flores' continued detention and search after Mr. Powell's arrest. Thejudge applied Terryas did State v. Adams, 144 Wn. App. 100, 107, 181 P.3d 37 (2008), a passenger search
case. But passenger cases are not distinct from Terryor separately "controlling" as the majority reasons. We should not departfrom the principles established in Terry. Second,'we should deferto the trial court's discretionary fact finding and witness credibility decisions in both letter and spirit. Thejudge found Mr. Flores was ordered to "walk" backward and did not describe the walk as a "promenade" or "parade." CP at 61. Thejudge did not criticize the officers' need to safely control Mr. Powell's arrest scene and briefly detain his walking companion, Mr. Flores. Initial police interactions with individuals in Terrysituations are generally and neutrally described as stops or encounters; thus in Terrysituations, a police officer initially stops or encounters ratherNo. 32233-5-111 State v. Flores - Concurrence than "accosts" individuals. "Accost" connotes challenging and aggressive, which is not always true in police encounters. I cannotjoin in the noted incorrect descriptions. Accordingly, forthese two reasons, I must respectfully concur solely in the result.

Brown, A.C.J.

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