FILED 


MAY 21, 2015 . 
 In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) 

) No. 32233-5-111 

Appellant, ) 

) 

v. ) 

) 

CODY RAY FLORES, ) UNPUBLISHED OPINION 

) 

Respondent. ) 

FEARING, J. - We address under what circumstances and to what extent a law 

enforcement officer may detain and search a companion of another engaged in criminal 

activity. The trial court suppressed evidence of a gun on the person of Cody Flores, who 

accompanied one accused of a crime. Although the law enforcement officer had cause to 

detain Flores, the officer lacked reason to order Flores to walk toward him and to search 

him. We affirm the trial court. 

FACTS 

On November 2,2013, Moses Lake police dispatch sent all available patrol 

officers to 1120 Alderwood Drive. Dispatch relayed an anonymous report that Giovanni 

Powell held a gun to somebody's head at that address. Dispatch also reported an 

outstanding warrant for the arrest ofPowell. 
No. 32233-5-II1 

State v. Flores 

Officer Kyle McCain arrived at 1120 Alderwood Drive first and espied Giovanni 

Powell ambling with Cody Flores north of the address. The anonymous caller had not 

mentioned Flores. Officer McCain knew Powell to be a member ofthe "Base Block" 

gang. McCain identified Powell from pictures on Facebook, whereon Powell or his 

friends held firearms. McCain also knew Powell from the latter's testimony as a material 

witness after one ofPowell's best friends was shot and killed in a fight at a Spokane 

motel. Officer McCain did not recognize or know Cody Flores. 

After spotting Giovanni Powell, Officer Kyle McCain exited his car and drew his 

gun aimed at the ground or at a low ready position. An officer employs the low ready 

position when he has not identified a specific violent threat, but knows that danger may 

await in his immediate area. Kyle McCain ordered Giovanni Powell and Cody Flores to 

stop walking. Powell and Flores complied. Officer McCain ordered each man to place 

his respective hands on his head, face away from McCain, and kneel on the sidewalk. 

Powell and Flores obeyed and kneeled about five to seven feet from each other. 

Office Kyle McCain stood next to his patrol car and 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 

2 

No. 32233-5-III 

State v. Flores 

his head. Powell obeyed, and the officers arrested him without harm. Cody Flores never 

obstructed in the detaining of Giovanni 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 comer with his hands up, facing away from the officers. He had no 

knowledge of Cody Flores engaging in criminal activity. Nevertheless,Oiumette 

believed Flores to be involved in the gun incident that prompted the anonymous call to 

dispatch. Officer Oiumette drew his gun and held it at the low ready position. He 

instructed Flores to keep 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 walked ten to fifteen feet and neared within twenty feet of 

Officer Paul Oiumette, Flores peered over his shoulder and notified the officer that 

Giovanni Powell gave him a gun. Oiumette commanded Flores to keep walking 

backward. Oiumette asked Flores about the location of the gun, and Flores responded 

that he carried the firearm in his pants under his jacket. Flores continued to promenade 

backward. When Flores approached within feet of Officer Oiumette, the officer ordered 

Flores to kneel, and other officers approached Flores and secured him in handcuffs. With 

his gun drawn, Oiumette removed the gun from Cody Flores' pants and detained Flores 

in the back of a patrol 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 of Washington charged Cody Flores with unlawful possession of a 

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 of an unlawful seizure. 

Flores argued that the Moses Lake officers lacked an articulable suspicion essential to 

justify detaining him. At the motion to suppress hearing, Officers Kyle McCain and Paul 

Oiumette testified. Thereafter the trial court issued a letter opinion, including findings of 

fact and conclusions of law. Among other findings, the trial court found that the officers 

lacked individualized articulable suspicion to suspect Cody Flores of criminal activity. 

The trial court granted Cody Flores' motion to suppress evidence of the gun found 

on his person and dismissed the charge against him without prejudice. In the letter 

opinion, the trial 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 

safety justifies a brief detention and protective frisk of an arrestee's 

companion, proximity to the arrestee, even coupled with general 

circumstances, such as being in a high crime [area], are insufficient to 

create a reasonable concern. State v. Adams, 144 Wn. App. 100, 106-07, 

181 P.3d 37 (2008). Rather, there must be articulable circumstances 

4 

No. 32233-5-II1 

State v. Flores 

particular person in the arrestees company poses a threat to officer safety 

to justifY that person'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 period were aware 

of any violent propensities the Defendant may have had. There were, 

therefore, no grounds under Washington law to detain the Defendant. His 

motion to suppress is granted. 

Clerk's Papers at 56. 

LAW AND ANALYSIS 

We outline the arguments raised by the parties in order to circumscribe our 

analysis. The State of Washington argues that a concern for officer safety justified the 

detention of Cody Flores and later seizure ofthe gun on Flores' person. The State 

contends that Officer Paul Oiumette had a legitimate concern that Giovanni Powell could 

have passed his gun to Cody Flores. The State, however, does not argue that the 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 of Washington analogizes this appeal to a case involving the detaining 

of a passenger in a stopped car. We agree with this analogy, but our agreement harms, 

not advances, the State's position. 

When reviewing claims of unlawful searches and seizures, we often must isolate 

discrete actions ofa police officer during an extended encounter, as ifthe actions are 

separate frames in a movie. Cody Flores does not argue that Officer Kyle McCain lacked 

reason to detain him until officers accomplished the arrest of Giovanni Powell. Flores 

5 

No. 32233-5-II1 

State v. Flores 

does not need to assert this argument to be successful. Flores contends that Officer Paul 

Oiumette lacked grounds, after the arrest of Powell, 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 toward the 

officer. 

Cody Flores also argues that the law enforcement officers lacked reasonable 

suspicion to legitimize a Terry stop of Flores. 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, not the Fourth 

Amendment to the United States Constitution. Article I, section 7, provides that "[n]o 

person shall be disturbed in his private affairs, or his home invaded, without authority of 

law." That protection 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 of Washington does not assign error to any finding of fact ofthe trial 

court. Unchallenged findings, entered after a suppression motion hearing, are verities on 

appeaL State v. O'Neill, 148 Wn.2d 564,571,62 P.3d 489 (2003); State v. Hill, 123 

Wn.2d 641, 647,870 P.2d 313 (1994). 

6 

No. 32233-5-II1 

State v. Flores 

Whenever a police officer accosts an individual and restrains his freedom to walk 

away, he has seized the person. Terry v. Ohio, 392 U.S. at, 16 (1968). Once an officer 

seizes an individual, no subsequent events or circumstances retroactively justity the 

seizure. State v. Mendez, 137 Wn.2d 208,224, 970 P.2d 722 (1999), abrogated on other 

grounds by Brendlin 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 of the Fourth Amendment and article I, section 7 of the 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 warrant requirement, which include 

exigent circumstances, searches incident to 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 of demonstrating 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 to the warrant requirement 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. The principles should teach 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 search warrant arrestee companion search and seizure fall. One court refused to , 

characterize a companion search as a search incident to arrest, since this exception only 

justifies the search ofthe arrestee and his 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 at 497. Perhaps the companion search should fall under the 

exigent circumstances exception or be its own exemption category. 

We now outline those detailed rules that control our decision. Merely associating 

with a person suspected of criminal activity does not strip away the protections of the 

constitution. State v. Broadnax, 98 Wn. 2d 289, 296, 654 P.2d 96 (1982), abrogated on 

other grounds by Minnesota 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 officer must articulate an "objective rationale" 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 "objective rationale" criterion is a less 

demanding standard than needed for a Terry stop. To justify 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, 10,948 P.2d 1280 (1997). 

8 

No. 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 endangered not only by the suspect but by companions ofthe suspect. 

Kennedy, 107 Wn.2d at 11. This threat does not justify unlimited intrusions into the 

companion's privacy, however. To automatically authorize the search of non arrested 

individuals because those individuals happen to be associated with the arrestee, or within 

the vicinity ofthe arrest, would distort the narrow limits of the warrant exceptions and 

offend fundamental constitutional principles. State v. Parker, 139 Wn.2d at 497 (1999). 

The authority to conduct a full blown evidentiary search cannot constitutionally derive 

from the need to secure officer safety alone. Parker, 139 Wn.2d at 499. Because the 

privacy interest of a non arrested individual remains largely undiminished, full blown 

evidentiary searches of nonarrested 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 never justified a full search of a nonarrested person. 

Parker, 139 Wn.2d at 501. 

When stopping a car for a traffic violation, the officer may take whatever steps 

necessary to control the scene, including ordering the driver to stay in the vehicle or exit 

it, as circumstances warrant. State v. Mendez, 137 Wn.2d at 220. But with regard to 

passengers, an officer must be able to articulate an objective rationale predicated 

9 

No. 32233-5-III 

State v. Flores 

specifically on safety concerns for ordering a passenger to stay in the vehicle or to 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. 

If the 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 with the passenger is investigatory, the officer must meet the higher Terry 

standard. Mendez, 137 Wn.2d at 220. Stated differently, if the officer searches the 

person of the nonarrested passenger, the officer must have objective suspicions that the 

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 

of others in a particular context, the officer must point to specific, articulable facts tying 

those observable movements and their circumstances directly and immediately to the 

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 

nothing to independently connect such person to illegal activity, a search of the person is 

invalid under article I, section 7. State v. Parker, 139 Wn.2d at 498. 

Most, if not all, Washington decisions address the stop and frisk of an arrestee's 

companion in the context of a passenger in a car, rather than one walking on a sidewalk 

with the arrestee. We consider the passenger cases controlling. 

10 

No. 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's passenger, Efrain Mendez, exited the vehicle and 

quickly walked from the scene. Mendez did not heed an officer's command to return to 

the car and reached inside his shirt two times while running away. Officers chased 

Mendez, grabbed him, placed him under arrest, and searched him. During the search, 

they found a marijuana pipe. After denying a CrR 3.6 motion to suppress the marijuana 

pipe, the trial court found Mendez guilty of possessing paraphernalia. 

In reversing the trial court's denial of Efrain Mendez's motion to suppress, the 

Supreme Court held that the arresting officers possessed neither an objective rationale 

that would allow them to order Mendez back into the vehicle in order to secure the scene, 

nor a reasonable suspicion that Mendez had engaged or was about to engage in criminal 

conduct. Mendez's running from the scene, without evidence that he committed a crime 

or posed a threat to public safety, did not justifY his detention. Moreover, Mendez's 

gesture of reaching inside his jacket while walking away with his back to the officers 

occurred after he had been seized by the officer's command to return to the car. 

Moses Lake officers possessed reason to seize Cody Flores in order to secure the 

scene of Giovanni Powell's arrest. Officer McCain initially approached Powell and 

Flores alone and was entitled to take limited measures to ensure Flores would not 

interfere in his arrest of Powell. Nevertheless, the seizure exceeded the permissible scope 

ofthe objective rationale standard. Contrary to what the State asserts, the officers' 

11 

No. 32233-5-III 

State v. Flores 

objective rationale for detaining Flores does not ripen into a reasonable suspicion of 

criminal activity sufficient to justify an investigatory seizure. Once Powell was safely in 

•

custody, the officers' objective rationale for seizing Flores 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, or was about to 

commit, a crime, or was a danger to the officers. 

Cody Flores exhibited no threatening or aggressive behavior toward the officers. 

He immediately complied with Officer McCain's every command. Officer Oiumette 

testified that Flores was in a position of disadvantage by the time he arrived, kneeling on 

the ground with his hands behind his head, facing away from the officers. The 

anonymous tip made no mention of Flores, nor did any of the responding officers have 

reason to believe Flores 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's person, the record does not 

show officers forwarded this information to Officer Paul Oiumette. Anyway, any 

suspicion on Oiumette's part would not validate Terry'S reasonable suspicion standard, 

because Paul Oiumette had no reason to believe Flores could not lawfully possess a 

weapon. Officer Oiumette testified that he continued to detain Flores after others arrested 

Powell because he responded to a call about a firearm and he believed Flores was 

involved with the gun. Officer Oiumette thus admitted that Flores' extended detention 

12 

I 

I 

I 	 No. 32233-5-III 

State v. Flores 

was premised on the same anonymous call that the State admits is insufficient to justifY a 

! Terry stop. 


The trial court relied heavily on State v. Adams, 144 Wn. App. 100, 181 P.3d 37 
 j 

(2008). The State argues that the trial court misinterpreted Adams as establishing a bright 

line rule that an officer must have individualized suspicion to seize an arrestee's 

companion in order for that seizure to comport with Washington's Constitution. We 

disagree that the trial court misapplied Adams. 

In State v. Adams, we reversed a trial court's denial of a motion to suppress 

brought by the passenger of a vehicle detained by officers on suspicion of being stolen. 

144 Wn. App. at 107. The arresting officer handcuffed both passenger and driver. He 

asked the passenger, Jennifer Adams, if anything would poke him if he frisked her 

person. Adams responded that she carried a syringe in her coat pocket, and she gave the 

officer permission to remove the syringe. When the officer reached in her pocket to 

retrieve the syringe, the officer found a bag of methamphetamine. The trial court denied 

her motion to suppress the drug evidence. In reversing the trial court, we held that, when 

a seized passenger poses no immediate threat to an officer's safety, nor appears armed, 

Terry requires the officer to '" point to specific, articulable facts giving rise to an 

objectively reasonable belief that the passenger could be armed and dangerous'" in order 

to justifY a protective frisk. Adams, 144 Wn. App. at 105 (quoting State v. Horrace, 144 

Wn.2d 386,399-400,28 P.3d 753 (2001). Adams supports our holding in this appeal. 

13 

I 

j 

:i No. 32233-5-III I State v. Flores 

i 

I The State of Washington relies on State v. Horrace, 144 Wn.2d 386, in which the 

state Supreme Court affirmed the conviction of a car passenger for possession of a 

I concealed weapon. The court sanctioned the pat-down frisk ofthe passenger because, 

while the officer returned to his patrol car to check for warrants for the driver, the officer I

, 

noticed furtive movements between the driver and his passenger, Ronald Horrace. In this 

appeal, no Moses Lake officer saw Giovanni Powell hand Cody Flores an object, nor did 

Powell or Flores engage in furtive movements. 

CONCLUSION 

We affirm the trial court's suppression of evidence and dismissal of charges 

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 record pursuant to RCW 

2.06.040. 

I CONCUR: 


14 

No. 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 Terry v. Ohio, 392 U.S. 1, 

88 S. Ct. 1868,20 L. Ed. 2d 889 (1968). While fact finding, the judge unsuccessfully 

searched the record for "articulable circumstances indicating the particular person in the 

arrestee's company poses a threat to officer safety to justify that person's detention and 

frisk." Clerk's Papers (CP) at 56. The judge did not find facts justifying Mr. Flores' 

continued detention and search after Mr. Powell's arrest. The judge applied Terry as 

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 Terry or separately "controlling" as the 

majority reasons. We should not depart from the principles established in Terry. 

Second,' we should defer to the trial court's discretionary fact finding and witness 

credibility decisions in both letter and spirit. The judge found Mr. Flores was ordered to 

"walk" backward and did not describe the walk as a "promenade" or "parade." CP at 61. 

The judge 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 Terry situations are generally and neutrally described as stops or 

encounters; thus in Terry situations, a police officer initially stops or encounters rather 
No. 32233-5-111 

State v. Flores - Concurrence 

than "accosts" individuals. "Accost" connotes challenging and aggressive, which is not 

always true in police encounters. I cannot join in the noted incorrect descriptions. 

Accordingly, for these two reasons, I must respectfully concur solely in the result. 

Brown, A.C.J. 

-2­