201** HAR 10 All 3^8

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

v. THOMAS J. WENGER, Appellant. No. 69403-1-1 DIVISION ONE

UNPUBLISHED OPINION FILED: March 10. 2014 SPEARMAN, J. -A woman called 911, identified herself, and reported 

### observing a possible attempted burglary in progress at an Everett church. Based on circumstances suggesting the reliability of the citizen's information and their own observations at the scene, police officers stopped Thomas Wengerfor further 

### investigation. Because the circumstances supported a reasonable suspicion that Wenger was involved in criminal activity, the trial court did not err in denying 

### Wenger's motion tosuppress evidence seized after hisdetention. We therefore affirm hisconviction forpossession ofmethamphetamine while on community custody. FACTS 

### The material facts are undisputed. At 1:27 p.m. on August 1, 2012, a woman 

### called 911 and reported observing a possibleburglary in progress at one of theNo. 69403-1/2 entrances to Our Lady of Perpetual Help Church in Everett. The caller identified herselfas Gayle Evans and said thattwo men were "looking likethey are trying to fix 

### a bike, butone male istrying to jimmy into the door."1 She described the suspects as two white males with grayish hair and wearing light-colored t-shirts. Evans told the 911 operatorthat she would keep going, but provided hertelephone number and said thatthe police could call her ifthey needed additional information. Inresponse to the report, Everett Police Officer Alex Soderstrom arrived at the 

### church at 1:30 p.m. and began looking forthe suspects. In an area nearthe location of the suspected break-in attempt, a man matching Evans' general description 

### jumped out of the bushes and started to flee on a bicycle. Officer Soderstrom activated hisemergency lights and siren and the man, Joshua Cooper, stopped and got off his bicycle. 

### Whileanotherofficerspoke with Cooper, Officer Soderstrom walked toward 

### the nearby church entrance. As he turned the corner pastthe entrance, Soderstrom 

### immediately encountered a man standing next to a bicycle. The man, lateridentified
as ThomasWenger, got on the bicycle and fled, ignoring Soderstrom's orders to stop. 

### Another officerstopped Wenger a short distance away and arrested him on an 

### outstanding warrant. Wenger was wearing a black t-shirtand had brown hair. Officers found methamphetamine in a search incident to the arrest. The officers saw
no other persons or bicycles inthe area.

1Ex. 3, at 1.No. 69403-1/3 The State charged Wenger with one count ofpossession of a controlled substance while on community custody. Priorto trial, he moved to suppress the methamphetamine seized after his arrest, arguing that police officers lacked a reasonable suspicion to detain him based on the caller's 911 tip. The trial court denied the motion to suppress. Following a trial on stipulated evidence, the courtfound Wenger guilty as charged and imposed a 14-month standard range sentence.

ANALYSIS Wenger contends that neitherthe informant nor the informant's tip was 

### sufficiently reliable to support a reasonable suspicion of criminalactivity. He argues that the evidence seized after his unlawful detention must therefore be suppressed. 

### "When reviewingthe denial of a suppression motion, an appellate court determines whether substantial evidence supports the challenged findings of fact and 

### whetherthe findings supportthe conclusions oflaw." State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). We reviewchallenged conclusions of lawde novo. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997). Wenger has assigned 

### error to only one finding of fact. The remaining findings are therefore verities on appeal. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). Consistent with the Fourth Amendment and article I, section 7 ofthe 

### Washington State Constitution, police officers may conduct an investigatory stop if the officers have a reasonable and articulable suspicion that an individual is involved 

### in criminal activity. State v. Sieler, 95Wn.2d 43, 46, 621 P.2d 1272(1980); see also Terrv v. Ohio. 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The necessary

-3-No. 69403-1/4 level of articulable suspicion is "a substantial possibility that criminal conduct has occurred or is about to occur." State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986). We review the reasonableness ofthe officer's suspicions by considering the totality ofthe circumstances known to the officer at the time ofthe stop. State v. Lee, 147 Wn. App. 912, 917, 199 P.3d 445 (2008). The determination ofreasonable suspicion "must be based on commonsensejudgments and inferences about human behavior." Id. (quoting Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). 

### An officer's reasonable suspicion may be based on an informant's tip ifthe 

### informationpossesses sufficient "'indiciaofreliability.'" Sieler, 95 Wn.2d at 47 

### (quoting Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1923, 32 LEd.2d 612 (1972)). In assessing indicia ofreliability, courts consider all relevant factors, 

### including (1) the reliability of the informant, (2) whether the information was obtained in a reliable manner, and (3)whetherofficerscorroborated any details of the 

### informant's tip. id, (citing State v. Lesnick. 84 Wn.2d 940, 530 P.2d 243 (1975)). Contraryto Wenger's assertions, the legal standard fordetermining reasonable suspicion based on an informant's tip is the "totality of the circumstances" test, not 

### thetwo-part reliability analysisderived from Aquilarv. Texas, 378 U.S. 108,84 S.Ct. 1509, 12 LEd.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 LEd.2d 637 (1969). State v. Marcum, 149 Wn. App. 894, 903, 205 P.3d 969 (2009); see also Lee. 147 Wn. App. at 920-21.No. 69403-1/5 Here, a named citizen informant reported observing possible criminal activity while itwas in progress. "Acitizen-witness's credibility is enhanced when he or she purports to be an eyewitness to the events described." Lee, 147 Wn. App. at 918 (citing State v. Vandover, 63 Wn. App. 754, 759, 822 P.2d 784 (1992)). In addition, Evans communicated more than conclusory allegations of criminal behavior. She 

### identified the precise location, described the suspects, and provided a brief but specific description of the suspicious activity, as wellas additional details indicating the 

### presence of bicycles. She also explained that she was continuing on her way, but left hertelephone numberand expressed her willingness to provide additionalassistance if contacted. Officers arrived at the scene within three minutes of Evans' report. Almost 

### immediately, they encountered two men near a church entrance in the general area that Evans had described. Wenger has notchallenged the trial court's finding that Joshua Coopermatched the informant's general description. Both men were on 

### bicycles and attempted to fleeimmediately upon seeing the police. Police saw no
one else on the church grounds or nearby. Although Cooper stopped, Wenger 

### ignored the orders ofauniformed officerandattemptedto escape. The suspects'flight from police officers is a suspicious circumstance that may be considered in 

### determining whetherofficers had a reasonable suspicion ofcriminal activity. State v. Gatewood, 163 Wn.2d 534, 540, 182 P.3d 426 (2008); State v. Little, 116 Wn.2d 488, 496, 806 P.2d 749 (1991): see also Illinois v. Wardlow, 528 U.S. at 124 ("nervous, 

### evasive behavior," including unprovokedflight upon noticing police, is a "pertinent factor" indetermining reasonable suspicion).

-5-No. 69403-1/6 Atthe time they detained Wenger, police officers were aware that a named 

### and cooperative eyewitness had described specificsuspicious activity occurring near a church entrance. The informantalso reported the presence of a bicycle. Upon arriving at the reported location three minutes later, the officers encountered two men who matched the general description ofreported suspects. No one else was inthe
area. Both men were on bicycles and both men fled immediately upon noticing the officers. Viewed together, the foregoing circumstances, including the informant's eyewitness account, the officers' prompt corroboration of several details, and their
own observations, were sufficient to establish the reliability ofthe tip and create a reasonable, articulable suspicion ofcriminal activityjustifying an investigatory detention. The trial court did not err in denying Wenger's motion to suppress. 

### On appeal, Wenger challenges the trialcourt's findingthat he matched the informant's "general description," noting that the record indicated he had brown, ratherthan "grayish," hair, and that he was wearing a black, ratherthan a "light colored" t-shirt. When considered in light of all ofthe circumstances known to the officers, however, including the otherdetails ofthe tip and the officers' own 

### observations, such discrepancies did not renderthe decision to detain Wenger
unreasonable. Affirmed. 

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