State of Washington v. Eric Christopher Gantt (dissenting)
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No. 28777-7-III Korsmo, J. (dissenting) Eric Gantt failed to develop the record to support the majority s view of the facts. He also did not establish that he was seized prior to the officers having cause to do so. Because the trial court correctly determined there was no seizure until after the falsified trip permit was discovered, the convictions should be affirmed. Record Development. The initial problem with this case comes from the inadequately developed record. The majority refers to Officer Tony Valencia s emergency lights having been turned on when he pulled up behind the improperly1 parked van. There is no evidence to support that assertion. None of the police reports that were filed as the record for the suppression hearing make mention of any lights being turned on. Clerk s Papers (CP) 39-44. Instead, information about the lights became part of the record by agreement of counsel. Both counsel stipulated that the officer activated his lights when he parked behind the van. Report of Proceedings at 4. The problem with this stipulation is that police officers typically have several combinations of lights that can be displayed. Defense counsel in 1 The agreed upon facts establish that Mr. Gantt s van was parked in front of the driveway. No. 28777-7-III State v. Gantt argument repeatedly referred to the activation of the officer s emergency lights as the moment of seizure. While that may be an accurate description of which lights were used, it is not a foregone conclusion, and it is beyond what the parties stipulated. The officer may well have activated simply his yellow wig-wag lights to alert traffic to his presence, or he may have displayed lights other than the emergency lights typically used in a traffic stop. This is particularly the case where, as here, the officer s stated subjective reason for the encounter was to engage in a social contact to investigate the defendant s presence in the neighborhood. He did not believe he was seizing Mr. Gantt and may well have refrained from using the emergency lights. We should not assume that he did.2 It was Mr. Gantt s burden to establish that he was seized. State v. Thorn, 129 Wn.2d 347, 354, 917 P.2d 108 (1996), overruled on other grounds by State v. O Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003). Because he did not establish that the officer 2 The trial court repeatedly referenced the officer s lights and did not use the term emergency lights. This is a case that would have benefitted from entry of the appropriate findings required by CrR 3.6. Where an evidentiary hearing is not held, the trial court is required to enter a written order explaining why. CrR 3.6(a). Where an evidentiary hearing is held, the trial court is required to enter findings of fact and conclusions of law. CrR 3.6(b). In either circumstance, regardless of which side prevails, the defendant s trial counsel has a significant incentive to make sure that the findings are entered because it is the defense s burden to show that a warrantless seizure occurred. 2 No. 28777-7-III State v. Gantt used the emergency lights, his own theory of seizure, now adopted by the majority, is without support in the record. This case is similar to Thorn in several respects. There, like here, a suppression hearing was held on the basis of the police reports. Id. at 349. Like this case, the dispositive issue in Thorn was when the defendant was seized. Id. at 350. The Supreme Court ruled that the written record did not provide an adequate basis for answering that question because, with a stipulated record, the encounter is capable of varying intepretations. Id. at 353. Given that situation, the court reversed the trial court s suppression order. Id. at 354. We should do the same here. The defendant did not prove the factual basis for his theory that he was seized when the officer parked behind his already parked van. We should decline to speculate about the facts. Instead, we should agree with the trial court s factual and legal determinations that Mr. Gantt was not seized until discovery of the invalid trip permit. That evidence provided probable cause to arrest for a gross misdemeanor offense committed in the officer s presence. Former RCW 46.16.160 (2007).3 Mr. Gantt did not establish that he was seized before probable cause to arrest had been discovered. On that basis alone, we should affirm. Thorn, 129 Wn.2d at 354. 3 Now codified at RCW 46.16A.320. 3 No. 28777-7-III State v. Gantt Timing of Seizure. Even if we assume that Officer Valencia used his emergency lights upon parking his patrol car, the record does not establish that Mr. Gantt was seized before the discovery of the invalid trip permit. A show of authority directed against a parked car does not seize a pedestrian standing near a house. Because searches and seizures disturb private affairs, article I, section 74 protections apply where an individual is seized. State v. Harrington, 167 Wn.2d 656, 663, 222 P.3d 92 (2009). A seizure occurs when, under the totality of the circumstances, an individual s freedom of movement is restrained, and that person would not feel free to leave or decline a request due to a police officer s use of force or display of authority. State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004). Generally, no seizure occurs where a police officer merely asks an individual whether they will answer questions or when the officer makes some further request that falls short of immobilizing the individual. State v. Nettles, 70 Wn. App. 706, 710, 855 P.2d 699 (1993). This is an objective standard; therefore the subjective intent of the officer is irrelevant to the determination of whether a seizure occurred. State v. Young, 135 Wn.2d 498, 501, 957 P.2d 681 (1998). The defendant bears the burden of demonstrating a seizure. Id. at 510; Thorn, 129 Wn.2d at 354. 4 No person shall be disturbed in his private affairs, or his home invaded, without authority of law. 4 No. 28777-7-III State v. Gantt The majority begins its analysis with a discussion of whether the police cruiser s emergency lights constituted a sufficient show of authority so as to render Mr. Gantt seized. However, that analysis fails to take into consideration the context of the stop. This failure is critical since our inquiry must focus upon the totality of the circumstances. Rankin, 151 Wn.2d at 695. When viewed properly, the context of the contact makes clear that the majority s reliance upon Young, State v. DeArman, 54 Wn. App. 621, 774 P.2d 1247 (1989), and State v. Stroud, 30 Wn. App. 392, 634 P.2d 316 (1981), is misplaced, and that Mr. Gantt has failed to meet his burden to demonstrate a seizure. It is rather axiomatic that, in the seizure context, there is a significant distinction to be drawn from the occupant of a moving vehicle and a pedestrian. O Neill, 148 Wn.2d at 579. The distinction is removed once the vehicle is parked: where a vehicle is parked in a public place, the distinction between a pedestrian and the occupant of a vehicle dissipates. Id. Here, there is no question that Mr. Gantt s van was parked, and that he was away from it when Officer Valencia arrived. Thus, the proper way to view this case is by regarding it as a pedestrian stop. Id. Since we must view the case as a pedestrian stop, any reliance upon DeArman is not apropos since that case involved a motor vehicle stop. The distinction is not only required by our case law, but necessary, since an individual driving a motor vehicle is 5 No. 28777-7-III State v. Gantt required to submit to a police officer where the officer signals that individual to pull over. RCW 46.61.020(1).5 A pedestrian, however, who notices a patrol wagon s emergency equipment ordinarily is not likely to know that an officer is signaling for a stop until the officer communicates in a more direct manner to the pedestrian the officer s intention to stop the pedestrian. Lawrence v. United States, 509 A.2d 614, 616 n.2 (D.C. Cir. 1986). The reasoning behind this distinction is clear. Emergency lights have many functions they may serve to inform motorists that they need to move to the side of the road to permit an emergency vehicle to freely pass, they may serve to initiate a traffic stop, or they may also serve to simply announce an officer s presence on the side of the road for officer safety purposes. They may even serve to light up a dark area by casting their light about in a more efficient manner than a spotlight. See Young, 135 Wn.2d at 503. Accordingly, while the reasonable car driver understands that he has to pull over when he sees flashing lights either to allow the officer to pass or to submit to a traffic stop the reasonable pedestrian does not know the specific purpose of the lights and would not consider himself seized without something further to indicate that he or she is not free to leave. 5 It is unlawful for any person while operating or in charge of any vehicle . . . to refuse or neglect to stop when signaled to stop by any police officer. Accord, RCW 46.61.021(1): Any person requested or signaled to stop by a law enforcement officer for a traffic infraction has a duty to stop. 6 No. 28777-7-III State v. Gantt When viewed in this manner, the majority s reliance upon Young and Stroud fails to persuade. Young stands for the proposition that where a uniformed officer spotlights a pedestrian and asks him questions, there was an insufficient show of authority to constitute a seizure. Young, 135 Wn.2d at 513-514. In Stroud, the officer pulled behind an occupied parked car, activated his emergency lights and turned on his high beam headlights. Stroud, 30 Wn. App. at 393. The court held that the driver was seized at that point. Id. at 396. In adopting these cases, the majority analysis misses a crucial distinction to be drawn between Stroud and Young and this case. In Young, the spotlight was pointed directly at the defendant. In Stroud, the defendant was a passenger in a parked car when the officer pulled directly behind the vehicle and activated emergency lights and high beam headlights. In each case, the show of authority was unmistakably directed at the defendant, though of course the resulting outcome differed. In contrast here Officer Valencia pulled his cruiser in behind Mr. Gantt s car, which was parked next to the street in front of a house s driveway. Mr. Gantt himself was out of the car and near the house when the officer arrived. A reasonable person would not believe he had been seized because he does not know for what purpose the lights have been activated. Lawrence, 509 A.2d at 616 n.2. This case is therefore distinguishable from Stroud and Young, since the show of authority (the lights) were not 7 No. 28777-7-III State v. Gantt unmistakably directed at Mr. Gantt, but at the parked car. The lights could have been activated to alert other vehicles of the car s presence, to announce that the officer was present given the darkness, or simply to light the scene more efficiently than with a spotlight. Given the limited record, we do not even know which lights were activated or even why they were activated, and Mr. Gantt has offered no evidence to suggest that the lights were a sufficient show of authority so as to effectuate a seizure. Nor does Officer Valencia s questioning, even in conjunction with the emergency lights, constitute a seizure. It is well established that a uniformed police officer who is armed does not seize a citizen by merely approaching that individual on the street or in another public place, or by engaging him or her in conversation. State v. Belanger, 36 Wn. App. 818, 820, 677 P.2d 781 (1984). Such encounters are known as a so-called social contact. In its briefing, the State relied upon Harrington to support its argument that Officer Valencia was conducting a social contact. The majority analysis distinguishes Harrington by citing it for the proposition that a social contact between an officer and a citizen does not suggest an investigative component. Majority at 10; Harrington, 167 Wn.2d at 664. The majority then finds that since Officer Valencia asked Mr. Gantt what he was doing, an investigative element was present; therefore the conversation was not a 8 No. 28777-7-III State v. Gantt social contact. However, this conclusion stems from a faulty reading of Harrington, and serves only to alleviate Mr. Gantt s burden upon appeal. The Harrington court noted that the plain meaning of the phrase social contact does not suggest an investigative component. Harrington, 167 Wn.2d at 664. It went on to note, however, that the actual application of a social contact in the field and before the court is different in that investigative questioning such as requesting identification is necessarily permitted. Id. at 664-665. The Harrington court went on to further define the contours of a social stop in Washington by holding that even where separate actions may pass constitutional muster, those actions, when viewed cumulatively, may constitute a progressive intrusion into an individual s privacy to the point that a social contact becomes a seizure. Id. at 669-670. Here, Officer Valencia engaged Mr. Gantt in conversation by asking him what he was doing there. It is clear that the question itself would not constitute a stop, since the officer is free to make that inquiry.6 However, the officer s tone may have been enough to effectuate a seizure if it were demanding, confrontational, or indicated in some fashion that Mr. Gantt was not free to refuse an answer, or simply get in his car and drive away. See Thorn, 129 Wn.2d at 353-354. Unfortunately, one of the problems with cases such 6 We previously have found that asking a citizen what he or she is doing does not rise to the level of a seizure. See State v. Ellwood, 52 Wn. App. 70, 757 P.2d 547 (1988). 9 No. 28777-7-III State v. Gantt as this is that there is a dearth of facts indicating the manner in which the question was asked. Id. The record does not make this clear, and it is Mr. Gantt s burden on appeal to demonstrate that the question or the manner in which it was asked was coercive Id. at 354. He has failed to do this, and as such, the record before us indicates nothing coercive about Officer Valencia s question. In sum, there was nothing coercive about Officer Valencia s emergency lights, since they were not directed at Mr. Gantt. There was nothing coercive about the questioning. Each taken individually passes constitutional muster. Even when taken together, the officer s actions did not constitute an intrusion upon Mr. Gantt s privacy such that a reasonable pedestrian in his position would not have felt free to either refuse to answer Officer s Valencia s question or simply get in his car and drive away. Mr. Gantt has failed to demonstrate he was seized. Officer Valencia s decision to turn on his vehicle s lights when he parked his patrol car at 10:00 p.m. on a spring evening is too ambiguous to amount to a seizure. The trial court properly focused on the consequences of a contrary ruling. Is a disabled car seized when an officer stops to give aid and turns on the emergency lights? Is every car on a highway seized when an officer races to an accident site with emergency lights activated? Presumably the majority would answer no to both questions, but the answer 10 No. 28777-7-III State v. Gantt would be inconsistent with its declaration that Officer Valencia seized Mr. Gantt at the time he activated his emergency lights. Majority at 13. The veteran trial judge correctly observed that the officer engaged in good police work when he suspected Mr. Gantt of casing the neighborhood for houses to burglarize. It would have been a dereliction of duty not to investigate what the van s occupants were up to. The van clearly was not visiting the residence; it was parked in front of the driveway and one of the occupants was in the passenger seat. Why the van kept stopping in the area was a worthy topic of investigation. The emergency lights were not directed at Mr. Gantt and were not sufficient to constitute a seizure. There simply is too much ambiguity in this fact pattern to conclude that a seizure occurred before probable cause existed. Mr. Gantt has not established his claim that the emergency lights were activated or that he was seized before probable cause existed for arrest. The trial court should be affirmed. I respectfully dissent. __________________________________ Korsmo, J. 11
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