State v. Williams

Dimmick, J.

(dissenting) — The lesson the majority teaches today is that detaining a burglar leaving the scene *744 of the burglary in progress is unconstitutional. And even as it prohibits the police action taken to investigate this burglary, the majority says little to indicate exactly what it finds offensive to the Fourth Amendment or to our state constitution in this case. As a result, those who have the duty to protect society and enforce our laws are offered no constructive suggestions to guide future encounters between police and suspect under like circumstances. Since I cannot agree that constitutional principles deny the police the opportunity to pursue investigation of the only person apprehended near the crime site within minutes of the silent alarm report, I dissent.

It is firmly established that a police officer lacking probable cause to arrest is not required to ignore suspicious circumstances and allow a suspect to pursue criminal activity unimpeded. Terry v. Ohio, 392 U.S. 1 , 20 L. Ed. 2d 889 , 88 S. Ct. 1868 (1968); State v. White, 97 Wn.2d 92 , 640 P.2d 1061 (1982). A reasonable "seizure" of the suspected person is constitutionally permitted to maintain the status quo momentarily and allow the officer to resolve the matter, one way or the other, by obtaining more information. See Adams v. Williams, 407 U.S. 143, 146 , 32 L. Ed. 2d 612 , 92 S. Ct. 1921 (1972).

Just as firmly established is the requirement that such seizures of the suspected person be based on specific, artic-ulable facts which warrant a reasonable belief that criminal activity is under way. Terry . Without an articulable, objective basis for the detention, police discretion to stop would be unfettered. At the very least, the Fourth Amendment was intended to prevent such arbitrary, potentially harassing, investigative tactics. See State v. Hobart, 94 Wn.2d 437, 443 , 617 P.2d 429 (1980).

To assess whether criminal activity was objectively manifested so as to justify an investigative detention, the totality of the circumstances confronting the officer must be taken into account. This includes information given the officer, observations the officer makes, and inferences and deductions drawn from his or her training and experience. *745 United States v. Cortez, 449 U.S. 411 , 66 L. Ed. 2d 621 , 101 S. Ct. 690 (1981). The officer need not be convinced to a certainty, but merely find criminal activity a probability, using commonsense conclusions about human behavior. Cortez .

The majority finds objectionable the manner of making the stop and its length. I think that the majority has not appropriately assessed the reasonableness of the officer's actions "under the circumstances taking into consideration the seriousness of the offense suspected, the consequences of delay on the part of officers, the likelihood of the detainee's involvement in the offense, and the extent of the intrusion." White , at 106.

Our test, in White , is based on a reasonableness test articulated by the United States Supreme Court in Terry . The Terry Court balanced the governmental interest in the seizure against the invasion the seizure entails to the constitutionally protected interest of the private citizen. Terry, 392 U.S. at 21 . On occasion, a more than momentary detention or a rather intrusive search has been upheld by the Court as reasonable under the circumstances and in view of the governmental interests at stake. Michigan v. Long, _ U.S. _, 77 L. Ed. 2d 1201 , 103 S. Ct. 3469 (1983); Michigan v. Summers, 452 U.S. 692 , 69 L. Ed. 2d 340 , 101 S. Ct. 2587 (1981). In these cases, the detention was collateral to the investigation being undertaken. The seizure merely enabled the officers to "freeze" the situation until further investigation resolved the matter with respect to the detained person.

To be distinguished are those situations in which the detention itself was the investigative tool. E.g., Dunaway v. New York, 442 U.S. 200 , 60 L. Ed. 2d 824 , 99 S. Ct. 2248 (1979); Davis v. Mississippi, 394 U.S. 721 , 22 L. Ed. 2d 676 , 89 S. Ct. 1394 (1969). As the Summers Court recognized, when the detention becomes a method to procure self-incriminating interrogation in a custodial setting, the detention is no longer justified as a means of merely preserving the status quo. Summers, 452 U.S. at 701-02 .

*746 In my opinion, the police officers were justified in freezing the situation they encountered in this case for an initial 5-minute period. During this 5 minutes, the officers diligently pursued a means of investigation, consistent with ensuring their safety, that would resolve whether the suspected burglary in fact had occurred. When the silent alarm was corroborated by the unlocked front door, petitioner was immediately provided an opportunity to identify himself and be cleared of any involvement in the burglary. His answers were inconsistent and evasive enough to provide further objective reasons to continue his detention for another 15 minutes until the house had been investigated and secured, and the officers had determined whether there were accomplices or whether victims were present in the home. While continued detention was clearly a great intrusion, society's interest in efficient crime detection and prevention of injury to innocent victims warranted this detention.

The majority also suggests that at no time during the detention did the officers have probable cause to arrest petitioner, hinting that until petitioner's presence in the house was established, there was not probable cause to arrest him. I disagree.

Probable cause must be determined from the totality of facts and circumstances within the knowledge of the arresting officer, taking into consideration that officer's special experience and expertise. State v. Fricks, 91 Wn.2d 391 , 588 P.2d 1328 (1979). It is applied in light of everyday experiences, considering the time, the place, and the pertinent circumstances. There must be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. State v. Scott, 93 Wn.2d 7 , 604 P.2d 943 , cert. denied, 446 U.S. 920 (1980).

The officers concluded a thorough search of the burglarized residence, finding ransacked rooms, a television sitting outside in the rain, and no other suspects. The arrest of petitioner was reasonable in light of these circumstances. It *747 is only the probability of criminal activity and not a prima facie showing of it which governs the standard of probable cause. State v. Seagull, 95 Wn.2d 898 , 632 P.2d 44 (1981). It seems to me that the officers would have been neglecting their duty had they allowed petitioner to go free under these circumstances. See State v. Taplin, 67 Wn.2d 610 , 409 P.2d 169 (1965); State v. Young, 28 Wn. App. 412 , 624 P.2d 725 (1981).

I also disagree with the majority that the impoundment of the car being driven by petitioner was unlawful. This court has recognized that if an officer has probable cause to believe that a vehicle is used in the commission of a felony it may be impounded. State v. Houser, 95 Wn.2d 143, 149 , 622 P.2d 1218 (1980). Transporting stolen goods from a burglary site must surely qualify as "used in the commission of a felony." See State v. Glasper, 84 Wn.2d 17, 22 , 523 P.2d 937 (1974). After the officers had determined that the house had been burglarized, with strong indication that some missing items had been placed outside, it was reasonable to conclude that the stolen items were to be taken away in the vehicle.

Moreover, petitioner had stated that the vehicle belonged to a third person. Since it was likely, under all the circumstances, that the vehicle contained stolen property, the prudent course was to impound the vehicle, thus preventing destruction of evidence, until the owner could be contacted and a search warrant obtained.

I also cannot agree with the majority's assertion that this routine inventory search made pursuant to standard police procedures would have been permissible only if petitioner had consented. Petitioner had no interest in determining, on behalf of the registered owner, what steps should be taken to best protect the owner's property. Furthermore, the purpose of an inventory search is not merely to protect the owner from suffering loss during the period of detention. An inventory also alerts the officers to any potential danger to themselves or the public from items the car may contain. South Dakota v. Opperman, 428 U.S. 364 , 49 L. *748 Ed. 2d 1000 , 96 S. Ct. 3092 (1976). Even if the officers have probable cause to believe the car contains stolen property, they should not be precluded from determining prior to impoundment whether the vehicle may be safely moved away. See United States v. Laing, 708 F.2d 1568 (11th Cir. 1983); State v. Glenn, 649 S.W.2d 584 (Tenn. 1983).

The inventory search in this case took place after petitioner was transported to police headquarters. Nothing in the record indicates that the inventory was a pretext to conduct a full search for evidence. The officer in charge of the inventory testified that he conducted a routine inventory search, during which he noticed a jewelry box protruding from under the driver's seat. In my view, the officer was obligated to determine whether the box's contents were innocuous or valuable before returning it to its place. Following completion of the inventory, the vehicle was sealed and transported to the impoundment yard. A full eviden-tiary search was later conducted by department detectives pursuant to a search warrant. Prior to this search, the vehicle's registered owner had given consent to the search.

The majority ignores another issue that merits discussion. Would the jewelry box found in the vehicle have been "inevitably discovered" in any case, when the officer entered the car to verify the registered owner's name or when the search, pursuant to the owner's consent and a search warrant, was conducted? If so, admission of the jewelry box at trial was not error. See Nix v. Williams, _ U.S. _, 81 L. Ed. 2d 377 , 104 S. Ct. 2501 (1984).

The circumstances of this case justified the investigation the police officers conducted. I would affirm the courts below. Therefore, I dissent.

Brachtenbach, Dolliver, and Dore, JJ., concur with Dimmick, J.

Reconsideration denied November 20, 1984.