WA: Objective reasonable facts justified frisk of def when his companion was arrested

“This case requires us to decide under what circumstances officers making a lawful arrest may seize a companion of the arrestee in the absence of reasonable suspicion to independently justify a Terry stop of the companion. We hold that where officers have an objective rationale predicated on safety concerns to seize a companion to secure the scene of the arrest, article I, section 7 of the Washington State Constitution allows for the seizure, so long as it remains reasonable in scope and duration. Based on this holding, we reverse the Court of Appeals and hold that evidence of the gun taken from Cody Flores during his brief seizure should not have been suppressed.” State v. Flores, 2016 Wash. LEXIS 1013 (Sept. 15, 2016) (decided under state constitution):

¶22 The situations presented in Mendez and Parker are analogous to the facts of this case. Flores argues that automobile cases are unique because we have developed a line of vehicle-specific jurisprudence. One of the primary justifications is the mobility of vehicles. See, e.g., State v. Day, 161 Wn.2d 889, 897, 168 P.3d 1265 (2007) (explaining that“Terry has also been extended to traffic infractions, ‘due to the law enforcement exigency created by the ready mobility of vehicles’” (quoting State v. Johnson, 128 Wn.2d 431, 454, 909 P.2d 293 (1996)); State v. Patterson, 112 Wn.2d 731, 774 P.2d 10 (1989) (recognizing a vehicle’s potential mobility as one exigent circumstance, but holding there must be additional exigencies to justify a warrantless search of a parked, unoccupied vehicle). However, the court in Mendez and Parker was not concerned with the mobility of the vehicle, but with the threat that companions in the vehicle—those who are close in proximity to the subject of the stop—pose to officers. In Mendez, we described our test as “predicated specifically on safety concerns,” 137 Wn.2d at 220, and in Parker we noted that“the search incident to arrest exception functions primarily to achieve [officer safety],” 139 Wn.2d at 499. Because the analysis in Mendez and Parker centered on safety concerns rather than the location of the stop, it should not be restricted to traffic stops, but is equally applicable in cases like this one where an arrestee is accompanied by companions at the time of the arrest.

¶23 This conclusion is common sense, as the potential danger at an arrest scene does not turn on whether people are sitting together in a car or walking side by side on a sidewalk. Companions in either circumstance could, for example, be concealing a weapon that could be used against the arresting officer. Cf. Horrace, 144 Wn.2d at 395-98 (recognizing a vehicle passenger’s close proximity to a driver making unexplained movements and the passenger’s bulky jacket that the officer believed capable of concealing a weapon were factors that helped justify a frisk of the passenger). In both situations, when an officer is attempting to execute an arrest warrant, those close to the subject pose a potential safety risk. Cf. id.; State v. Kennedy, 107 Wn.2d 1, 12, 726 P.2d 445 (1986) (In an investigative vehicle stop, “the officer may search for weapons within the investigatee’s immediate control. We also recognize that such a limited search applies to any companion in the car because that person presents a similar danger to the approaching officer. The front seat of the car is in the immediate control of a passenger seated next to the driver.”); Verbatim Report of Proceedings (Jan. 15, 2014) (VRP) at 75 (McCain testified that he moved Powell away from Flores because he “didn’t want them speaking to each other or passing anything from one person to the other”).

¶24 There is no sensible basis to compartmentalize Mendez and Parker as “vehicle” cases and to create a separate line of “pedestrian” cases. As explained, the fact that the seizures in Mendez and Parker occurred in the vehicle context was not central to the analysis. To determine which standard we use to evaluate the legality of a seizure, we do not focus on the seizure’s location; rather, we focus on its purpose. See, e.g., Mendez, 137 Wn.2d at 220 (“ Terry must be met if the purpose of the officer’s interaction with the passenger is investigatory. For purposes of controlling the scene of the traffic stop and to preserve safety there, we apply the standard of an objective rationale.”). Where the stop is for investigative purposes, we require officers to meet the Terry standard of individualized, reasonable, articulable suspicion. See, e.g., State v. Fuentes, 183 Wn.2d 149, 352 P.3d 152 (2015) (applying the Terry standard to determine whether officers had reasonable suspicion of criminal activity to engage in two investigative stops outside an apartment complex); Horrace, 144 Wn.2d at 394 (applying Terry, a pedestrian case, to determine the validity of a stop-and-frisk of a vehicle passenger because the officer’s conduct was “investigatory”). However, when a stop is conducted to effectuate an arrest, we require a valid arrest warrant or probable cause. See State v. Massey, 68 Wn.2d 88, 89, 411 P.2d 422 (1966) (describing the general rules for a warrantless arrest); State v. Manning, 57 Wn.2d 327, 329, 356 P.2d 721 (1960) (“the issuance of the [arrest] warrant is authority to not only apprehend a defendant but to continue his custody as the case may be”). Yet another standard exists when an officer engages in a purported social contact. In those situations, we determine if the contact was in fact a seizure—rather than merely a social contact—based on whether a reasonable person would believe he was not free to leave. See, e.g., State v. Young, 135 Wn.2d 498, 513-14, 957 P.2d 681 (1998) (holding shining a spotlight on an individual “did not amount to such a show of authority a reasonable person would have believed he or she was not free to leave” and thus was not a seizure). As these cases demonstrate, the standard we use to evaluate the legality of a seizure is determined by the purpose of the seizure. We therefore reject Flores’s argument that we should ignore the objective rationale test established in Mendez and Parker because those were “vehicle” cases.

¶25 Because the situations contemplated in Mendez and Parker are analogous to the one presented here, we follow the analysis developed in those cases. However, we reject the State’s argument that Parker established a per se rule that the fact of an arrest is sufficient to satisfy Mendez’s objective rationale test. See Pet. for Review at 5-6. The statement in the lead opinion that arguably supports this proposition was not joined by either of the concurring justices and, thus, is not binding law. See Parker, 139 Wn.2d at 502. Furthermore, this court has characterized that statement as supplying but one factor officers may consider as part of the objective rationale test, without suggesting that an arrest by itself satisfies the officers’ burden. See Horrace, 144 Wn.2d at 393 (“[t]he lead opinion in Parker noted that the arrest of another vehicle occupant supplied a significant factor” in meeting the objective rationale test (emphasis added)); State v. Reynolds, 144 Wn.2d 282, 288-89, 27 P.3d 200 (2001) (the lead opinion in Parker “recognized that the arrest of a vehicle occupant (a circumstance not present in Mendez supplied an additional factor that an officer could consider when controlling the scene of a vehicle stop” (emphasis added)). We therefore consider an arrest to be a factor officers may take into account when assessing whether they have an objective rationale for seizing companions to control the scene.

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