State Of Washington, Respondent V. Brian Jeffery Kemnow, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
BRIAN JEFFERY KEMNOW,
Appellant.
NO. 73012-6-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	May 9, 2016
Leach, J. — Brian Kemnow appeals his conviction for possession of a
controlled 	substance—methamphetamine. 	He 	challenges 	the 	validity of the
search leading to the discovery of drugs on his person. 	He claims the search
violated the Fourth Amendment to the United States Constitution and article I,
section 	7 of the Washington 	State Constitution. 	Because the 	police seized
Kemnow and the State cannot show that an exception to the warrant requirement
applies, the results of the search must be suppressed as fruit of the poisonous
tree. 	We 	reverse 	and 	remand 	for further 	proceedings 	consistent with this
opinion.
FACTS
On May 2, 2014, at about 10:32 p.m., Officer James Hannawalt of the
Sedro-Woolley 	Police 	Department 	responded 	to 	a 	citizen 	report that 	two
bicyclists, a red Nissan, and a pickup truck had congregated in the Bethlehem

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Lutheran Church parking lot. 	The caller gave his name to a 911 dispatcher and
reported that he believed a drug deal was taking place. 	He said that he had seen
the vehicles in the past but did not see anything exchanged. 	Officer Hannawalt
did not know the informant, only the name the dispatcher provided. 	He was
familiar with other calls about the area and understood it to be a place where
drug activity occurred after hours.
The parking lot had two parallel entrances: 	an eastern entrance and a
western 	entrance, 	both 	connecting 	the 	parking 	lot to Wicker Road. 	Officer
Hannawalt entered the eastern entrance. 	At this time, a pickup truck, driven by
Brian Kemnow, was leaving the parking lot on the same driveway. 	At the same
time or just a little bit later, Officer Hannawalt's backup, Officer Heather Sorsdal,
entered from the western entrance, checked the parking lot, and then went to
Officer Hannawalt's location, also making contact with Kemnow.
Because it appeared to Officer Hannawalt that the pickup truck was trying
to go 	around 	his patrol car, 	he 	shined 	a spotlight on 	Kemnow's truck as 	it
approached his vehicle to see the driver. 	Kemnow stopped the truck before he
passed 	Officer 	Hannawalt's 	car in the 	narrow driveway. 	Officer 	Hannawalt
parked, walked to Kemnow, told Kemnow that he was investigating a possible
drug 	deal, 	and 	described 	the 	information that 	the 	informant 	had 	provided.
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Kemnow told the officer that he had seen the bikes and a vehicle but was not
involved in a drug deal.
Officer Hannawalt asked Kemnow for identification. 	Kemnow said that he
did 	not have 	a 	driver's license 	but provided an 	identification 	card. 	Officer
Hannawalt may have told Kemnow he could not drive away because he did not
have a license. 	Officer Hannawalt discovered that Kemnow had an outstanding
warrant for his arrest. 	Officer Hannawalt arrested Kemnow, handcuffed him, and
searched 	him. 	He found two small bags of methamphetamine in Kemnow's
pockets.
The State charged Kemnow with possession of a controlled substance.
Kemnow moved to suppress the evidence on the basis that the State obtained
the evidence as a result of an unlawful seizure. 	The trial court found that Officer
Hannawalt's shining of his spotlight did not constitute a seizure and if it did, an
articulable reasonable suspicion supported a brief detention. 	A jury convicted
Kemnow.
STANDARD OF REVIEW
We review a trial court's denial of a motion to suppress to determine if
substantial 	evidence supports 	the 	challenged 	factual 	findings 	and 	if 	those
findings support the trial court's conclusions of law.1 	"Evidence is substantial
1 State v. Russell, 180 Wn.2d 860, 866, 330 P.3d 151 (2014).
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when it is enough 'to persuade a fair-minded person of the truth of the stated
premise.'"2 	We review conclusions of law de novo, including the question of
whetherthe facts may be characterized as a seizure.3
ANALYSIS
Kemnow 	contends that Officer Hannawalt unlawfully seized 	him. 	The
State responds in the alternative: 	it did not seize Kemnow, and it had a sufficient
basis for a brief seizure.
Our state and the federal constitution each prohibit warrantless searches
and seizures "unless the State proves that one of the few 'carefully drawn and
jealously guarded exceptions' applies."4 	If an encounter does not fall within an
exception 	to the 	warrant 	requirement, 	the 	exclusionary 	rule 	prohibits 	the
introduction of evidence gathered by the State during a warrantless search or
seizure.5 	Terrv v. Ohio6 provides a narrow exception to the warrant rule that
allows a police officer to conduct a limited search of an individual when that
officer has 	a 	reasonable, 	articulable suspicion of criminal 	behavior. 	Courts
commonly refer to this as a Terrv stop.
2 Russell, 180 Wn.2d at 866-67 (internal quotation marks omitted) (quoting
State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009)).
3 Russell, 180 Wn.2d at 866-67; State v. Gantt, 163 Wn. App. 133, 138,
257 P.3d 682 (2011).
4 State v. Bvrd, 178Wn.2d.611, 616, 310 P.3d 793 (2013) (quoting State
v. Bravo Ortega, 177 Wn.2d 116, 122, 297 P.3d 57 (2013)).
5 State v. Harrington, 167 Wn.2d 656, 664, 222 P.3d 92 (2009).
6 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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Although 	article 	I, 	section 	7 provides 	greater 	protection 	to individual
privacy rights than the Fourth Amendment, it generally tracks Fourth Amendment
analysis in a challenge to the validity ofa Terrv stop.7
To determine if the State seized a person, the court looks to the totality of
the circumstances to decide if "a reasonable person in the defendant's position
would have 	believed 	he 	or she was 	free 	to go or otherwise 	terminate 	the
encounter, given the actions of the officer."8 	The court must look to an officer's
objective 	actions, 	such 	as 	an 	officer's 	use 	of 	physical 	force 	or 	display 	of
authority.9 	The 	person 	challenging 	police conduct on the 	basis of unlawful
seizure has the burden to prove that a seizure occurred.10
Kemnow asserts that the trial court did not consider the totality of the
circumstances when it decided that Officer Hannawalt did not seize Kemnow
when 	he shined 	his 	spotlight. 	Washington 	jurisprudence has developed 	a
nonexclusive list of police displays of authority that may amount to a seizure,
including the presence of several officers, display of an officer's weapon, physical
7 State v.Z.U.E., 183 Wn.2d 610, 617, 352 P.3d 796 (2015).
8 State v. O'Neill, 148 Wn.2d 564, 577, 62 P.3d 489 (2003); Harrington,
167 Wn.2d at 669-70.
9 Gantt, 163 Wn. App. at 139 (quoting State v. Beito, 147 Wn. App. 504,
508, 195 P.3d 1023 (2008)); State v. Young, 135 Wn.2d 498, 510-11, 957 P.2d
681(1998).
10 Young, 135 Wn.2d at 510.
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touching of the detained person, and language requiring an individual to comply
with an officer's request.11
A police officer may engage in social contact with a person without that
contact 	constituting 	seizure,12 	but 	"'social 	contact' 	does 	not 	suggest 	an
investigative component."13 	Also, social contact may become a seizure when
individual police actions that would pass constitutional muster together constitute
a 	display 	of 	authority 	amounting 	to 	seizure.14 	In 	State 	v. 	Harrington,15
Washington's 	Supreme 	Court 	concluded 	that when 	an 	officer 	approached
Harrington on foot and engaged him in conversation, he had mere social contact.
But the arrival of a second police officer, requests that Harrington remove his
hands from his pockets, and a request to frisk, together formed a "progressive
intrusion substantial enough to seize Harrington."16
Kemnow contends that undisputed facts, viewed together, similarly show
that Officer Hannawalt seized Kemnow. 	We agree. 	Officer Hannawalt shined his
spotlight on Kemnow's moving vehicle as he partly obstructed its path with his
patrol 	car. 	As 	Officer 	Hannawalt 	testified, 	"[l]t 	was 	tight, 	and 	very 	slow
maneuverability in 	the area." 	During 	this 	time, 	Officer Sorsdal entered the
11 Gantt, 163 Wn. App. at 140 (quoting Young, 135 Wn.2d at 512).
12 Harrington, 167 Wn.2d at 664-65.
13 Harrington, 167 Wn.2d at 664.
14 Harrington, 167 Wn.2d at 668-70.
15 167 Wn.2d 656, 665-66, 222 P.3d 92 (2009).
16 Harrington, 167 Wn.2d at 669-70.
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NO. 73012-6-1/7
parking lot from the only other exit available to Kemnow, and after she searched
the parking 	lot, 	she joined Officer Hannawalt and 	Kemnow. 	Kemnow found
himself under a police spotlight with limited ability to pass while in the presence
of two officers. 	Partial obstruction of his vehicle in these circumstances suggests
a reasonable person would not believe that he was free to leave.
Next, 	Officer 	Hannawalt 	questioned 	Kemnow 	about 	the alleged 	drug
activity 	under investigation. 	This investigative questioning 	made the contact
something 	more 	than 	social. 	Thus, 	before 	Officer 	Hannawalt 	ever 	asked
Kemnow for his identification, the police displayed sufficient authority to make a
reasonable person in Kemnow's position feel not free to leave.
The State relies on State v. Young17 and State v. O'Neill18 to show that an
officer's 	use of a spotlight and 	request for 	identification together are not a
seizure. 	In Young, the Supreme Court decided that the shining of a spotlight
onto an individual walking at night "reveal[s] only what was already in plain view"
and does not amount to a per se intrusion into private affairs without more, such
as "some positive command" from the officer.19 	Then, in O'Neill, the Supreme
Court, 	citing 	its 	decision 	in 	Young, 	decided 	that 	an 	officer 	did 	not
unconstitutionally intrude into O'Neill's private affairs when the officer shined a
17 135 Wn.2d 498, 957 P.2d 681 (1998).
18 148 Wn.2d 564, 62 P.3d 489 (2003).
19 Young, 135 Wn.2d at 513-14.
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spotlight on O'Neill's parked vehicle, approached the car using a flashlight to
illuminate the interior, asked O'Neill to roll down his window, and asked for his
identification.20 	The 	court looked at the 	officer's actions in their totality and
determined that only when the officer asked O'Neill to step out of the car after
learning that O'Neill was driving with a suspended license did the officer seize
O'Neill.21
But additional facts distinguish this case from Young and O'Neill. 	Here,
unlike in O'Neill, Kemnow's vehicle was moving when Officer Hannawalt shined
his 	spotlight 	on it. 	Kemnow's 	counsel asked 	Officer 	Hannawalt 	on cross-
examination during the CrR 3.6 suppression hearing what percentage of time
another car stops when he uses his spotlight. 	Officer Hannawalt responded, "I
think 	just 	because of natural—I 	mean, 	I do the same 	with 	bicyclists 	or
pedestrians, because of hours of darkness, they would pause, or stop, so they
would wonder, you know, what's going on." As Officer Hannawalt acknowledges,
a reasonable person driving in the dark would 	usually not drive on when an
officer shines a spotlight on his vehicle. 	The State does not claim that Kemnow's
statement that he did not have a license gave it reason to detain him, nor would
Kemnow's lack of a license justify a seizure that occurred before the officer
asked for identification.
20 O'Neill, 148 Wn.2d at 578-81.
21 O'Neill, 148 Wn.2d at 582.
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NO. 73012-6-1/9
The State also argues that Kemnow cannot show seizure because Officer
Hannawalt did 	not block in Kemnow's truck. 	Indeed, 	Kemnow had space to
maneuver around Officer Hannawalt's vehicle and exit the parking lot. 	But to
determine if a seizure occurred, we do not look to see if an officer created a
complete obstruction. 	Rather, we look to see if a reasonable person faced with
some obstruction, however great, would feel free to pass. 	In a Division Two
case, State v. Young,22 two police officers followed Young 	behind a 	building
because she was acting suspicious. 	They approached her, stood at 45-degree
angles from her while she had her back to the wall, and asked for her social
security number.23 	Division Two decided that the officers had unlawfully seized
her because "[a]ny reasonable person in Young's position, with her back to a wall
and police officers on either side of her, would not have felt free to walk away
without first answering the officers' questions."24 	Thus, a barrier created by an
officer need 	not be absolute for officers to 	demonstrate authority enough to
constitute a seizure.
Officer Hannawalt's use of a spotlight on Kemnow's moving vehicle, his
partial obstruction of Kemnow's path, his questions to Kemnow about a drug
investigation, together with 	Officer Sorsdal's presence and obstruction of the
22 167 Wn. App. 922, 931, 275 P.3d 1150 (2012).
23 Young, 167 Wn. App. at 931.
24 Young, 167 Wn. App. at 931.
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second 	driveway, 	amounted 	to 	a 	sufficient 	display 	of authority 	to 	cause 	a
reasonable 	person 	in 	Kemnow's 	position not to feel free 	to 	leave. 	Thus,
Kemnow's 	encounter 	with the 	police 	before 	Officer 	Hannawalt 	ever 	asked
Kemnow for identification was a seizure for purposes of article I, section 7 and
the Fourth Amendment.
Next, we consider if this seizure was reasonable and thus constitutional.25
An officer's seizure of a 	person "is valid only where there are 'specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant' the detention of the person."26 	The State must prove by
clear and convincing evidence that a warrantless seizure falls within an exception
to the constitutional protection.27
When reviewing challenges to a Terrv stop under article I, section 7, this
court's analysis generally tracks that of the Fourth Amendment, except that our
state 	constitution 	requires 	a 	stronger showing that 	an 	officer grounded 	his
suspicion in specific and articulable facts.28 	The State must show facts that
connect a particular person to the particular crime that the officer seeks to
25 O'Neill, 148 Wn.2d at 576.
26 O'Neill, 148 Wn.2d at 576 (quoting Terrv, 392 U.S. at 21).
27 Russell, 180 Wn.2d at 867.
28 Z.U.E., 183 Wn.2d at 617-18.
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investigate 	rather than facts that 	merely 	substantiate 	an 	officer's 	general
suspicion about a person.29
Here, the State claims that the call it received from the citizen informant
provided 	Officer 	Hannawalt with 	facts that justify a 	Terrv 	stop of Kemnow.
Washington courts apply a totality of the circumstances test to determine if the
State has adequately shown that an informant's tip 	bears some "'indicia of
reliability.'"30 	The State must show either "(1) circumstances establishing the
informant's 	reliability 	or 	(2) 	some 	corroborative 	observation, usually 	by the
officers, that shows either (a) the presence of criminal activity or (b) that the
informer's information was obtained in a reliable fashion."31
The State offers several facts to support its claims meet this test and thus
show Officer Hannawalt's had 	the 	required level of reasonable suspicion. 	It
argues that the informant was reliable 	because the information 	about 	drug
activity came from a self-identified citizen and the officer believed it came from
the 	citizen's 	observation. 	The 	State 	also 	argues 	that 	Officer 	Hannawalt
corroborated the description given by the informant when he saw the truck in the
parking lot, when 	Kemnow confirmed 	he had seen the bicycles and another
vehicle 	in 	the parking 	lot, 	and because the information was consistent with
29 Z.U.E., 183 Wn.2d at 617-18.
30 Z.U.E., 183 Wn.2d at 618-19.
31 Z.U.E., 183 Wn.2d at 618-19.
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Officer Hannawalt's knowledge that the parking lot was known for its nighttime
drug activity.
First, 	Kemnow challenges 	the 	court's 	factual 	finding 	that 	"[fjrom 	the
information he received, Officer Hannawalt believed that the reporting party had
witnessed the transaction." The evidence directly contradicts this finding. Officer
Hannawalt's affidavit states that an informant "reported he believed there was a
drug deal... but did 	not see anything exchanged." 	And Officer Hannawalt's
testimony shows that he believed the informant had witnessed only "a group of
people in a dark parking lot, late at night." 	Thus, no evidence supports the trial
court's challenged finding. 	Neither the 	officer's 	affidavit 	nor his testimony
supports the State's assertion in its brief that Officer Hannawalt believed that the
informant had witnessed a drug transaction.
And, as Kemnow notes, the State fails to distinguish this case from the
state Supreme Court's decision in State v. Sieler.32 	In Sieler, an informant parent
reported a car in a school parking lot at noon that he believed was involved in a
drug 	sale, 	providing 	his 	name 	and 	a description 	of the 	vehicle.33 	Officers,
believing drug sales were not unusual in the parking lot at noon, detained the
occupants of a vehicle matching the informant's description, discovering drugs
32 95 Wn.2d 43, 621 P.2d 1272 (1980).
33 Sieler, 95 Wn.2d at 44-45.
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NO. 73012-6-1/13
and obtaining confessions.34 	The court held that the State may not simply rest
on 	an informant's given name to establish the informant's reliability when the
informant 	is 	otherwise 	unknown.35 	It 	also 	held 	that 	an 	informant's 	bare
conclusion that a drug sale had occurred in a vehicle similar in description to the
one 	police 	encountered 	did 	not 	warrant 	police 	detention 	of 	the 	vehicle's
occupants.36 	Rather, 	the 	court 	required 	that 	"[sjome 	underlying 	factual
justification 	for 	the 	informant's 	conclusion 	must 	be 	revealed 	so 	that 	an
assessment of the 	probable 	accuracy 	of the 	informant's 	conclusion 	can 	be
made."37 	In Sieler, the State did not show that the officers corroborated the
informant's 	tip 	with 	its 	evidence 	that 	the 	officers 	arrived 	on 	the 	scene,
approached the vehicle, and did not see any illegal activity.38 	Nor could it show
that 	officers 	had 	corroborated 	that 	the 	informant 	had 	reliably 	obtained 	his
information when the officers merely saw a vehicle conforming to the informant's
description of the vehicle.39
In the Supreme Court's recent decision, State v. Z.U.E.,40 it revisited the
reasoning in Sieler. 	It applied a totality of the circumstances test and similarly
34 Sieler, 95 Wn.2d at 45-46.
35 Sieler. 95 Wn.2d at 48.
36 Sieler, 95 Wn.2d at 48.
37 Sieler, 95 Wn.2d at 48.
38 Sieler, 95 Wn.2d at 49.
39 Sieler, 95 Wn.2d at 49.
40 183 Wn.2d 610, 352 P.3d 796 (2015).
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found that when informants only gave their names, where the State could point to
no observations supporting reasonable suspicion of a crime, and where officers
did not contact witnesses who had called 911 and were only able to verify that a
female matching the description given by an informant was located in the general
area, police did not have sufficient indicia of reliability to detain that person.41
Here, the informant gave his name and reported that he saw bicyclists, a
car, and a truck in a parking lot after hours, asserting that this was a drug deal.
He gave no further information supporting his conclusion. 	The State does not
identify any evidence of criminal activity. 	It shows only that Officer Hannawalt
saw a truck similar in description and location to that described by the informant.
Kemnow's confirmation that he had seen bicyclists and a Nissan matching the
informant's information did not amount to evidence of criminal activity, nor is it
relevant to this court's inquiry because this occurred after Officer Hannawalt
seized Kemnow. 	Finally, 	Officer Hannawalt did 	not contact the informant to
corroborate that the 	informant reliably obtained the 	information 	he 	reported.
Thus, when Officer Hannawalt seized Kemnow, he had no reasonable suspicion
of criminal activity.
41 Z.U.E., 183 Wn.2d at 623.
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We 	thus 	conclude 	that 	the 	State 	failed 	to 	prove 	any 	constitutional
justification for Officer Hannawalt's seizure of Kemnow. 	The evidence found in
the ensuing search must be suppressed.
CONCLUSION
Because Officer Hannawalt seized Kemnow and because the State fails to
show that Officer Hannawalt had reasonable, articulable suspicion to justify the
seizure, the evidence the officer found after an unconstitutional seizure must be
suppressed as fruit of the poisonous tree. 	We reverse and remand for further
proceedings consistent with this opinion.
WE CONCUR:
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