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Can the police stop you in Washington for being parked in a high-crime area where you don't live?

Posted by Brian C. Zuanich | Jul 21, 2019 | 0 Comments

You don't have to talk the police, and the police can't force you to talk to them.

This illustrates one of the bedrock principles of our criminal justice system: the government generally has to leave you alone.

Of course, the government does interfere in your life (i.e. tax season anyone?). And the Police, by definition, investigate crimes and won't leave you alone if they suspect you're up to no good.

In some cases, police can stop, detain, and question you without your consent. When they can do this is the billion dollar question.

In Washington, there's a whole area of law devoted to this question—search and seizure law. Whole classes in law school focus on this topic, thousands of judicial opinions deal with this subject, and most criminal defense lawyers and prosecutors can recite the key legal principles in their sleep. 

No single case can adequately explain this area of the law, but the Court of Appeals' recent decision in State v. Carriero comes close.

Carriero drives down the wrong alley

A concerned citizen called 911 at 2:00 a.m. to report a suspicious vehicle parked at the dead end of an alley. The caller didn't recognize the vehicle. Police knew this neighborhood to be a “high-crime area.”

Two police officers responded in separate cruisers and drove down the alley. They pulled up in front a red Chevrolet facing their direction at the end of the alley. The engine wasn't running and the car's lights were off. The police illuminated the Chevrolet with their cruisers' headlights

The officers got out and approached the Chevrolet. One of them stood right next to the driver's side door. Carriero was in the driver's seat. At this point, the officers didn't notice anything suspicious about Carriero or his female passenger.

Police asked Carriero whether he lived in the neighborhood, and he said no. When asked, Carriero told them he owned the car. He then told the officers to leave them alone.

The officers requested identification, and both Carriero and his passenger produced their IDs. After running their names, police learned that Carriero was a convicted felon and that the passenger had an outstanding warrant for her arrest. (Carriero did not have any arrest warrants).

After ordering the passenger out of the car, officers saw a handgun in a pouch behind the driver's seat. Police then ordered Carriero out of the car, handcuffed him, and placed him under arrest. The weapon turned out to be a loaded semiautomatic pistol.

Washington Search and Seizure Law

The State charged Carriero with felony possession of a firearm in Yakima County Superior Court. Carriero moved to suppress the weapon found in his car, claiming an illegal search and seizure. After an evidentiary hearing, the trial judge denied his motion. A jury ultimately found Carriero guilty as charged. Carriero appealed.

The primary issue in this case—as in all search and seizure cases in Washington—is whether police reasonably believe a suspect is engaged in criminal activity. If the answer is yes, then police can detain (i.e. seize) a suspect for further investigation.

In practice, this question is actually three separate questions: 1) Was the defendant seized? 2) If yes, when was the defendant seized; 3) And if yes to both questions, did the police haw a lawful basis for the seizure?

The second question, in this case, turned out to be the most important. Carriero was clearly detained when the police ordered him out of the car after seeing the weapon. (The State conceded that).

But was Carriero detained earlier? 

Seeing a handgun certainly provided a basis for Carriero's seizure, but if Carriero was seized before this point, then the weapon couldn't provide retroactive justification for the seizure.

Not surprisingly, Carriero argued that police “seized” him well before they saw the weapon. The State argued—not surprisingly—that police didn't seize him until they saw the weapon. The trial judge agreed with the State.

 What did the Court of Appeals say?

Was Carriero seized?

Under Washington law, a seizure occurs when a reasonable person believes he is not free to leave the scene, based on all the surrounding circumstances. In other words, would a reasonable person feel free to tell the officer: “Sorry, I'm not talking to you” and walk away. 

A suspect's subjective view is irrelevant. Most of us would probably feel some degree of compulsion if an officer said “Hey, I can I talk to you” but that's not the standard.

Of course, there is no such thing as a  flesh and blood “reasonable person” that the courts look to when analyzing this issue. The “reasonable person” standard really just means that Courts look at particular, objective facts surrounding a police-citizen encounter.

Whether a defendant was “seized” is about as a highly fact-specific question as there is in the law. But, fortunately, the appellate courts have adopted some rules to guide judges in this area.

To Seize or Not to Seize

If an officer pulls out his weapon and orders you out of the car, for instance, you are clearly seized. Police also seize a suspect by ordering a person to wait in the car while checking for outstanding arrest warrants. Physically touching a suspect and displaying a weapon may also trigger a seizure. Finally, the “threatening” presence of several officers on scene may also trigger a seizure.

On the other hand, the following police activities do not(by themselves) amount to a seizure: approaching a suspect, engaging a person in conversation, identifying themselves as officers, and requesting a driver's license. And although many people find officers' threatening simply by virtue of their appearance, just because an officer is in uniform and carrying a weapon doesn't automatically turn a police encounter into a seizure. 

Most relevant to this case, “blocking the exit” of a suspect's car, the Court wrote in Carriero, is a “significant, if not a decisive, factor in finding a seizure.”

The biggest dispute in this case was whether the police blocked Carriero's car from leaving the alley.

During the motion hearing, one officer testified that “there is space to actually get two cars down the alleyway,” implying that Carriero could have (in theory) driven past the officers out of the alley. The second officer testified, however, that it was a “pretty narrow alley.” And despite ruling against Carriero, the trial judge (who saw the video of the encounter between police and Carriero and heard both officers testify) concluded that the police had blocked Carriero's car from leaving the alley.

The Court also noted other factors supporting a seizure. Two police cruisers illuminated the suspect's car with their headlights and one officer immediately got out of his car and stood right next to Carriero's door. As the Court also noted, blocking a vehicle in the early morning hours (as opposed to daylight hours) is more “coercive” because it is less likely that members of the public will see the encounter and thus a defendant is more vulnerable.

For these reasons, the Court ruled, no reasonable person “would have ignited his car's engine and sought to maneuver out of a tight alley to avoid speaking with the officers.” In other words, no reasonable person would have felt free to leave the scene. The Court thus ruled that police seized Carriero before they saw the weapon.

Did police have reasonable suspicion to detain Carriero?

Now, the Court had to decide, did police reasonably suspect that Carriero was engaged (or was about to engage) in criminal activity when officers blocked him in the alley and approached the car.

No, the Court said. Under Washington law, reasonable suspicion must be based on specific and articulable facts. A hunch or a good guess is not good enough.

Two Yakima police officers approached Carriero in essence because he “parked in a high-crime area during early morning hours and a caller indicated that the car did not belong in the neighborhood.” But courts in Washington have repeatedly held that “suspicion of criminal activity” based on someone's being in a “high-crime area”—even in a high-crime area late at night—does not rise to reasonable suspicion. That is because reasonable suspicion must be “individualized” to the person being detained.

Here police had a hunch—a really good hunch, as it turned out—that Carriero and his passenger were up to no good.  But hunches do “not warrant police intrusion into people's everyday lives. And, as noted above, police didn't see notice anything suspicious until they ran Carriero's name thorugh the system and saw the gun.

Therefore, the Court ruled that the police lacked reasonable suspicion to stop, detain, and question Carriero and ordered the trial judge to exclude the evidence of the weapon at trial, effectively gutting the State's case.

About the Author

Brian C. Zuanich

I am the managing partner at Zuanich Law. I am a former prosecutor and insurance defense attorney, and have practiced law in state and federal courts for over a decade.

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