Supreme Court of the State of Washington 

Opinion Information Sheet


Docket Number: 79992-0
Title of Case: State v. Gatewood
File Date: 05/01/2008
Oral Argument Date: 03/13/2008


SOURCE OF APPEAL
----------------
Appeal from King County Superior Court
04-1-06785-1
Honorable Douglass A North


JUSTICES
--------
Gerry L. Alexander Signed Majority
Charles W. Johnson Signed Majority
Barbara A. Madsen Signed Majority
Richard B. Sanders Signed Majority
Tom Chambers Signed Majority
Susan Owens Signed Majority
Mary E. Fairhurst Signed Majority
James M. Johnson Majority Author
Debra L. Stephens Signed Majority


COUNSEL OF RECORD
-----------------

Counsel for Petitioner(s)
Susan F Wilk
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
Christine Wilson Keating
King County Prosecutors Office
516 3rd Ave Rm W554
Seattle, WA, 98104-2312


Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104


James Morrissey Whisman
King County Prosecutor's Office
W554 King County Courthouse
516 3rd Ave
Seattle, WA, 98104-2362



IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
)
Respondent, ) No. 79992-0
)
v. ) En Banc
)
GARY NATHANIEL GATEWOOD, Filed May 1, 2008
SR., )
)
Petitioner.
)

)

)

)

J.M. JOHNSON, J. -- This case requires us to determine the legality of

police officers' warrantless seizure of Gary Gatewood. The trial court found

that the seizure was supported by reasonable suspicion that criminal activity

was afoot. The Court of Appeals affirmed. We granted review and now

reverse.

State v. Gatewood, No. 79992-0

Facts and Procedural History

The facts are undisputed. Shortly after midnight on June 26, 2004,

police officers Larry Longley and Edward Chan were patrolling the Rainier

Valley area of Seattle. Chan was driving a marked patrol car, and Longley

was riding in the passenger seat. As they drove north on Rainier Avenue

South, Longley saw three or four people, including Gary Gatewood, sitting in

a bus shelter. Gatewood looked at Longley and the police cruiser, and

Longley testified that Gatewood's "eyes got big . . . like he was surprised to

see us." 1 Report of Proceedings (RP) (July 7, 2005) at 7. Longley then

observed Gatewood "twist[] his whole body to the left, inside the bus shelter,

as though he was trying to hide something." Id.

Longley told Chan he thought Gatewood was hiding something and

that he wanted to circle back and investigate. Chan turned right at the next

intersection, turned right again, and then drove the wrong way down a one-

way street returning to the intersection near the bus shelter.

By the time the officers reached the intersection, Gatewood had left the

bus shelter and was walking north on Rainier Avenue. Gatewood then

jaywalked1 across Rainier and began walking south on the other side of the

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State v. Gatewood, No. 79992-0

street. He turned right onto 39th Avenue and continued walking. Chan drove

slowly behind Gatewood and then pulled the police car in front of him

blocking his path. Longley jumped out of the car and said to Gatewood,

"Stop. I want to talk to you." 1 RP (July 7, 2005) at 21. Gatewood turned

around and walked away. Longley ordered him to stop several times, but

Gatewood kept walking.

When Gatewood reached some bushes, he bent over and reached into

his waistband. The officers could not see what he was doing, so they drew

their guns and ordered Gatewood to stop and show his hands. Gatewood

pulled something out of his waistband, threw it into the bushes, and then

complied with the officers' request. Chan immediately handcuffed

Gatewood, and Longley recovered a loaded .22 caliber handgun in the

bushes. The officers found marijuana on Gatewood, and a subsequent search

of the bus shelter yielded cocaine.

The State charged Gatewood with second degree unlawful possession

of a firearm,2 possession of cocaine, and possession of less than 40 grams of

1 At the trial court level Gatewood contested officers' assertion that he jaywalked;
however, he does not contest this on appeal.
2 Gatewood had previously been convicted of a felony (unnamed) and was not eligible to
possess a firearm.

3

State v. Gatewood, No. 79992-0

marijuana. At a CrR 3.6 hearing, Gatewood moved to suppress the evidence,

claiming the officers did not have reasonable, articulable suspicion of criminal

activity justifying the seizure.3 The trial court denied his motion. A jury

found Gatewood guilty of unlawful possession of a firearm and unlawful

possession of marijuana. The Court of Appeals affirmed Gatewood's

convictions. State v. Gatewood, noted at 137 Wn. App. 1010 (2007).

Standard of Review

We review a trial court's findings of fact for substantial evidence.

State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). We review

conclusions of law de novo. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d

1280 (1997). The constitutionality of a warrantless stop is a question of law

we review de novo. State v. Rankin, 151 Wn.2d 689, 694, 92 P.3d 202

(2004).

Analysis

Article I, section 7 of the Washington Constitution provides: "No

person shall be disturbed in his private affairs, or his home invaded, without

authority of law." It is well established that that "our Washington State

3 Although Gatewood also argues that the officers used jaywalking as a pretext to stop, it
is not necessary here to attempt to further discern the officers' subjective intent in
stopping Gatewood.

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State v. Gatewood, No. 79992-0

Constitution affords individuals greater protections against warrantless

searches than does the Fourth Amendment." State v. Stroud, 106 Wn.2d

144, 148, 720 P.2d 436 (1986).

Generally, warrantless searches and seizures are unconstitutional.

State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). There are,

however, "'a few jealously and carefully drawn exceptions . . . which provide

for those cases where the societal costs of obtaining a warrant . . . outweigh

the reasons for prior recourse to a neutral magistrate.'" Id. (alterations in

original) (internal quotation marks omitted) (quoting State v. Hendrickson,

129 Wn.2d 61, 70, 917 P.2d 563 (1996)). A Terry4 investigative stop is one

such exception. Id.

"Terry requires a reasonable, articulable suspicion, based on specific,

objective facts, that the person seized has committed or is about to commit a

crime." State v. Duncan, 146 Wn.2d 166, 172, 43 P.3d 513 (2002) (citing

Terry, 392 U.S. at 21). The officers' actions must be justified at their

inception. Ladson, 138 Wn.2d at 350 (citing Terry, 392 U.S. at 20).

The State concedes that when Longley said "'Stop, I need to talk to

4 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

5

State v. Gatewood, No. 79992-0

you,'" it was a seizure. Resp't's Br. at 13 n.7 (citing State v. Friederick, 34

Wn. App. 537, 541, 663 P.2d 122 (1983)); see State v. O'Neill, 148 Wn.2d

564, 577, 62 P.3d 489 (2003) (holding that commanding a person to stop is a

seizure). Thus, we only need to analyze the facts known to the officers up to

this point: (1) Gatewood's widened eyes upon seeing the patrol car, (2) his

twist to the left like he was trying to hide something, (3) his departure from

the bus shelter, and (4) his crossing the street mid-block.

These facts are insufficient for a Terry stop. Startled reactions to

seeing the police do not amount to reasonable suspicion. State v. Henry, 80

Wn. App. 544, 552, 910 P.2d 1290 (1995) (nervousness is not sufficient for

Terry stop). Although Gatewood twisted to the side, Longley did not see

what, if anything, Gatewood was hiding. Flight from police officers may be

considered along with other factors in determining whether officers had a

reasonable suspicion of criminal activity, State v. Little, 116 Wn.2d 488, 496,

806 P.2d 749 (1991), but Gatewood did not flee from the police. Chan said

he was unsure whether Gatewood saw their patrol car returning when he left

the bus shelter. And Longley specifically testified that Gatewood was not

walking very fast because their car rolled up behind him. We cannot

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State v. Gatewood, No. 79992-0

conclude Gatewood was "fleeing" from the officers simply because he

walked away from the shelter. Outlaw v. People, 17 P.3d 150, 157 (Colo.

2001) (holding that defendant walking away after noticing patrol car fails to

provide reasonable suspicion).

The trial court relied on two cases in its denial of Gatewood's motion

to suppress: State v. Graham, 130 Wn.2d 711, 927 P.2d 227 (1996) and State

v. Sweet, 44 Wn. App. 226, 721 P.2d 560 (1986). This case is

distinguishable. In this court's Graham, 130 Wn.2d at 714, officers

patrolling on bicycles almost ran into the defendant who was walking along

the street. He was carrying a wad of money in one hand and a small plastic

baggie with white rocks, which officers suspected was cocaine, in the other.

Id. When he saw the officers, he looked nervous, shoved his hands into his

pockets and began crossing the street against the "Don't Walk" signal. Id.

We upheld the warrantless seizure. In the instant case, however, the officers

saw far less. Longley observed Gatewood's widened eyes and twist to the

left as the police cruiser drove by. He did not see what Gatewood was trying

to hide. In fact, from his vantage point in the passing patrol car, Longley

could not have seen much.

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State v. Gatewood, No. 79992-0

In Sweet, 44 Wn. App. at 228, officers received a call about a

suspicious truck which they subsequently found parked and unoccupied in

front of a closed business. They then saw a man standing in the shadows

nearby, and when the officers approached him, the defendant "'fled at a full

run.'" Id. (quoting State v. Sweet, 36 Wn. App. 377, 379, 675 P.2d 1236

(1984)). The Court of Appeals held the ensuing Terry stop valid. The facts

here are very different. Gatewood was not alone or in a suspicious place, and

he did not flee from the officers but simply walked away.

Officers' seizure of Gatewood was premature and not justified by

specific, articulable facts indicating criminal activity. Although circling back

to investigate Gatewood's furtive movements was proper, the officers did not

have reasonable suspicion that he committed or was about to commit a crime.

They could have continued to follow Gatewood or engaged in a consensual

encounter to further investigate the activity Longley observed in the bus

shelter. See Rankin, 151 Wn.2d at 717 ("'[D]uring a consensual encounter, a

police officer seeks the voluntary cooperation of an individual by asking non-

coercive questions. A citizen is free to leave at any time during such an

encounter or to ignore the police officer's questions.'" (alteration in original)

8

State v. Gatewood, No. 79992-0

(quoting People v. Paynter, 955 P.2d 68, 72 (Colo. 1998))). Since Gatewood

did not flee from the officers, it was not necessary to take swift measures.

Conclusion

Officers seized Gatewood to conduct a speculative criminal

investigation. Our constitution protects against such warrantless seizures and

requires more for a Terry stop. Since the initial stop of Gatewood was

unlawful, the "subsequent search and fruits of that search are inadmissible."

State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986) (citing Wong Sun v.

United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)). We

reverse and suppress the evidence.

AUTHOR:
Justice James M. Johnson

WE CONCUR:
Chief Justice Gerry L. Alexander Justice Susan Owens

Justice Charles W. Johnson Justice Mary E. Fairhurst

Justice Barbara A. Madsen

Justice Richard B. Sanders Justice Debra L. Stephens

Justice Tom Chambers

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