Court of Appeals Division III 

State of Washington
Opinion Information Sheet


Docket Number: 29671-7
Title of Case: State of Washington v. Ulises Ibarra Guevara
File Date: 12/06/2012


SOURCE OF APPEAL
----------------
Appeal from Yakima Superior Court
Docket No: 10-8-01088-3
Judgment or order under review
Date filed: 03/09/2011
Judge signing: Honorable F James Gavin


JUDGES
------
Authored by Dennis J. Sweeney
Concurring: Stephen M. Brown
Laurel H. Siddoway


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

Counsel for Appellant(s)
Jan Trasen
Attorney at Law
1511 3rd Ave Ste 701
Seattle, WA, 98101-3647

Counsel for Respondent(s)
James Patrick Hagarty
Yakima County Prosecuting Attorney's Off
128 N 2nd St Rm 329
Yakima, WA, 98901-2621


David Brian Trefry
Attorney at Law
Po Box 4846
Spokane, WA, 99220-0846








FILED

DEC 06, 2012

In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

STATE OF WASHINGTON, No. 29671-7-III
)
Respondent, )
)
v. )
) PUBLISHED OPINION
ULISES IBARRA GUEVARA, )
)
Appellant. )
)

Sweeney, J. -- The court need not suppress incriminating evidence discovered as

the result of a "social contact" with a defendant. Here an officer contacted the defendant,

who was in the company of other boys, told them that he suspected they were using drugs

and asked them to turn their pockets inside out. We conclude that the police contact here

amounted to more than a "social contact" and we therefore reverse the conviction for

possession of drugs and dismiss the prosecution.

FACTS

The facts here are undisputed. Yakima Police Officer Ben Graves worked as a

No. 29671-7-III
State v. Ibarra Guevara

school resource officer at Eisenhower High School in Yakima, Washington. Officer

Graves saw three boys walk east to the 3800 block of Webster Avenue. He knew one

was an Eisenhower High student. He also knew that students often went to that area to

smoke marijuana. Officer Graves thought that the boys would be late for 8:00 a.m.

classes because it was about 7:55 a.m. and the boys were more than a block from the high

school.

The officer followed the boys in his marked patrol car. He wore his police

uniform. He stopped his car about 20 feet behind the boys. He got out of his car and

walked east toward them. He asked them what they were doing. They replied that they

were going for a walk. Officer Graves told them that he believed they were skipping

school to smoke marijuana. He then asked them if they would show him the contents of

their pockets. The boys began showing him what was in their pockets. He asked them to

"bunny ear" their pockets one by one so he did not miss anything. Report of Proceedings

(RP) at 11-12. Ulises Ibarra Guevara was the last to empty his pockets. When he did,

Officer Graves saw a plastic baggie tucked behind Mr. Ibarra Guevara's Eisenhower

identification card. He asked Mr. Ibarra Guevara what the baggie contained and Mr.

Ibarra Guevara responded marijuana.

The State charged Mr. Ibarra Guevara with possession of less than 40 grams of

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marijuana. Mr. Ibarra Guevara moved to suppress the drug evidence. The court

concluded that the stop was a "social contact" and denied the motion. The court found

Mr. Ibarra Guevara guilty as charged.

DISCUSSION

Whether police conduct amounts to a seizure is a mixed question of law and fact.

State v. Harrington, 167 Wn.2d 656, 662, 222 P.3d 92 (2009). The trial court is entitled

to great deference in resolving the facts, but "the ultimate determination of whether those

facts constitute a seizure is one of law and is reviewed de novo." State v. Thorn, 129

Wn.2d 347, 351, 917 P.2d 108 (1996), overruled on other grounds by State v. O'Neill,

148 Wn.2d 564, 62 P.3d 489 (2003).

The court must enter written findings and conclusions following a suppression

hearing. CrR 3.6. Those findings and conclusions are generally necessary for appellate

review. State v. Head, 136 Wn.2d 619, 622-23, 964 P.2d 1187 (1998). The court here

did not enter findings or conclusions. We may, however, overlook this failure where the

court clearly and comprehensively states the basis of its opinion orally. State v. Cruz, 88

Wn. App. 905, 907-09, 946 P.2d 1229 (1997). Here, the evidence is uncontested and the

court's oral ruling fully explains the basis of its opinion. It concluded this was not a

seizure but rather a social contact. We then conclude that we can conduct a meaningful

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review without written findings and conclusions.

Police Social Contact

Article I, section 7 of our state constitution provides that "[n]o person shall be

disturbed in his private affairs . . . without authority of law." It "casts a wider net than

the Fourth Amendment's protection against unreasonable search and seizure."

Harrington, 167 Wn.2d at 663.

A person is seized when "considering all the circumstances, an individual's

freedom of movement is restrained and the individual would not believe he or she is free

to leave or decline a request due to an officer's use of force or display of authority."

State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004). Police actions likely to

amount to a seizure include, "'the threatening presence of several officers, the display of

a weapon by an officer, some physical touching of the person of the citizen, or the use of

language or tone of voice indicating that compliance with the officer's request might be

compelled.'" State v. Young, 135 Wn.2d 498, 512, 957 P.2d 681 (1998) (quoting United

States v. Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)).

A "social contact" is not a seizure. Harrington, 167 Wn.2d at 664-65. It

"occupies an amorphous area . . . resting someplace between an officer's saying 'hello' to

a stranger on the street and, at the other end of the spectrum, an investigative detention."

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Id. at 664. A social contact may involve a police officer asking for identification or to

remove one's hands from his pockets. State v. Armenta, 134 Wn.2d 1, 11, 948 P.2d 1280

(1997); State v. Nettles, 70 Wn. App. 706, 712, 855 P.2d 699 (1993). These activities, in

isolation, do not amount to a seizure. Armenta, 134 Wn.2d at 11. But even these

seemingly innocuous small intrusions may amount to a seizure when combined.

Harrington, 167 Wn.2d at 668 (citing State v. Soto-Garcia, 68 Wn. App. 20, 841 P.2d

1271 (1992), abrogated on other grounds by Thorn, 129 Wn.2d 347).

In Harrington and Soto-Garcia, the trial court concluded that the combination of

small intrusions did ripen into a seizure. 167 Wn.2d at 669; 68 Wn. App. at 25. In both

cases, the defendants were walking in public when officers stopped and questioned them.

Harrington, 167 Wn.2d at 661; Soto-Garcia, 68 Wn. App. at 22. The defendants

answered voluntarily at first but the police kept prying. In Harrington, the officer asked

Mr. Harrington to remove his hands from his pockets and consent to a search as another

officer arrived. 167 Wn.2d at 662. In Soto-Garcia, the officer asked if he had any

cocaine on him, Mr. Soto-Garcia denied having cocaine, and the officer asked for consent

to a search. 68 Wn. App. at 22. The courts in both cases concluded that these amounted

to more than "social contacts" and therefore concluded that the drug evidence should

have been suppressed. Id. at 29; Harrington, 167 Wn.2d at 670.

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The Harrington court suggested that an officer's request to search is particularly

significant. See Harrington, 167 Wn.2d at 667-70. It noted that "[r]equesting to frisk is

inconsistent with a mere social contact." Id. at 669. It explained that "[if the officer] felt

jittery about the bulges in Harrington's pockets, he should have terminated the

encounter -- which [the officer] initiated -- and walked back to his patrol car." Id. And it

concluded that the request to search ultimately caused the social contact to mature into an

unlawful seizure. Id.

Cases where a social contact did not mature into an unlawful seizure typically

involve requests for identification rather than direct requests to search. See State v.

Bailey, 154 Wn. App. 295, 298, 224 P.3d 852, review denied, 169 Wn.2d 1004 (2010);

State v. Smith, 154 Wn. App. 695, 226 P.3d 195, review denied, 169 Wn.2d 1013 (2010);

State v. Johnson, 156 Wn. App. 82, 231 P.3d 225 (2010), remanded, 172 Wn.2d 1001

(2011). In Bailey and Johnson, officers approached the defendants in public areas and

asked the defendants to identify themselves. Police checked for outstanding warrants.

Both men had outstanding warrants. Police then discovered drugs in a subsequent search

incident to the arrest on the warrants. Bailey, 154 Wn. App. at 298; Johnson, 156 Wn.

App. at 86-88. In Johnson, the court cited several factors in concluding that the incident

was not an unlawful seizure: the officer parked some distance behind Mr. Johnson, did

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No. 29671-7-III
State v. Ibarra Guevara

not activate his lights, was not accompanied by other officers, and did not demand

identification or ask that Mr. Johnson step out of the car. Johnson, 156 Wn. App. at 92.

In Bailey, we noted that the officer did not display force, for example, by using sirens or

lights, and that Mr. Bailey voluntarily approached the officer and answered his questions.

154 Wn. App. at 302. The court then concluded that, without more, a reasonable person

would have felt free to leave. Id.

Smith's facts are more complicated but also start with an officer asking Mr. Smith

for identification. Mr. Smith's true identity was unclear, so the officer asked to look in

Mr. Smith's wallet. The officer found cards in different names and drugs in the wallet.

The court in Smith distinguished the facts from Harrington and Soto-Garcia by noting

that the officer did not ask Mr. Smith "about illegal activity, attempt to control his

actions, or request to frisk him." Smith, 154 Wn. App. at 702. The court concluded that

the contact was not an unlawful seizure because the officer merely asked for

identification and looked through Mr. Smith's open wallet with Mr. Smith's permission.

Id. at 698.

Here the officer expressed suspicion that these kids were using drugs and skipping

school. See Soto-Garcia, 68 Wn. App. at 22. And the officer asked for and received

permission to search them. We concluded that this is inconsistent with the tenets of a

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"social contact." The defendant here would hardly have felt free to simply walk away.

Like in Soto-Garcia, the officer here voiced suspicion of drug possession and asked for

consent to search. The request to search alone is inconsistent with a social contact. See

Harrington, 167 Wn.2d at 669.

Community Caretaking Function

Alternatively, the State suggests that Mr. Ibarra Guevara and his cohorts were

detained by the officer in his capacity as a community caretaker. RCW 28A.225.060.

First, that was not the basis for the court's ruling. RP at 35. Nor did the officer advance

this as a reason for his detention. Police may certainly detain a child skipping school and

return the child to his parents or the school. RCW 28A.225.010. That is not what was

done here.

The community caretaking function recognizes that police officers may contact

individuals for noncriminal, noninvestigatory reasons, including emergency aid and

routine checks on health and safety. See State v. Kinzy, 141 Wn.2d 373, 5 P.3d 668

(2000). Whether such a contact is reasonable depends on whether the public's interest in

police performing a community caretaking function outweighs an individual's interest in

freedom from police interference. Id. at 387. The community caretaking function should

be cautiously applied because "even well-intentioned stops" carry a "real risk of abuse."

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No. 29671-7-III
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State v. DeArman, 54 Wn. App. 621, 626, 774 P.2d 1247 (1989).

The State tries to distinguish the unreasonable community caretaking stop in

Kinzy. It argues that, unlike Ms. Kinzy, Mr. Ibarra Guevara could have just walked away

from the officer. In Kinzy, police saw Ms. Kinzy on a street corner in downtown Seattle

late at night. The area was known for drug trafficking and the officers had had prior drug-

related contacts with a man in Ms. Kinzy's company. Ms. Kinzy appeared to be 11 or 13

years old. Officers hailed Ms. Kinzy, she ignored them, and one of the officers grabbed

Ms. Kinzy's arm. They asked her a series of questions, patted her down, saw small flecks

of crack on the lining of her coat, and Ms. Kinzy later admitted that she had more crack

in her brassiere. Kinzy, 141 Wn.2d at 378-79. The court ultimately concluded that Ms.

Kinzy's privacy interest outweighed the public interest in police performing the

community caretaking function and held that the seizure was therefore unreasonable. Id.

at 390-91.

Here Officer Graves did not detain Mr. Ibarra Guevara and take him back to

school as authorized by RCW 28A.225.010. He asked about illegal drug use and then

asked him to empty his pockets. We conclude this is not community caretaking but rather

an unwarranted intrusion into Mr. Ibarra Guevara's private affairs, an intrusion prohibited

by our state constitution. Const. art. I, ยง 7.

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No. 29671-7-III
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We reverse the conviction and dismiss the prosecution.

_______________________________
Sweeney, J.
WE CONCUR:

________________________________
Siddoway, A.C.J.

________________________________
Brown, J.

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