Blair Russ 206-382-9200
No sun yet this summer in Seattle but the Court of Appeals shed a little light on long standing constitutional protections this week. Good news for those daring to exit their house or apartment in this grey month of July to visit with neighbors. The Court said that we can still talk to our neighbors and carpool without being arrested. Even if we live in a high crime area.
The State and Federal Constitutions prohibit police officers from stopping individuals based on their mere presence in a high crime area. However, what about circumstances where an officer observes a suspect engaging in a behavior which is highly consistent with criminal activity, but the officer cannot pin point whether the suspect is actually engaging in criminal activity on that occasion. For example, suppose a person hands another person some indeterminate object in an area known for drug deals. Does the officer have the authority to stop and question the participants to see if a drug deal has actually taken place? In another hypothetical, assume during an early morning patrol an officer views a patron leaving a bar and entering a vehicle in the adjoining parking lot. Does this officer have the authority to stop and question this patron to see if he is actually driving under the influence?
In both our scenarios, it is probable that the person is committing a drug deal or a DUI based on common sense and experience. However, in each of these cases, the officer lacks specific facts suggesting that the he or she has viewed criminal activity on this particular occasion. Notwithstanding the lack of specifics, can the officer play the favorable odds and make the stop just to investigate?
State v. Diluzio, recently decided by Division Three of the Court of Appeals, seems to suggest that even where criminal activity seems highly likely based on a behavior pattern consistent with criminal activity, a stop based solely on observing the pattern is unconstitutional. In Diluzio a late night patrol officer encountered a stationary vehicle in an area known for prostitution. The male driver was observed talking with a female pedestrian. Subsequently, the female entered the vehicle and they drove off together. Suspecting that solicitation of prostitution had occurred, the officer stopped the vehicle and found illegal drugs on the driver during an eventual search incident to the driver’s arrest.
At a suppression hearing, the officer testified that he suspected prostitution because he knew, based on his thirteen years of experience, that the area was commonplace for prostitution and there was no logical explanation as to why the woman was standing on the sidewalk. In discounting other legitimate scenarios, the officer relied on the absence of bus stops, businesses or restaurants in the area. The trial Court found the stop justified; however, the Appeals Court reversed the trial Court’s ruling. In doing so, the Court of Appeals reasoned that the stop was illegal because the officer lacked specific facts suggesting prostitution in this particular instance. The officer did not hear the conversation between the driver and the pedestrian, he did not see any money change hands, nor did he recognize either of participants as having a history of prostitution. Albeit, this scenario was consistent with prostitution, there was nothing indicative of prostitution in this particular instance. Therefore, the stop was unconstitutional.