State v. Bee Xiong

¶ 1 Officers attempting to serve a warrant mistook Bee Xiong for his brother, Kheng Xiong. While sorting out the identification, a protective frisk led to a pipe with drug residue. Bee Xiong was arrested. The search incident to Bee Xiong’s arrest led to the State’s charge for methamphetamine possession with intent to deliver. The trial court suppressed the evidence and terminated the case. The State appealed. Because the evidence was seized during a proper investigatory stop, we reverse. Brown, J. — FACTS ¶ 2 Task forces were assembled to execute felony arrest warrants for persons in the Spokane area, including Kheng Xiong. Using Kheng Xiong’s photo, the officers went to his listed home address and found a van parked there. A deputy marshal misidentified the van’s passenger, Bee Xiong, Kheng’s brother, as Kheng. When approached, Bee Xiong gave his name to a federal agent but he did not have any 723 identification. Bee Xiong explained Kheng Xiong was his older brother. ¶ 3 The agent handcuffed Bee Xiong, noticing a large bulge in his pocket. Concerned the bulge was a weapon, the agent touched the bulge and felt a hard object. Bee Xiong pulled away so the agent could not feel the object any further and said he did not have any weapons but did not want to be searched. At this point, the agent was still uncertain of identification. Apparently, the photo used by the officers was similar in appearance to Bee Xiong. The officers attempted to obtain a photo of Bee Xiong in the computer system in an effort to identify their suspect. ¶ 4 During this time, the officers decided to investigate the hard object, suspecting it could be a weapon. Bee Xiong was arrested for possessing a controlled substance when a pipe with drug residue was found. About 10 minutes later, Bee Xiong’s mother arrived and identified him. A search incident to Bee Xiong’s arrest developed evidence leading to a charge of possession of methamphetamine with intent to deliver. ¶ 5 Bee Xiong moved to suppress the evidence. The court decided the officers should have first identified Bee Xiong, and “that once confirmed he was Bee Xiong, he [should] have been released uncuffed and not patted.” Clerk’s Papers at 17. The court concluded the officers lacked facts, specific and detailed, that Bee Xiong was armed and dangerous. The court ordered suppression. The State appealed. ANALYSIS f 6 The issue is whether, considering investigative stop and frisk principles, the trial court erred in granting Bee Xiong’s motion to suppress the evidence seized and dismissing the charge against him. We conclude the court erred. ¶ 7 Bee Xiong, in his briefing, assigns error to finding of fact 4, regarding the court’s ruling that the initial stop and handcuffing was appropriate. But Bee Xiong did not file for cross review as required under RAP 5.1(d). See State v. 724 Vanderpool, 99 Wn. App. 709, 714, 995 P.2d 104 (2000) (court declined review of allegations raised for the first time in response brief). Therefore, we decline review. ¶ 8 We review suppression orders by independently evaluating the evidence to determine if substantial evidence supports the findings and the findings support the conclusions. State v. Hill, 123 Wn.2d 641, 644-45, 870 P.2d 313 (1994). “[W]here the findings are unchallenged, they are verities on appeal.” State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003) (citing Hill, 123 Wn.2d at 647). We review suppression conclusions de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). ¶ 9 Warrantless searches are per se unreasonable but defined exceptions exist. State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1998). Our focus is the Terry1 investigative stop exception. State v. Duncan, 146 Wn.2d 166, 171-72, 43 P.3d 513 (2002). The State has the burden of showing the particular search or seizure in question falls within the exception asserted. Id. at 172. ¶ 10 In Terry, the Court held if an initial stop is justified, a police officer may make a reasonable search for weapons without violating the Fourth Amendment, regardless of whether he or she has probable cause to arrest the individual, if the circumstances lead the officer to reasonably believe that his or her safety or the safety of others is at risk. See Terry, 392 U.S. at 20-27. The Washington Constitution affords greater privacy protection than the Fourth Amendment. ¶ 11 In Washington, the State must show “(1) the initial stop is legitimate; (2) a reasonable safety concern exists to justify the protective frisk for weapons; and (3) the scope of the frisk is limited to the protective purposes.” Duncan, 146 Wn.2d at 172 (citing State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993)). Here, it is a verity that the stop was appropriate. The sole issue is if a reasonable safety concern exists to justify the frisk. The court apparently determined 725 the officers conducted a general search rather than a frisk for articulable suspicion of a weapon. ¶ 12 Here, agents were trying to make a felony warrant arrest of Kheng Xiong. While Bee Xiong informed the agents he was not Kheng Xiong, he lacked identification. An agent handcuffing Bee Xiong saw a large bulge in Bee Xiong’s pocket. Concerned the bulge was a weapon, the officer touched the bulge and felt a hard object. Bee Xiong suspiciously pulled away so the agent could not feel the object any further. At this point, the agent did not know if his suspect was Bee or Kheng Xiong. Agents testified they feared for their safety and explained that even a handcuffed suspect is a risk if armed. Further, the handcuffs would eventually have to come off, whether he was ultimately arrested or not. ¶ 13 Given the similarity in appearance between Kheng Xiong and Bee Xiong, the time necessary to clarify their initial identification, Bee Xiong’s location at Kheng Xiong’s home, the bulge in Bee Xiong’s pocket, his reaction when an agent tried to touch it, and the officer’s stated safety concerns, the agent was justified in frisking Bee Xiong’s pocket. Based on the hardness and shape of the object, the agent was justified in pulling the object out. See State v. Hudson, 124 Wn.2d 107, 113, 874 P.2d 160 (1994) (if a pat-down search is inconclusive and the officer feels an object which might be a weapon, he is entitled to withdraw it for examination). ¶ 14 In sum, given the propriety of the initial stop and the stated need to dispel the agent’s safety concerns during the ensuing investigation, the evidence seized incident to Bee Xiong’s arrest was incorrectly suppressed under well established principles governing frisks during investigatory stops. ¶ 15 Reversed. Kulik, J., concurs. Footnotes [1] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).