* State Of Washington, Respondent V. Jose Manuel Cardenas-muratalla, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JOSE MANUEL CARDENAS-MURATALLA,
AKA JOSE MANUEL CARDENAS-MURALTA,
Appellant.
Grosse, J. —To be valid under both state and federal law, a warrantless,
investigatory stop, 	or Terry1 	stop, 	must be reasonable, 	and 	it is the State's
burden to prove reasonableness. 	An investigatory stop is reasonable if the
arresting 	officer 	can 	testify 	to specific 	and 	objective 	facts that 	provide 	a
reasonable suspicion that the person stopped has committed or is about to
commit a crime. 	In 	determining whether an 	investigatory stop 	and frisk 	is
reasonable, courts look at the totality of the circumstances. 	The circumstances
must suggest a substantial possibility that the particular person has commiled ai
specific crime or is about to do so. 	Here, an anonymous tip reporting conduct not^
r 	CO 	Z~'-Q
constituting a crime did 	not suffice to justify a Terry stop. 	Accordingly wgg
CD 	B^;
reverse. 	en 	3~
FACTS
At about 9:45 p.m. 	on December 7, 2010, Seattle Police Department
Officers Christopher Myers and Chriseley Lang handled a nuisance call near
Second Avenue and Main Street in Seattle. 	As the officers were completing the
call, they heard a broadcast ofa 911 call of a man with a gun in the area of Third
No. 68057-9-1
DIVISION ONE
PUBLISHED OPINION
FILED: February 3, 2014
1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68057-9-1/2
Avenue and Yesler Way. 	At that time of night, that area is "an extremely high
drug area, high weapons area, and high crime area." 	The broadcast did not give
the 	identity of the 	person 	who 	reported 	seeing 	the 	man 	with the gun, 	but
described the 	suspect as a 	Hispanic male wearing 	a 	light blue 	hoodie 	and
described the gun as having a silver handle. 	The caller reported the suspect
displayed the gun; the caller did not say that the suspect pointed the gun at
anybody or threatened anybody. 	The officers never learned the identity of the
911 caller.
Traveling along Third Avenue, the officers saw a person who matched the
description of the suspect. 	Officer Myers testified that the suspect, later identified
as appellant 	Jose Cardenas-Muratalla, 	looked surprised to see a 	patrol car,
straightened his posture, had an "oh, crap" look on his face, and began "fluffing"
behavior. 	Fluffing is when a person grabs the front of his or her sweatshirt and
pulls it down and away from his or her body. 	Officer Myers testified that by
fluffing, 	a 	person 	is 	"telegraphing 	that 	he 	has 	something 	to 	hide" 	and
"telegraphing . . . that it is right there in the front waistband." Another reason for
fluffing is to make sure the gun is not tangled up in clothing and is accessible.
Officer Myers made a hard leftturn to bring the patrol car across two lanes
of traffic and shined the spotlight on Cardenas-Muratalla. 	At the time, Cardenas-
Muratalla was holding a cell phone to his head with his right hand. 	The officer
got out of the car, drew his handgun, and yelled at Cardenas-Muratalla, who had
started to walk away, to get down on the ground. 	Cardenas-Muratalla did not
comply with the officer's instruction.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68057-9-1 / 3
Officer Lang's testimony differed from Officer Myers' testimony. 	Officer
Lang testified that she had a clear view of Cardenas-Muratalla and that when the
officers spotted him, he was not doing anything suspicious with his hands and
was not doing anything with his hands, body, or expression that raised her level
of alarm. 	The officer testified that her suspicions were aroused 	only when
Cardenas-Muratalla 	began 	to "shuffle" away 	and 	did not respond 	to Officer
Myers' direction to stop. 	She testified that Cardenas-Muratalla was talking on a
cell phone as the officers approached and was still talking on the phone when he
shuffled away.
Officer Lang got out of the patrol car, went northbound on Third Avenue,
and blocked Cardenas-Muratalla's avenue of escape. 	She had her handgun
pointed at Cardenas-Muratalla as he walked toward her.
Officer Myers watched Cardenas-Muratalla heading northbound. 	Officer
Myers testified that Cardenas-Muratalla began to walk more quickly and that his
arm was pinned against his side. 	This behavior indicated to the officer that
Cardenas-Muratalla was attempting to hold something in place and also that he
was getting ready to break into a run. 	Officer Myers returned his gun to his
holster and drew his taser. 	He discharged the taser, discarded it, and drew his
handgun again.
The taser 	hit 	Cardenas-Muratalla's 	left arm. 	After 	he 	had 	been 	hit,
Cardenas-Muratalla turned 	around 	and 	headed 	away from 	Officer 	Lang 	and
toward Officer Myers. 	As he walked, Cardenas-Muratalla kept his right hand
down by his side, which Officer Myers thought was an attempt to pull a gun out of
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68057-9-1 / 4
his clothing. 	Officer Myers shot Cardenas-Muratalla and he fell to the ground
and 	was 	handcuffed. 	Officer Myers recovered 	a 	handgun 	from Cardenas-
Muratalla's front waistband. 	The gun was black, not silver as the 911 caller had
described, and was not loaded.
Cardenas-Muratalla, who had a prior conviction for conspiracy to deliver
heroin, was charged with first degree unlawful possession of a firearm. 	Prior to
trial, Cardenas-Muratalla moved to suppress the gun the officers recovered from
his waistband. 	After a hearing, the trial court denied the motion. 	The matter
went to trial and Cardenas-Muratalla was convicted as charged.
ANALYSIS
On appeal, Cardenas-Muratalla challenges the trial court's denial of his
motion to suppress the gun. We review findings of fact on a motion to suppress
for substantial evidence and review the suppression order's conclusions of law
de novo.2
It is well established that a 	police officer does not 	need a warrant to
conduct a Terry stop if it is based on "specific and articulable facts which, taken
together with rational inferences from those facts," give rise to a reasonable
suspicion 	of criminal activity.3 	The 	officer must 	have 	some suspicion 	of a
particular crime or a particular person, and some connection between the two.
We have repeatedly stated that "articulable reasons" or "particularized suspicion"
of criminal activity must be based on the police officer's assessment of the totality
2 State v. Duncan, 146Wn.2d166, 171,43 P.3d 513 (2002).
3Jerry, 392 U.S. at 21.
4 State v. Martinez. 135 Wn. App. 174, 180, 143 P.3d 855 (2006).
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68057-9-1 / 5
of circumstances with which he is faced.5 The officer's assessment must be such
that in the officer's experience and knowledge, together with rational inferences
drawn 	from 	those 	facts, 	reasonably 	warrant 	the 	limited 	intrusion 	upon 	an
individual's freedom.6 	The totality of circumstances test of Illinois v. Gates7 has
replaced 	the 	two-pronged 	test of Aauilar-Spinelli8 	in 	evaluating 	reasonable
articulable suspicion taking into consideration both the quality and quantity of
information 	known 	to the police.9 	Under the "total 	circumstances" test, we
consider 	"the particular 	circumstances 	facing 	the 	law enforcement 	officer"
including the seriousness of the offense and any threat to public safety.10 	The
presence of a firearm in public alone is insufficient for an investigatory stop,11 but
a report of actual or threatened use of a firearm can present a significant risk to
public safety supporting an investigatory stop.12
5 State v. Marcum. 149 Wn. App. 894, 205 P.3d 969 (2009); State v. Randall, 73
Wn. App. 225, 228, 868 P.2d 207 (1994).
6 Terry, 392 U.S. at 21.
7462 U.S. 213, 103 S. Ct. 2317, 76 L Ed. 2d 527 (1983).
8 Aauilar v. Texas. 378 	U.S. 108, 84 S. Ct. 1509, 	12 L 	Ed. 2d 723 (1964);
Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L Ed. 2d 637 (1969).
9 Randall, 73 Wn. App. at 228.
10 State v. Lesnick. 84 Wn.2d 940, 944, 530 P.2d 243 (1975) ("[N]o single rule
can be fashioned to meet every conceivable confrontation between police and
citizen. 	. 	. 	. 	[E]ach 	case 	must be 	considered 	in 	light 	of the 	particular
circumstances facing the law enforcement officer. 	In this case, the suspected
crime 	. . . posed no threat of physical 	violence or harm 	to society or the
officers."); State v. 	Franklin. 41 Wn. App. 409, 412-13, 704 P.2d 666 (1985)
("[Cjourts have recognized the need for an immediate investigatory stop when an
anonymous informant of undetermined reliability states that he or she observed a
suspect carrying or displaying a gun in a public place.").
11 Florida v.J.L. 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000).
12 See generally State v Wakelev. 29 Wn. App. 238, 242, 628 P.2d 835 (1981)
(pre-J.L decision upholding investigatory stop based on three individuals' phone
reports that they heard 	three gunshots; 	"[t]he officers' 	decision to adopt an
immediate response was reasonable because crimes involving firearms present
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68057-9-1 / 6
Officers investigating reports of emergent risks of imminent violence do
not have the opportunity to make detailed inquiries to establish the veracity or
a serious threat of physical injury."); Franklin. 41 Wn. App. at 412-13 (pre-vLL
decision "courts have recognized the need for an immediate investigatory stop
when an anonymous informant of undetermined reliability states that he or she
observed a suspect carrying or displaying a gun in a public place").
See also 4 W. LaFave, Search and Seizure § 9.5(i), at n.543 (2013):
Robinson 	v. 	Howes. 	663 	F.3d 	819 	(6th 	Cir. 	2011); 	United States v.
Gomez. 623 F.3d 265[, 267, 270] (5th Cir. 2010) (assuming the informant
was only an "anonymous tipster," caller "was not reporting a concealed
weapon" but rather [sic] described person was "brandishing" a pistol and
was "threatening individuals"); United States v. Hampton. 585 F.3d 1033[,
1038] (7th Cir. 2009) ("Smith and other callers reported multiple gunshots
fired in broad daylight and a gunman on the loose"; "J.L does not apply to
emergency situations, so because we conclude that Smith's call reported
an ongoing emergency, JLL does not help Hampton."); United States v.
Simmons. 560 F.3d 98[, 105] (2d Cir. 2009) ("that an anonymous 911 call
reporting an ongoing emergency is entitled to a higher degree of reliability
and requires a lesser showing of corroboration than a tip that alleges
generally criminality"); United States v. Wooden. 551 F.3d 647[, 650] (7th
Cir. 	2008) (where anonymous 911 	caller reported an armed domestic
quarrel and said he saw defendant draw a gun from 	holster, 	provided
grounds for an investigatory stop; there was "a need for dispatch" even
though 	the scene 	was 	calm 	when 	police 	arrived); 	United 	States 	v.
Whitaker. 546 F.3d 902[, 909] (7th Cir. 2008) (police responding to a 911
call regarding "an ongoing altercation," involving defendant threatening
another with a gun; cases in accord collected); United States v. Hicks. 531
F.3d 555[, 560] (7th Cir. 2008) (collecting other cases caller "gave the 911
operator enough information to identify him and his location, and because
he 	reported 	an 	ongoing 	emergency," 	namely that 	armed 	man was
presently beating a woman); United States v. Elston. 479 F.3d 314[, 318-
19] (4th Cir. 2007) (the informant "was reporting an imminent threat to
public 	safety—an 	individual 	who 	had expressly 	threatened to shoot
someone in the very near future," as "emergency"; anonymous report here
"bore strong indicia of reliability" because of "wealth of detail" based on
"her contemporaneous personal observation"); People v. Dolly. 40 Cal. 4th
458, [461, 465, 469,] 53 Cal. Rptr. 3d 803, 150 P.3d 693 (2007) ("an
anonymous 911 tip contemporaneously reporting an assault with a firearm
and accurately describing the perpetrator, his vehicle, and its location is
likewise 	sufficient 	to 	justify 	an 	investigatory 	detention," 	as 	that
"defendant's conduct in pointing a revolver at the caller in an apparent
threat to shoot him posed a grave and immediate risk not only to the caller
but 	also 	to 	anyone 	nearby," 	and 	"the caller supplied 	a 	plausible
explanation for wanting to remain anonymous").
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68057-9-1 / 7
vantage point of individuals reporting suspicious activity.13 	An informant's tip
alone may provide the necessary reasonable suspicion to justify an investigatory
stop. 	But, in order to do so, the tip must at least be reliable. 	In Florida v. J.L.14
the United States Supreme Court held that an anonymous tip that a person is
carrying a gun is not, without more, sufficient to justify a police officer's stop and
frisk of that person. 	In that case, an anonymous caller reported to the police that
a young black male standing at a particular bus stop and wearing a plaid shirt
was carrying a gun. 	Nothing was known about the informant. 	Two officers went
to the bus stop and saw three black males standing there. 	One of the three
males was wearing a plaid shirt. Apart from the tip, the officers had no reason to
suspect any of the three of illegal conduct. 	The male in the plaid shirt made no
threatening or other unusual movements. 	One of the officers frisked the male
and seized a gun from his pocket.
The 	Court 	stated 	that 	an 	anonymous 	tip, 	standing 	alone, 	seldom
demonstrates 	the 	informant's 	basis 	of 	knowledge 	or 	reliability. 	If suitably
corroborated, however, the tip can have sufficient indicia of reliability to provide
an officer with reasonable suspicion to make an investigatory stop.15 	In the case
before it, the Court held that the tip was not reliable:
The 	reasonableness of official suspicion 	must be measured 	by
what the officers knew before they conducted their search. 	All the
13 Randall. 73 Wn. App. at 230 ("An officer acting on a tip involving the threat of
violence and 	rapidly 	developing events 	does 	not 	have 	the 	opportunity 	to
undertake a methodical, measured inquiry into whether the tip is reliable.").
14 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000).
15 See Alabama v. White. 496 U.S. 325, 331-32, 110 S. Ct. 2412, 110 L Ed. 2d
301 (1990) (holding Terry stop justified where an anonymous tip contained both
innocent details and predictive information that was corroborated).
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68057-9-1 / 8
police had to go on in this case was the bare report of an unknown,
unaccountable informant who neither explained how he knew about
the 	gun 	nor 	supplied 	any 	basis 	for 	believing 	he 	had 	inside
information about [the defendant].[161
The Court stated that an informant's accurate description of a subject's
readily observable location and appearance is reliable in that it can help the
police correctly identify the person about whom the informant is speaking. 	Such
a tip does not, 	however, "show that the tipster has knowledge of concealed
criminal activity. 	The reasonable suspicion here at issue requires that a tip be
reliable 	in 	its 	assertion 	of 	illegality, 	not 	just 	in 	its 	tendency 	to 	identify a
determinate person."17
Similarly, in State v. Gatewood.18 two officers in a marked patrol car were
driving on Rainier Avenue South shortly after midnight and spotted three or four
people, including Gatewood, sitting in a bus shelter. 	One of the officers testified
that Gatewood's eyes got big and he looked surprised to see the patrol car and
that he twisted his body to the left as if trying to hide something. 	The officers
decided to circle back to the bus shelter to investigate. 	By the time they got back
to the bus shelter, Gatewood had 	left and was walking down the street. 	He
jaywalked, turned onto another street, and continued walking. 	One of the officers
told Gatewood to stop because he wanted to talk to him. 	Gatewood turned
around, 	walked 	away, 	and 	ignored 	the 	officer's 	repeated 	order 	to 	stop.
Gatewood 	walked 	to 	some 	bushes, 	bent over, 	pulled 	something 	out of his
waistband and threw it into the bushes, and then complied with the officer's
16 J.L, 529 U.S. at 271.
17 J.L, 529 U.S. at 272.
18 163 Wn.2d 534, 182 P.3d 426 (2008).
8
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68057-9-1 / 9
request to stop. 	One officer handcuffed Gatewood and the other recovered a
handgun in the bushes. 	The officers found marijuana on Gatewood's person,
and a search of the bus stop yielded cocaine.
The Supreme Court held that the officers were not justified in making the
Terry stop. 	The officers' actions had to be justified at the time they made the
stop which, in the case before the court, was when the officer told Gatewood to
stop so he could talk to him. At that point, the facts known to the officers were:
Gatewood's widened eyes when he saw the patrol car, his twisting as if to hide
something, his departure from the bus shelter, and his jaywalking. 	The court
held that these facts were insufficient for a Terry stop because a startled reaction
to seeing a patrol car does not amount to reasonable suspicion, the officers did
not see what, if anything, Gatewood was trying to hide when he twisted around,
and 	Gatewood did not "flee" from the police simply because he walked away
from the bus stop. The court concluded that although it was proper to circle back
and investigate further, the officers' seizure of Gatewood was premature and not
based 	on 	specific, 	articulable 	facts 	indicating 	criminal 	activity.19 	These 	are
essentially the facts in the instant matter.
Here, 	neither the 	informant nor the 	informant's tip was 	reliable. 	The
officers knew nothing about the 911 caller. The caller did not give his name, and
the 911 operator was unable to reach the caller on a call-back. 	Further, the tip
was 	not the 	report of any criminal 	activity. 	The 	informant said 	Cardenas-
Muratalla showed him his gun, but that he (the informant) did not feel threatened.
19 Gatewood. 163 Wn.2d at 540-42.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68057-9-1/10
Carrying a firearm is a crime if it is carried or displayed in a manner that either
manifests an intent to intimidate another or that warrants alarm for the safety of
other persons,20 	or if it 	is willfully discharged 	in 	a 	place where 	there is a
reasonable 	likelihood 	that 	humans, 	domestic 	animals, 	or 	property 	will 	be
jeopardized.21 	There is no evidence in the record that the 911 caller reported
being intimidated or alarmed when the suspect showed him the gun or that the
suspect discharged the gun or pointed it at anyone. 	In fact, the caller told the
911 operator, "He didn't threaten me. 	It's just that he showed me. 	I seen it. . . .
Just calling to tell you, just calling to tell you." 	That is the only evidence in the
record about the emotional state of the 911 caller or about Cardenas-Muratalla's
actions that prompted the 911 call. 	The tip did not provide information raising a
reasonable suspicion of criminal activity. 	Moreover, the unreliable informant's tip
was not corroborated by any observations by the officers of suspected criminal
activity. 	Cardenas-Muratalla's presence in a high crime area at night, looking
startled upon seeing the patrol car, and walking away from the doorway while
talking on a cell phone do not justify a stop. 	Although Officer Myers claimed that
Cardenas-Muratalla "fluffed" his sweatshirt when he saw the officers, this claim
not only contradicts Officer Lang's testimony but also is not supported by the
video evidence in the record. 	Under the totality of the circumstances, the Terry
stop in 	this case was not reasonable. 	The trial court's findings 	of fact on
Cardenas-Muratalla's 	motion 	to 	suppress 	the 	gun 	are 	not 	supported 	by
20 RCW 9.41.270; see also RCW 9A.36.011, .021 (assault).
21 Seattle Municipal Code 12A.14.071.
10
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68057-9-1 /11
substantial evidence. 	The trial court erred in denying the motion.22 	Because the
gun was the 	basis 	for 	Cardenas-Muratalla's 	prosecution, 	his conviction 	of
unlawful possession of a firearm must be reversed.
Reversed.
WE CONCUR:
A
^/.^^rf.C.v). 	^W^y^-
22 We reject the State's argument that the officers had probable cause to arrest
Cardenas-Muratalla for assault or attempted assault. 	The trial court specifically
stated that it could not determine whether Cardenas-Muratalla intended to draw a
weapon. 	Based on the evidence in the record, we agree with the trial court.
11