State of Washington v. Charles Allen Gibson

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
CHARLES ALLEN GIBSON,
Appellant.
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No. 36377-5-III
UNPUBLISHED OPINION
SIDDOWAY, J. — Charles Gibson appeals his conviction for possession of a
controlled substance (methamphetamine) following a stipulated facts trial. He challenges
the trial court’s denial of his motion to suppress evidence of methamphetamine found in
his pocket when he was frisked during a Terry1 stop. He contends that no reasonable
1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
FILED
FEBRUARY 20, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

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2
suspicion of criminal activity supported the stop, and the frisk for weapons that turned up
the methamphetamine was not supported by an objectively reasonable concern for officer
safety. We reject his arguments and affirm.
FACTS AND PROCEDURAL BACKGROUND
On a spring day in 2018, Brian Reinhart called Stevens County dispatch to report
that he had a trespasser on his property who had been asked but failed to leave. He
reported that when he last approached the trespasser’s SUV2 to renew the demand that he
leave, the trespasser was sitting inside cutting up a white powdery substance on his cell
phone. Deputy Randall Russell responded to the report, and after speaking with Mr.
Reinhart, approached the defendant, Charles Gibson, who was by then standing outside
his SUV.
The deputy asked Mr. Gibson about being seen with a baggie of a white powdery
substance, and Mr. Gibson denied having anything like that. Asked for identification,
Mr. Gibson reached for a wallet in his back pocket and produced his driver’s license; as
he reached for his wallet, the deputy noticed he had two knife sheaths on his belt. Asked
if he had weapons, Mr. Gibson said he did. In addition to the knives in sheaths on his
belt, Mr. Gibson turned out to have multiple pocket knives in his front pants pockets.
The deputy removed the knives, shining a flashlight into the pockets, which he explained
2 Sports-utility vehicle.

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he does because in reaching into a pocket blindly, he was once almost pricked by an
uncapped needle. In the course of looking into and removing knives from Mr. Gibson’s
right front pocket, the deputy saw and removed a baggie of a white substance that proved
to be methamphetamine. Mr. Gibson was charged with one count of possession of
methamphetamine.
Mr. Gibson moved to suppress the methamphetamine, supporting his motion with
a copy of an incident report Deputy Russell had completed the day after Mr. Gibson’s
arrest. At a hearing on the motion, the deputy was the only witness who testified.
At the conclusion of the hearing, the trial court made oral findings. They included
the following findings about the pat down and removal of weapons that took place after
Deputy Russell saw the sheaths on Mr. Gibson’s belt:
When [the deputy] asks for ID he sees the sheaths on the belt. That’s when
he has the defendant place his hands on the vehicle and he pats him down
for weapons, patted his front pockets, could feel what appeared to be more
knives.
And then he asks the defendant if he has more knives in his pockets,
and he says yes.
So then—Dep. Russell removes five pocket knives from the left
front pocket of his pants, asked, “How many knives do you have on your
person,” defendant says, “I’m not sure.” Dep. Russell says “I asked if he
had any in his right front pocket.” He states, “Yes.” And so he pulls the
pocket open, shines the flashlight in there, sees the baggie, and what he
retrieves from the pocket are—two more knives in the right front pants
pocket.
So this is a—a pat-down for weapons. He knew there was a possible
danger. Dep. Russell knew this because he saw the knives in—the sheaths
on the belt.

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And I think that this—what triggered the investigation into the drugs
you see transpires later, he sees the plastic baggie, he asks about the baggie
and then he puts the defendant into custody, and that’s when the pockets get
searched for small containers containing drugs.
He was searching for knives quite clearly. And he was searching—
patting down, he felt the knives in the pockets, asked the defendant,
defendant said yes, he has more knives in his right pocket. And how does
law enforcement remove those knives when the defendant’s hands are on
the vehicle? It would be unreasonable to expect law enforcement to stick
their hands blindly into pockets, knowing what we know about—needles
and other hazardous—contaminated items that could be in pockets. We
don’t—that would be an unreasonable expectation. I don’t think you could
say that this was—shining a light in a pocket was done to search for drugs.
It was clearly weapons, even though he had information about the
observation of the property owner, would certainly have had some
suspicion that drugs could be at play.
So, it was—It did not—exceed the pat-down—of a Terry stop.
Report of Proceedings (RP) at 40-42.
Following denial of the motion to suppress, Mr. Gibson agreed to proceed to a
stipulated facts trial, at which he was found guilty as charged. The trial court sentenced
Mr. Gibson to 90 days of incarceration and 12 months of community custody. He
appeals.
ANALYSIS
Mr. Gibson assigns error to the trial court’s denial of his suppression motion and
to its written findings, entered following the hearing, that “the court finds the Terry pat-
down search of the defendant was justified” and “[T]he subsequent discovery of the
suspected narcotics was proper.” Br. of Appellant at 1 (quoting Clerk’s Papers (CP) at
28). He contends that the deputy’s actions were based on an informant’s uncorroborated

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statement that Mr. Gibson was observed cutting a white powdery substance and, even if
the initial stop was justified, Deputy Russell’s search of Mr. Gibson’s front pants pockets
exceeded the permissible scope of a Terry stop because he had no objectively reasonable
belief that Mr. Gibson was armed and dangerous.
Standard of review
When reviewing the denial of a CrR 3.6 motion to suppress, this court “determines
whether substantial evidence supports the challenged findings of fact and whether the
findings support the conclusions of law.” State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d
1266 (2009). “Evidence is substantial when it is enough ‘to persuade a fair-minded
person of the truth of the stated premise.’” Id. (quoting State v. Reid, 98 Wn. App. 152,
156, 988 P.2d 1038 (1999)). Conclusions of law are reviewed de novo. State v. Duncan,
146 Wn.2d 166, 171, 43 P.3d 513 (2002).
Validity of Terry stop
“Warrantless searches and seizures are per se unreasonable unless one of the few
jealously and carefully drawn exceptions to the warrant requirement apply.” State v.
Tarango, 7 Wn. App. 2d 425, 432, 434 P.3d 77 (2019). “A Terry investigative stop is a
well-established exception.” Id. A police officer who suspects that a particular person
has committed a crime can conduct a Terry stop and detain that person briefly to
investigate the circumstances provoking suspicion. Berkemer v. McCarty, 468 U.S. 420,
439, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). A Terry stop allows “‘police to make an

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intermediate response to a situation for which there is no probable cause to arrest but
which calls for further investigation.’” State v. Armenta, 134 Wn.2d 1, 16, 948 P.2d
1280 (1997) (quoting State v. Kennedy, 107 Wn.2d 1, 17, 726 P.2d 445 (1986) (Dolliver,
C.J., dissenting)).
“To conduct a valid Terry stop, an officer must have ‘reasonable suspicion of
criminal activity based on specific and articulable facts known to the officer at the
inception of the stop.’” State v. Weyand, 188 Wn.2d 804, 811, 399 P.3d 530 (2017)
(quoting State v. Fuentes, 183 Wn.2d 149, 158, 352 P.3d 152 (2015)). The standard for
articulable suspicion is a “substantial possibility that criminal conduct has occurred or is
about to occur.” Kennedy, 107 Wn.2d at 6. “The reasonableness of an officer’s
suspicion is evaluated based on the totality of the circumstances known to the officer.”
Tarango, 7 Wn. App. 2d at 432.
When it comes to relying on information provided by a citizen informant, “[u]nder
the totality of the circumstances test, an informant’s tip provides reasonable suspicion
sufficient to justify an investigatory stop if ‘it possesses sufficient indicia of reliability.’”
State v. Marcum, 149 Wn. App. 894, 903-04, 205 P.3d 969 (2009) (internal quotation
marks omitted) (quoting State v. Sieler, 95 Wn.2d. 43, 47, 621 P.2d 1272 (1980)).
“When deciding whether this indicia of reliability exists, the courts will generally
consider several factors, primarily ‘(1) whether the informant is reliable, (2) whether the
information was obtained in a reliable fashion, and (3) whether the officers can

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corroborate any details of the informant’s tip.’” State v. Howerton, 187 Wn. App. 357,
365, 348 P.3d 781 (2015) (quoting State v. Lee, 147 Wn. App. 912, 918, 199 P.3d 445
(2008)). “Citizen informants are deemed presumptively reliable.” State v. Gaddy, 152
Wn.2d 64, 73, 93 P.3d 872 (2004).
Here, the citizen informant called to report a trespass on his property, providing an
address and meeting Deputy Russell on his arrival. He identified himself to the deputy as
Brian Reinhart and told the deputy that he knew the trespasser as “Charlie.” He repeated
his earlier report that when he approached Charlie’s SUV to ask him to leave a second
time, he observed Charlie with a plastic bag of a white powdery substance that he was
cutting on his phone. He also told the deputy that Charlie claimed his SUV would not
start.
Mr. Reinhart is presumed reliable and Deputy Russell’s contact with Mr. Gibson
corroborated much of the information Mr. Reinhart had provided. The deputy found Mr.
Gibson and his SUV near a barn, which is where Mr. Reinhart said he would be. Mr.
Gibson answered to “Charlie.” Asked by Deputy Russell what was going on, Charlie told
the deputy his car would not start. When asked to produce identification, his driver’s
license revealed his first name to be Charles. These are sufficient indicia of reliability to
justify Deputy Russell’s reliance on Mr. Reinhart’s report that Mr. Gibson was
trespassing and had been seen in possession of a white powdery substance, some of
which he had been cutting on his phone.

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Mr. Gibson also challenges the scope of the search. “A reasonable safety concern
exists, and a protective frisk for weapons is justified, when an officer can point to
‘specific and articulable facts’ which create an objectively reasonable belief that a suspect
is ‘armed and presently dangerous.’” State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919
(1993) (quoting Terry, 392 U.S. at 21-24). Mr. Gibson argues that the evidence did not
support an objectively reasonable belief that Mr. Gibson was dangerous, making much of
the fact that when Deputy Russell was asked at the suppression hearing whether Mr.
Gibson “pose[d] any type of threat,” the deputy responded, “You never know.” RP at 10.
The deputy immediately added, however, “[I]f I talk to someone out on the—situation
that I’m in like that where I’m by myself, and I see that they have weapons I’m going to
remove those weapons.” RP at 11.
Neither federal nor state cases require that a law enforcement officer wait until a
knife is wielded or actual danger otherwise materializes before taking protective action.
Our Supreme Court reframed the concern that will support a protective frisk in the
following terms:
“[C]ourts are reluctant to substitute their judgment for that of police
officers in the field. ‘A founded suspicion is all that is necessary, some
basis from which the court can determine that the [frisk] was not arbitrary
or harassing.’”
State v. Collins, 121 Wn.2d at 173, (emphasis omitted) (alteration in original) (quoting
State v. Belieu, 112 Wn.2d 587, 601-02, 773 P.2d 46 (1989). In State v. Olsson, 78 Wn.

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App. 202, 205, 208, 895 P.2d 867 (1995), this court held that having taken one knife from
a suspect, it was reasonable for the law enforcement officer in that case to pat down the
suspect and retrieve another knife, in the course of which he found a substance later
identified as cocaine.
At the suppression hearing, Deputy Russell identified the following facts that
supported his reasonable concern: Mr. Gibson was carrying two sheathed knives,
admitted having others, and the deputy was the only law enforcement officer present. As
he explained, under such circumstances, he “[is] going to remove those weapons.” RP at
11. This is a sufficient basis for determining that the frisk was not arbitrary or harassing.
An additional articulable fact, although not mentioned by the deputy, was his reason to
believe, based on the information provided by Mr. Reinhart, that Mr. Gibson had recently
used methamphetamine.
The trial court’s oral findings were supported by the evidence and supported its
conclusions that the Terry pat-down search of the defendant was constitutional. The trial
court properly denied the suppression motion.

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Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_____________________________
Siddoway, J.
WE CONCUR:
_____________________________
Lawrence-Berrey, C.J.
_____________________________
Fearing, J.