Pat-down frisks must be supported by objectively reasonable facts that suspect is armed and presently dangerous

State v. Bee Xiong, Washington Supreme Court, filed September 11, 2008.

Police went to Kheng Xiong’s residence with a warrant for his arrest and a black & white picture of Kheng Xiong to assist in identifying him. Officers observed a minivan pull up to the residence and believed the passenger was Kheng Xiong, although he was actually Bee Xiong, Kheng’s brother.

Police immediately handcuffed Bee and performed a pat-down frisk. Bee told officers his name was Bee Xiong and that he was Kheng’s brother. He did not have identification, but he showed officers a tattoo on his arm of the letter “B”. The officers were unable to determine from the photograph if the man was Kheng Xiong.

One of the officers had previously noticed a bulge in Bee’s front pocket. He asked if there was something in his pocket that could hurt the officers and Bee responded, “No.” Bee told the officers that he did not want to be searched. The officer squeezed the bulge in Bee’s pocket and conferred with the officers, telling them he thought there was a “potential weapon” in Bee’s pocket. An officer reached into Bee’s pocket and pulled out a glass pipe that appeared to contain residue that the officers believed was a controlled substance.

Bee was arrested for possession of a controlled substance. The officers conducted a search incident to his arrest of the minivan and found a scale, money, and methamphetamine. Bee’s mother later arrived at the residence and positively identified Bee Xiong as the man police had arrested.

Bee Xiong moved for suppression of the evidence based on the unlawful pat-down frisk. The trial court granted his motion to suppress, however the Court of Appeals, Division III reversed the trial court’s decision relying on what they said was the testimony of police officers that they feared for their safety.

The Washington Supreme Court relied heavily on State v. Setterstrom, 163 Wn.2d 621, 183 P.3d 1075 (2008) in its reasoning in this case. Like in Setterstrom, Bee Xiong did not indicate that he was reaching for a weapon or that he could reach his pant pockets after he was placed in handcuffs. Unlike Mr. Setterstrom, Bee Xiong was cooperative with the police officers and was not fidgety or nervous throughout the encounter.

The Washington Supreme Court stated that no evidence existed in the record to support the Court of Appeal’s conclusion that the officers feared for their safety. The Supreme Court held that the scope of the frisk must be limited to protective purposes and that if an officer cannot articulate specific facts that create an “objectively” reasonable belief that a suspect is armed and “presently” dangerous, then no further intrusion is justified. The Supreme Court held that in Bee Xiong’s case, there were no specific facts to support a reasonable belief that Bee was armed and presently dangerous. The officers may have had some generalized concerns about safety, but none were specific to Bee.

All evidence obtained as a result of the unlawful pat-down of Bee should have been suppressed, as well as evidence discovered during the search incident to arrest of Bee’s minivan.