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

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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.

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Frisk of suspect in DSHS lobby unlawful; no reason to believe suspect was armed or dangerous

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State v. Setterstrom, Washington Supreme Court, Docket No. 79690-4, filed May 22, 2008

Mr. Setterstrom and another friend were in the lobby of Department of Social and Health Services (DSHS), a government agency. Someone had complained to the police that a person was sleeping in the DSHS lobby and another was under the influence of drugs. Mr. Setterstrom was next to the person asleep on the lobby bench and was filling out a benefits application. Police approached Mr. Setterstrom, saw that he had filled out the application with his name, and asked if that was his name and how to spell it. Initially, he said yes, but then he changed his mind and said it was for his friend. When his friend awoke, police asked what his friend’s real name was, and Mr. Setterstrom blurted out a different name. Police believed Mr. Setterstrom was under the influence of methamphetamine because his behavior was fidgety, but didn’t stand up or put his hands in his pockets.

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