by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the Eastern District of Washington’s order granting a motion to suppress all evidence because the arresting officer lacked probable cause to arrest a possibly mentally ill Washington man who had displayed a firearm to two people.

Deputy Curtis Thaxton of the Yakima County Sheriff’s Office interviewed a witness (“W1”) who had reported that a man in a green truck stopped in front of W1’s house and began talking about being abducted, escaping, and trying to find the place where he’d been held captive. W1 stated that during the conversation, the man pulled out a semiautomatic pistol, racked the slide, and laid the pistol on the seat beside him. W1 provided the truck’s license plate number, which came back as registered to Marc Anthony Willy. W1 identified Willy as the man he had spoken with when shown Willy’s Department of Licensing photo. While W1 expressed concern for Willy’s mental state, W1 also said that Willy made no threats to him and at no time did Willy point the pistol at him.

Ten minutes later, Thaxton spoke by phone with another witness (“W2”) who said that a man with a name like “Willis” had approached her gate in a green truck as she was leaving for work. The man told her he had been kidnapped, had been held in a camouflage trailer in the area, and was trying to find it. The man told her he was armed, displayed a pistol, then put it away. W2 said she was not directly threatened and that Willy was neither argumentative nor hostile.

Thaxton later testified that at this point he was concerned that Willy was “a danger to himself or others in the area” because “the way he was rambling on, that things weren’t completely coherent what was going on; that he would possibly use it if confronted with somebody else, that he had made contact with somebody else; that once the gun’s out — normal people just don’t walk around displaying firearms out to people when they pull up.”

Thaxton believed Willy had already violated Wash. Rev. Code § 9.41.270, which makes unlawful the carrying, exhibiting, displaying, or drawing of a firearm to intimidate or that warrants alarm for the safety of others. Thaxton located Willy pulling into a gas station. Thaxton turned on his emergency lights, drew his gun, and ordered Willy out of his truck. Willy complied with all of Thaxton’s demands.

Ordering Willy to turn around, he observed a pistol holstered on Willy’s hip. Thaxton removed the pistol, handcuffed Willy, and placed him inside the patrol car. After Thaxton read Willy his Miranda rights, Willy consented to a search of his truck, informing Thaxton that a sawed-off shotgun was on the floorboard. Thaxton recovered the nonfunctional shotgun and transported Willy to jail for booking. When Thaxton searched Willy, he recovered a CO2 cartridge with crimp marks around the neck and two pieces of fuse coming out of the neck. Ultimately, based upon the CO2 cartridge, Willy was indicted in federal court with three counts involving an improvised explosive device in violation of 26 U.S.C. § 5861(c), (d), and (f).

Willy filed a motion to suppress. The district court granted the motion, finding that Thaxton had reasonable suspicion to conduct an investigatory stop, but he lacked probable cause to make the arrest. The evidence, therefore, was “tainted by the illegality of the arrest,” the court ruled. The Government appealed.

The Court observed “[t]he Fourth Amendment, applicable to the United States and made applicable to the states by the Fourteenth Amendment, protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” Terry v. Ohio, 392 U.S. 1 (1968). “The Fourth Amendment provides that a warrant for arrest ‘shall [not] issue, but upon probable cause.’”

In the instant case, Willy was arrested for violating Wash. Rev. Code § 9.41.270. Only later was he charged in connection with the CO2 cartridge, i.e., the evidence supporting the federal charges was seized during a search pursuant to Willy’s arrest on the state violation. Consequently, the constitutionality of the search depended upon the constitutionality of the arrest. See Beck v. Ohio, 379 U.S. 89 (1964).

While an arrest requires “probable cause” to believe a crime has been, will be, or is about to be committed, an investigatory stop requires only “reasonable suspicion.” Terry. “Articulating precisely what ‘reasonable suspicion’ and ‘probable cause’ mean is not possible. They are commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable prudent men, not legal technicians, act.” Ornelas v. United States, 517 U.S. 690 (1996). “Probable cause” is a higher standard than the “reasonable suspicion” required to conduct a Terry stop for the purpose of making further inquiries. Kansas v. Glover, 140 S. Ct. 1183 (2020).

Washington is an “open carry” state — meaning it is presumptively legal to carry a firearm openly. United States v. Brown, 925 F.3d 1150 (9th Cir. 2019). While it is a misdemeanor to carry a concealed pistol without a license, Washington is also a “shall issue state, meaning that local law enforcement MUST issue a concealed weapons license if the applicant meets certain qualifications.” Id. (emphasis in original). Notwithstanding those provisions, it is a gross misdemeanor in Washington for a person to “carry, exhibit, display, or draw any firearm ... in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.” Wash. Rev. Code § 9.41.270(1). To preserve the constitutionality of this statute, Washington’s courts narrowly construe the critical terms.

In State v. Maciolek, 676 P.2d 996 (Wash. 1984), the Washington Supreme Court interpreted “intimidate” to mean only “to inspire or affect with fear ... as by threats” (quoting Webster’s Third New Int’l Dictionary (1961)). And in State v. Spencer, 876 P.2d 939 (Wash. App. 1994), the appellate court held that § 9.41.270 “only prohibits the carrying or displaying of weapons when objective circumstances would warrant alarm in a reasonable person. Thus, the restriction applies only in a limited number of situations.... In the vast majority of situations, a person of common intelligence would be able to ascertain when the carrying of a particular weapon would reasonably warrant alarm in others.” Taken together, a workable standard emerges for judges and juries to evaluate: the act in question must warrant alarm in a reasonable person for the safety of others. Maciolek.

With these principles in mind, Washington’s courts have affirmed convictions where an officer observed a defendant leaning from a car window with a rifle pointed at a cat and then pointed the rifle at the officer, State v. Baggett,13 P.3d 659 (Wash. Ct. App. 2000); where a 17-year-old boy told his mother that a man in a passing car pointed a gun at him, State v. Glenn, 166 P.3d 1235 (Wash. Ct. App. 2007); and where a woman complained that a man was waiving a gun at her daughter, State v. Evans, 179 Wash. App. 1015 (2014).

Conversely, Washington courts have consistently refused to enforce § 9.41.270 when the threats were not sufficiently direct or imminent. For example, “in State v. Casad, 139 Wash. App. 1032 (2007), a 911 caller reported seeing a man walking down a public street with a rifle in a towel. When the police saw Casad, it was 2:00 p.m., and he was walking with two rifles pointed downward and partially covered with a towel. Police stopped Casad, and he told them he did not have a car and was taking the rifles to a pawn shop. The rifles were unloaded.

Casad had a felony record and was arrested for unlawful possession of a firearm. The Washington Superior Court held that police lacked grounds to conduct a Terry stop, and the Washington Court of Appeals affirmed the suppression of the evidence as fruit of an unlawful detention. Similarly, in United States v. Brown, 925 F.3d 1150 (9th Cir. 2019), the court held that a 911 call reporting a young, Black man with a gun did not even constitute reasonable suspicion for a Terry stop.

In the instant case, the Court agreed with the district court that Thaxton made his arrest based on the statements of W1 and W2. But absent from those statements was any basis to support a conclusion that Willy’s actions warranted alarm for the safety of others. Their statements, at most, provided Thaxton with reasonable suspicion to conduct an investigative stop to make further inquiry of Willy, according to the Court.

Therefore, the Court concluded that Willy’s arrest was illegal. “Under the ‘fruits of the poisonous tree’ doctrine, evidence seized subsequent to a violation of the Fourth Amendment is tainted by the illegality and subject to exclusion, unless it has been sufficiently ‘purged of the primary taint.’” Wong Sun v. United States, 371 U.S. 472 (1963). The Government did not challenge the district court’s application of the exclusionary rule.

Accordingly, the Court affirmed the district court’s order granting the motion to suppress. See: United States v. Willy, 40 F.4th 1074 (9th Cir. 2022). 

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