VANCOUVER, Wash. -- Score one for people who exhibit "nervous, fidgety behavior" in public: The Washington Supreme Court said Thursday that acting odd isn't reason enough for a police officer to pat you down.
In a 9-0 ruling, justices tossed a Thurston County man's conviction for possessing methamphetamine on the grounds that he was frisked in violation of his constitutional right against unreasonable searches.
Michael D. Setterstrom was arrested in 2005 in the lobby of a state Department of Social and Health Services building. He lied about his name to two officers from the Tumwater Police Department who had been summoned by a caller who said a man was acting as if he was on drugs and was with a friend who was sleeping.
Lt. Don Stevens, who thought Setterstrom was high, patted Setterstrom down. He reached in Setterstrom's pockets and pulled out a small plastic bag filled with white powder.
Justice James M. Johnson acknowledged that Stevens, an officer with 20 years of experience, was accustomed to dealing with tweakers and knows they "are erratic and can become violent without warning," he wrote. But Setterstrom "did not stand up, put his hands in his pockets, or actually do or say anything threatening," Johnson wrote.
"At most, the record shows that Setterstrom was under the influence; this is not a crime in itself," he wrote.
"Moreover, Setterstrom was lawfully in a public area of the DSHS building, filling out a DSHS benefits form. It seems likely that some people filling out benefits forms exhibit erratic behavior, making employment difficult and benefits applicable. This is not a situation where the officers encountered Setterstrom in a dark alley in a crime-ridden area."
After the officer pulled out the bag, he put it on a bench and told Setterstrom he was under arrest.
"What happened next was, we assume, unusual," Johnson wrote. "Setterstrom dropped to his knees, grabbed the baggie and swallowed it. Lt. Stevens tried to make Setterstrom spit it out but was unsuccessful. For obvious reasons, police never recovered the baggie."
They did get a search warrant. Inside Setterstrom's backpack was a small locked safe containing a bag of meth, a needle, pipes and a set of scales.
Setterstrom was convicted at trial. He served six months in jail.
The search warrant should have never been issued, Johnson wrote, because it was based on the unlawful frisk.
"Unless already holding a suspect legitimately, officers must have some basis beyond nervousness and lying to justify the intrusion of a frisk," Johnson wrote.
Kathy Spears, spokeswoman for the Department of Social and Health Services, said Thursday she could not comment on the opinion.
She said staff calls law enforcement any time employees or clients feel they are in danger from "a threat or major disturbance."
Regarding the high court's comment that it "seems likely" people in a DSHS lobby would act erratic, she said DSHS helps "people from all walks of life who face challenging times. Some clients who appear agitated or upset while seeking services may have medical or mental health issues. Others may be emotionally distraught because of job loss, divorce, death of a loved one or other personal challenges."
As for Setterstrom, his 2005 conviction will be cleared, but he still has a record: In 2007, court records show, he pleaded guilty to possessing meth.
Stephanie Rice can be reached at 360-735-4549 or stephanie.rice@columbian.com.