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STATE OF WASHINGTON, Respondent, v. ERNEST PIMPLETON, Appellant.

BECKER, J.

Ernest Pimpleton appeals from his conviction for possession of cocaine and claims his motion to suppress should have been granted. Pimpleton was a passenger in a car stopped on suspicion of its occupants having been involved in an assault. Finding that Pimpleton's movements in the car provided sufficient basis for the officer's request to have Pimpleton show his hands, we affirm.

At the suppression hearing, Pimpleton did not testify. The arresting officers testified to the following facts. In June 2002, two officers responded to a 9-1-1 call concerning an assault and a threat to kill. The victim stated that she had been kicked out of a car that she had been riding in, and one of the occupants of the car had threatened to kill her. She described the car and gave the police its license plate. Two officers on patrol spotted a parked car matching the description, about a mile away. There were three people sitting in the car. The officers turned the spotlight on the car. All three people first looked at the spotlight, and then the person later identified as Pimpleton turned away, lowered his head, and looked into his lap. One of the officers approached the passenger side door, knocked on the window, and asked Pimpleton to roll it down. Pimpleton complied, then immediately put both of his hands into his lap under a piece of clothing. He began vigorously rubbing his hands together.

The officer was concerned that Pimpleton might be armed, and asked Pimpleton to show him his hands. Pimpleton did so. The officer saw a white residue on Pimpleton's palms that the officer suspected was cocaine.

The officer shined his flashlight on Pimpleton's lap, and saw several pieces of rock cocaine on the seat between Pimpleton's legs. At the officer's request, Pimpleton got out of the car, whereupon he was arrested.

The officer picked up the cocaine from Pimpleton's seat and also found there a glass pipe with cocaine residue. Pimpleton was cooperative throughout the encounter. After hearing Pimpleton's motion to suppress the drugs, the trial court found that the officer `was concerned for his safety and asking the defendant to show his hands was a reasonable request and a limited intrusion.' Pimpleton attacks this determination on appeal. He argues that there was an insufficient basis for a concern about safety, and contends the officer exceeded the permissible scope of the investigative stop when he asked him to show his hands.

A frisk for weapons during an investigative stop is permitted where the following requirements are met: (1) the initial stop must be legitimate; (2) a reasonable safety concern must exist to justify the protective frisk; and (3) the scope of the frisk must be limited to the protective purpose. State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993). A reasonable safety concern exists, and a search 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. Collins, 121 Wn.2d at 173. What is necessary is a founded suspicion, some basis from which the court can determine that the search was not arbitrary or harassing. State v. Belieu, 112 Wn.2d 587, 601-02, 773 P.2d 46 (1989).

The case on which Pimpleton primarily relies is State v. Terrazas, 71 Wn. App. 873, 863 P.2d 75 (1993). In Terrazas, this court held that an officer did not have a reasonable basis for suspecting that a back seat passenger in a stopped car was armed and dangerous, when the suspicion rested solely on the fact that the suspect's hands were concealed under a blanket on a cold night. Terrazas, 71 Wn. App. at 879. The police had stopped the car on suspicion that the driver was intoxicated. Here, by contrast, the officers were responding to a 9-1-1 call in which the victim alleged that someone in the car had assaulted and threatened to kill her. Given the violent nature of the reported threat, and Pimpleton's active movements suggesting the presence of a newly concealed object in his lap, the officer was justifiably concerned that Pimpleton might be concealing a weapon. Thus, substantial evidence supports the challenged finding. The court did not err in concluding that the request for Pimpleton to show his hands was a reasonable and limited intrusion, within the scope of the protective purpose. Pimpleton also assigns error to the court's failure to enter findings and conclusions after the trial. The court has since entered findings and conclusions. Reversal for entering late findings and conclusions is warranted only where the appellant can establish that the findings and conclusions were tailored to address the issues presented in the appellant's opening brief, or that he or she was prejudiced by the delay. State v. Byrd, 83 Wn. App. 509, 512, 922 P.2d 168 (1996). That is not the case here.

Affirmed.

COLEMAN and BAKER, JJ., concur.

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STATE v. PIMPLETON, 51354-1-I (Wash.App. 8-4-2003)
(Aug 4, 2003)