¶1(dissenting) — I respectfully dissent. In my opinion, when the officers approached Whitaker as he stood near the picnic table, Whitaker had a reasonable basis for believing that they would unlawfully detain him. His abandonment of the cocaine was, therefore, involuntary. Accordingly, I would hold the evidence to be unlawfully obtained, and reverse the conviction.
¶2The dispositive issue here is whether Whitaker discarded the cocaine in response to illegal police conduct. E.g., United States v. Tolbert, 692 F.2d 1041 (6th Cir. 1982), cert. denied, 464 U.S. 933 (1983); United States v. Morin, 665 F.2d 765 (5th Cir. 1982). As the majority recognizes, resolution of this issue turns on whether, under the circumstances, a reasonable person would have believed that he or she was free to leave. Majority, at 853.
¶3A fair reading of the facts contained in the record leads to the inescapable conclusion that a reasonable person in Whitaker's circumstances would not have felt free to leave. The arresting officers testified that for a month before the night in question they had patrolled the park where Whitaker was arrested "two or three times a night" to conduct a *857"simple premise check to insure that there were no weapons or illegal activity taking place in the park". The officers also testified that they had encountered Whitaker in the park on prior occasions; that they had approached him and talked to him once or twice a night during the summer months; and that on nearly all of these occasions they had patted Whitaker down. One of the officers admitted that it "was pretty much standard procedure that, when you approached somebody and talked to one of the gang people in the park, you would pat them down", and that Whitaker "was no exception to that rule". Significantly, there is absolutely no evidence in the record indicating that on any of the prior occasions when the officers approached him and patted him down, Whitaker had been acting in a suspicious manner. Instead, as even the majority recognizes, the only testimony is that the officers approached Whitaker "to gather intelligence concerning gang activities." Majority, at 852.
¶4The only reasonable conclusions to be drawn from this testimony are that these particular officers made a practice of detaining Whitaker whenever and wherever they encountered him; that they detained him not because of a reasonable suspicion of criminal activity, but simply to talk with him about gang activities; and that their detention usually included a pat-down search. No evidence suggests that on the night of his arrest, Whitaker had reason to expect a different scenario; thus, it was reasonable for him to anticipate that although he was doing nothing suspicious, the approaching officers would act in accord with their usual procedure and detain and search him. In other words, once these particular officers began walking toward him, it was reasonable for Whitaker to conclude that his freedom to leave was restricted.
¶5The majority avoids this evidence-based analysis, however, and instead relies on its own presumptions to justify its holding that a reasonable person in Whitaker's situation would not have felt restricted from leaving. Specifically, the *858majority concludes from an alleged lack of contrary evidence in the record that the officers' once or twice nightly prior detentions of Whitaker must have been based upon a reasonable suspicion of criminal activity; "that Whitaker's past experiences are entirely different from the present situation", majority, at 854; and that therefore, a reasonable person would have felt free to leave when the officers approached.
¶6I find the majority's approach to be wholly unpersuasive. First, police officers are presumed to perform their duties properly and legally only absent evidence to the contrary. State v. Hodge, 11 Wn. App. 323, 330, 523 P.2d 953, review denied, 84 Wn.2d 1006 (1974); Irwin v. Department of Motor Vehicles, 10 Wn. App. 369, 370, 517 P.2d 619 (1974). Here, the officers' own testimony contradicts any presumption that their daily investigations of Whitaker were based upon a reasonable suspicion, and thus were proper and lawful. Instead, the officers testified that they routinely stopped and patted down Whitaker simply to talk with him about gang activities. Second, the majority seems to suggest that the defense had the burden to prove a lack of evidence of cause to search:
On cross examination, defense counsel failed to ask questions to elicit — or to give them a chance to explain — what suspicious facts were known to the officers each time they performed these "illegal stops".
¶7Majority, at 855. I am unaware of any authority imposing such a burden upon defendants.
¶8*859As a result of their presumption-based analysis, the majority limits the focus of its inquiry
to whether a reasonable person previously stopped on several occasions by certain officers based on reasonable suspicion would believe he or she was being stopped by the same officers for merely standing near a picnic table in a public park.
¶9Majority, at 855-56.
¶10An inquiry statement based more precisely on the undisputed facts would instead be:
Whether a reasonable person previously stopped and patted down by certain police officers one or two times a day for questioning about gang activity would believe that the same officers, who are walking toward him, would stop him or her and conduct a patdown search upon observing him standing near a picnic table in a public park.
¶11The only fair answer to this inquiry is that a reasonable person would have believed he or she was about to once again be detained and patted down. The trial judge made just that finding.
¶12Based on his prior experiences, Whitaker could not reasonably have felt free to leave once the officers began to approach him and his companions. On July 26, the police had no articulable suspicion for subjecting Whitaker to an investigatory stop. See generally Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Consequently, Whitaker's abandonment of the cocaine was in response to unlawful police conduct and was therefore involuntary. E.g., United States v. Morin, supra.
¶13The abandoned cocaine should not be used against Whitaker. His conviction should be reversed.
¶14Reconsideration denied December 4, 1990.
¶15Review by Supreme Court pending March 15, 1991.
¶16Even if there were such a burden, there is ample evidence that the prior Whitaker detentions were not based on the requisite articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). One of the arresting officers described an occasion when he stopped Whitaker and his brother as the two walked down the street, had them put their hands on the car, and patted them down for weapons. The officer admitted that he stopped Whitaker and his brother solely for intelligence gathering purposes, and that neither detainee had been committing any crimes at the time.