Opinion
No. 53585-4-I
Filed: December 27, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-08356-5. Judgment or order under review. Date filed: 12/19/2003. Judge signing: Hon. Terry Lukens.
Counsel for Appellant(s), Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Dana Cashman, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Martin Solis contends the trial court erred in denying his pre-trial motion to suppress and that his jury conviction for possession of cocaine with intent to deliver should therefore be reversed. We agree with the trial court that the police had probable cause to arrest Solis and affirm.
Solis does not challenge the findings made at the suppression hearing but argues that they do not support the court's conclusion that the officers had probable cause.
On the afternoon of September 1, 2003, Solis was sitting on a bench in City Hall Park, an area known for high narcotics activity. Seattle Police Officer Tovar was in a nearby building using binoculars to look for such activity. Tovar has extensive experience with narcotics transactions, has participated in approximately 900 buy bust operations, and has made thousands of drug arrests. As he sat on the bench, Solis was facing Tovar. Tovar saw a man approach Solis and sit next to him. The man gave Solis money and Solis removed tissue paper from his pocket, used his thumb and forefinger to select an item from within the paper, and gave it to the man, who then left. Approximately 30 seconds later, a woman sat next to Solis. She also handed Solis money. Solis again removed tissue paper from his pocket, opened it, selected something in the same manner and handed it to the woman, who then left. Officer Tovar could not identify the substance Solis gave the man and the woman but suspected he had witnessed two drug sales.
Officer Tovar and his partner went to contact Solis, who was by then walking away. Tovar and his partner were in uniform and riding bicycles marked `Police'. Solis attempted to flee but Tovar grabbed him. Solis began swinging at Tovar and trying to get away. According to Solis, he did not recognize the officers as police and thought someone was trying to rob him. During the struggle, Solis hit Tovar on the cheek. He also reached into his pocket, pulled out the tissue paper, and dropped in on the ground. The officers recovered the tissue and found crack cocaine inside. They also recovered five twenty dollar bills and one ten dollar bill from Solis's pocket. The State charged Solis with possession of cocaine with intent to deliver and assault in the third degree for hitting Tovar.
Prior to trial, Solis moved to suppress the cocaine, arguing that the officers did not have probable cause to stop him. The court denied the motion and a jury returned a conviction on the possession charge and a not guilty verdict on the assault charge.
The nature of the suppression motion is not entirely clear. After examining Officer Tovar, the prosecutor stated that it was his understanding that the search incident to the arrest and probable cause to arrest were not at issue. Defense counsel agreed that the prosecutor's understanding was correct but said that `probable cause to stop and arrest were kind of wrapped up together.' RP 25. This exchange suggests that Solis may have been arguing that the officers lacked a basis for the initial stop even if they later had a basis to arrest. Nevertheless, both sides have briefed the matter on appeal as if the issue is whether the officers had probable cause to arrest. We note the uncertainty but because we determine that there was probable cause to arrest, we do not need to separately determine whether there was a basis for the initial stop.
Relying on State v. Poirier, Solis argues that Officer Tovar's observations do not provide probable cause to arrest.
34 Wn. App. 839, 664 P.2d. 7 (1983).
We review findings in denying a motion to suppress under a substantial evidence standard, but treat unchallenged findings as verities on appeal. We review conclusions of law de novo.
State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003).
Mendez, 137 Wn.2d. at 214.
There is probable cause to arrest when an officer is aware of facts and circumstances that would lead a reasonable person to believe that a crime has been committed. The determination is based upon the totality of facts and circumstances within the knowledge of the arresting officer and the standard is applied in light of everyday experience rather than a strict legal formula. It is not necessary that the knowledge or evidence establish guilt beyond a reasonable doubt, `for in this area the law is concerned with probabilities arising from the facts and considerations of everyday life on which prudent men, not legal technicians, act.' The facts and circumstances should be examined in the light of the officer's experience and his expertise in identifying criminal behavior must be given consideration.
State v. Graham, 130 Wn.2d 711, 724, 927 P.2d 227 (1996).
State v. Scott, 93 Wn.2d 7, 11, 604 P.2d 943 (1980).
Scott, 93 Wn.2d at 11 (quoting State v. Parker, 79 Wn.2d 326, 328-29, 485 P.2d 60 (1971)).
Graham, 130 Wn.2d at 724; State v. Todd, 78 Wn.2d 362, 367, 474 P.2d 542 (1970).
Scott, 93 Wn.2d at 11 (quoting State v. Todd, 78 Wn.2d at 367).
Solis points out that Officer Tovar could not identify what he passed to the man and the woman. But the circumstances strongly suggested a drug deal, particularly to an experienced officer, and certainty as to the identity of the controlled substance is not necessary to establish probable cause. Solis asserts that his activities could have been innocent but the fact that there could be an innocent explanation does not negate probable cause. Solis relies on the fact that there was no furtive or evasive behavior. Such behavior may be an indicator of criminal activity, but it does not follow that the absence of such behavior rules out probable cause to arrest. It may simply indicate that Solis did not believe he was being observed.
Graham, 130 Wn.2d at 725.
Graham, 130 Wn.2d at 725; State v. Fore, 56 Wn. App. 339, 344, 783 P.2d 626 (1989).
The facts in Poirier bear similarities to the facts in this case but there are several important differences. In Poirier, the police did not know the identity of either item that was exchanged and the transaction did not occur in an area of high narcotics activity. The exchange itself looked less like a drug deal than the exchange in this case and there was only one exchange, not two. Moreover, the court in Poirier applied a standard of review, an `independent evaluation of the evidence', later rejected in State v. Hill. Even the Poirier court recognized that `what might appear to an ordinary citizen to be innocent conduct may fall within that class of cases commonly referred to as `street sales of drugs'.'
Poirier, 34 Wn. App. at 841.
123 Wn.2d 641, 645-46, 870 P.2d 313 (1994).
Poirier, 34 Wn. App. at 842.
This case also bears similarities to State v. Rodriguez-Torres. There, an officer with extensive training in narcotics saw Rodriguez-Torres show an object to an individual after receiving money near Pike Place Market (an area known for narcotics transactions) and then leave the scene quickly after someone yelled, "Police." The trial court found probable cause for a Terry stop. We held that Terry would not justify the officer's search but affirmed because there was probable cause to arrest.
77 Wn. App. 687, 694, 893 P.2d 650 (1995).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Rodriguez-Torres, 77 Wn. App. at 693-94.
Solis urges us to follow Poirier and overrule Rodriguez-Torres. But the cases are not inconsistent. Each is merely an example of how a set of facts and circumstances in a unique context may or may not constitute probable cause. Moreover, we do not view the Poirier opinion as particularly persuasive because it relied on a standard of review that has since been rejected.
In this case, we agree with the trial court's conclusion that the facts and circumstances known to Officer Tovar, considered in light of his experience, gave him probable cause to arrest. Officer Tovar has extensive experience in how drug deals are consummated. Solis was in area known for drug transactions. Two different people came to Solis in a short period of time and gave him money. In each case, Solis withdrew tissue paper from his pocket, took something from the tissue paper, and handed it to the person who gave him money. Each person left shortly thereafter. Under these circumstances, a reasonable officer with Tovar's experience would be justified in concluding that a crime had been committed.
Affirmed.
COLEMAN, J., GROSSE, J. and BAKER, J.