Opinion
No. 63319-8-I.
March 15, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-07795-7, Julie A. Spector, J., entered March 16, 2009.
Affirmed by unpublished opinion per Leach, J., concurred in by Schindler, C.J., and Ellington, J.
A jury convicted Tan Van Vo of possession with intent to deliver cocaine. He appeals, challenging the lawfulness of his arrest and the search incident to that arrest. Because the arresting officers' observations of suspected drug transactions gave them probable cause to arrest Vo and conduct a search incident to that arrest, we affirm.
Background
The facts of this case are generally undisputed. Seattle Police Officer James Lee has considerable narcotics experience as a law enforcement officer: he has over 12 years of law enforcement experience, has made between 20 and 50 narcotics arrests each month over the last seven years, has purchased narcotics undercover more than 25 times, and has conducted narcotics surveillance more than 100 times. Officer Lee is also familiar with the packaging and appearance of various narcotics, including crack cocaine.
The evening of August 13, 2008, Officer Lee conducted roof top surveillance of the 100 block to the 300 block of Bell Street. This area is known to Seattle police officers as a high narcotics area. His view of the area was clear and unobstructed. With 10 × 50 binoculars Officer Lee observed Tan Van Vo standing on the corner of 2nd Avenue and Bell Street. Hex saw Vo make several hand-to-hand exchanges with people who approached Vo, including exchanges with known drug users.
Then, Officer Lee observed Vo produce a clear bindle of what appeared to be crack cocaine after an unidentified white female approached. Vo held the bindle in his right hand, causing the white color of the contents to stand out against his black glove. Officer Lee witnessed Vo unwrap the bindle, extract suspected crack cocaine with his thumb and forefinger, and drop it into the woman's open palm. After examining the suspected crack cocaine, the woman handed Vo paper currency and left.
Officer Lee called in the arrest team. As they approached, he observed Vo twist the bindle closed and cuff it in his right hand. All three officers observed Vo drop the bindle of suspected crack cocaine on the sidewalk as they moved in. In a search incident to Vo's arrest, the officers recovered the bindle and $89 in crumpled bills from his front pocket and $431 from his wallet.
The State charged Vo with possession with intent to deliver a controlled substance (cocaine), RCW 69.50.401(1)-(2)(a). Vo moved to suppress all evidence of the cocaine and currency, alleging the search was unlawful because the police lacked probable cause to arrest him. At the suppression hearing, the court heard testimony from Vo and the arresting officers. The court concluded that the officers had probable cause to arrest Vo and denied his motion to suppress.
A jury found Vo guilty as charged. Vo appeals, alleging that because his arrest was without probable cause, the fruits of the arrest should have been suppressed.
Standard of Review
Whether probable cause exists involves review of both facts and law. Unchallenged findings of fact are verities on appeal. Where, as here, the findings of fact are uncontested, we only review the legal question, i.e., whether the trial court's factual findings support its legal conclusion that the evidence presented established probable cause. We review this question de novo.
State v. Vasquez, 109 Wn. App. 310, 318, 34 P.3d 1255 (2001).
State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003).
In re Det. of Petersen, 145 Wn.2d 789, 799, 42 P.3d 952 (2002).
Analysis
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Article 1, section 7 of the Washington Constitution states that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Under both constitutions, warrantless searches and seizures are presumptively unreasonable unless they fall into one or more of the narrowly drawn exceptions to the warrant requirement.
State v. Ross, 141 Wn.2d 304, 312, 4 P.3d 130 (2000).
One exception allows a police officer to make a warrantless felony arrest for criminal activity occurring in a public place, provided the arrest is supported by probable cause. A second exception allows a warrantless arrest for a misdemeanor committed in an officer's presence, again provided the arrest is supported by probable cause.
State v. Solberg, 122 Wn.2d 688, 696, 861 P.2d 460 (1993).
State v. Walker, 157 Wn.2d 307, 319, 138 P.3d 113 (2006) (holding RCW 10.31.100 constitutional). RCW 10.31.100 provides that "[a] police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the presence of the officer, [except as stated below]."
Probable cause to arrest exists where reasonably trustworthy facts and ircumstances within the arresting officer's knowledge are sufficient to merit a belief in the mind of a reasonably cautious person that an offense has been committed. This determination rests on the totality of facts and circumstances within the officer's knowledge at the time of the arrest, with consideration paid to the expertise and special experience of the arresting officer. Accordingly, what appears to be innocent conduct to an ordinary citizen may, in the mind of an experienced and knowledgeable police officer, support probable cause for an arrest. An officer may be justified in believing that he or she is observing criminal activity when (1) the location is one in which drug sales regularly take place, (2) the reputation of one or more of the participants is known to the officer, (3) the items exchanged are characteristic of packaged drugs or narcotics, and (4) the parties act in a suspicious or furtive manner.
State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986).
State v. Fore, 56 Wn. App. 339, 343, 783 P.2d 626 (1989) (quoting State v. Fricks, 91 Wn.2d 391, 398, 588 P.2d 1328 (1979).
State v. Poirier, 34 Wn. App. 839, 842, 664 P.2d 7 (1983).
Poirier, 34 Wn. App. at 842-43.
The trial court determined at the suppression hearing that probable cause supported an arrest on either a charge for drug traffic loitering, Seattle Municipal Code (SMC) 12A.20.050(B), or possession with intent to deliver cocaine, RCW 69.50.401(1)-(2)(a). SMC 12A.20.050(B) states that "[a] person is guilty of drug-traffic loitering if he or she remains in a public place and intentionally solicits, induces, entices, or procures another to engage in [illegal drug activity]." Subsection (C) describes a series of nonexclusive circumstance that an officer may consider to determine whether probable cause exists, including whether the officer has seen the defendant in possession of drug paraphernalia or repeatedly beckon to, stop, or attempt to stop passersby, or engage passersby in conversation.
RCW 69.50.401(1) criminalizes the delivery and possession with intent to deliver a controlled substance. This statute provides that "it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance." Accordingly, a person possesses a controlled substance with intent to deliver when he or she (1) possesses a controlled substance and (2) possesses the controlled substance with intent to deliver it. Cocaine is a controlled substance.
Here, probable cause exists to support Vo's arrest for either crime. Officer Lee had considerable experience in narcotics, making between 20 and 50 arrests each month over the past seven years alone. Officer Lee observed Vo in a neighborhood known as a high drug traffic area and witnessed Vo make multiple hand-to-hand exchanges with known drug users. Based on his experience and training, Officer Lee was familiar with cocaine packaging and had a clear and unobstructed view of Vo holding what appeared to be a clear bindle of cocaine. He also observed Vo extract a rock of the suspected crack cocaine from the bindle, place it in the palm of another's hand, and accept cash in return. All three arresting officers witnessed Vo drop the bindle. The totality of these circumstances provides a sufficient basis for a reasonably cautious person to believe that Vo possessed and delivered a controlled substance.
Vo counters that the facts of this case are essentially indistinguishable from State v. Poirier, where the court held officers lacked probable cause to arrest. In that case, the trial court decided the following facts established probable cause:
34 Wn. App. 839, 842, 664 P.2d 7 (1983).
I.
On or about the 13th day of September, 1980, officers Scott and Bennett of the Tacoma Police Department were working as security officers for a restaurant known as the Dynasty [sic].
II.
That on that date, the officers were standing in a position outside the business near an open door and observed defendant Poirier standing in the parking lot.
III.
The officers then observed defendant Dimercurio arrive at the location of the restaurant in the parking lot. The defendant exited the vehicle and approached Mr. Poirier.
IV.
The officers then observed Mr. Poirier and Mr. Dimercurio exchange items that appeared to be white envelopes or packages. Both defendants were then arrested and searched, and during said search a package of suspected cocaine and a package of money were removed from the defendants.
Poirier, 34 Wn. App. at 841-42 (alteration in original).
On appeal, the Court of Appeals reversed, holding that these facts did not provide probable cause to arrest. They did not establish that either party was known to the officers, that drug sales or exchanges regularly took place in the parking lot, that the envelopes exchanged were particularly distinctive or characteristic of packaged drugs or narcotics, or that either party acted in a suspicious or furtive manner.
Poirier, 34 Wn. App. at 842.
Poirier, 34 Wn. App. at 843.
In contrast, Officer Lee's observations and knowledge established facts absent in Poirier. He knew the area in which Vo was observed to be a high narcotics traffic area. He observed Vo making hand-to-hand exchanges with known drug users, exchange a white rock for money, and handle a clear bindle containing a white substance, which is distinctive and characteristic of crack cocaine. Finally, three officers saw Vo suspiciously drop this bindle as they approached.
Conclusion
For the foregoing reasons, we find that the probable cause supported Vo's arrest. Accordingly, we affirm.
WE CONCUR: