Opinion
No. 50591-2-I.
Filed: March 15, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-1-09957-1. Judgment or order under review. Date filed: 05/28/2002. Judge signing: Hon. Michael J Fox.
Counsel for Appellant(s), Eric Broman, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Timothy John Leary, Attorney at Law, W554 King Co Cthse, 516 3rd Ave, Seattle, WA 98104-2385.
Evidence discovered through a warrantless search and seizure is admissible if the State can show that the search and seizure were excepted from the warrant requirement. Here, the State showed that police detectives conducted a valid Terry stop, that the stop matured into a valid warrantless arrest, and that the detectives recovered several items of physical evidence through a valid search incident to arrest. Because the trial court properly admitted the physical evidence, which overwhelmingly supported the jury's verdicts, we affirm.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
FACTS
Shortly after midnight on November 9, 2001, a 911 caller reported a car crash in the Rainier Beach neighborhood of Seattle. The caller also reported that two black men ran from the scene, and that at least one of the men ran southward. Seattle Police Department Gang Unit Detectives Tomlinson and Norton arrived at the scene minutes later. They found that a red convertible had crashed into a parked car, but they did not find any of the cars' occupants at the scene.
The detectives searched the immediate area, and they found appellant Ronnie Brown two blocks south of the accident scene; they saw no one else in the vicinity. The detectives observed Brown bent over a patch of ivy beside the road. They saw that his hands were fidgeting in the ivy, and it appeared to them that he was wiping his hands or trying to conceal something. When the detectives got closer, Detective Norton observed that Brown was panting.
As the detectives approached Brown, he began to walk away. Brown repeatedly tried to reach for his pockets, despite the detectives' instructions not to do so. When Brown did not comply with Detective Tomlinson's request to come to their unmarked car, Tomlinson escorted him there. The detectives then tried to perform a protective search. When Brown continued to physically resist the detectives, they handcuffed him.
The detectives removed several items from Brown's pockets, including identification belonging to Kara Feddern, a wallet that contained a credit card and identification belonging to Anthony Younger, a wad of cash, and a small amount of cocaine. Later, Detective Tomlinson found a silver-colored semi-automatic pistol in the ivy patch where they first observed Brown.
The red convertible involved in the crash had been carjacked only a short distance from the accident scene. The car belonged to Anthony Younger, the man whose wallet the police found in Brown's pocket.
Minutes before the crash, two men robbed Younger outside a gas station as he sat in the driver's seat of his car, which was parked near a pay phone his friend, Kara Feddern, was using. While Feddern was on the phone, one robber jumped in the passenger's seat of Younger's car, displayed a handgun, and demanded Younger's money. The other robber took Younger's jewelry. The robbers ordered Younger out of his car, and they drove it away.
Younger and Feddern reported the robbery, and King County Sheriff's Deputies responded within minutes. A short time later, a Seattle Police Department officer arrived at the gas station and informed the deputies that the robbery suspects were in custody a short distance away. Younger and Feddern later identified Brown as the robber with the gun, and Younger identified the silver-colored pistol as the one that Brown used in the robbery.
The jury convicted Brown of first degree robbery, taking a car without permission, unlawful possession of a firearm, and cocaine possession.
DISCUSSION Search and Seizure
Brown contends the trial court erred by denying his motion to suppress the evidence police discovered when they searched him. He argues that the detectives illegally seized him without a warrant, and that the trial court should have suppressed the evidence as the fruit of the poisonous tree. Warrantless searches and seizures are per se unreasonable, and the evidence they yield is inadmissible unless the state can show that they are excepted from the warrant requirement.
State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980).
The Terry Stop
A police officer may briefly detain a person for questioning if the officer can point to specific and articulable facts that raise a reasonable suspicion that the person recently committed a crime. Here, the State contends the detectives had an objectively reasonable suspicion that Brown had recently committed the crime of hit-and-run.
Terry, 392 U.S. at 21-23.
A number of undisputed facts support that conclusion. The abandoned crash scene raised the suspicion that the crime of hit-and-run had recently occurred. The detectives knew a 911 caller had reported that at least one person ran southward away from the scene. The detectives found Brown only two blocks southeast of the scene, minutes after the crash. Brown was the only person in the vicinity. Brown matched what the officers believed was the general description the 911 caller gave a black man wearing dark clothing. Brown's unusual behavior in the ivy patch was consistent with that of someone trying to conceal evidence of a crime. Lastly, Brown's panting was consistent with that of someone who had run from the crash scene.
This fact is contained in the trial court's oral findings, which the trial court incorporated by reference in its written findings.
Brown argues that each of these facts is explainable under the circumstances, and that each fact was insufficient to support a reasonable suspicion that Brown was involved in criminal activity. But the totality of the circumstances, including the fact that Detectives Tomlinson and Norton were experienced officers with approximately nine and seven years of total service, respectively, in this area of Seattle, show that the detectives' suspicion was reasonable. Thus, the Terry stop was valid.
State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991) (reasonableness is based on the totality of the factual circumstances).
The Arrest
When police officers conduct a valid Terry stop, the suspect is not free to leave. In fact, a suspect's refusal to obey a police officer's request during a Terry stop gives the officer probable cause to arrest the suspect for the crime of obstruction. Here, substantial evidence shows that Brown tried to walk away when the detectives asked him to come toward them. Brown also failed to respond to the detectives' commands that he keep his hands out of his pockets as they tried to conduct their investigation. Brown's conduct gave the detectives probable cause to arrest him for obstruction. Because the detectives observed Brown's conduct, they did not need a warrant to arrest him.
See State v. Armenta, 134 Wn.2d 1, 10-11, 948 P.2d 1280 (1997).
See State v. Mendez, 137 Wn.2d 208, 223, 970 P.2d 722 (1999); RCW 9A.76.020(1).
RCW 10.31.100.
Moreover, the detectives did arrest Brown when they physically restrained and handcuffed him. An arrest occurs when a reasonable person in the suspect's position at the time would think he is under arrest. Although Brown was not given Miranda warnings, placed in a police car, or taken to a police station before the detectives searched him, a reasonable person in Brown's position would have thought he was under arrest.
State v. Rivard, 131 Wn.2d 63, 76, 929 P.2d 413 (1997).
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Evidence Recovered from Brown
Because the detectives arrested Brown before they searched his pockets, the search was a valid search incident to arrest. Thus, the trial court did not err when it denied Brown's motion to suppress the physical evidence.
State v. O'Neill, 148 Wn.2d 564, 587, 62 P.3d 489 (2003).
The physical evidence discovered during the search, as well as the pistol recovered near the scene of the arrest, was sufficient to support Brown's conviction on every crime charged. The wallet and its contents, Feddern's identification, the cash, and the cocaine were sufficient evidence to support the jury's verdicts regarding the charges of robbery, carjacking, and cocaine possession. Moreover, Younger's identification of the pistol as the one the robber used was sufficient to support the verdict for unlawful possession of a firearm.
The physical evidence so strongly supported the verdicts that the trial court's admission of the showup and in-court identifications, if erroneous, was harmless error. Moreover, we disagree with Brown's contention that there was insufficient evidence to support his convictions.
State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985).
Additional Grounds for Review
Brown asserts five additional grounds for review, but none merits reversal. First, Brown contends that the trial court denied him his right to a speedy trial when, over his own objection, it granted his counsel's motion for a continuance beyond his speedy trial date. But a defendant's speedy trial right is a procedural right that defense counsel may waive, over the defendant's objection, to ensure effective representation and a fair trial. Here, Brown's trial counsel moved for the continuance so she could investigate potentially exculpatory evidence. Brown's counsel waived his speedy trial right.
State v. Finch, 137 Wn.2d 792, 806, 975 P.2d 967 (1999).
Second, Brown contends that the trial court again denied him his speedy trial right when it continued the trial date to accommodate the prosecutor's vacation. But although Brown claims that he objected to the continuance, the record does support his claim. To the contrary, Brown's trial counsel stated that she did not object to the continuance. Brown therefore did not preserve this issue for appeal.
Third, Brown contends that the trial court denied him his right of confrontation when it allowed hearsay testimony through a sheriff's deputy that Younger identified Brown as the robber with the pistol. Brown did not object to this testimony. Brown therefore failed to preserve this issue for appeal, as well.
Fourth, Brown contends he had a conflict of interest with his attorney that arose from `irreconcilable differences' over the first motion for trial continuance. Brown moved orally for a new attorney, but the trial court responded that it would not address his motion that day. The trial court did invite Brown to file a motion after consulting with his attorney. The record does not show that Brown ever renewed his motion, thus he waived this issue.
Finally, Brown contends that the trial court erred by denying his counsel's motion to dismiss based on the State's failure to produce a tape-recorded witness statement. The trial court denied the motion with leave for the defense to renew it when more information was available concerning the discovery violation. The record does not show that Brown ever renewed this motion, thus he waived this issue, as well.
We affirm.
COLEMAN and AGID, JJ., concur.