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State v. Duncan

The Court of Appeals of Washington, Division Two
Aug 14, 2007
140 Wn. App. 1010 (Wash. Ct. App. 2007)

Opinion

No. 35164-1-II.

August 14, 2007.

Appeal from a judgment of the Superior Court for Kitsap County, No. 06-1-00674-5, Leila Mills, J., entered July 28, 2006.


Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Armstrong and Penoyar, JJ.


Following a bench trial on stipulated facts, Dennis James Duncan was convicted of possession of methamphetamine (Count I). On appeal, Duncan challenges the trial court's denial of his motion to suppress the evidence of methamphetamine found in his coat pocket following a pat down search. For the first time on appeal, Duncan argues that the pat down search of his person exceeded the scope of a permissible Terry frisk. But Duncan did not challenged the scope of the Terry frisk below and, because the stipulated facts clearly establish the pat down was lawful incident to Duncan's arrest for lewd conduct, the seizure of the methamphetamine from Duncan's pocket was lawful. We affirm.

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

Facts

Duncan stipulated to the arresting officer's probable cause statement in lieu of live testimony. It contained the following:

Disposition:

I booked Duncan into the [Kitsap County] jail on the charges of Lewd Conduct and VUCSA [Violation of the Uniform Controlled Substances Act]. Bail $6000. Report to the prosecutor for charges. Report to SOG for information.

The record does not clarify this acronym; we believe it to refer to Special Operations Group that investigates drug activities.

Clerk's Papers (CP) at 5.

(1) On May 2, 2006, in Kitsap County, Washington, [Duncan] was contacted in his car, parked on a public roadway in Bremerton, Washington. The roadway has heavy foot and vehicle traffic.

(2) Police contacted [Duncan] after receiving a report of someone possibly living in that car, parked on the roadway.

(3) When police contacted [Duncan], the passenger side door was open. Officers could see inside, and observed [Duncan] holding an electric vibrator near his genital area. The vibrator was buzzing.

(4) [Duncan] saw the officer, and threw the vibrator near the rear of the van. The officer asked [Duncan] to show the officer [his] hands. [Duncan] immediately placed his hands in his pockets.

(5) The officer conducted a protective frisk of [Duncan], and felt a hard object in [his] pocket. In looking to see what the item was, the officer saw a baggie of suspected methamphetamine in [Duncan's] pocket.

(6) The suspected methamphetamine is in fact methamphetamine.

(7) After being read, acknowledging and voluntarily waiving his Miranda warnings, [Duncan] admitted the item he was using was a vibrator, and that the substance which appeared to be methamphetamine was methamphetamine, and he knew it was methamphetamine. [Duncan] admitted to the officer the last time he used methamphetamine was the day before.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

CP at 20-21.

A person is guilty of lewd conduct if he intentionally performs a lewd act in a public place or at a place and under circumstances where such act could be observed by the public.

Bremerton Municipal Code (BMC) 9A.44.070(a)(1). Lewd acts include public masturbation. BMC 9A.44.070(b)(4). "Public" means "easily visible from a public thoroughfare." BMC 9A.44.070(c). Here, the police responded to investigate a call that someone was living in their car on a public thoroughfare. When they arrived, the door to Duncan's van was open. Through the open door police saw drug paraphernalia (a butane torch) and Duncan masturbating with a vibrator. They ordered Duncan to get out of the van and to keep his hands in view. Duncan got out of the van but refused to show his hands, repeatedly shoving them into his jacket pockets. Police frisked Duncan, arrested him for lewd conduct and VUCSA and transported him to the Kitsap County jail for booking. The State charged Duncan with one count of possessing methamphetamine.

Duncan moved to suppress the methamphetamine found in his jacket pocket as the fruit of an unlawful search. The trial court denied the motion to suppress and, following a trial on stipulated facts, convicted Duncan of one count of possession of methamphetamine as charged. Duncan appeals.

DISCUSSION

Search Incident to Arrest

Duncan contends that the police exceeded the permissible scope of a pat down weapons search and, thus, the methamphetamine found in his jacket pocket should have been suppressed. We disagree.

A search incident to arrest under article I, section 7 of the Washington State Constitution is a recognized exception to the general warrant requirement. State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 (2006). "The valid arrest provides the `authority of law' to search." Potter, 156 Wn.2d at 840. To validly arrest a person without a warrant, police must have probable cause to believe that a person has committed a crime. State v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004).

Here, police had probable cause to arrest Duncan for violating BMC 9A.44.070 when they ordered him out of the van. State v. Graham, 130 Wn.2d 711, 724, 927 P.2d 227 (1996). Shoving his hands into his pockets, Duncan refused to comply with the officer's lawful demand that he keep his hands in view at all times. Police conducted a pat down search of Duncan's coat pockets and seized methamphetamine found inside them. Although police did not read Duncan his Miranda warnings until after they frisked him for weapons, Duncan was not free to go and was "arrested" for purposes of search incident to arrest doctrine from the moment police ordered him to get out of the van. State v. O'Neill, 148 Wn.2d 564, 585, 62 P.3d 489 (2003) (quoting State v. Parker, 139 Wn.2d 486, 496-97, 987 P.2d 73 (1999)). A search incident to Duncan's arrest was proper and the methamphetamine was properly seized as a result. O'Neill, 148 Wn.2d at 585-86. See also Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (an "officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger"). See also State v. Fowler, 76 Wn. App. 168, 172, 883 P.2d 338 (1994) (officer may withdraw an object if it feels like it might be a weapon), review denied, 126 Wn.2d 1009 (1995).

The trial court did not err in denying Duncan's suppression motion and we affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

We concur:

ARMSTRONG, P.J. PENOYAR, J.


Summaries of

State v. Duncan

The Court of Appeals of Washington, Division Two
Aug 14, 2007
140 Wn. App. 1010 (Wash. Ct. App. 2007)
Case details for

State v. Duncan

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. DENNIS JAMES DUNCAN, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Aug 14, 2007

Citations

140 Wn. App. 1010 (Wash. Ct. App. 2007)
140 Wash. App. 1010