Opinion
No. 61455-0-I.
January 26, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-03067-7, Gregory P. Canova, J., entered March 10, 2008.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
David Lyle was convicted, in a stipulated trial, of two counts of possessing stolen property in the second degree based on his unauthorized possession of credit cards belonging to two individuals. He challenges the trial court's ruling denying his motion to suppress evidence of the credit cards, arguing that the evidence was the fruit of an unlawful arrest because the officer lacked probable cause to arrest him. We affirm.
On the night of August 31, 2006, Deputy Dusty Davis of the King County Sheriff's Office was on patrol in Shoreline. At about 11:30 p.m., Davis spotted Lyle and a female companion walking on the east side of Aurora Avenue with their backs to traffic, which is a pedestrian violation. They crossed Aurora and began walking west on Northeast 200th Street, and Davis pulled up behind them in his patrol car.
RCW 46.61.250.
Davis explained his reasons for stopping the couple and requested identification, which they produced. Lyle became perturbed and exclaimed, "This [is] a bullshit stop." Davis asked them to keep their hands in plain view, but Lyle kept putting his hands in his pockets and near his waistband. He was looking around as if to check for an escape route or to see if anyone was watching. He appeared nervous and fidgety. He was wearing baggy clothes, and there was a bulge in the front pocket of his sweatshirt. Out of concern for his safety, Davis frisked Lyle and his companion for weapons.
In Lyle's sweatshirt, Davis felt a hard object that felt like an ice pick. He removed the item and discovered it was a window punch. In removing the window punch, he also had to remove a pair of gloves that was in Lyle's sweatshirt pocket. Based on the gloves and window punch, he placed Lyle under arrest for possession of burglary tools. Davis searched Lyle incident to arrest and discovered numerous credit cards that did not belong to him.
The State charged Lyle with two counts of possession of stolen property based on the credit cards found in his possession. Lyle moved to suppress evidence of the credit cards, arguing that the officer did not have probable cause to arrest him for the crime of making or having burglary tools and that the subsequent search was therefore an unlawful search. The court denied the motion, concluding that there was probable cause to arrest Lyle. In a stipulated trial, he was convicted of both counts of possessing stolen property in the second degree and sentenced within the standard range.
Discussion
A trial court's denial of a motion to suppress will be upheld on appeal where substantial evidence supports the challenged findings and those findings support the trial court's conclusions of law. The remaining findings are treated as verities on appeal. Here, Lyle does not challenge the trial court's written findings of fact entered following his motion to suppress. Therefore, those findings are verities on appeal. However, Lyle challenges the trial court's determination that police had probable cause to arrest him for possession of burglary tools and its conclusion that the search incident to that arrest was therefore lawful. We review determinations of probable cause de novo.
State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001).
See State v. Moore, 161 Wn.2d 880, 884-85, 169 P.3d 469 (2007).
In re Det. of Petersen, 145 Wn.2d 789, 800-01, 42 P.3d 952 (2002).
Under article 1, section 7 of the state constitution, "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Warrantless searches are per se unreasonable, and exceptions to the warrant requirement are narrowly drawn. However, a police officer may conduct a search incident to a lawful custodial arrest. An arrest is lawful only if supported by probable cause. There is probable cause when "the arresting officer has `knowledge of facts sufficient to cause a reasonable [officer] to believe that an offense has been committed' at the time of the arrest." Officer Davis testified that he arrested Lyle for possessing burglary tools.
State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 (2006).
Moore, 161 Wn.2d at 885.
Moore, 161 Wn.2d at 885.
Moore, 161 Wn.2d at 885 (quoting Potter, 156 Wn.2d at 840).
Making or having burglary tools is a gross misdemeanor. RCW 9A.52.060(1) provides:
Every person who shall make or mend or cause to be made or mended, or have in his possession, any engine, machine, tool, false key, pick lock, bit, nippers, or implement adapted, designed, or commonly used for the commission of burglary under circumstances evincing an intent to use or employ, or allow the same to be used or employed in the commission of a burglary, or knowing that the same is intended to be so used, shall be guilty of making or having burglar tools.
The crime has two separate elements. The first element relates to the defendant's making or mending burglary tools or having burglary tools in his possession. The second element relates to the defendant's intent, or knowledge of another's intent, to use the tools to commit burglary.
Lyle argues that Davis did not have probable cause to arrest him for possessing burglary tools because the findings do not show circumstances evincing any intent to commit burglary. Officer Davis testified that he recognized the gloves and window punch as tools commonly used in car prowling:
The area that he was in, Aurora, car prowls are constantly up and down that area. The gloves, which is normal with car prowlers, they don't want to leave fingerprints, window punch . . . you know, something easy to break the window to get in, just get the contents inside of the vehicle and then leave. So at that time I put him under arrest for position [sic] of burglary tools.
Lyle argues that there was not probable cause to arrest for possession of burglary tools because the window punch is an object used for car prowling, a crime distinct from burglary. However, in its oral ruling, which was incorporated by reference in its written findings, the trial court found that the circumstances were sufficient to find probable cause because the window punch is a tool commonly employed in both car prowling and burglaries, and that Lyle was stopped on a street that leads to a residential area.
"A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling." RCW 9A.52.030(1).
Although Officer Davis did not expressly state that he recognized a window punch as a tool used for burglaries, we hold that it was reasonable for Officer Davis and the trial court to infer that the window punch, which is used to break car windows, could also be used to break the windows of a building. In addition to possessing a window punch, Lyle was carrying gloves on a summer night in August and walking toward a residential area. We hold there was probable cause to arrest for the crime of having burglary tools.
Affirmed.