Opinion
No. 38816-2-II.
January 12, 2010.
Appeal from a judgment of the Superior Court for Jefferson County, No. 08-1-00164-0, Craddock D. Verser, J., entered January 16, 2009.
Affirmed by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
James McKay appeals his convictions for unlawful possession of a controlled substance, methamphetamine, and unlawful possession of 40 grams or less of marijuana. He raises arguments based on unlawful search and seizure and sufficiency of the evidence. We affirm.
FACTS
On July 18, 2008, Deputy Gordon Tamura responded to a fireworks complaint. While en route, he observed a male walking away quickly from the reported fireworks location. The man held a small bag in his hand. Tamura turned his vehicle around, pulled up behind the man, and initiated contact with him. Tamura indicated he was investigating a fireworks complaint; the man responded that he had heard the fireworks and indicated their location. Tamura asked if the bag contained fireworks; the man said no. Tamura asked to see the man's identification, but the man replied that he did not have it with him.
As the man began walking away, Tamura asked for his name and date of birth. McKay felt he had a choice whether to continue the encounter with Tamura. He gave his name and date of birth. As he continued walking away, Tamura returned to his vehicle and contacted dispatch with McKay's identification. Dispatch advised that McKay had an outstanding arrest warrant.
Tamura caught up with McKay, pulled in behind him again, arrested him, and placed him in his patrol car. While searching McKay's bag incident to arrest, Tamura discovered a pipe with green vegetable matter that later field-tested positive for marijuana and a pipe with a white residue suspected of being methamphetamine. A crime laboratory report also confirmed the white substance as methamphetamine. Tamura advised McKay of his Miranda rights. McKay did not dispute ownership of the pipes and asked Tamura about the possibility of being cited and released. When booking McKay into jail, law enforcement officers also discovered a baggie of green vegetable matter in McKay's pocket. It field-tested positive for marijuana.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged McKay with unlawful possession of a controlled substance, methamphetamine, and unlawful possession of 40 grams or less of marijuana. He moved to suppress the evidence seized as a result of his arrest. The trial court denied the motion, concluding that no seizure had occurred or that if one had occurred, it was a lawful Terry stop.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
At a stipulated facts trial, the trial court convicted McKay on both charges. He appeals.
ANALYSIS Seizure
McKay first contends that substantial evidence does not support the trial court's conclusions that no seizure occurred or that it was a valid Terry stop.
We review conclusions of law from an order pertaining to the suppression of evidence de novo. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). The Fourth Amendment to the United States Constitution protects individuals against unwarranted searches and seizures. Article I, section 7 of the Washington Constitution provides greater protection to individuals than the Fourth Amendment. State v. Rankin, 151 Wn.2d 689, 694, 92 P.3d 202 (2004). A seizure occurs when "an individual's freedom of movement is restrained and the individual would not believe he or she is free to leave or decline a request due to an officer's use of force or display of authority." Rankin, 151 Wn.2d at 695. In making this determination, we look objectively at the actions of the law enforcement officer. State v. Young, 135 Wn.2d 498, 501, 504-05, 510, 957 P.2d 681 (1998).
Not every encounter between a police officer and private individuals constitutes a seizure. United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). Article I, section 7 permits social contacts between police and citizens. Young, 135 Wn.2d at 511. An officer's social contact with an individual in a public place with a request for identifying information, without more, is not a seizure or an investigative detention. Young, 135 Wn.2d at 511. This is true even when the officer subjectively suspects the possibility of criminal activity but does not have adequate suspicion justifying a Terry stop. State v. O'Neill, 148 Wn.2d 564, 574-75, 62 P.3d 489 (2003).
Here, McKay was a pedestrian in a public place. Tamura asked for McKay's identifying information. Tamura did not activate his vehicle's emergency lights, or tell McKay that he was not free to leave, or make any other display of authority. McKay continued walking away from the scene after voluntarily providing his identifying information. This conduct did not rise to a seizure nor was it an unjustified Terry stop. McKay's argument fails.
Substantial Evidence
McKay next contends that substantial evidence does not support the trial court's conclusion that the search incident to arrest was lawful. He asserts the trial court failed to enter appropriate findings of fact.
The trial court did not address the search because McKay moved for suppression based on an unlawful seizure. Thus, it only ruled on whether Tamura lawfully seized McKay. McKay's argument fails.
Search Incident To Arrest
McKay further contends that the search of his bag incident to his arrest violated the Fourth Amendment under Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710, 1716, 173 L. Ed. 2d 485 (2009) and Thornton v. United States, 541 U.S. 615, 619, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004).
McKay cites Gant and Thornton for support. Gant and Thornton apply to warrantless searches of vehicles incident to arrest and do not apply here. Gant, 129 S. Ct. at 1723-24; Thornton, 541 U.S. at 617. Under applicable law, Tamura arrested McKay after discovering an outstanding warrant for his arrest. McKay's bag was under his control at the time of his arrest. There is no evidence of any events, such as a significant delay between the arrest and the search, which rendered the search unreasonable. State v. Smith, 119 Wn.2d 675, 683, 835 P.2d 1025 (1992) (delay of 17 minutes reasonable under circumstances). McKay's argument fails.
Sufficiency of the Evidence
McKay finally argues that insufficient evidence supports his conviction for possession of marijuana. He asserts that the State did not present a crime laboratory report identifying the suspected marijuana.
When the record of a bench trial contains more than documents, such as testimony, we show deference to the trial court. State v. Neff, 163 Wn.2d 453, 461-62, 181 P.3d 819 (2008). We affirm if sufficient evidence supports the conviction beyond a reasonable doubt, construing the facts in the State's favor. Neff, 163 Wn.2d at 461-62.
We note that a chemical analysis generally is not essential to uphold an unlawful possession of a controlled conviction. State v. Colquitt, 133 Wn. App. 789, 796, 137 P.3d 892 (2006). "Circumstantial evidence and lay testimony may be sufficient to establish the identity of a drug in a criminal case." State v. Hernandez, 85 Wn. App. 672, 675-76, 935 P.2d 623 (1997). Lay witnesses may testify if they are familiar with the substance through prior use, trading, or law enforcement. Hernandez, 85 Wn. App. at 676. Circumstantial evidence may include the physical characteristics of the substance as well as the packaging. Hernandez, 85 Wn. App. at 677.
Here, Tamura discovered a pipe with green vegetable matter and a baggie containing green vegetable matter that he suspected was marijuana. Both items field-tested positive for marijuana. Tamura also discovered a pipe that tested positive in a crime laboratory for methamphetamine. Finally, after the discovery of the pipes, McKay asked Tamura about the possibility of being cited and released. This evidence sufficiently supports McKay's conviction. See Colquitt, 133 Wn. App. at 800, 802 (circumstantial evidence, in addition to a law enforcement officer's opinion and field test, may support a conviction for possession of a controlled substance).
Affirmed.
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.
QUINN-BRINTNALL, J. and VAN DEREN, C.J., concur.