Opinion
No. 26502-1-III.
December 2, 2008.
Appeal from a judgment of the Superior Court for Grant County, No. 07-1-00464-8, Kenneth L. Jorgensen, J., entered October 9, 2007.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Kulik, A.C.J., and Brown, J.
Appellant Shawn Miller was convicted of two counts of possession of a controlled substance after drugs were found on him when he was arrested for minor in possession of alcohol. The trial court found Mr. Miller had been arrested prior to being searched and denied his motion to suppress the evidence. We agree with that determination and affirm the convictions.
FACTS
Police responding to a report of domestic violence contacted Shawn Miller, the victim, outside a house at about 2:00 a.m. He and his girlfriend, age 16, had been fighting. Both also had been drinking and were intoxicated. They were both told they were not free to leave. The young woman then was arrested for assaulting Mr. Miller. Sergeant Jones talked to Mr. Miller for some time in order to ascertain what was happening at an apparent juvenile drinking party in the neighborhood. Sergeant Jones believed Mr. Miller was under age 18. He did not expressly tell Mr. Miller that he was under arrest because Sergeant Jones believed it was more important to gather information about the party in order to prevent underage drinkers from driving away.
When Sergeant Jones completed talking to Mr. Miller about the party, he took the young man by the elbow and walked him over to a patrol car. There the officer told the young man he was going to be searched. The officer then searched Mr. Miller and found a pouch containing 20 hits of Ecstasy and a pill bottle with 48 Klonopin tablets. After discovering the controlled substances, Sergeant Jones handcuffed Mr. Miller, advised him of his Miranda rights, and placed him in the patrol car.
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
Mr. Miller moved to suppress the evidence against him, contending that he had not been formally arrested prior to being searched. The trial court made the noted findings of fact and concluded that a reasonable person in Mr. Miller's position would believe he had been arrested at the point he was led away to the patrol car. The motion to suppress was denied. Mr. Miller was then convicted on stipulated facts and appealed to this court.
ANALYSIS
Probable Cause to Arrest. As a preliminary matter, although argued last in the briefing, Mr. Miller contends that the police lacked probable cause to arrest him for the offense of minor in possession of alcohol. He did not present this argument to the trial court and we do not need to consider the claim in the absence of a sufficient record to review it. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). However, since the record shows that the argument is without merit, we will briefly address it.
Probable cause to arrest exists when an officer is aware of circumstances that would lead a reasonably cautious person to believe that the suspect has committed a crime. State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986). The offense of minor in possession of alcohol is committed when someone under the age of 21 possesses or consumes alcohol. RCW 66.44.270(2). Sergeant Jones (and other officers) determined Mr. Miller was intoxicated. He also admitted to drinking. The trial court also found that Sergeant Jones believed Mr. Miller was under the age of 18. Those findings alone show that probable cause existed to arrest for the crime of minor in possession. In addition, the police report appended to the motion to suppress shows that police had identified Mr. Miller as being age 19 when they contacted him.
Probable cause existed to arrest Mr. Miller. There was no error.
Search Incident to Arrest. The primary argument presented in this appeal is a contention that Mr. Miller was not under arrest at the time he was searched. This issue is a close one, but we believe that the trial court's determination was correct.
In order for a search to be conducted incident to an arrest, there must first be a valid arrest. State v. O'Neill, 148 Wn.2d 564, 571, 587, 62 P.3d 489 (2003). Mr. Miller concedes that he was seized by police, but denies he was ever arrested. A seizure occurs when by physical force or show of authority, a reasonable person would not have believed he was free to leave an officer's presence. United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980); State v. Thorn, 129 Wn.2d 347, 352, 917 P.2d 108 (1996), overruled on other grounds by State v. O'Neill, 148 Wn.2d 564, 62 P.3d 489 (2003). A seizure becomes custodial when the seized person is restrained to the degree associated with formal arrest. Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984); State v. Short, 113 Wn.2d 35, 40-41, 775 P.2d 458 (1989).
Mr. Miller clearly was seized early in his encounter with the police. They told him he was not free to leave. The question then becomes whether or not he was under arrest at some point prior to the search. This case would be immensely simpler if Sergeant Jones had articulated that Mr. Miller was under arrest at the time he concluded interviewing him about the drinking party. Unfortunately, that did not happen. Still, we believe that a reasonable person in Mr. Miller's position would believe that he was under arrest. The interview, in which Mr. Miller admitted to underage drinking, had concluded. The officer then took Mr. Miller by the arm and walked him to a patrol car. A reasonable person would believe he was being placed in the car to be taken away or otherwise formally detained. Prior to being placed in the car, he was told he would be searched. All of these factors together would make a reasonable person believe he was restrained by the police to a significant degree — the degree associated with formal arrest. The fact that the sergeant was using the least amount of force necessary to accomplish the arrest — no use of handcuffs or threatened use of force or display of a weapon — should not detract from the fact that someone in Mr. Miller's position would know he was not going anywhere. The circumstances had changed from the time of the interview. Mr. Miller was being led away to a patrol car. A reasonable person would believe he was under arrest.
Mr. Miller was under arrest at the time he was searched, even if the officer did not articulate that fact. Accordingly, the trial court correctly denied the motion to suppress. The convictions are affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Kulik, A.C.J. and Brown, J., Concur.