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State v. Morgan

The Court of Appeals of Washington, Division One
Jan 24, 2005
No. 52913-7-I Consolidated with No. 53005-4-I (Wash. Ct. App. Jan. 24, 2005)

Opinion

No. 52913-7-I Consolidated with No. 53005-4-I

Filed: January 24, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No: 02-1-08974-3. Judgment or order under review. Date filed: 08/22/2003. Judge signing: Hon. Paris K Kallas.

Counsel for Appellant(s), Sharon Jean Blackford, Attorney at Law, 1218 3rd Ave Ste 1800, Seattle, WA 98101-3060.

Peter Thomas Connick, Attorney at Law, 157 Yesler Way Ste 518, Seattle, WA 98104-2588.

M Morgan — Informational Only (Appearing Pro Se), 25713 27th Pl. S. Apt. A-304, Kent, WA 98023.

Philip Mahoney, Attorney at Law, 720 3rd Ave Ste 1903, Seattle, WA 98104-1819.

Counsel for Respondent(s), Amy R Holt, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.

Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.


Upon observing activity suggestive of a drug transaction, police detained appellants Michael Morgan and Oscar Freeman in a parking lot. Evidence found during this detention led to their convictions for possession with intent to deliver cocaine. Substantial evidence supports the trial court's application of the fellow officer rule to supply the reasonable suspicion necessary to justify the detention. Officer safety concerns justified the pat-down of Freeman, and good cause justified the continuances of his trial beyond the various speedy trial dates that were set. We affirm both convictions.

The State charged Morgan and Freeman with one count each of possession with intent to deliver after officers arrested them in a downtown Seattle parking lot. The trial court denied their motions to suppress evidence found during the search incident to the arrests. The defendants waived their right to a jury trial and the trial court found them guilty on stipulated facts. This appeal followed.

Both defendants contend the officers who detained them did not have a reasonable suspicion that would justify the stop. Freeman challenges as well the scope of the detention, and raises a speedy trial issue. After the suppression hearing, the court entered findings of fact based on the testimony of the three officers involved in the arrest. These largely undisputed findings detail an encounter that occurred just before midnight in early December 2002 in an area of Seattle well-known for narcotics activity. The three officers were highly experienced in street level narcotics transactions. They were driving in an unmarked police vehicle when they observed a car in a parking lot. Two pedestrians, a male and a female, were standing outside of the car, conversing with the occupants. The female `reacted immediately' when she saw the officers. She said something to the male pedestrian, who in turn spoke to an occupant of the car. The pedestrians then quickly walked away.

All three officers believed they had witnessed a narcotics transaction. The court's findings set forth what happened next:

5. While still in the police car, Officer Garthgreen watched the pedestrians as they walked away from the car. Officer Garthgreen watched the male pedestrian hand a small item to the female pedestrian. Officer Garthgreen characterized the male's action as `palming,' and stated that in Officer Garthgreen's experience, `palming' is a common method of transferring narcotics between two people. Officer Garthgreen testified that it was common for a woman to carry narcotics, because patrol officers are often male, and it is easier for a female to protect against an intrusive search for narcotics. The female pedestrian accepted the item that was handed to her and placed it in her mouth. Officer Garthgreen stated that it is common for individuals to store narcotics in his/her mouth, because it is easy to swallow the narcotics if confronted by police. These observations all occurred when the officer was still in the police car. Officer Garthgreen's observations were consistent with his belief that a narcotics transaction had occurred when the pedestrians were at the car.

6. Before exiting the police car, the three officers communicated their observations and plans to each other. Accordingly, it is reasonable to infer and the court so infers that Officers Cavinta and Geoghagan were aware that Officer Garthgreen had observed the pedestrians exchange an item that was placed in the female pedestrian's mouth.

7. Officer Geoghagan drove the police car into the parking lot. The officers immediately exited the car, and Officer Geoghagan began yelling `police,' and directing the defendants' car to stop. Officer Garthgreen initially followed the pedestrians and attempted to stop them, but abandoned his efforts when he heard Officer Geoghagan continue to direct the defendants' car to stop. Officer Garthgreen's return to assist Officer Geoghagan was objectively reasonable, given the potentially escalating situation. Officers Garthgreen and Cavinta both joined Officer Geoghagan in telling the defendants to stop the car.

Findings of fact 5-7, Clerk's Papers at 97-98.

The car moved slowly forward, with defendant Morgan driving. The officers made various observations which aroused their concern that weapons might be present. Officer Garthgreen believed a search of the car for weapons was necessary. Officer Geoghagan approached Morgan and removed him from the car. Morgan dropped a baggie containing what the officer recognized as marijuana. He arrested Morgan and placed him in handcuffs. During a search incident to the arrest of Morgan, a large sum of money was found. Freeman, who was in the passenger seat, was directed to get out of the car. Officer Cavinta felt a hard, rectangular object inside Freeman's pocket. Concerned that it might be a weapon, he looked inside and recognized cocaine tightly wrapped in cellophane. He seized the cocaine. The officers found two cell phones in the car after fully searching it. The primary issue in Morgan's appeal is whether Officer Geoghagan's stop of the car was lawful. Police may conduct a warrantless investigatory stop of an individual where the officer has a well-founded suspicion of criminal activity based on specific and articulable facts. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. White, 97 Wn.2d 92, 105, 640 P.2d 1061 (1982). Washington's Supreme Court has defined an `articulable suspicion' as `a substantial possibility that criminal conduct has occurred or is about to occur.' State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986). The State bears the burden of establishing that the search or seizure falls into this exception to the warrant requirement. State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999).

Based upon its findings, the trial court concluded that Morgan and Freeman were detained at the point Officer Geoghagan got out of the police car and yelled `police.' The court concluded that the initial observations by the police of the conversation between the pedestrians and the occupants of the car despite the lateness of the hour and the location — were not enough to justify an investigative stop, because the officers had not seen anything like a hand-to-hand transaction. The court took note of the fact that the pedestrians visibly reacted when they saw the officers, but concluded that even this reaction which the court attributed to Morgan and Freeman did not make the officers' suspicions sufficiently reasonable to justify a detention.

Conclusion of law 1, Clerk's Papers at 99.

Conclusions of law 2 and 3, Clerk's Papers at 99-100.

The fact that ultimately tipped the balance for the court was Officer Garthgreen's observation of a `palming' exchange between the two pedestrians as they walked away. He saw the male give the female a small item that she placed in her mouth:

Once Officer Garthgreen observes the palming of the small item between the two pedestrians, with the female placing the item in her mouth, there was a reasonable suspicion that the defendants were engaged in illegal activity. At that point, there is an inference beyond a hunch that the officers had witnessed a street-level sale of narcotics. The totality of the circumstances surrounding the nature of the contact, the time and place of the contact, the female pedestrian's walking away from the car [and] actions as a possible lookout, the reaction upon seeing the officers, the palming of the item, and the placement of the item in the female's mouth satisfied the requirement of reasonable suspicion before the inception of the detention.

Conclusion of law 4.

The trial court's conclusion reflects an application of the fellow officer rule. Under the fellow officer rule, the cumulative knowledge of all officers acting as a unit may be considered in determining whether an officer had sufficient cause to detain an individual. State v. Maesse, 29 Wn. App. 642, 647, 629 P.2d 1349, review denied, 96 Wn.2d 1009 (1981). An arresting officer who does not personally possess sufficient information to constitute probable cause may still make a warrantless arrest if (1) he acts upon the direction or as a result of a communication from a fellow officer, and (2) the police, as a whole, possess sufficient information to constitute probable cause. Maesse, 29 Wn. App. at 646-47.

Morgan agrees with the trial court's legal analysis: that no officer has a reasonable suspicion justifying a stop until Officer Garthgreen observed the `palming' activity between the two pedestrians. Morgan contends Officer Garthgreen's observation cannot be considered because there is no evidence that Officer Garthgreen communicated that observation to the other officers before Officer Geoghagan made the actual stop.

We review a trial court's findings of fact entered after a CrR 3.6 suppression hearing under the substantial evidence standard. State v. Sommerville, 111 Wn.2d 524, 533-34, 760 P.2d 932 (1998). Substantial evidence exists if there is a sufficient quantity of evidence in the record to persuade a fair-minded person of the truth of the declared premise. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Findings of fact that are unsupported by substantial evidence are not binding on appeal. Hill, 123 Wn.2d at 647.

The critical finding to which Morgan assigns error is finding of fact 6:

Before exiting the police car, the three officers communicated their observations and plans to each other. Accordingly it is reasonable to infer, and the Court so infers that Officers Cavinta and Geoghagan were aware that Officer Garthgreen had observed the pedestrians exchange an item that was placed in the female pedestrian's mouth.

Finding of fact 6, Clerk's Papers at 98.

Officer Garthgreen's testimony is the only portion of the record upon which this finding could have been based:

Q: Were you discussing your plans to follow them with the other officers who were present at that time?

A: I just told the other officers that I was going after the two folks and that they were to take the vehicle.

Verbatim Report of Proceedings, 7/28/03 at 12.

As Morgan contends, this testimony does not support the finding that the officers `communicated their observations' to each other. Consequently, there is no basis for the court's inference that the other officers were aware that Officer Garthgreen had observed the pedestrians exchange an item. However, Officer Garthgreen's testimony does support the finding that there was a communication about plans. Officer Garthgreen testified, `I just told the other officers that I was going after the two folks and that they were to take the vehicle.'

Finding of fact 6, Clerk's Papers at 98.

Verbatim Report of Proceedings, 7/28/03 at 12.

Morgan contends that Officer Garthgreen's communication to the other officers does not activate the fellow officer rule because he did not communicate the facts allegedly justifying detention nor did he communicate his conclusion that detention was justified. However, he cites no authority requiring communication in such time-consuming detail. Officer Garthgreen's directive to `take the vehicle' was enough to satisfy the requirement that the arresting officers act upon the direction of or as a result of a communication from a fellow officer. Cf. State v. Alvarado, 56 Wn. App. 454, 458, 783 P.2d 1106 (1989) (unnecessary for State to present the testimony of the officer who actually arrested the defendant; `the important fact is that the arresting officer acted on a directive made by another officer' who possessed the necessary information).

We conclude the evidence was sufficient to support the finding that the officers communicated their plans to each other. The court did not err in its application of the fellow officer rule.

SCOPE OF DETENTION

The arrest of Freeman, who was the passenger in the car, was based on cocaine that was found on his person during the pat-down that followed his exit from the car. As to Freeman, the trial court concluded:

During the pat-down of Defendant Freeman, the officer's belief that a hard object within the defendant's possession was a weapon was reasonable. The officer was justified in looking further at the item. When the officer recognized the item as cocaine, it was proper to arrest Defendant Freeman. The resulting search incident to Defendant Freeman's arrest was valid.

Conclusion of law 7, Clerk's Papers at 100.

Freeman contends there was no reasonable justification to order him from the car, handcuff him and pat him down, merely because he was the passenger in a car where the driver was seen talking to two other people. He overlooks the court's finding that his removal from the car `was based on the observations made by the officers.' As detailed by other undisputed findings, the officers observed furtive movements and objects that could have been weapons. They also made the collective observations discussed earlier that gave rise to a reasonable suspicion that a drug transaction had just been completed. We conclude the record justifies the decision to remove Freeman from the car and pat him down both for officer safety purposes and for investigation.

Finding of fact 12, Clerk's Papers at 99.

SPEEDY TRIAL ISSUES

Freeman contends that the trial court violated his right to speedy trial when it granted several continuances without making a finding on the record as to the reasons. He does not focus on any one particular continuance, but rather seems to make a general argument that the rule should be more detailed in its procedures, and the trial court more strict in monitoring the vacations of attorneys and police witnesses.

The rule in effect at the time provided that continuances may be granted as follows:

On motion of the State, the court or a party, the court may continue the case when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of the defense. The motion must be filed on or before the date set for trial or the last day of any continuance or extension granted pursuant to this rule. The court must state on the record or in writing the reasons for the continuance.

CrR 3.3(h)(2)(2003).

A trial court's grant of a motion for a CrR 3.3 continuance will not be disturbed absent a manifest abuse of discretion. State v. Silva, 72 Wn. App. 80, 83, 863 P.2d 597 (1993).

Freeman appeared for arraignment on December 19, 2002. The court set his trial date for February 24, 2003. Freeman was out of custody, so the 90-day rule was applicable and his expiration date was March 19, 2003. Various `holds' for trial were made on `minute sheets' during the period between February 24 and March 17. These continuances did not take Freeman's trial outside the 90-day rule. The remedy of dismissal which he seeks is available only when a criminal charge is not brought to trial within the time period provided by the rule. Former CrR 3.3(i)(2003). Freeman himself appeared on March 17, 2003 and requested a continuance, giving as his reason: `witness unavailable, brief incomplete.' The order of continuance, bearing Freeman's signature, attests that Freeman waived the speedy trial rule. Freeman agreed to a new trial date of May 12, 2003, with an expiration date of May 19, 2003.

Order of Continuance, Clerk's Papers at 163.

Time for Trial extension, Clerk's Papers at 164.

On the Friday before the May 12 trial date, the parties appeared for a hearing on the State's motion to continue. The State requested a continuance because its primary witness was scheduled to be on vacation from May 12 through May 21. The prosecutor assigned to the case was unavailable from May 23 through May 27 due to another scheduled trial. Also, the State informed the court that it would be moving to join Freeman's case with that of Morgan, whose trial date was set for June 16, 2003. Based upon the intended consolidation, the State requested Freeman's trial date also be set for June 16, 2003. Over Freeman's objections, the court found that the primary officer being out of town was basis for a `good-faith continuance' and the prosecutor's previously scheduled trial was `also a good cause' and set a new trial date of May 28, with an expiration date of June 4, 2003.

Verbatim Report of Proceedings, 5/9/03 at 4.

One week before the May 28 trial date, the State moved to consolidate Freeman's case with that of co-defendant Morgan, set for trial on June 16. The court had originally scheduled the cases for trial the same day in February, but they were inadvertently severed at some point. The court acknowledged on the record that there would be some prejudice to Freeman's speedy trial rights as his expiration date was June 4. But the court found that by setting the trial date for June 9, `the judicial economy would outweigh the minimal prejudice of simply adding five days to Mr. Freeman's current expiration date.' The decision to consolidate the trials is entrusted to the sound discretion of the trial court. State v. Torres, 111 Wn. App. 323, 332, 44 P.3d 903 (2002). The consolidation was a tenable reason to grant the five-day continuance.

Verbatim Report of Proceedings, 5/21/03 at 18.

The parties appeared in court three weeks later on the June 9 scheduled trial date. At that time, the State moved for another continuance because two of its witnesses were unavailable due to pre-approved vacations. The prosecutor stated that she had discovered only the week before that one of the officers would be unavailable, prompting her to set the motion hearing. The trial court found good cause to continue based upon the pre-approved vacations of the State's witnesses. The court continued the trial date and extended Freeman's expiration date to June 16, 2003. Scheduled vacations of counsel and investigating officers will justify a continuance. State v. Selam, 97 Wn. App. 140, 982 P.2d 679 (1999).

Clerk's Papers at 148.

The trial date arrived, but co-defendant Morgan's attorney was sick. The court entered an order granting a one-day extension, stating the reason. The trial was assigned to be heard on June 17, but Freeman filed an affidavit of prejudice and moved for a change of judge. The disqualification of the judge extended Freeman's expiration date 30 days to July 17, 2003. CrR 3.3(d)(6)(2003).

Clerk's Papers at 166.

On July 1 and presumably at Freeman's request, the court granted a continuance until July 14, within Freeman's expiration date, because his counsel would be unavailable due to his appearance in another scheduled trial.

Verbatim Report of Proceedings 7/1/03 at 4.

Because the prosecutor was in trial on another case, the court granted one-day extensions on Thursday and Friday, June 17 and 18. A prosecutor's unavailability due to an ongoing trial is a valid reason for an extension. State v. Carson, 128 Wn.2d 805, 814, 912 P.2d 1016 (1996).

Clerk's Papers at 167-68.

The court granted two further one-day extensions on July 21 and 22 because the prosecutor was `out sick.' The illness of the prosecutor was unavoidable and unforeseeable and beyond the control of the court or parties. As required by CrR 3.3(d)(8)(2003), the trial court stated in writing the reasons for the extensions. Freeman's trial commenced on July 23.

Orders Extending Time, Clerk's Papers at 170, 171.

Based on the foregoing, we conclude the rule worked as intended. The trial court complied with the rules, stating on the record or in writing the reasons for each continuance. The trial court's decisions to continue Freeman's trial are in each instance based upon tenable grounds. Dismissal for violation of the speedy trial rule is unwarranted.

The convictions are affirmed.

COLEMAN and COX, JJ., concur.


Summaries of

State v. Morgan

The Court of Appeals of Washington, Division One
Jan 24, 2005
No. 52913-7-I Consolidated with No. 53005-4-I (Wash. Ct. App. Jan. 24, 2005)
Case details for

State v. Morgan

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. MICHAEL SCOTT MORGAN, Appellant. STATE…

Court:The Court of Appeals of Washington, Division One

Date published: Jan 24, 2005

Citations

No. 52913-7-I Consolidated with No. 53005-4-I (Wash. Ct. App. Jan. 24, 2005)