Opinion
No. 37678-4-II.
September 15, 2009.
Appeal from the Superior Court, Pierce County, No. 07-1-01444-8, Bryan E. Chushcoff, J., entered April 11, 2008.
Affirmed by unpublished opinion per Houghton, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
Jose Rodriguez, Jr., appeals his conviction of unlawful possession of a controlled substance, cocaine. He contends that the evidence establishing his guilt should have been suppressed because it was obtained in a search incident to an illegal arrest. We affirm.
The date of this crime was March 9, 2007, because that is when the search warrant was executed.
A commissioner of this court considered this matter pursuant to RAP 18.14 and referred it to a panel of judges.
FACTS
The evidence leading to Rodriguez's arrest was generated by two controlled buys conducted by a confidential informant (CI) under the direction of Lakewood Detective Renaldo Punzalan and other Lakewood police officers. The transactions occurred on February 28 and March 1, 2007, at the Grace Court Apartments, apartment 22.
In the first transaction, the CI approached apartment 22, knocked on the door, and was let in. A light-skinned, possibly Hispanic or African-American, male with a ponytail left the apartment within a few minutes after the CI entered. The CI was in the apartment throughout the time this man was gone. The man returned a few minutes later and re-entered the apartment. Shortly thereafter, the CI emerged and turned over a quantity of crack cocaine to Punzalan. The CI stated that he obtained drugs from someone named Jose, who told him to come back. The CI described him as short, a little heavy, light-skinned black or Hispanic, and with a ponytail.
The second transaction the next evening proceeded similarly. The CI again approached apartment 22 and knocked on the door. A person described as a black male wearing dark clothing and a white baseball cap came to the door to let the CI inside. The black male left the apartment a few minutes later to meet two other men. Punzalan thought this man was the same person seen during the first controlled buy the day before. The black male spent about 15 minutes talking with two other men a short distance down the street and then returned to the apartment. The CI left the apartment shortly thereafter and contacted Punzalan, this time producing a quarter ounce of crack cocaine. The CI told Punzalan that he again acquired the cocaine from Jose.
Punzalan obtained a warrant on March 3, 2007, to search apartment 22 based on these facts. He and fellow officers executed it on March 9. Three people were present in the apartment: Ernie Vigil, Quenettela Johnson, and Rodriguez. Documents belonging to Rodriguez were uncovered during the search. The officers believed Rodriguez to be the person who sold cocaine to the CI and arrested him. Officers searched Rodriguez incident to the arrest and found a small baggie of cocaine.
The State charged Rodriguez with unlawful possession of a controlled substance. He filed a motion to suppress in which he claimed his arrest was made without probable cause and that the cocaine found as a result was inadmissible. He sought to show that the description of the person the CI bought cocaine from could have been Ernie Vigil. The trial court held a CrR 3.6 suppression hearing on March 13, 2008, and denied the motion. Rodriguez waived his right to a jury trial, and a bench trial by stipulated facts was held on March 17, 2008. The trial court found him guilty. He appeals.
Rodriguez was also convicted of third degree theft, committed on March 9, 2007, and a second possession of cocaine charge, committed on March 16, 2007. He does not appeal these convictions.
ANALYSIS
Rodriguez argues that the arrest was illegal because it was not supported by probable cause and the evidence obtained should, therefore, have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). In connection with this claim, Rodriguez challenges the following Findings of Fact:
V
While the CI was inside, a man left the apartment. This man appeared to be a light-skinned black or Hispanic male, and was wearing his hair in a ponytail. A few minutes later, the man returned to the apartment and the CI left the apartment about a minute later.
. . . .
XXI
According to the defendant's booking information in LINX, the defendant is 5'11," 205 pounds, race is black, and his ethnicity is Hispanic.
. . . .
XXIV
Detective Punzalan stated that Ernie Vigil's appearance did not match the male that left the apartment during the two drug transactions.
. . . .
XXVI
While searching the apartment, officers found documents belonging to "Jose Rodriguez," the defendant. Clerk's Papers at 159-62. We will uphold factual findings made after a suppression hearing if substantial evidence supports them. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Substantial evidence is that sufficient to persuade a fair-minded, rational person of the truth of the finding. Hill, 123 Wn.2d at 644.
Findings V, XXIV, and XXVI accurately reflect the testimony of Punzalan, the only witness. Contrary to Rodriguez's contention, Punzalan did identify the man who left apartment 22 during the first transaction as Black or Hispanic. With regard to Finding XXIV, although Punzalan acknowledged that the CI's description could have fit Vigil, he was certain that Vigil was not the person he saw leaving apartment 22. As to Finding XXVI, Rodriguez does not dispute its accuracy but rather argues that it does not support the trial court's conclusions because Punzalan could not describe the documents and did not know whether they contained an address. That does not invalidate the finding.
When asked the height and weight of Vigil and Rodriguez, Punzalan estimated Vigil at about 5 feet 9 inches and 250 pounds, and Rodriguez at 5 feet 11 inches and approximately 195 pounds.
Finally, Rodriguez challenges Finding XXI on the basis that no booking records were entered as evidence. It is true that the LINX [Legal Information Network Exchange] information was simply reported by the deputy prosecutor in closing argument. But the absence of that finding could not possibly change the decision. Rodriguez was present at the hearing, so the trial court could determine for itself whether he reasonably fit the description provided by the CI. The trial court so found by comparing Rodriguez's actual appearance with that description.
Turning to the propriety of the arrest, "[p]robable cause exists where the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in a belief that offense has been or is being committed." State v. Gluck, 83 Wn.2d 424, 426-27, 518 P.2d 703 (1974). That descriptions of the suspect are imperfect and not entirely consistent does not defeat probable cause. See State v. Todd, 78 Wn.2d 362, 365-67, 474 P.2d 542 (1970); State v. Doe, 6 Wn. App. 978, 981, 497 P.2d 599 (1972); State v. Rodriguez, 65 Wn. App. 409, 415-16, 828 P.2d 636 (1992).
Here, it is undisputed that the CI bought drugs at apartment 22 from a person named Jose. Rodriguez's given name is Jose, and he generally fit the description provided by the CI. He was present at the apartment when the officers conducted the search. This was enough to justify a reasonable belief that Rodriguez was the person who sold cocaine to the CI on February 28 and March 1, 2007. The arrest was therefore lawful. The evidence discovered in the search incident to that arrest was properly admitted.
The State also points out that the officers found documents belonging to Rodriguez in the apartment. See State v. Paine, 69 Wn. App. 873, 878, 850 P.2d 1369 (1993) (presence in residence of documents bearing the defendant's name provided some evidence of dominion and control over the residence). It is not clear whether these documents were discovered before the arrest. In any case, the evidence was sufficient to establish probable cause without them.
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.
BRIDGEWATER, J. and QUINN-BRINTNALL, J., Concur.