Opinion
No. 55414-0-I.
October 1, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-00656-9, Helen Halpert, J., entered November 22, 2004.
Affirmed by unpublished per curiam opinion.
San Kouay Saeyang appeals his judgment and sentence, claiming there was no probable cause to support his arrest and the search that followed. He also challenges the requirement that he provide a DNA sample.
Because the facts and circumstances known to the officer were sufficient to warrant the belief that a crime had been committed, probable cause for the arrest existed. Moreover, the collection of DNA from a convicted felon does not violate either the Fourth Amendment or our state constitution. We affirm.
While on patrol one evening, Seattle Police Officer Zsolt Dornay observed what he believed to be cocaine in Saeyang's hand. Officer Dornay approached Saeyang and arrested him. In a search incident to arrest, the officer recovered a baggie of crack cocaine from Saeyang's left front jacket pocket.
The State charged Saeyang with possession of cocaine in violation of RCW 69.50.401(d). At a CrR 3.6 hearing, the trial court concluded that probable cause supported Saeyang's warrantless arrest and denied his motion to suppress the cocaine evidence. A jury convicted Saeyang as charged.
At sentencing, the court ordered Saeyang to provide a DNA sample pursuant to RCW 43.43.754. Saeyang appeals.
PROBABLE CAUSE
Saeyang argues that the trial court erred in concluding the officer had probable cause to arrest him. We disagree.
Probable cause exists when sufficiently trustworthy facts or circumstances would lead a reasonable officer to believe a crime has been committed. In determining whether probable cause exists in a narcotics case, the court must consider the totality of the facts and circumstances known to the officer at the time of arrest and take into consideration the special experience and expertise of the arresting officer. A warrantless arrest is justified if police have probable cause to believe that a person has committed or is committing a felony.
State v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004).
State v. Graham, 130 Wn.2d 711, 724, 927 P.2d 227 (1996).
RCW 10.31.100.
This court does not review credibility determinations made by the trial court. We review de novo a trial court's conclusions of law regarding the suppression of evidence. We consider unchallenged findings of fact to be verities on appeal.
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004).
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Among the unchallenged findings by the trial court was a credibility determination that the officer was able to recognize crack cocaine very quickly, that he had an unobstructed view of Saeyang's hand, and that he had sufficient time to see what was in Saeyang's hand before it was concealed.
On the evening in question, the officer, who has special training and experience dealing with controlled substances, was patrolling by car. From his patrol car, he observed Saeyang and another male standing close together in the well-lit entry to a mini mart about 10 feet away. The men were looking at something in Saeyang's open, upturned hand. The officer observed what he believed to be cocaine in Saeyang's hand. Upon noticing the officer, Saeyang appeared startled, quickly closed his hand, and put it into his front jacket pocket. Saeyang walked into the mini mart and the other male quickly walked away. The officer entered the mini mart, escorted Saeyang outside, and arrested him.
The facts in this case are similar to those in State v. Graham. In that case, two officers with extensive experience and training in narcotics testified that they saw the defendant carrying a large amount of cash and a small packet containing what looked like rock cocaine. One of the officers was within three feet of the defendant. The defendant's reaction to seeing the officers was to quickly conceal what he held by hiding it in his front pants pockets. He ignored the officers' request to stop, looked very nervous, and was sweating profusely although it was cold outside. The supreme court concluded that the officers had probable cause to arrest, noting that furtive gestures, evasive behavior, and flight from the police were circumstantial evidence of guilt.
130 Wn.2d 711, 927 P.2d 227 (1996).
Id. at 726.
Here, the officer was close enough to Saeyang to recognize the substance in his left hand as crack cocaine. The officer's training and experience allowed him to recognize it very quickly before Saeyang concealed it by closing his hand and putting it into his jacket pocket. Although Saeyang did not sprint away when he saw the patrol officer, he immediately ceased interactions with the other male, they separated ways, and Saeyang entered the mini mart. This behavior could reasonably be perceived as evasive to the trained officer. We conclude that all of the circumstances and facts known to Officer Dornay were sufficient to support his belief that Saeyang was committing a crime. The officer therefore had probable cause to arrest.
In addition, we conclude that the facts of State v. Fore and State v. Rodriguez-Torres also support our conclusion. In Fore, a police officer used binoculars to observe three transactions in which the defendant and another man exchanged small plastic bags with passing motorists for what appeared to be money. In Rodriguez-Torres, the arresting officer observed the defendant show his companion an object that was cupped in his hand while receiving money from him. The transaction occurred in an area well known for narcotics sales. As the officer approached, the defendant and his companion left the scene quickly.
56 Wn. App. 339, 783 P.2d 626 (1989).
77 Wn. App. 687, 893 P.2d 650 (1995).
Fore, 56 Wn. App. at 343-44.
Rodriguez-Torres, 11 Wn. App. at 694.
Saeyang argues that the facts in his case do not rise to the level of suspicion presented in Graham, Fore, or Rodriguez-Torres. He highlights the fact that he did not sprint off or try to leave the area and that he was not sweaty or nervous. Saeyang argues that the officer did not see him engaged in a drug transaction but only saw something that he suspected to be cocaine in his hand. In addition, Saeyang argues that the officer only saw his open hand for one second from a distance of 10 feet.
Although the facts in this case are not identical to those in Graham, Fore, or Rodriguez-Torres, the differences are not legally significant. The probable cause determinations in those cases did not turn on whether the defendant was sweaty, the officers' proximity to the defendant, or that an entire drug deal was observed. Instead, each court considered all the circumstances, including the officers' extensive narcotics experience and training, to determine whether probable cause existed. The same analysis applies here.
DNA COLLECTION
Saeyang argues that RCW 43.43.754, the statute authorizing the collection of biological samples for DNA identification purposes, violated his Fourth Amendment and article I, § 7 rights. Our state supreme court recently decided otherwise in State v. Surge. That case is dispositive.
160 Wn.2d 65, 69, 156 P.3d 208 (2007).
We affirm the judgment and sentence.