Opinion
No. 36061-6-II.
January 13, 2009.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-1-01599-0, Jay B. Roof, J., entered March 16, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton, J.; Bridgewater, J., dissenting.
UNPUBLISHED OPINION
Kwaku Oja Trammell appeals his Kitsap County conviction for violating a domestic violence no-contact order. We hold that the police had probable cause to arrest and affirm his conviction.
FACTS
An informant called 911 to report that Trammell was at 3024 Hollywood Avenue in Bremerton, Washington, in violation of a no-contact order protecting Trammell's ex-wife. Although the informant asked to remain anonymous, he provided his last name and address. The 911 record also provided the informant's phone number. The informant told the 911 operator that he had been "keeping an eye on this place, because he knows [Trammell has] been in violation of the order, and [the informant] thought [Trammell] was there now." Report of Proceedings (RP) (Feb. 13, 2007) at 29. The informant did not describe how he knew about Trammell or the no-contact order, nor did he mention the name of the protected party.
The sheriff's office dispatched Deputy Argyle to the Hollywood Avenue address. A CenCom report informed the deputy that there was a protection order preventing contact between Trammell and a woman named Christina Ward. CenCom also provided the informant's last name and phone number and indicated that the informant was calling from his address, but Deputy Argyle did not know where that address was located.
We assume CenCom is an abbreviation for "Central Command" or another central dispatch system.
When Deputy Argyle arrived at 3024 Hollywood Avenue, he saw a rental car in the driveway and called the rental agency to identify the renter. The agency informed him that Trammell rented the car.
Deputy Argyle knocked on the front door and a woman he assumed was Ward answered. Deputy Argyle did not ask the woman for her name nor did he refer to her as Ward during his visit. She seemed surprised to see a deputy at her front door, and Deputy Argyle testified that, "[b]ased on her reaction when she opened the door and how she answered my questions, I assumed it was the person that CenCom had advised the protection order was issued for." RP (Feb. 13, 2007) at 23.
Deputy Argyle asked to speak with Trammell, but the woman initially denied that he was at the house. Sensing that she knew who Trammell was, Deputy Argyle told her that she needed to go and get Trammell to come to the front door. Five minutes after she went back inside, Trammell came to the door.
When Trammell stepped onto the front porch, Deputy Argyle told him that he was under arrest for a "protection order violation." RP (Feb. 13, 2007) at 24. Neither the woman nor Trammell made any protest.
The State charged Trammell with violating a no-contact order, which it elevated to a felony based on two previous violations. Deputy Walthall subsequently went to 3024 Hollywood Avenue to serve a subpoena on Ward. When the woman answered the door and saw the name on the subpoena, she informed Deputy Walthall that her name was Astra Kostic, that she lived at the Hollywood Avenue address with her husband Trammell, and that she did not know anyone named Ward. She acknowledged that she was the woman at the house when Deputy Argyle arrested Trammell. After also acknowledging that she and Trammell had a no-contact order between them, Kostic said she had asked Trammell to come to the house on the morning of his arrest to walk their son to the school bus stop.
Deputy Walthall returned to the office and found the no-contact order that Kostic described. He then checked CenCom and found both the Ward and Kostic no-contact orders. The day before trial, the State amended the charging information to change the protected party from Ward to Kostic.
The trial court denied Trammell's motion to dismiss based on a faulty arrest and lack of probable cause and his motion to suppress the evidence obtained after his arrest. Following a bench trial, the trial court found Trammell guilty and imposed an exceptional downward sentence.
The trial court also entered written findings of fact and conclusions of law. Conclusion of law number 3 provides:
That pursuant to the Aguilar-Spinelli test, the State has established both the basis of the informant's information and the credibility of the informant or the reliability of the informant's information.
Clerks Papers (CP) at 65. Conclusion of law number 4 provides:
That based on the totality of the circumstance[s] within Deputy Argyle's knowledge at the time of the arrest, he had sufficient probable cause to arrest [Trammell].
CP at 65.
ANALYSIS I. Aguilar-Spinelli
Trammell originally contended that the trial court erred by concluding that the informant's tip satisfied the Aguilar-Spinelli test. See State v. Gaddy, 152 Wn.2d 64, 71, 93 P.3d 872 (2004) (informant's tip can furnish probable cause for arrest if State establishes the basis of the information and either the informant's credibility or reliability). Trammell abandoned this contention at oral argument. Thus, we do not address it.
This test derives from two United States Supreme Court cases: Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). Although the United States Supreme Court has rejected the Aguilar-Spinelli test for a "totality-of-the-circumstances" test, Washington courts adhere to Aguilar-Spinelli. Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 76 L. Ed. 2d 527, 54 U.S.L.W. 2230 (1983); State v. Gaddy, 152 Wn.2d 64, 71 n. 2, 93 P.3d 872 (2004).
II. Probable Cause
Trammell next contends that the trial court erred by denying his motion to dismiss for lack of probable cause when Deputy Argyle failed to identify or determine whether a no-contact order prohibited Trammell from contacting the woman with whom Deputy Argyle spoke at 3024 Hollywood Avenue. We review a trial court's denial of a motion to dismiss under an abuse of discretion standard. Quest Corp. v. City of Bellevue, 161 Wn.2d 353, 358, 166 P.3d 667 (2007).
Probable cause exists when the arresting officer is aware of facts or circumstances, based on reasonably trustworthy information, sufficient to cause a reasonable officer to believe a crime has been committed. Gaddy, 152 Wn.2d at 70. The arresting officer need not have evidence to prove each element of the crime beyond a reasonable doubt. Gaddy, 152 Wn.2d at 70. The officer is required only to have knowledge of facts sufficient to cause a reasonable person to believe that an offense has been committed. Gaddy, 152 Wn.2d at 70. "`The question of probable cause should not be viewed in a hypertechnical manner.'" State v. Herzog, 73 Wn. App. 34, 53, 867 P.2d 648 (1994) (quoting State v. Remboldt, 64 Wn. App. 505, 510, 827 P.2d 282 (1992)). Rather, the law is concerned with probabilities arising from the facts and considerations of everyday life on which prudent men act. State v. Parker, 79 Wn.2d 326, 328-29, 485 P.2d 60 (1971).
Citizen-informants generally are deemed presumptively reliable sources of information. State v. Wakeley, 29 Wn. App. 238, 241, 628 P.2d 835 (1981). Where an informant identifies himself by name and gives his address, phone number, and other background information, the police may react in the belief that the report comes from a reliable source. Wakeley, 29 Wn. App. at 241.
In this case, a citizen-informant called 911 and provided his last name, address and, ultimately, his phone number. He reported that he had been keeping an eye on the residence at 3024 Hollywood Avenue and that Trammell was there in violation of a protection order. He added that Trammell had been at the residence, in violation of the order, on a regular basis. After Deputy Argyle went to the Hollywood Avenue address, he learned that there was a protection order preventing contact between Trammell and Christina Ward. Argyle found a rental car in the driveway and confirmed that Trammell had rented it. When Argyle knocked at the door and a woman answered, he asked for Trammell and she denied he was there. Believing that she was lying and that she was the protected party, Argyle told her she needed to get Trammell. The woman went back inside and Trammell came to the door.
The trial court legitimately found that Deputy Argyle had cause to believe the residence was protected under the terms of the protection order. The deputy testified that the informant said the residence was protected, and it is well established that protection orders generally protect a victim's residence as well as the victim. Indeed, the protection order that Trammell violated prohibited him from coming or remaining within 500 feet of his wife's residence at 3024 Hollywood Avenue. To hold that the deputy could not take advantage of the citizen-informant's statement as well as the commonly known fact that protection orders typically prohibit the restrained person from coming to a victim's residence is to hold that he could not base his arrest on probabilities upon which a prudent man would act. Those probabilities were reinforced significantly when the woman who answered the door appeared to be the protected party and lied about Trammell's presence. See State v. Goodman, 42 Wn. App. 331, 338, 711 P.2d 1057 (1985) (false answers to police questions may give rise to probable cause).
It is only the probability of criminal activity and not a prima facie showing of it that governs the probable cause standard. State v. Seagull, 95 Wn.2d 898, 907, 632 P.2d 44 (1981). The trial court did not abuse its discretion in concluding that the deputy had probable cause to arrest Trammell for violating a domestic violence no-contact order and in denying the motion to dismiss.
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.
HOUGHTON, P.J., concur.
BRIDGEWATER, J.
The majority holds that there was probable cause to arrest Trammell for violation of a domestic violence protection order. I would hold that when an officer arrests an individual for a specific crime related to a specific individual, the officer must have probable cause to arrest for that particular violation, not one that is later discovered to fit the facts of the case. I respectfully dissent and would reverse and remand for entry of a dismissal order.
FACTS
The facts are as the majority indicates, but I would emphasize certain facts. Deputy Argyle never asked the woman her name in order to verify that she, or the premises, were the correct party and location that the order protected. Deputy Argyle, by his own admission, arrested Trammell for violating an order relating to Ms. Ward.
When Trammell stepped onto the front porch, Deputy Argyle told him that he was under arrest for a "protection order violation." RP (Feb. 13, 2007) at 24. Deputy Argyle did not mention the name of the protected party and did not ask Trammell for the identity of the woman in the house. If the Deputy had inquired of the woman, he would have discovered that her name was Astra Kostic, not Ward. The majority appears to find probable cause based on the fact that neither the woman nor Trammell protested the arrest, but the majority overlooks the fact that Deputy Argyle never attempted to identify the woman that answered the door, nor mentioned the name "Ward" to her. The implication that Trammell, once arrested, should have spoken in protest ignores his Fifth Amendment rights.
Deputy Argyle did not include a physical description of the woman in his arrest report, but he did acknowledge that someone else had previously entered a physical description of Ward in the police database. Although it was available, Deputy Argyle did not check Ward's physical description in the database before arresting Trammell. The State candidly admitted in oral argument that this confusion arose because their data system answered the inquiry concerning Trammell with only the latest protection order, not the one regarding Kostic.
It was only when Deputy Walthall served the subpoena that the State discovered that the woman at the house was Kostic. Deputy Walthall then checked CenCom and observed that both the Ward and Kostic no-contact orders appeared. The day before trial the State amended the charging information to change the protected party from Ward to Kostic.
The trial court denied Trammell's motion to dismiss based on a faulty arrest and lack of probable cause and Trammell's motion to suppress everything that followed the arrest.
Probable Cause
I would hold that the trial court erred by denying Trammell's motion to dismiss for lack of probable cause when Deputy Argyle failed to identify or determine whether a no-contact order prohibited Trammell from contacting the female that Deputy Argyle spoke to at 3024 Hollywood Avenue. We review a trial court's denial of a motion to dismiss under an abuse of discretion standard. Qwest Corp. v. City of Bellevue, 161 Wn.2d 353, 358, 166 P.3d 667 (2007). "Probable cause exists when the arresting officer is aware of facts or circumstances, based on reasonably trustworthy information, sufficient to cause a reasonable officer to believe a crime has been committed." Gaddy, 152 Wn.2d at 70 (emphasis omitted).
Here, the informant did not provide a name for the protected party when he called 911. Instead, he referred to the protected party as Trammell's ex-wife. Deputy Argyle acknowledged at trial that he learned of the protected party named Ward only when CenCom showed him a no-contact order protecting a person by that name.
He assumed that the party to which the informant referred must be Ward. Relying on this assumption, Deputy Argyle never asked or attempted to determine the identity of the woman that answered the door and never verified whether the woman was Trammell's ex-wife. The trial court explained its finding of probable cause as follows:
He didn't go immediately to the door. He saw a vehicle, got confirmation that the vehicle was rented, called the rental agency, got confirmation that the vehicle was rented by Defendant in this case. A no contact order applies to the protected individual and applies to a residence. In this case, he confirmed the residence as being that of the protected party.
The failure to identify the person who answered the door is not fatal. And I'm not sure if it had been identified that — would have been properly identified that it would have added anything particularly to the arrest procedure. The residence was protected. The Defendant was prohibited from coming by that residence, under the terms of the protection order. That residence was verified to be of the eventual protected party.
RP (Feb. 13, 2007) at 41-42. This information, however, is not correct. There is no evidence in the record to support that Deputy Argyle could have known that the residence in question was protected. Deputy Argyle did not determine the owner of the property before he arrested Trammell.
At most, Deputy Argyle relied on his faulty assumption that the woman who answered the door was Ward, but even then, he did not attempt to identify her. The trial court improperly analogized Deputy Argyle's assumption about the woman's identity to a drug case involving cocaine that officers mistook for heroin. If police officers are not required to attempt to identify alleged protected parties before arresting alleged violators, officers could arrest individuals subject to no-contact orders without verifying that a protected party is present or that the alleged violator was in a protected area, although this second risk is not relevant to our inquiry in this case. This means that officers could arrest alleged violators without probable cause any time the alleged violators are lawfully in the presence of another person. I would hold that Deputy Argyle's failure to attempt to identify the woman who answered the door proved fatal to the trial court's finding of probable cause.
Having determined that Deputy Argyle lacked probable cause to arrest Trammell, the question remains as to whether the trial court should have suppressed all evidence obtained following the arrest as fruit of the poisonous tree. State v. Schlieker, 115 Wn. App. 264, 272, 62 P.3d 520 (2003). This includes the discovery of Kostic's identity and the basis of the crime relating to violation of the no-contact order.
The State contends that there was not any poisonous fruit because the arrest, if faulty, was entirely independent from and unrelated to the State's learning of Kostic's identity. The State's argument, although not so styled, is an argument for inevitable discovery.
An excellent description of the exclusionary rule and its exceptions appears in State v. Le, 103 Wn. App. 354, 360-61, 12 P.3d 653 (2000):
The exclusionary rule requires courts to suppress evidence obtained through violation of a defendant's constitutional rights. [ State v. White, 97 Wn.2d 92, 111-12, 640 P.2d 1061 (1982).] The purpose of the rule is to deter police from exploiting their illegal conduct and to protect individual rights. [ State v. Avila-Avina, 99 Wn. App. 9, 18, 991 P.2d 720 (2000).] Under the "fruit of the poisonous tree" doctrine, the exclusionary rule applies to evidence derived directly and indirectly from the illegal police conduct. [ Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).] Derivative evidence will be excluded unless it was not obtained by exploitation of the initial illegality or by means sufficiently distinguishable to be purged of the primary taint. [ Wong Sun, 371 U.S. at 488, 83 S. Ct. 407.] To prove that the evidence was purged of taint, the State must show either that: (1) intervening circumstances have attenuated the link between the illegality and the evidence; [ State v. Warner, 125 Wn.2d 876, 888, 889 P.2d 479 (1995)] (2) the evidence was discovered through a source independent from the illegality; [ State v. Richman, 85 Wn. App. 568, 575-76, 933 P.2d 1088, review denied, 133 Wn.2d 1028, 950 P.2d 478 (1997),] or (3) the evidence would inevitably have been discovered through legitimate means. [ State v. Reyes, 98 Wn. App. 923, 927, 993 P.2d 921 (2000).]
Le, 103 Wn. App. at 360-61 (emphasis added).
The inevitable discovery exception to the exclusionary rule applies if the State can prove "by a preponderance of the evidence that the evidence ultimately or inevitably would have been discovered using lawful procedures." State v. O'Neill, 148 Wn.2d 564, 591, 62 P.3d 489 (2003) (citing Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984)). The purpose of this burden is plainly set forth in State v. Avila-Avina, 99 Wn. App. 9, 18, 991 P.2d 720 (2000):
Thus, in order to ensure that the doctrine does not undermine the purposes of the exclusionary rule, the State must show that the legal means of obtaining the evidence would have been "truly independent" and the discovery by those means would have been "truly inevitable." United States v. Silvestri, 787 F.2d 736, 744 (1st Cir. (Mass.) 1986)[, cert. denied, 487 U.S. 1233, 108 S. Ct. 2897, 101 L. Ed. 2d 931 (1988)]. The State's burden of proof in this regard is significant; the "rule allows neither speculation as to whether the evidence would have been discovered, nor speculation as to how it would have been discovered." Richman, 85 Wn. App. at 577. If these requirements are strictly enforced, "post hoc suggestions of alternate legal means will not be accepted as a basis for application of the inevitable discovery exception." Silvestri, 787 F.2d at 746.
The State's argument fails under the inevitable discovery rule because the State was unable to meet its burden of proving attenuation, independent source, or legitimate means, by a preponderance of the evidence. Warner, 125 Wn.2d at 888-89. The State must prove that the challenged evidence would have been discovered eventually by lawful means. Warner, 125 Wn.2d at 889. The State's only argument here on the issue is that Kostic's testimony at trial was not related to the arrest. However, there is no evidence in the record before us that the State conducted any independent investigation. Instead, the State acknowledged during oral argument before us that the sole reason that the State subpoenaed Kostic was because she was the woman at the address on the police report from the illegal arrest. And, even without that concession, the facts support that there was no independent investigation, regardless of the time interval because the officer serving the subpoena went to the same address in the report and presented a subpoena in Ward's name to Kostic. Plainly, "but for" the unlawful arrest the offense regarding Kostic would not have been discovered. It is true that we do not exclude fruit that is sufficiently attenuated from the original illegality, such as when there are intervening independent factors in the chain of causation from the original illegality to the evidence in question, but the State fails to prove any such attenuation here. Warner, 125 Wn.2d at 888, 889. Under a common sense evaluation of the facts and circumstances in this particular case, there is a clear nexus between the evidence in question and the police conduct. State v. Aranguren, 42 Wn. App. 452, 457, 711 P.2d 1096 (1985).
Accordingly, I would hold that Deputy Argyle lacked probable cause to arrest Trammell; the trial court should have suppressed all evidence obtained following the arrest as fruit of the poisonous tree. Schlieker, 115 Wn. App. at 272. This includes the discovery of Kostic's identity, the protection order, and its violation concerning Kostic. There is nothing in the record to support that the police would have independently visited Kostic and learned of the no-contact order violation if the police had not first arrested Trammell.
I would reverse and remand for entry of a dismissal order.