Opinion
No. 61172-1-I.
January 26, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-8-04148-8, Carol A. Schapira, J., entered January 14, 2008.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
A.S., a juvenile, appeals from his conviction for possession of cocaine, in violation of RCW 69.50.4013. A.S. was arrested after a police officer saw him make a hand-to-hand exchange in a known drug-trafficking area with an older man who was found to be in possession of a substance resembling crack cocaine shortly after meeting A.S. A.S. contends that this interaction could not have raised a reasonable belief that he was engaged in illegal drug activity and that the trial court erred when it concluded there was probable cause to arrest him. We agree with the trial court that the arresting officer's training and experience, in combination with the context of the events before the arrest, gave him reason to believe that A.S. had committed a crime. Thus, we also agree that the officer had probable cause to arrest A.S. and therefore searched him lawfully.
Accordingly, we affirm.
I
On November 10, 2007, at approximately 9:10 p.m., Seattle Police Officer Matthew Pasquan was patrolling Second Avenue between Pike and Pine Streets in downtown Seattle, a notorious drug-trafficking area. A seven-year veteran of the police department, Officer Pasquan was part of a mountain bike patrol unit focused on narcotics enforcement. He had received specialized narcotics training and had made hundreds of drug arrests.
While riding past a smoke shop, Officer Pasquan made eye contact with A.S., who, in Officer Pasquan's view, stared back at him and appeared too young to be in the smoke shop. Officer Pasquan then turned his bicycle into a parking lot up the street from the smoke shop. From there, he could observe Second Avenue and activity on the sidewalk.
While parked in the lot, Officer Pasquan saw A.S. meet an older man, Raymond Scott, on the sidewalk. When they met they did not exchange physical greetings, such as a handshake or hug, and their interaction lasted only three to five seconds. Officer Pasquan observed what appeared to be a hand-to-hand exchange between A.S. and Scott. He could not tell what A.S. and Scott had exchanged, but he suspected it was narcotics. Officer Pasquan did not see whether Scott was holding anything in his hand before he met A.S. Scott and A.S. then parted ways and walked in opposite directions along Second Avenue.
Officer Pasquan followed Scott, who walked with his left hand cupped upward toward his face and a cane draped over his left arm. After briefly losing sight of Scott, Officer Pasquan observed him crossing the street with his hand still cupped toward his face. Officer Pasquan stopped Scott and asked him what he was carrying. Scott then made a crumbling motion with his hand and dropped a rock-like substance that appeared to be crack cocaine. Officer Pasquan placed Scott under arrest for drug possession and left him with a fellow officer in order to pursue A.S.
Officer Pasquan then stopped A.S. and placed him under arrest for suspected delivery of narcotics. During a search incident to this arrest, Officer Pasquan found in A.S.'s jacket pocket two baggies containing a rock-like substance that appeared to be crack cocaine. That substance tested positive as cocaine.
After being charged, A.S. moved to suppress all evidence obtained from the search incident to his arrest on the same grounds he advances here. The trial court denied the motion. Following a fact-finding hearing at which Officer Pasquan and a forensics expert testified, A.S. was convicted on one count of possession of cocaine. He now appeals.
II
A.S. contends that the trial court erred by denying his motion to suppress the evidence of the cocaine found in his coat pocket during the search incident to his arrest. A.S. argues that Officer Pasquan did not have probable cause to arrest him, as required by the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington State Constitution. According to A.S., Officer Pasquan did not have probable cause because the basis for the arrest was that A.S. briefly encountered another person and appeared to exchange some unidentified object with that man. Although A.S. concedes that Officer Pasquan had probable cause to arrest Scott once he saw Scott drop the crumbled substance, he asserts that because Officer Pasquan did not see whether Scott was holding the crack cocaine before he met A.S., the officer lacked a sufficient basis to suspect A.S. of illegal activity. A.S. contends that his presence in a known drug-trafficking area and his having contacted someone suspected of a crime did not suffice to give Officer Pasquan probable cause to arrest him. Indeed, A.S. maintains that the context of his behavior was sufficiently innocuous that a person of reasonable caution in Officer Pasquan's position would not have believed that a crime was being committed. We disagree.
"We conduct a de novo review of conclusions of law in an order pertaining to a suppression motion." State v. Neeley, 113 Wn. App. 100, 106, 52 P.3d 539 (2002). The trial court's refusal to suppress the evidence that A.S. possessed cocaine was based on its conclusion of law that Officer Pasquan, in light of his training and experience, had probable cause to arrest A.S. after observing his interaction in a high drug-trafficking area with Scott, who was found to be in possession of a substance that resembled crack cocaine. We thus independently review that conclusion.
We do so by applying the long-standing rule that probable cause to initiate a warrantless felony arrest exists when "the facts and circumstances within the arresting officer's knowledge, and of which he has reasonably trustworthy information, are sufficient to permit a person of reasonable caution to believe that an offense has been or is being committed." State v. Conner, 58 Wn. App. 90, 97-98, 791 P.2d 261 (1990) (citing State v. Gluck, 83 Wn.2d 424, 518 P.2d 703 (1974)). In determining whether probable cause exists, we consider the totality of the known suspicious circumstances and evaluate whether all of the facts, taken together and in light of the officer's experience and knowledge, are sufficient to establish probable cause. State v. Fore, 56 Wn. App. 339, 343, 783, P.2d 626 (1989) (quoting State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986); State v. Fricks, 91 Wn.2d 391, 398, 588 P.2d 1328 (1979)). Further, the question of probable cause "should not be viewed in a hypertechnical manner." State v. Remboldt, 64 Wn. App. 505, 510, 827 P.2d 282 (1992).
Applying those rules, the trial court correctly concluded that Officer Pasquan had probable cause to believe that A.S. was engaged in illegal narcotics activity. Both the State and A.S. contend that our decision in State v. Poirier, 34 Wn. App. 839, 664 P.2d 7 (1983), requires that we resolve this issue in their favor. We believe Poirier supports the State's position. In that case, police arrested Poirier after they observed him standing in a parking lot, exchanging white envelopes with another man. Poirier, 34 Wn. App. at 842. The parking lot was not known for drug activity, nor was there anything peculiar about the envelopes to suggest that they contained drugs or money. Although a search conducted after the arrest revealed that drugs and money were indeed what the envelopes contained, the court concluded that the police did not have probable cause to arrest Poirier and reversed his conviction. The court held that the circumstances preceding the arrest presented no objective basis for the officers to believe that the exchange was a drug sale. Poirier, 34 Wn. App. at 843. But the court also articulated facts that, if found by the suppression judge, might provide probable cause to arrest a person suspected of selling drugs based on "what might appear to an ordinary citizen to be innocent conduct":
(1) [If] either party was known to the officer, or (2) drug sales or exchanges regularly took place in the [area], or (3) the [items] exchanged were particularly distinctive or characteristic of packaged drugs or narcotics, or (4) either party acted in a suspicious or furtive manner.
Poirier, 34 Wn. App. at 842-43.
Two of those factors are present here. Although Officer Pasquan was not familiar with either A.S. or Scott, the trial court found that the events leading to A.S.'s arrest took place in an area "known for illegal narcotics activity." The trial court also acknowledged that Officer Pasquan has specialized training in narcotics enforcement and has made hundreds of narcotics arrests. Further, it found that Scott, after he engaged in what appeared to be a hand-to-hand exchange with A.S., walked away with his hand cupped as though he was inspecting something in it, only to crumble and discard a rock-like substance that resembled crack cocaine when confronted by the police shortly after his interaction with A.S. When viewed in their totality and in light of Officer Pasquan's training and experience, Officer Pasquan could reasonably suspect that A.S. had engaged in illegal drug activity.
A.S. makes much of Officer Pasquan's testimony that he observed A.S. engage in only one exchange with Scott and could not identify what A.S. and Scott exchanged. Relying on this court's decision in State v. Fore, 56 Wn. App. 339, A.S. avers that a lone exchange of an unidentified object does not give rise to probable cause that he had committed a drug offense. But Fore does not stand for that proposition.
In Fore, police officers arrested two individuals they had observed make what appeared to be three drug transactions in a park known for drug deals. Fore, 56 Wn. App. at 341-42. The police saw one of the men handle a bag that appeared to contain "green vegetable matter," but the arresting officer was "unable to identify with any certainty the substance that was being exchanged during the transaction." Fore, 56 Wn. App. at 342. On that basis, the trial court ordered that evidence seized during the search be suppressed because the police lacked probable cause. On appeal, this court reversed the trial court's ruling. It stressed that "absolute certainty by an experienced officer as to the identity of a substance is unnecessary to establish probable cause" and that "the suspicious circumstances surrounding the exchanges, not the officer's ability to identify the substance, constituted the primary basis for the probable cause determination." Fore, 56 Wn. App. at 345. A.S. correctly points out that the court in Fore did acknowledge that the police there witnessed three transactions and distinguished that case in part from the situation in Poirier, which involved only a single exchange in an area not known for drug trafficking. See Fore, 56 Wn. App. at 345. But Fore did not establish a threshold number of transactions, under which probable cause does not exist. Guided by Fore's discussion about the importance of the totality of the suspicious circumstances witnessed by the arresting officer, we conclude that, under the facts here, Officer Pasquan had probable cause to arrest A.S., even though he was not certain about what A.S. and Scott exchanged.
A.S. also contends that there are sufficient differences between this case and State v. Rodriguez-Torres, 77 Wn. App. 687, 893 P.2d 650 (1995), a case in which this court also found that probable cause existed to make a drug arrest, that we must hold that Officer Pasquan lacked probable cause to arrest him.
Again, we disagree. In that case, a police officer witnessed a man pass Rodriguez-Torres money and then take an object out of his hand. As the officer approached to investigate, someone yelled "Police!" The other man then took his money back from Rodriguez-Torres, dropped the object he had been inspecting on the ground, and fled. Rodriguez-Torres picked up the object and fled in the other direction. After following him for a distance, the officer arrested Rodriguez-Torres and searched him, recovering cocaine. Rodriguez-Torres, 77 Wn. App. at 689-90. This court held that the officer had probable cause to arrest Rodriguez-Torres based on what he had witnessed. Rodriguez-Torres, 77 Wn. App. at 693. The court reached this conclusion based on the expertise of the officer and the furtive behavior of Rodriguez-Torres. See Rodriguez-Torres, 77 Wn. App. at 693-94.
Here, Officer Pasquan believed that A.S. was engaged in illegal drug activity because he witnessed him engage in a hand-to-hand exchange with Scott, who walked away from A.S. cupping his hand and then tried to discard a substance resembling crack cocaine when contacted by the police. Officer Pasquan observed all of this activity in an area known for high drug traffic and in light of his professional training and experience. The trial court concluded that these circumstances and Officer Pasquan's expertise provided him with probable cause to believe that A.S. was committing a crime. We agree.
Because we determine that Officer Pasquan had probable cause to arrest A.S., we also conclude that the search incident to his arrest was lawful.