Opinion
No. 59828-7-I.
March 10, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-10149-5, Paris K. Kallas, J., entered April 9, 2007.
Affirmed by unpublished per curiam opinion.
DeAngelo Martin appeals his conviction for violating the Uniform Controlled Substances Act, chapter 69.50 RCW. He was arrested in a park after Seattle Police Officer S. Hamlin saw him showing small white objects to another man. Officer Hamlin correctly believed that the objects were rock cocaine. Martin contends that Officer Hamlin could not have known for certain that the objects were cocaine and that, accordingly, the trial court erred when it concluded that Officer Hamlin had probable cause to arrest him. We agree with the trial court that Officer Hamlin's training and experience, in combination with the context of the events in the park, gave him reason to believe that Martin was holding cocaine. We thus also agree that Officer Hamlin had probable cause to arrest Martin. Accordingly, we affirm.
FACTS
Officer Hamlin was on duty in Hing Hay Park in Seattle when he observed Martin sitting on a bench and holding out his hand to another man. Hing Hay Park is a high drug-traffic area; indeed, Officer Hamlin himself had previously made numerous drug arrests there. Suspicious that Martin might be involved in drug activity, Officer Hamlin approached. As he did, he observed that Martin's open palm held two small white objects. Officer Hamlin is trained to recognize rock cocaine, which is what he believed the objects were. He got within a few feet of Martin before Martin noticed him. When Martin did notice Officer Hamlin, Martin immediately closed his hand, concealing the white objects. Officer Hamlin then grabbed Martin's wrist, at which point Martin dropped the objects. Officer Hamlin then formally placed Martin under arrest.
Subsequent tests confirmed that the objects Martin dropped were rock cocaine. Martin was charged with violating the Uniform Controlled Substances Act. He moved to suppress the evidence of the cocaine, contending that Officer Hamlin could not have been sufficiently certain that the objects were cocaine to have had probable cause to arrest Martin. The trial court denied the motion, concluding that while the "fact that the area Martin was in was a high-narcotics area alone would not be enough for probable cause," probable cause existed because Officer Hamlin's training and experience enabled him to "recognize the items in Martin's hand as suspected rock cocaine."
Following a trial on stipulated facts, Martin was convicted on one count of violating the Uniform Controlled Substances Act. He now appeals.
Finding of Fact 5
Martin initially contends that the trial court erred when it entered Finding of Fact 5, which states, "Upon noticing Officer Hamlin, Martin closed his hand." According to Martin, this finding improperly suggests that he closed his hand to conceal the cocaine because he realized that Officer Hamlin was a police officer. He contends that this suggestion is improper because Officer Hamlin was wearing ordinary street clothes and that, accordingly, there was no evidence in the record to suggest that he knew Hamlin was a police officer.
We review Finding of Fact 5, like any trial court factual finding on a motion to suppress, only to determine if it is supported by substantial evidence. State v. Hill, 123 Wn.2d 641, 644-47, 870 P.2d 313 (1994).
Finding of Fact 5 is supported by substantial evidence. Martin's contention to the contrary ignores Officer Hamlin's police report, which recites that he was wearing his badge on a chain around his neck. Martin stipulated that the facts in the police report were accurate. Even were we to agree — and we do not — that the phrasing of Finding of Fact 5 clearly implies that Martin concealed his cocaine because he knew that Hamlin was a police officer, the record would support that implication. There was no error.
Probable Cause
Martin next contends that the trial court erred by denying his motion to suppress the evidence of the cocaine. Martin contends that this is so because Officer Hamlin 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 Martin, Officer Hamlin did not have probable cause because the basis for the arrest was merely that Martin was sitting on a bench in a public park holding out some unidentified white objects to another person. In other words, Martin contends that the context of his behavior was sufficiently innocuous that a person of reasonable caution in Officer Hamlin'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 Martin unlawfully possessed cocaine was based on its conclusion of law that Officer Hamlin had probable cause to arrest Martin based on seeing him holding suspected rock 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 if the context of the events giving rise to the arrest supports a reasonable belief on the part of the arresting officer that the arrested person was committing a crime:
For a warrantless arrest, probable cause exists where 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)).
Applying this rule, the trial court correctly concluded that Officer Hamlin had probable cause to believe that Martin was holding cocaine. Both the State and Martin 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 the defendant after they observed him standing in a parking lot, exchanging white envelopes with another man. Poirier, 34 Wn. App. at 842. There was no finding that the parking lot was the site of previous drug activity or that there was anything about the envelopes to suggest that they contained drugs or money. While a search conducted after the arrest revealed that drugs and money were indeed what the envelopes contained, we concluded that the police did not have probable cause to arrest the defendant and reversed his conviction. We 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. However, we 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 843.
While none of these factors were present in Poirier, all but one are present in this case. Although Officer Hamlin had never met Martin, the trial court found that Hing Hay Park was "an area known to Officer Hamlin as a known high narcotics area at which he has made multiple arrests." It also found that "Officer Hamlin is trained to recognize rock cocaine," and that "Officer [Hamlin] was within a few feet of Martin and could see the two small white objects in Martin's hand, which he recognized as suspected rock cocaine." Finally, it found that "[u]pon noticing Officer Hamlin, Martin closed his hand." Whether or not Martin could recognize from the badge around Officer Hamlin's neck that he was a police officer, Martin's action of hiding the objects immediately upon becoming aware that a third person was present was a furtive gesture. Because these facts support a determination of probable cause, we agree with the trial court that Officer Hamlin reasonably believed that Martin was holding rock cocaine.
Martin 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 we found that probable cause existed to make a drug arrest, that we must hold that Officer Hamlin lacked probable cause to arrest Martin. 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. We held that the officer had probable cause to arrest Rodriguez-Torres based on what he had witnessed. Rodriguez-Torres, 77 Wn. App. at 693. We 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 Hamlin believed that Martin was holding rock cocaine because he was trained to recognize it and was competent to do so from less than five feet away. He also believed that the objects in Martin's hands were cocaine because Martin behaved furtively upon becoming aware of him. The trial court concluded that Officer Hamlin's expertise in recognizing rock cocaine and Martin's furtive behavior were sufficient to provide Officer Hamlin with probable cause to believe that Martin was committing a crime. We agree.
Finally, Martin contends that that several cases from other states require that we reverse his conviction. Because these cases neither bind nor persuade us, we need not discuss them.
Affirmed.