Filed: May 24, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No: 04-1-00316-1. Judgment or order under review. Date filed: 06/23/2004. Judge signing: Hon. Jill M. Johanson.
Counsel for Appellant(s), Lisa Elizabeth Tabbut, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Amie L. Hunt, Hall of Justice, Cowlitz Prosecuting Attorneys Office, 312 SW 1st Ave, Kelso, WA 98626-1739.
Otis Pippen (Pippen) appeals his conviction of possession of methamphetamine, arguing that the trial court erred in denying his CrR 3.6 motion to suppress evidence. We affirm.
On March 4, 2004, Longview Police Officer Dawn Bailey patrolled the city in a fully marked police car when she saw a vehicle turn into the Store and Deli parking lot without signaling. Bailey overlooked this traffic infraction and continued to the next street, where she parked her car in a parking lot across from the Store and Deli parking lot. While parked, Bailey used her mobile data terminal and did not pay close attention to the vehicle that had just parked in the Store and Deli parking lot.
Sometime later, the vehicle approached Bailey's patrol car. The female driver, Josephine Pippen, stopped the vehicle alongside Bailey's car. The male passenger, Pippen, called Bailey by name and yelled, `What the fuck are you looking at? When are you guys going to stop fucking harassing me?' Report of Proceedings (RP) at 9. Josephine then screamed, `You have been fucking following me for a month. Why don't you leave us alone?' RP at 10.
Bailey responded that she was not there to harass them. Pippen continued to yell, `The cops are always fucking with me and following me, and there are other ways to deal with you.' RP at 10. Without further interaction, Josephine drove away in the opposite direction.
Bailey then turned around, activated her lights, and stopped the vehicle driven by Josephine and told her about the previous traffic infraction. Bailey then told Pippen to leave the vehicle but he refused. Instead, he partially rolled the window up and crossed his arms across his chest. Bailey then told him that he was under arrest for threatening a public servant, to which he replied, `Fuck you,' and completely rolled the window up. RP at 6.
Bailey called for a back-up unit to respond. After Bailey sprayed pepper spray into the vehicle, another officer removed Pippen from the vehicle. During a search incident to arrest, Bailey found a small amount of methamphetamine in Pippin's coat pocket.
The State charged Pippen with one count of intimidating a public servant and one count of possession of methamphetamine. Before trial, he moved to suppress the methamphetamine, arguing that: (1) Bailey lacked probable cause to arrest him for intimidating a public servant, (2) the officers engaged in an unlawful search incident to arrest, and (3) the officers unlawfully obtained the methamphetamine.
The trial court denied Pippen's motion to suppress, noting that a reasonable person could find that his language and actions were threatening and that he intended to influence Bailey in her future dealings with him.
The trial court entered its findings of fact and conclusions of law from the CrR 3.6 hearing. Relevant to this appeal, finding of fact 5 stated,
Officer Bailey continued north in the parking lot toward Baltimore Street clearing the area. She then stopped to check her MDT [mobile data terminal] for the incoming call load. While she was busy checking her call load, the vehicle she had observed then pulled up beside her patrol car and the passenger, identified as Otis Pippen, the Defendant, yelled `what the fuck are you looking at, when are you guys going to stop fucking harassing me?' Officer Bailey explained that she was not harassing him, nor did she have any intention to make contact with him or the driver although she had observed two driving violations. The Defendant continued to yell stating, `the cops are always fucking with me and following me.' Then as the vehicle pulled away, he yelled, `There are other ways to deal with you.'
Clerk's Papers (CP) at 26. Finding of fact 6 stated, `Officer Bailey felt threatened as she was alone, and due to the Defendant's extremely aggressive behavior towards her. Officer Bailey activated her emergency lights and stopped the vehicle in the parking lot of the House of Roses.'
CP at 26. The trial court concluded:
1. Defendant's words, and the manner in which those words were conveyed to Officer Bailey, demonstrate his intent to forward a threat to her. Furthermore, it is clear that the Defendant made the threatening comment to stifle or discourage her from carrying out her official duties as a police officer, to wit: her ability to observe or patrol an area. As such, probable cause existed for Officer Bailey to arrest the Defendant for Intimidating a Public Servant.
CP at 27. Pippin was found guilty on stipulated facts of possession of methamphetamine after the State dismissed the charge of intimidating a public servant. He appeals.
Pippen first contends that the trial court erroneously entered finding of fact 6 because `Officer Bailey never testified that it was her state of being alone and Mr. Pippen's aggressiveness that threatened her. Officer Bailey never testified why she felt threatened or what the exact nature of the threat was.' Appellant's Brief at 12-13.
We consider any unchallenged findings of fact entered following a suppression motion as verities binding on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Thus, we limit our review only to finding of fact 6, to which error has been assigned. Hill, 123 Wn.2d at 647.
We uphold the trial court where substantial evidence supports its challenged findings. Hill, 123 Wn.2d at 644. Substantial evidence exists where a sufficient quantity of evidence in the record persuades a fair-minded, rational person of the truth of the finding. State v. Halstien, 122 Wn.2d 109, 129, 857 P.2d 270 (1993). We do not review credibility determinations on appeal. State v. Maxfield, 125 Wn.2d 378, 385, 886 P.2d 123 (1994).
A review of the record discloses that substantial evidence supports the trial court's challenged finding. First, Bailey worked alone on March 4, 2004. Second, she testified, `I was in the middle of doing something else and [Pippen] said some sort of threat. . . . And under my current, . . . other — comments with other suspects, I felt that was threatening.' RP at 4. In response to the State's question, Bailey said she believed that Pippen was trying to `[e]ncourage, exacerbate the situation.' RP at 6. Third, Pippen does not persuasively argue that he merely expressed his verbal displeasure with the Longview Police Department. Simply because Pippen failed to say, `I'm going to hurt you,' `I'm going to hit you,' `I'm going to beat you up,' or `I'm going to come and get you,' does not render his conduct insufficiently threatening. RP at 21. As the State noted in closing argument,
[W]e don't have a situation where officers contacted Mr. Pippen. Mr. Pippen went out of his way to make contact with Officer Bailey. . . . That isn't — that doesn't sound like somebody who's going to file a complaint with [the police]. That sounds — yeah, that sounds like somebody who's fed up, who's agitated, who's irritated, and he's going to deal with her. . . .
. . . But this is a man who went out of his way, he was acting aggressively, came up to Officer Bailey. . . . How else could Officer Bailey perceive that but as a threat?
RP at 22-23.
Pippen further contends that the trial court erred in entering conclusion of law 1. He asserts that the facts do not support this conclusion. We review whether the findings support the conclusions de novo. State v. Vasquez, 109 Wn. App. 310, 318, 34 P.3d 1255 (2001), aff'd, 148 Wn.2d 303 (2002).
`As a general rule, a warrantless search is per se unreasonable under both the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington State Constitution unless the search falls within one or more specific exceptions to the warrant requirement.' State v. Neeley, 113 Wn. App. 100, 106, 52 P.3d 539 (2002) (citing State v. Ross, 141 Wn.2d 304, 312, 4 P.3d 130 (2000)). One well recognized exception to the warrant requirement is a search incident to a valid custodial arrest. Neeley, 113 Wn. App. at 106.
But an officer must have probable cause to arrest before commencing a search incident to a valid custodial arrest. Neeley, 113 Wn. App. at 107. `Probable cause `boils down, in criminal situations, to a simple determination of whether the relevant official, police or judicial, could reasonably believe that the person to be arrested has committed the crime.'' State v. Fisher, 145 Wn.2d 209, 220 n. 47, 35 P.3d 366 (2001) (quoting State v. Klinker, 85 Wn.2d 509, 521, 537 P.2d 268 (1975)). Probable cause does not require the officer to have sufficient evidence to establish guilt beyond a reasonable doubt. State v. Bellows, 72 Wn.2d 264, 266, 432 P.2d 654 (1967). Instead, probable cause is determined by reviewing the total facts of each case in a practical, nontechnical manner. State v. Gillenwater, 96 Wn. App. 667, 671, 980 P.2d 318 (1999), review denied, 140 Wn.2d 1004 (2000).
Here, the officers arrested Pippen for intimidating a public servant. Under RCW 9A.76.180(1), `A person is guilty of intimidating a public servant if, by use of a threat, he attempts to influence a public servant's vote, opinion, decision, or other official action as a public servant.'
As used in this section, `threat' means to `(a) communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or (b) threats as defined in RCW 9A.04.110(25).' RCW 9A.76.180(3). Threat, as defined by RCW 9A.04.110(25), means to communicate, directly or indirectly, the intent:
(a) To cause bodily injury in the future to the person threatened or to any other person; or
(b) To cause physical damage to the property of a person other than the actor; or
(c) To subject the person threatened or any other person to physical confinement or restraint; or
(d) To accuse any person of a crime or cause criminal charges to be instituted against any person; or
(e) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or
(f) To reveal any information sought to be concealed by the person threatened; or
(g) To testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or
(h) To take wrongful action as an official against anyone or anything, or wrongfully withhold official action, or cause such action or withholding; or
(i) To bring about or continue a strike, boycott, or other similar collective action to obtain property which is not demanded or received for the benefit of the group which the actor purports to represent; or
(j) To do any other act which is intended to harm substantially the person threatened or another with respect to his health, safety, business, financial condition, or personal relationships.
Pippen argues that no reasonable person would have believed that an actual felony offense had occurred, thereby justifying his arrest and warrantless search. Specifically, he argues that (1) he did not threaten Bailey and (2) he did not attempt to influence Bailey's official action as a public servant. We disagree.
First, although Pippen argues that no threat existed, as defined by RCW 9A.76.180(3) and RCW 9A.04.110(25), findings of fact 5 and 6 together support the trial court's conclusion that his `words, and the manner in which those words were conveyed to Officer Bailey, demonstrate his intent to forward a threat to her.' CP at 27. We agree with the State that given the menacing circumstances of the confrontation, a reasonable person could believe that Pippen `was threatening Officer Bailey with either future bodily injury, an accusation of a crime (harassment), or any other act intended to substantially harm Officer Bailey's health or safety.' Respondent's Br. at 8-9.
Moreover, Pippen's argument that `[Bailey] never qualified her feelings to include any reference to what definition or type of threat she felt' confuses the intent requirement. Appellant's Br. at 11-12. The standard is not Bailey's perception of the threat, but Pippen's intention in making the threat. To the extent Pippen asserts that no threat existed because Bailey had little or no perception of it, his argument fails.
Second, finding of fact 5 alone supports the trial court's conclusion that `the Defendant made the threatening comment to stifle or discourage [Bailey] from carrying out her official duties as a police officer, to-wit: her ability to observe or patrol an area.' CP at 27. Although Bailey could not articulate which of her official actions Pippen was attempting to influence, the phrasing of Pippen's threat clearly anticipated some future action by Bailey.
A reasonable person would not believe that Pippen was solely expressing his anger over a past incident or merely expressing his displeasure with the Longview Police Department. Rather, a reasonable person could believe that Pippen uttered the threat in a belligerent and profane attempt to intimidate Bailey into abandoning her official duties.
Substantial evidence supports finding of fact 6 and the findings, in turn, support the conclusion that probable cause existed for Bailey to arrest Pippen for intimidating a public servant. Thus, the custodial arrest was valid and the search incident to it was lawful.
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.
MORGAN, J. and QUINN-BRINTNALL, C.J., Concur.