State Of Washington, Res/cross-app. v. Nicole R. Jones, App/cross-res. ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 75818-7-1 0 -
...,
• c.po
--tc
)
Respondent, )
V. ) va ri;•-orn
) UNPUBLISHED OPINION
NICOLE R. JONES, vi, orno
p•
) .. --r-
F30-3
) FILED: March 12, 2018
Appellant. ) sap
)
VERELLEN, C.J. — Nicole Jones appeals her conviction and sentence for
possession of heroin. Jones contends the arresting officer lacked probable cause
to arrest her and, therefore, the court should have suppressed the evidence
obtained pursuant to a subsequent search of her car. The trial court's findings that
the officer saw a photo of Jones consistent with heroin use and overheard Jones
tell aid workers she was tired does establish that the officer had probable cause to
believe Jones was in possession of a controlled substance. Thus, the court
properly admitted the evidence obtained incident to the lawful arrest and
consensual search.
Therefore, we affirm.
No. 75818-7-1/2
FACTS
On the morning of September 11, 2015, two school employees found Jones
asleep in her car, which was parked behind a school. The employees took a
picture of Jones and called 911. The employees showed Officer Blake Iverson the
photograph. The picture showed a piece of foil with black marks in Jones's lap.
Officer Iverson recognized the black lines on the foil as "snail trails," marks left
after heroin is heated on the foil. The school employees told Officer Iverson "no
one had been in or out of[Jones's] vehicle, and that they stayed with that vehicle
until the aid crew arrived."' Officer Iverson looked in the car but did not see the foil
from the photo. He walked over to-Jones and heard her tell aid workers that she
was tired.
Officer Iverson placed Jones under arrest for possession of drug
paraphernalia. After Officer Iverson handcuffed Jones, Sergeant Allen Correa
advised Jones of her Miranda2 rights. Jones waived her Miranda rights and
admitted she had used heroin. Officer Iverson asked Jones if there was any
heroin in her car and she said,"What is left of it."3 Officer Iverson advised Jones
of her Ferrier' rights and obtained her consent to search the car. Officer Iverson
found heroin in the center console. He did not find the foil from the photo.
1Report of Proceedings(RP)(May 19, 2016) at 7.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
3 RP (May 19, 2016) at 14.
4 State v. Ferrier, 136 Wash. 2d 103, 960 P.2d 927(1998).
2
No. 75818-7-1/3
The State charged Jones with possession of a controlled substance.
Before trial, Jones moved to suppress the heroin and her postarrest statements to
Officer Iverson, arguing the arrest was unlawful. The trial court agreed the arrest
was unlawful but denied her motion to suppress under the attenuation doctrine.
Jones agreed to a stipulated bench trial based on agreed documentary
evidence. The court found Jones guilty as charged and sentenced her to 30 days
of confinement.
Jones appeals.
ANALYSIS
Jones argues the court erred when it denied her motion to suppress after
concluding her arrest was unlawful. On cross appeal, the State contends the trial
court erred in concluding the warrantless arrest was unlawful because Officer
Iverson had probable cause.
"Unchallenged findings of fact are treated as verities on appeal."5 "A trial
court's conclusions of law on a motion to suppress evidence are reviewed de
novo."6 Additionally, whether probable cause exists is a question of law we review
de novo.7
A warrantless arrest must be based on probable cause.5 Probable cause
exists when the arresting officer is aware of facts or circumstances, based on
5 State v. Valdez, 167 Wash. 2d 761, 767, 224 P.3d 751 (2009).
6 Id.
7 State v. Chamberlin, 161 Wash. 2d 30, 40-41, 162 P.3d 389(2007).
8 State v. Bonds, 98 Wash. 2d 1, 8-9, 653 P.2d 1024 (1982).
3
No. 75818-7-1/4
reasonably trustworthy information, sufficient to cause a reasonable officer to
believe a crime has been committed.9
Officer Iverson arrested Jones for possession of drug paraphernalia, a
misdemeanor. RCW 10.31.100 states,"A police officer may arrest a person
without a warrant for committing a misdemeanor or gross misdemeanor only when
the offense is committed in the presence of the officer."1° "An important reason for
suppressing evidence from unlawful misdemeanor arrests is to discourage
'pretext' arrests for misdemeanors in order to search for evidence of more serious
offenses."1
The court concluded the arrest for possession of drug paraphernalia was
unlawful under RCW 10.31.100 because it did not occur in Officer Iverson's
presence. The State concedes this point, but argues the arrest was lawful
because Officer Iverson did have probable cause to arrest Jones for possession of
a controlled substance, a felony.12 Under RCW 10.31.100(1), an officer can make
a warrantless arrest for a felony offense without personally witnessing the crime.13
9 State v. Gaddy, 152 Wash. 2d 64, 70, 93 P.3d 872(2004)(emphasis
omitted).
19(Emphasis added.)
11 Bonds, 98 Wash. 2d at 10.
12 RCW 69.50.401; see State v. Huff, 64 Wash. App. 641, 646, 826 P.2d 698
(1992)("[A]n arrest supported by probable cause is not made unlawful by an
officer's subjective reliance on, or verbal announcement of, an offense different
from the one for which probable cause exists.").
13 State v. Barron, 170 Wash. App. 742, 751, 285 P.3d 231 (2012).
4
No. 75818-7-1/5
The State argues Officer Iverson had probable cause based on the
photograph of Jones in her car and Jones's statement to aid workers that she was
tired. Officer Iverson testified the photograph showed tinfoil that contained burn
marks,"that we call snail trials."14 Officer Iverson testified that based on his
training and experience, snail trials are indicative of heroin use. As to Jones's
statement to aid workers, Officer Iverson testified, "From my experience,[fatigue
is] a side effect of being under the influence of heroin."15 These facts and
circumstances were sufficient to cause a reasonable officer to believe Jones
possessed a controlled substance." Thus, Officer Iverson had probable cause to
arrest Jones for possession of a controlled substance.
Further, although Officer Iverson's search of Jones's car exceeded the
limitation for searches incident to a lawful arrest,17 Jones consented to the search.
To be valid, "(1) the consent must be voluntary,(2) the person granting consent
must have authority to consent, and (3)the search must not exceed the scope of
14 RP (May 19, 2016) at 11.
15 Id.
16 See State v. Rose, 175 Wash. 2d 10, 22, 282 P.3d 1087(2012)("The
circumstances of the stop and arrest of Rose clearly reflect that Officer Croskey
had a plain view of a glass pipe, with a white residue inside, that in his training and
experience he suspected were consistent with drug possession.... We affirm the
Court of Appeals and hold that based on the facts actually known to Officer
Croskey at the time of the stop and arrest, probable cause existed for a
warrantless arrest for possession of a controlled substance.").
17 See State v. MacDicken, 179 Wash. 2d 936, 940, 319 P.3d 31(2014)
("There are two types of warrantless searches that may be made incident to a
lawful arrest: a search of the arrestee's person and a search of the area within the
arrestee's immediate control.") Officer Iverson recovered the heroin from the
console of Jones's car after she no longer had "immediate control" over the area.
5
No. 75818-7-1/6
the consent."18 Officer Iverson testified that he asked for Jones's consent to
search her vehicle. He read her a permission to search form, and Jones signed
the form, voluntarily authorizing Officer Iverson to search her car.
We conclude the trial erred when it concluded the arrest was unlawful.
Without deciding whether the trial court properly applied the attenuation doctrine,
we conclude the trial court properly admitted the evidence obtained incident to the
lawful arrest and consensual search.
Affirmed.
WE CONCUR:
18 State v. Reichenbach, 153 Wash. 2d 126, 131, 101 P.3d 80 (2005).
6