State Of Washington v. Blayne Michael Perez ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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BLAYNE MICHAEL PEREZ, ) '9? M CI)
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Appellant. ) FILED: October 29, 2018
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LEACH, J. — Blayne Perez appeals his conviction for possession of a controlled
substance (heroin). He challenges the trial court's admission of heroin evidence found
after his arrest for theft, claiming that the arrest was unlawful. He contends that the
court cannot use the fellow officer rule to determine if the police had probable cause to
arrest him, without a warrant, for theft as authorized by RCW 10.31.100. Alternatively,
he challenges the sufficiency of the evidence supporting a number of the court's
findings related to his arrest. But the plain language of the statute, stating that "an"
officer must have probable cause to arrest the suspect, allows a court to use the fellow
officer rule to determine the existence of probable cause. And substantial evidence
supports the court's material findings, which in turn support the court's conclusion that
the officers had probable cause to arrest Perez. We affirm.
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FACTS
On December 14, 2016, dispatch advised Officer Kristopher Munoz that loss
prevention officers at a nearby Target were "struggling" with a woman suspected of
theft.1 As Munoz approached the store entrance, an unidentified passerby pointed to a
black vehicle pulling out of a parking stall and stated, "There goes the suspect's
partner." She also stated that there was drug paraphernalia in the vehicle. Munoz used
dispatch to inform other officers that another suspect may be in the vehicle described by
the unidentified civilian. Munoz then handcuffed the female suspect later identified as
Brandy Williams. From the time that Munoz arrived, it took him approximately 30
seconds to one minute to physically take Williams into custody. By this time, the
unknown passerby had left.
As Munoz walked Williams to his patrol car, he talked with Target's loss
prevention officer, Monico Valencia. Munoz "deal[s] with Mr. Valencia almost on a daily
basis when [he's] working" because of the "high level of theft" at that Target. Valencia
told Munoz that Williams arrived in a vehicle with two adult males, one of whom was
later identified as Perez. Valencia identified the same vehicle as being involved in the
theft that the passerby had identified. He stated that Perez and Williams entered the
store separately but met inside. They took gift bags from inside the store and put
merchandise in them. Perez stood at the entrance of the store with four unpaid items
1 Perez challenges the trial court's finding that as loss prevention officers
attempted to subdue Williams, there was "merchandise strewn at her feet." The State
concedes that substantial evidence does not support the quoted portion of the court's
finding. Although not material to this appeal, we note this inaccuracy for the sake of the
record.
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No. 76902-2-1 /3
and watched Williams leave. When loss prevention officers confronted Williams, Perez
discarded the items he was holding, left the store, and entered a black vehicle. Based
on this information and the civilian's tip, Munoz suspected that Perez had either
shoplifted or attempted to shoplift. After Munoz's conversation with Valencia, Munoz
saw that an officer had detained the suspect vehicle in the parking lot.
Once Munoz secured Williams in his patrol car, he approached the suspect
vehicle. By then, the officers who had stopped Perez had taken him into custody. All
three passengers consented to Munoz's request to search the vehicle.2 He found three
"baggies" of narcotics in the vehicle. Two contained heroin. While in custody, Perez
told Munoz that the heroin was his.
After a hearing, the court denied Perez's request to suppress this evidence. At a
stipulated bench trial, the court found Perez guilty of possession of a controlled
substance (heroin). Perez appeals.
ANALYSIS
Perez challenges the constitutionality of his arrest. He offers two reasons why
the police did not have probable cause to arrest him for theft. We reject his claims.
The Fourth Amendment to the United States Constitution and article I, section 7
of the Washington Constitution protect individuals' privacy rights. Both provisions
prohibit a warrantless arrest, subject to limited, narrow exceptions.3 To justify a
warrantless arrest, the State must show that an exception to the warrant requirement
2Unchallenged findings are true on appeal. State v. Hill, 123 Wash. 2d 641, 644,
870 P.2d 313(1994).
3 State v. Garvin, 166 Wash. 2d 242, 249, 207 P.3d 1266 (2009).
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applies.4 One exception allows the police to arrest a person when they have probable
cause to believe a crime is being committed.5 "Probable cause exists where the facts
and circumstances within the arresting officer's knowledge and of which the officer has
reasonably trustworthy information are sufficient to warrant a person of reasonable
caution in a belief that an offense has been committed. Probable cause is not a
technical inquiry."6 This determination rests on "the totality of facts and circumstances
within the officer's knowledge at the time of the arrest."7
The Fellow Officer Rule
First, Perez contends that the police did not have probable cause to arrest him.
He bases this claim on his argument that courts cannot use the fellow officer rule to
determine the validity of arrests for nonfelony offenses authorized by RCW 10.31.100.
We disagree.
Perez raises an issue of statutory construction. This court reviews issues of
statutory interpretation de novo.5
Article 1, section 7 of the Washington Constitution provides, "No person shall be
disturbed in his private affairs, or his home invaded, without authority of law." "Authority
of law" includes authority granted by a constitutional statute.5 RCW 10.31.100
describes when police officers have authority to arrest, without a warrant, individuals
committing misdemeanors or gross misdemeanors: "A police officer may arrest a
4 State v. Snapp, 174 Wash. 2d 177, 188, 275 P.3d 289(2012).
5 State v. Grande, 164 Wash. 2d 135, 141, 187 P.3d 248 (2008).
6 State v. Terrovona, 105 Wash. 2d 632, 643, 716 P.2d 295 (1986).
7 State v. Fricks, 91 Wash. 2d 391, 398, 588 P.2d 1328 (1979).
8 State v. Sandholm, 184 Wash. 2d 726, 736, 364 P.3d 87(2015).
9 State v. Reeder, 184 Wash. 2d 805, 817, 365 P.3d 1243(2015).
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No. 76902-2-1 / 5
person without a warrant for committing a misdemeanor or gross misdemeanor only
when the offense is committed in the presence of an officer, except as provided in
subsections (1) through (11) of this section." (Emphasis added.) RCW 10.31.100(1)
authorizes an individual's arrest for nonfelony theft offenses committed outside the
officer's presence: "Any police officer having probable cause to believe that a person
has committed or is committing a misdemeanor or gross misdemeanor, involving. .. the
unlawful taking of property ... , shall have the authority to arrest the person." Our
Supreme Court has held that RCW 10.31.100(1) is constitutional.10
Here, the parties dispute the information a court can consider to decide whether
an officer making a nonfelony theft arrest had probable cause to make the arrest. Perez
asserts that the court may consider only the information known to the arresting officer.
The State contends that the court may consider all information allowed by the fellow
officer rule.
"The fellow officer rule, also known as the police team rule, allows a court to
consider the cumulative knowledge of police officers in determining whether there was
probable cause to arrest a suspect."11 The arresting officer has probable cause to
arrest a suspect when an officer directing or communicating with him has probable
cause, regardless of whether he personally possesses sufficient information to
constitute probable cause.12
10 State v. Walker, 157 Wash. 2d 307, 310, 138 P.3d 113(2006).
11 State v. Bravo Ortega, 177 Wash. 2d 116, 126, 297 P.3d 57(2013).
12 State v. Maesse, 29 Wash. App. 642, 646-47,629 P.2d 1349 (1981).
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Perez relies on State v. Bravo Ortegal° to support his claim that the fellow officer
rule does not apply to arrests for nonfelony offenses authorized by RCW 10.31.100. In
Bravo Ortega, our Supreme Court interpreted an earlier version of RCW 10.31.100.14
This former statute stated, "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. ."15 In Bravo Ortega, an officer stationed on the
second floor of a building witnessed Ortega participate in drug transactions. Believing
that he had probable cause to arrest Ortega for drug-traffic loitering,16 the officer radioed
this information to other officers on the ground, who then arrested Ortega.17 Our
Supreme Court held that Ortega's arrest was unlawful because lujnder the plain
language of the statute, only an officer who is present during the offense may arrest a
suspect for a misdemeanor or a gross misdemeanor."15
To support its holding, the court applied a rule of statutory construction,
expressio unius est exclusio alterius.19 This means "to express or include one thing
implies the exclusion of another.'"2° The court explained that RCW 10.31.100(7)21
13 177 Wash. 2d 116, 297 P.3d 57(2013).
14 Bravo Ortega, 177 Wash. 2d at 123-24.
15 Bravo Ortega, 177 Wash. 2d at 123-24 (alteration in original) (quoting former
RCW 10.31.100 (1979)).
16 Bravo Ortega, 177 Wash. 2d at 121.
17 Bravo Ortega, 177 Wash. 2d at 121.
18 Bravo Ortega, 177 Wash. 2d at 124.
19 Bravo Ortega, 177 Wash. 2d at 124.
20 Bravo Ortega, 177 Wash. 2d at 124 (quoting BLACK'S LAW DICTIONARY 661 (9th
ed. 2009)).
21 The statutory provision the court examined in Bravo Ortega was RCW
10.31.100(6). In 2013, the legislature renumbered this provision as RCW 10.31.100(7).
LAWS OF 2013, Reg. Sess., ch. 278 § 4. We use the current numeration.
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provides express authority for an officer to rely on the request of another officer in
making an arrest for a traffic infraction. It stated that this provision did not apply to drug-
traffic loitering.22 The court reasoned that the expressio unius est exclusio alterius
doctrine supported its decision because RCW 10.31.100(7) expressly authorized an
officer to rely on the request of another officer when making an arrest for a traffic
infraction while the other subdivisions of RCW 10.31.100 authorizing warrantless arrests
did not. The court concluded that this meant that the legislature intended for the fellow
officer rule to apply only to arrests for traffic infractions.
Perez acknowledges that the amendment to RCW 10.31.100 removed the
requirement that a nonfelony offense be committed in the presence of the arresting
officer. But he maintains that the expressio unius est exclusio alterius doctrine still
applies to this case. He claims that similar to the provision about drug-traffic loitering
considered in Bravo Ortega, RCW 10.31.100(1), authorizing a warrantless arrest for a
nonfelony theft offense, does not expressly authorize the arresting officer to rely on the
request of another officer. He cites the principle that criminal statutes should be literally
and strictly construed.23 He also relies on the rule of lenity, which, in the face of
statutory ambiguity, requires the court "to adopt the interpretation most favorable to the
defendant."24 We reject Perez's argument on two grounds.
First, Bravo Ortega does not apply because, unlike the situation there, RCW
10.31.100(1) specifically states that the requirement that the offense be committed in
22 Bravo Ortega, 177 Wash. 2d at 124.
23 State v. Garcia, 179 Wash. 2d 828, 837, 318 P.3d 266(2014).
24 State v. Gonzales Flores, 164 Wash. 2d 1, 17, 186 P.3d 1038(2008).
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the presence of an officer does not apply to arrests for nonfelony theft offenses. RCW
10.31.100(1) authorizes "[a]ly police officer" with probable cause to arrest an individual
for select nonfelony offenses, including theft. (Emphasis added.) The statute does not
require that the arresting officer make the probable cause determination. And under the
fellow officer rule, probable cause is established when an involved officer has probable
cause even if the arresting officer does not personally have probable cause. Thus, the
plain language of RCW 10.31.100(1) allows for application of the fellow officer rule to
arrests for select nonfelony offenses, including the theft offense at issue here.
Even if Bravo Ortega were relevant, RCW 10.31.100 also permits application of
the fellow officer rule. The doctrine of expressio unius est exclusio alterius is a canon of
statutory construction that does not apply where, as here, the plain language of the
statute is unambiguous. The purpose of interpreting a statute is to determine the
legislature's intent.25 The plain meaning of the statute is the "surest indication of
legislative intent."26 To determine the plain meaning of a provision, a court looks to the
text of the statutory provision and "the context of the statute in which that provision is
found, related provisions, and the statutory scheme as a whole.'"27 An undefined term
is "given its plain and ordinary meaning unless a contrary legislative intent is
indicated.'"28 Only if the statute is ambiguous, meaning it is susceptible to more than
25 Statev. Ervin, 169 Wash. 2d 815, 820, 239 P.3d 354(2010).
26 Ervin, 169 Wash. 2d at 820.
27 Ervin, 169 Wash. 2d at 820 (quoting State v. Jacobs, 154 Wash. 2d 596, 600, 115
P.3d 281 (2005)).
28 Ervin, 169 Wash. 2d at 820 (quoting Ravenscroft v. Wash. Water Power Co., 136
Wash. 2d 911, 920-21, 969 P.2d 75(1998)).
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No. 76902-2-1/9
one reasonable interpretation, does a court use statutory construction, legislative
history, and relevant case law to help discern legislative intent.29
In Bravo Ortega, our Supreme Court held that the plain language of former RCW
10.31.100 did not permit application of the fellow officer rule.3° The court did not identify
any ambiguous language. It used the doctrine of expressio unius est exclusio alterius
only as additional support for its reasoning.31 The plain language of the amended
statute before this court is also unambiguous. It authorizes a police officer to conduct a
warrantless arrest for a nonfelony "when the offense is committed in the presence of an
officer."32 "An officer" means any officer, whereas "the officer," used in the former
statute, means the arresting officer. Thus, the plain language of RCW 10.31.100 allows
a police officer to arrest a suspect for a nonfelony if any officer was present during the
offense. Perez provides no persuasive explanation for how an officer authorized to
arrest a person for a crime committed outside his presence could ever have probable
cause without relying on the knowledge of others. The trial court correctly concluded
that the fellow officer rule applies to arrests for nonfelony offenses authorized by RCW
10.31.100.
29 Ervin, 169 Wash. 2d at 820.
30 Bravo Ortega, 177 Wash. 2d at 123-24, 127.
31 Bravo Ortega, 177 Wash. 2d at 123-24.
32 RCW 10.31.100 (emphasis added).
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Sufficiency of the Evidence Supporting the Trial Court's Findings
Alternatively, Perez claims that even if the fellow officer rule applies, the police
did not have probable cause to arrest him and substantial evidence does not support
some of the trial court's contrary findings. We disagree.
An appellate court reviews challenged findings of fact on a motion to suppress for
substantial evidence.33 "Substantial evidence exists where there is a sufficient quantity
of evidence in the record to persuade a fair-minded, rational person of the truth of the
finding."34 Unchallenged findings are true on appea1.36 This court reviews de novo
whether the trial court's conclusions of law flow from its findings.36
Perez challenges the sufficiency of the evidence supporting three of the trial
court's findings. First, Perez challenges the court's finding that "Mr. Valencia informed
[Munoz] he observed a male suspect, whom he later identified as the Defendant Blayne
Perez, enter the Target store with the female suspect and conceal items in his clothing."
He also challenges a similar finding stating, "When [Perez] saw [Williams] being
detained he put down anything he had concealed and left the store." Perez asserts that
no evidence supports that he concealed items in his clothing. Valencia testified that
both Perez and Williams took gift bags from inside the store. Valencia stated that
Williams concealed merchandise in her bag and Perez had "merchandise with
him.. . and on him." Perez "discard[ed] the merchandise that he had selected as he
33Hill, 123 Wash. 2d at 644.
34Hill, 123 Wash. 2d at 644.
36 Hill, 123 Wash. 2d at 644.
36 Nelson v. Dep't of Labor & Indus., 175 Wash. App. 718, 723, 308 P.3d 686
(2013).
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No. 76902-2-1 / 11
s[aw loss prevention officers] apprehend[ ] Brandy and then exit[ed] the store."
Although Valencia's testimony supports that Perez concealed items, it does not support
that he did so in his clothing. But whether Perez concealed the items in his clothing or
in a bag is immaterial. The material finding is that Perez concealed items. Valencia's
testimony supports this.
Perez also challenges the court's finding that Valencia relayed to Munoz the
information contained in the two abovementioned findings as they "walked out of the
Target location." Perez claims that because Valencia did not testify that Valencia told
Munoz that Perez concealed any items, no evidence supports this finding. Valencia
testified that he told Munoz, "[Perez] had merchandise with him at one point." But
Munoz testified that Valencia also told him that both Williams and Perez "were selecting
items and placing them into bags." Munoz stated that Valencia told him that when
Williams left the store, Perez "stood by at the entrance to the store with four unpaid
items . . . . When she was confronted by loss prevention, Mr. Perez then got rid of the
items that he had in his possession." Munoz's testimony that Valencia told him Perez
placed items into bags is sufficient to support the finding that Valencia relayed to Munoz
that Perez concealed items.
Perez next claims that because substantial evidence does not support the
findings discussed above, the court's findings do not support three of its conclusions of
law. But, substantial evidence supports the court's challenged findings as discussed
above, and the court's findings support its conclusions.
No. 76902-2-1 / 12
First, Perez asserts that the court's findings do not support its conclusion that
"[s]ufficient information was known by other law enforcement officials involved in the
investigation to justify the detention of the Defendant for theft in the third degree as a
principal and accomplice." The court found that an unidentified female civilian provided
information about a male suspect involved in the theft and a related vehicle. Munoz
identified this vehicle as a black Volkswagen parked in the lot outside of the store. He
broadcast this information through his radio dispatch. Valencia identified the same
black Volkswagen as being involved in the theft. And Valencia told Munoz that Perez
and Williams entered the store together and that Perez concealed items and then
discarded them after seeing loss prevention officers detain Williams. The court also
found that Valencia relayed this information to Munoz as they walked out of Target
before police stopped Perez's vehicle. These findings support the court's conclusion
that based on Munoz's knowledge, the police had probable cause to believe that Perez
committed theft.
Second, Perez challenges the court's conclusion stating, "The tip provided to
Officer Munoz possessed [the] necessary indicia of reliability under the totality of the
circumstances." He also takes issue with the following conclusion:
The unknown informant[']s tip was corroborated by [Munoz's] observations
and information provided by a known and named citizen informant. That
information corroborated more than innocuous details. Therefore, the
officer had sufficiently reliable information on which to detain the
defendant based on probable cause to believe he committed the crime of
theft.
He claims the unknown citizen's tip was not sufficiently trustworthy to contribute
to a probable cause determination. Information an officer relies on to make his probable
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No. 76902-2-1 / 13
cause determination must be "reasonably trustworthy."37 Perez contends that Munoz
did not have a basis for determining whether the tip was reasonably trustworthy
because he knew nothing about the unidentified citizen or her source of knowledge. But
Valencia corroborated the citizen's identification of a black Volkswagen as the involved
vehicle. Munoz testified that he interacted with Valencia on almost a daily basis as a
result of the frequency of thefts at that Target. Because Munoz had an established
relationship with Valencia and Valencia corroborated the tip, under the totality of the
circumstances, the tip was sufficiently reliable.
Perez also asserts that Valencia did not relay to Munoz more than innocuous
details. "Innocuous objects that are equally consistent with lawful and unlawful conduct
do not constitute probable cause."38 Perez relies on the principle that "[m]ere
knowledge or physical presence at the scene of a crime neither constitutes a crime nor
will it support a charge of aiding and abetting a crime."39 But, as discussed above, in
addition to Perez being physically present with Williams in the store and observing that
she was stealing, substantial evidence shows that Valencia relayed to Munoz that Perez
concealed items and discarded those items when he saw loss prevention officers detain
Williams. These details are not innocuous and support the trial court's conclusions.
Perez further claims that because the trial court did not include in its written
findings that Perez concealed items in a bag, this court cannot consider this testimony
in deciding whether the court's findings support its conclusion stated above. Perez also
37 Terrovona, 105 Wash. 2d at 643.
38 State v. Neth, 165 Wash. 2d 177, 185, 196 P.3d 658(2008).
39 State v. J-R Distribs., Inc., 82 Wash. 2d 584, 593, 512 P.2d 1049(1973).
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No. 76902-2-1 / 14
contends that even if this court does consider that testimony, the fact that Perez put
items in a bag is not an incriminating detail. Although the trial court found that Perez
concealed items in his clothing, it stated in its oral findings that Perez and Williams
"[e]ach selected and concealed items in bags." "An appellate court may consider a trial
court's oral decision so long as it is not inconsistent with the trial court's written findings
and conclusions."40 Perez claims that the trial court's oral finding that Perez concealed
items in a bag conflicts with its written finding that he concealed items in his clothing.
Because substantial evidence does not support the finding that Perez concealed items
in his clothing, this court does not consider it. And because it is possible for someone to
conceal items in both his clothing and a bag, the trial court's oral and written findings do
not conflict. The trial court's written finding does not require that this court exclude the
trial court's oral finding from its review. And, as we noted, the material fact is that Perez
concealed items, not where he concealed them.
Alternatively, Perez maintains that the fact that he put items in a bag is an
innocuous detail that does not support his guilt. He contends that because customers
commonly put items into bags they bring from home before paying for items at
checkout, the fact that he put items into a bag was equally consistent with lawful
conduct as it was with unlawful conduct. But Valencia testified that the bags were gift
bags that Perez and Williams selected from the store. They were not reusable bags
individuals bring from home. The trial court did not err in concluding that Valencia's
testimony corroborated more than harmless details.
40 State v. Kull, 155 Wash. 2d 80, 88, 118 P.3d 307(2005).
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Last, Perez asserts that because police did not have probable cause to arrest
him, the fruit of the poisonous tree doctrine requires suppression of any evidence that
he possessed heroin. This doctrine requires the suppression of physical or verbal
evidence resulting from an unconstitutional search or seizure.41 But because the trial
court did not err in concluding that the police had probable cause to arrest Perez for
theft, the fruit of the poisonous tree doctrine does not apply.
CONCLUSION
The plain language of RCW 10.31.100 allows for application of the fellow officer
rule to warrantless arrests for nonfelony offenses. And RCW 10.31.100(1) permits
application of the rule specifically to warrantless arrests for described nonfelony
offenses, including theft, when the suspect commits the offense outside of the presence
of an officer. Substantial evidence supports the court's material findings, which support
its conclusion that the police had probable cause to arrest Perez for theft. We affirm.
WE CONCUR:
41Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S. Ct. 407, 9 L. Ed. 2d
441 (1963).
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