State Of Washington v. Kun Ki Kim ( 2018 )

COURT CF APPEALS-01V
STATE OF WASHINGIGN
2010 JUN 1 1 At1 10: 31
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 76561-2-I
Respondent,
DIVISION ONE
V.
KUN KI KIM, UNPUBLISHED OPINION
Appellant. FILED: June 11,2018
SPEARMAN, J. — A police officer must have probable cause to make a
warrantless arrest. Probable cause exists when the facts and circumstances
would cause a reasonable officer to believe a crime has been committed.
An officer arrested Kun Ki Kim for possession of drug paraphernalia in
violation of RCW 69.50.412(1). The officer searched Kim incident to arrest and
discovered heroin. Kim challenges his conviction for possession of a controlled
substance, arguing that the officer did not have probable cause and the search
was thus improper. But the facts and circumstances were such that they would
cause a reasonable officer to believe that Kim possessed drug paraphernalia for
one of the uses prohibited in RCW 69.50.412(1). We affirm.
FACTS
Officer Nathan Wallace was on patrol when he observed a van parked
opposite a house known for drug sales. The van was in a commercial parking lot
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but in the area farthest from the businesses. In Wallace's experience, drug users
commonly parked there when obtaining drugs from the house across the alley.
Wallace parked his patrol car near the van. He approached the van and
greeted its occupants. Kim was in the passenger seat and Brenda Laizure was in
the driver's seat. Wallace recognized Kim and Laizure from prior contacts
involving drugs. He knew Kim to be a drug user. Wallace initiated a brief
conversation and expressed his concern about the van's location. Kim and
Laizure denied parking there to visit the drug house. They told Wallace they had
met by chance and were catching up on old times. Laizure told Wallace she was
sober. Wallace informed Kim and Laizure that the trip permit on the van was filled
out incorrectly. He did not see any contraband or anything else of note and
began to leave.
As Wallace was returning to his car he heard a noise and glanced back.
He saw Kim open the door and get out. Kim reached under his seat, removed a
small square baggie, and put it in his pocket. Wallace recognized the baggie as a
type generally used for drugs. He placed Kim under arrest for possession of drug
paraphernalia. In a search incident to arrest, he examined the baggie and
determined that it contained heroin. Kim was charged with possession of a
controlled substance, heroin.
Prior to trial, Kim moved to suppress evidence of the heroin, arguing that
Wallace lacked probable cause to arrest him and the evidence was thus the
product of an unlawful search. Following a hearing, the trial court entered twelve
findings as to the facts surrounding Kim's arrest. In light of these facts, the court
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concluded that the arrest was supported by probable cause and denied Kim's
motion. Kim was convicted as charged. He appeals.
DISCUSSION
Kim challenges three of the trial court's findings of fact and its conclusion
that the arrest was supported by probable cause. We review to determine
whether the trial court's findings of fact are supported by substantial evidence
and, if so, whether the findings support the conclusions of law. State v. Vickers,
148 Wn.2d 91, 116, 59 P.3d 58(2002)(citing Nordstrom Credit, Inc. v. Dep't of
Revenue, 120 Wn.2d 935, 939-40, 845 P.2d 1331 (1993)). Evidence is
substantial when it is sufficient to persuade a rational fair-minded person. Id.(citing State v. Mendez, 137 Wn.2d 208. 214, 970 P.2d 722(1999)).
Unchallenged findings are verities on appeal. State v. Hill, 123 Wn.2d 641,644,
870 P.2d 313(1994).
In this case, the trial court found that Wallace observed the van in an area
known for drug sales, recognized Kim and Laizure from prior contacts involving
drugs, saw Kim get out of the van, and watched Kim remove a small black
baggie from under the front passenger seat and put it in his pocket. Kim does not
challenge these findings. They are verities on appeal. Kim challenges findings 8,
11, and 12, which concern Wallace's recognition of the baggie:
8. Based on his training and experience the Officer recognized
the baggie as something commonly used to contain illegal
controlled substances.
11. Evidence that the baggie is used for the storage of drugs in
uncontroverted. The black baggie is small in size, approximately
one to two inch square. The baggie has a distinctive black and gold
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No. 76561-2-1/4
skull pattern and is opaque, concealing the contents. There was no
way for the officer to see or know what was inside the baggie.
12. The Officer testified he sees these baggies every day and is
familiar with them through his experience. The Officer was able to
recognize the baggie on sight as one used as drug paraphernalia.
Clerk's Papers(CP)at 76. Kim asserts that the trial court found that Wallace
recognized the precise skull pattern on the baggie, a finding that he argues is
unsupported.
Kim misconstrues the challenged findings. The trial court did not find that
Wallace specifically recognized the skull pattern or that he believed the baggie
was used for drugs based on that pattern. In findings 8 and 12, the trial court
found that Wallace, based on his training and experience,"recognized the baggie
as something commonly used to contain" drugs. In finding 11, the court
described the baggie found in Kim's possession. Id.At the suppression hearing, Wallace testified that he saw Kim take "what
appeared to be a drug baggie" from under his seat and put it in his pocket.
Verbatim Report of Proceedings(VRP)at 12. The prosecutor and Wallace had
the following exchange:
Q. When you say "a drug baggie," what do you mean by that?
A. Drugs are commonly packaged in these one-by-one semi-clear
baggies, usually have designs on them. I've seen these almost
every day that I've been a police officer working that area.
Q. Those types of baggies, is that something that you have been
trained on through your training that you mentioned, the
refresher courses?
A. Yes.
Q. And you say that you've seen them almost every day. I'm going
to actually hand you what's been marked as State's Exhibit 1.
Q: Do you recognize what that's a photo of?
A. Yes.
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Q. And what is it?
A. The baggie.
Q. Is that — you mentioned that you see these baggies every day. Is
this generally what they look like?
A. Yeah. Sometimes the designs change, but that's what they look
like.
Q. And what are these types of baggies generally used for by
individuals?
A. For the packaging of drugs.
Q. Okay. So at this point, you see Mr. Kim exit the vehicle. He
grabs some baggie. What did you observe next?
A. Then I closed the distance and detained him.
Q. Did you see what Mr. Kim did with the baggie prior to detaining
him?
A. He put it in his pocket.
Q. At this point, you've seen Mr. Kim now put the baggie in his
pocket. What were your suspicions then?
A. That he was in possession of drug paraphernalia.
Id. at 12-13. Wallace testified that he returned to the van and arrested Kim for
possession of drug paraphernalia.
Wallace's testimony establishes that, based on his training and
experience, he recognized the baggie "as something commonly used to contain
illegal controlled substances." CP at 75. The description of the baggie included in
finding of fact eleven is consistent with the State's exhibit. The challenged
findings of fact are supported by substantial evidence.
Kim next argues that, even if the trial court's findings of fact are supported
by substantial evidence, these findings do not support the conclusion that
Wallace had probable cause to arrest Kim for possession of drug paraphernalia.
Probable cause exists when the facts and circumstances would cause a
reasonable officer to believe that a crime has been committed. State v. Gaddy,
152 Wn.2d 64, 70, 93 P.3d 872(2004). The facts taken together may support
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No. 76561-2-1/6
probable cause although no one fact alone would do so. State v. Cole, 128
Wn.2d 262, 286, 906 P.2d 925(1995).
Possession of drug paraphernalia is a crime only where the possession is
accompanied by a statutorily proscribed activity, such as manufacturing,
preparing, concealing, or ingesting a controlled substance. State v. George, 146
Wn. App. 906, 918, 193 P.3d 693(2008)(quoting RCW 69.50.412(1)). As
relevant here, a person commits the crime by using paraphernalia to "store,
contain,[or] conceal" a controlled substance. Id. To assess probable cause, we
must thus determine whether the facts and circumstances raise a reasonable
inference that the person not only possessed the paraphernalia but also used it
in violation of RCW 69.50.412(1)-(2).
In State v. Lowrimore, 67 Wn. App. 949, 959, 841 P.2d 779 (1992), for
example, a defendant possessed paraphernalia. She also exhibited "bizarre and
emotionally unstable behavior." Id. We held that these facts, taken together,
supported probable cause to believe that Lowrimore had possessed
paraphernalia and used it to ingest or inhale a controlled substance. Id.In State v. Neeley, 113 Wn. App. 100, 103, 52 P.3d 539 (2002), officers
observed a parked car late at night in an area known for drug activity. The
officers saw someone in the car leaning over the passenger seat "bobbing her
head up and down in a strange way." Id. When an officer approached the car, he
saw a brillo pad, a pair of scissors, and a lighter on the front seat, items he
recognized as drug paraphernalia. Id. We held that, from the combined facts of
the location of the car, the possession of paraphernalia, and the defendant's
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No. 76561-2-1/7
behavior, an officer could reasonably infer that the defendant used the
paraphernalia to ingest a controlled substance. Id. at 108.
In contrast, in State v. McKenna, 91 Wn. App. 554, 563, 958 P.2d 1017(1998), we held that the possession of drug paraphernalia, by itself, did not raise
an inference of use. In that case, a police officer made a traffic stop. Id. at 556.
When he learned that neither McKenna,the car's driver, nor her passenger had a
valid driver's license, the officer impounded the vehicle. Id. Another officer
offered to drive McKenna home but told her he would have to search her duffle
bag for weapons before she could ride in the patrol car. Id. McKenna consented
to the search and the officer found a pipe, cigarette wrappers, and a small scale
in the bag. Id. The record included no facts or circumstances supporting the
inference that McKenna used the paraphernalia for one of the purposes
prohibited by statute. Id.
In this case, Officer Wallace observed a van parked opposite a house
where drug sales were known to occur. People purchasing drugs at the house
commonly parked in the van's location. Wallace knew Kim to be a drug user and
he recognized Kim's companion from prior contacts involving drugs. Wallace
observed Kim take a small square baggie from under his seat and put it in his
pocket as he got out of the van. Wallace recognized the baggie as an item
generally used to store or contain drugs. Taken together, these facts are
sufficient to cause a reasonable officer to believe Kim was using the baggie to
store or conceal drugs.
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No. 76561-2-1/8
Kim contends, however, that this case is like McKenna. He argues that the
probable cause determination rested primarily on Wallace's recognition of the
drug baggie. Kim asserts that the van's location in an area known for drug sales,
Kim's prior drug use, and Kim's association with another known drug user are of
minimal value in the probable cause assessment. He relies on cases holding that
circumstances such as these do not, in isolation, support probable cause. See,
e.g., State v. Larson, 93 Wn.2d 638, 645, 611 P.2d 771 (1980)(the defendant's
presence in a high crime area did not justify an investigative stop); State v.
Hobart, 94 Wn.2d 437,446-47, 617 P.2d 429(1980)(prior drug use may lead to
the suspicion of current use but does not in itself support probable cause); State
v. Wevand, 188 Wn.2d 804, 817, 399 P.3d 530(2017)(visit to house where
residents were known to use drugs did not justify an investigative stop).
Kim is correct that none of the circumstances surrounding his arrest, in
isolation, establishes probable cause. But we assess probable cause in light of
all of the facts and circumstances known to the officer. See Gaddy, 152 Wn.2d at
70; Cole, 128 Wn.2d at 286. In this case, Kim's location near a house known for
drug sales, his prior drug use, his presence in the car with a person known to
police for drug-related activity, his possession of a baggie commonly used in the
sale of controlled substances, and his removing that baggie from its hiding place
under his seat while getting out of the van, taken together, raise a reasonable
inference that the bag stored or contained a controlled substance.
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No. 76561-2-1/9
Affirmed.
WE CONCUR:
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