No. 51348-6-I.The Court of Appeals of Washington, Division One.
Filed: January 20, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-8-02801-4. Judgment or order under review. Date filed: 10/31/2002.
Counsel for Appellant(s), Cheryl D Aza, WA Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Daniel Jason Clark, King County Prosecuting Attorney, W554 King County Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
PER CURIAM.
C.S. challenges the trial court’s denial of his motion to suppress marijuana evidence. Although the trial court erred by admitting the evidence under the stop and frisk exception to the warrant requirement, we affirm on the alternative ground that the search was incident to the arrest.
FACTS
The historical facts are known to the parties and we need not repeat them.
At his juvenile court adjudication hearing for marijuana possession, C.S. moved to suppress marijuana evidence on the ground that it was the result of an unlawful search. Defense counsel argued that the search was neither incident to the arrest, nor a permissible frisk. The State argued that the contrary was true.
After a suppression hearing, the trial court concluded that Sergeant Sylvain conducted a lawful stop and brief interrogation of C.S. under Terry v. Ohio.[1] The trial court denied the motion to suppress and, after hearing additional testimony, found C.S. guilty of marijuana possession.
DISCUSSION
C.S. contends that the trial court erred by denying his motion to suppress. Because he does not challenge the findings of fact, we treat them as verities on appeal.[2] We review the trial court’s conclusions of law, however, for legal error.[3]
Stop and Frisk Exception:
The trial court’s conclusions of law and oral ruling on the motion to suppress imply that the search was valid under the stop and frisk exception to the warrant requirement. Sergeant Sylvain did not testify, however, about any facts that would have led him to believe that C.S. was armed and dangerous. Therefore, the trial court erred by admitting the marijuana evidence under this exception.[4]
Nevertheless, we may affirm if the undisputed facts show that the search fit within another exception to the warrant requirement.[5]
Search Incident to Arrest Exception:
Our Supreme Court recently clarified that, under article I, section 7 of our state constitution, a valid custodial arrest is a condition precedent to a valid, warrantless search incident to arrest.[6]
Determining the precise moment when an arrest occurs involves a mixed question of fact and law.[7]
Because C.S. neither challenges the validity of his arrest, nor disputes the facts found by the trial court, we need only decide whether the arrest preceded the search.
A custodial arrest occurs when a reasonable person in the suspect’s position at the time would think he is under arrest.[8] C.S. admitted having marijuana inside his jacket pocket before the search occurred. No reasonable person in C.S.’s position would doubt that he was under arrest following such an admission. We therefore hold that C.S. was under arrest at the time of the search, and that the search was incident to the arrest. The decision of the trial court is affirmed.
(1968).