STATE v. CONOVER, 26552-4-II (Wash.App. 12-19-2001)

No. 26552-4-IIThe Court of Appeals of Washington, Division Two.
Filed: December 19, 2001 UNPUBLISHED OPINION

Appeal from Superior Court of Cowlitz County, No. 001005943, Hon. James Edgar F. Warme, October 17, 2000, Judgment or order under review.

Counsel for Appellant(s), Randolph Furman, Attorney At Law, P.O. Box 2998, Longview, WA 98632.

Counsel for Respondent(s), Thomas A. Ladouceur, Attorney At Law, 1112 Daniels, Suite 230, Vancouver, WA 98660.

Edwin N. Norton, Cowlitz Co Dep Pros Atty, 312 S.W. 1st Ave, Kelso, WA 98626-1739.

SEINFELD, J.

Following a bench trial on stipulated facts, the trial court convicted Benjamin Conover of possession of methamphetamine and use of drug paraphernalia. Conover appeals, challenging the admission of evidence seized from a zippered pouch found in his jacket pocket. Finding that the arresting officer (1) had probable cause to arrest; (2) had reason to suspect that Conover was armed and dangerous and, thus, to search Conover’s person; and (3) did not exceed the permissible scope of the search when he opened Conover’s pouch, we affirm.

FACTS
The State charged Conover with possession of methamphetamine and the use of drug paraphernalia. Conover then moved to suppress the drug and paraphernalia evidence. The trial court denied the suppression motion and entered the following findings of fact and conclusions of law:

FINDINGS OF FACT
1. On July 8, 2000 Sergeant Kevin Tate was on patrol duty for the City of Kelso Police Department.

2. At approximately 4:30 in the morning he noticed a bicycle in the 900 block of South Fourth Street in Kelso, Washington. The bicycle was being ridden on the street without any lights or reflectors. It was dark.

3. Sergeant Tate drove around the block and came up from behind the bicycle. He saw the bicycle in the yards of private residences. These private residences did not appear open to the public, especially considering the time of 4:30 a.m. Sergeant Tate also noticed that the person on the bike had something in his hands.

4. As Sergeant Tate drove towards the bicycle, the bicycle rode away from him.

5. Sergeant Tate turned on his spotlight and drove up to Defendant who was riding the bicycle and drove in front of him. Sergeant Tate’s stated reason for stopping Defendant was for the lack of lights on the bicycle and suspicion of trespassing[.]

6. When Sergeant Tate exited his car to contact Defendant, he noticed that Defendant had a large number of freshly cut flowers in his hand.

7. Sergeant Tate walked toward Defendant and was talking to him about the flowers.

8. As Sergeant Tate walked toward Defendant he saw Defendant turn slightly away from him a put a hand in his jacket pocket.

9. Sergeant Tate has training and experience as to Officer Safety issues and patdown [sic] searches for weapons. He has seized weapons during pat-down searches throughout his law enforcement experience.

10. Based upon Sergeant Tate’s training and experience, the movement of putting the hand in Defendant’s coat pocket caused him concern that Defendant might be concealing a weapon.

11. As Sergeant Tate was walking towards Defendant, Defendant stated that he was just out gathering flowers for a bouquet and that he had a knife for the purpose. Defendant was asked if he had permission to be in the yards and Defendant indicated that he did not know the people in the yards in which he was cutting the flowers.

12. Sergeant Tate told Defendant to keep his hands out of his pockets.

13. Sergeant Tate then conducted a pat-down search of Defendant’s clothing. In Defendant’s coat pocket he felt a bulging object. Sergeant Tate squeezed the object and felt a long hard object that Sergeant Tate thought was a syringe. Sergeant Tate regards a syringe as a potential weapon for stabbing with possible bio-hazards [sic] because of blood borne pathogens.

14. Sergeant Tate removed the bulging object which was a zippered pouch. At the time he removed this object, Defendant had a large folding knife in his hand. Sergeant Tate did not see the knife initially during the pat-down [sic].

15. Sergeant Tate removed the items from the pouch and found a syringe, a marijuana pipe with residue that smelled like marijuana, a prescription bottle without a label and a lighter. There was also a small bag with a tan colored substance.

16. Defendant was handcuffed and read his Miranda rights, including the right to remain silent, the right to a lawyer, the right to have a lawyer at court appointed expense.

17. Defendant stated that he understood his rights.

18. Defendant made statements after advise of rights. Defendant never asked for a lawyer. Defendant never indicated that he didn’t want to talk to Sergeant Tate. No threats or promises were made to Defendant in exchange for the statements.

CONCLUSIONS OF LAW
1. Defendant operating a bicycle without lights and Defendant [sic] presence in yards provided grounds to stop Defendant for riding in the dark without adequate lights and reasonable suspicion that Defendant was trespassing.

2. Defendant’s movement in putting his hand in his coat, justified a pat-down [sic] for officer safety.

3. The freshly cut flowers without permission created probable cause to arrest Defendant for Theft.

4. During the search, Sergeant Tate properly located a syringe and a marijuana pipe with burnt marijuana and the tan powder substance.

5. There is sufficient evidence for the charge of use of drug paraphernalia to go to the jury.

6. Defendant’s statements were freely and voluntarily made and those after arrest were made after a proper advise of rights. Clerk’s Papers (CP) at 17-19.

The court convicted Conover as charged. On appeal, Conover contends that the trial court erred in dismissing his motion to suppress because (1) Sergeant Tate lacked probable cause to arrest him for trespass or theft and (2) the frisk and subsequent search leading to the discovery of the drug and paraphernalia evidence was illegal.[1]

DISCUSSION
In reviewing the denial of a motion to suppress, we must determine whether substantial evidence supports the trial court’s findings of fact and whether the findings of fact support the conclusions of law. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994); State v. Dempsey, 88 Wn. App. 918, 921, 947 P.2d 265 (1997).

I. Probable Cause
Conover concedes that it was proper for Sergeant Tate to stop him for riding his bicycle without reflectors or lights. But he contends that the arrest for trespass and theft was improper because there was insufficient probable cause to find that he was illegally on the property of others or took the flowers illegally.

“Probable cause exists where the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in a belief that an offense has been or is being committed.”State v. Gluck, 83 Wn.2d 424, 426-27, 518 P.2d 703 (1974). See also State v. Herzog, 73 Wn. App. 34, 53, 867 P.2d 648 (1994). The circumstances here supported a finding of probable cause.

A. Trespass
Conover argues that Sergeant Tate did not have probable cause to arrest him for trespass because the properties he entered were not fenced or posted and he had not been notified that he could not enter them.

A person commits criminal trespass in the second degree when he or she enters or remains unlawfully upon the property of another. RCW 9A.52.080.

A person enters or remains unlawfully on property when that person has not been licensed, invited, or otherwise privileged to enter or remain on the property. RCW 9A.52.010(3). But ‘[a] person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privilege unless notice against trespass is personally communicated to him by the owner of the land or some other authorized person, or unless notice is given by posting in a conspicuous manner.’ RCW 9A.52.010(3) (emphasis added).

Here, Conover entered the yards of established residences, not unimproved or unused land. Thus, he was not entitled to notice under the criminal trespass statute, and the three cases that Conover cites do not persuade us otherwise.

In State v. Thompson, 69 Wn. App. 436, 848 P.2d 1317 (1993), the court affirmed the defendant’s trespass conviction noting that the property in question was posted and the owner had previously told the defendant to stay off the property. But the court did not indicate that these factors were required to show probable cause. Rather, it indicated that these were factors to consider in addition to: (1) the officer’s knowledge that the defendant did not live on the property and did not have permission to be there, (2) the defendant’s attempt to hide from the officer, and (3) the defendant’s failure to assert that he was on the premises for a legitimate purpose. Thompson, 69 Wn. App. at 442-43.

The court in State v. Blair, 65 Wn. App. 64, 66, 69-70, 827 P.2d 356 (1992), found that the officer lacked probable cause to arrest the defendant for trespass when the defendant merely was walking with a friend through a public housing complex and he articulated a legitimate reason for being on the premises. The presence of no trespassing signs and the officer’s previous admonition to the defendant to avoid the premises did not support a finding of probable cause where the defendant, at the time of the arrest, was not behaving in a manner inconsistent with being legitimately on the property as an invitee Blair, 65 Wn. App. at 69-70.

Finally, State v. Morgan, 78 Wn. App. 208, 896 P.2d 731 (1995), involved an alleged trespass on public property. Its discussion of posting and notice is inapposite here because of the focus on public property. Morgan, 78 Wn. App. at 211.

Sergeant Tate did more than observe Conover entering the privately owned yards in a manner consistent with a legitimate purpose. According to the unchallenged findings of fact, which are verities on appeal, State v. Stenson, 132 Wn.2d 668, 697, 940 P.2d 1239 (1997), Sergeant Tate (1) had observed Conover riding in and out of residential yards at 4:30 a.m.; (2) the yards did not appear to be open to the public; (3) Conover was holding a bouquet of freshly cut flowers; (4) Conover indicated that he had taken the flowers from people’s yards; and (5) Conover indicated that he did not know the people from whose yards he had taken the flowers. Additionally, like the defendant in Thompson and unlike the defendant in Blair, Conover initially appeared to avoid contact with Sergeant Tate. Given these facts, Sergeant Tate had sufficient probable cause to arrest Conover for trespass.

B. Theft
Conover also asserts that Sergeant Tate lacked probable cause to arrest him for theft without first determining who owned the flowers and verifying whether Conover took them with permission.

“Theft’ means: (a) To wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him of such property or services[.]’ RCW 9A.56.020(1)(a). Thus, a probable cause finding required facts supporting a reasonable belief that Conover had wrongfully obtained the property or was exerting unauthorized control over it; the victim’s identity was not necessary if the evidence indicated that the property belonged to someone else. State v. Lee, 128 Wn.2d 151, 159, 904 P.2d 1143 (1995). Conover admitted to taking the flowers from other people’s yards, he took them in the early morning hours when no one was present to give him permission, and he told Sergeant Tate that he did not know the owners.[2] Consequently, it was reasonable for Sergeant Tate to conclude that Conover did not own or have permission to take the blooms.

Nor is Conover’s analogy to someone who picks up a newspaper from a lunch counter, a pop bottle from a ditch, or a seashell from the seashore persuasive. Flowers growing in private established gardens are distinguishable from apparently abandoned items in public areas. The owner has retained an interest in the former but has impliedly rejected an exclusive ownership interest in the latter.

II. Search
Conover asserts that once he informed Sergeant Tate that he had a knife in his hand, Sergeant Tate lacked a factual basis to conclude that he was armed and presently dangerous or to conduct a pat-down search. He also asserts that Sergeant Tate exceeded the scope of a permissible search when he opened and searched the pouch.[3]

A. Pat-Down Search
A Terry stop and frisk is justified when (1) the initial stop is legitimate; (2) there is a reasonable safety concern justifying a protective frisk for weapons; and (3) the scope of the frisk is limited to the protective purpose. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919
(1993).

Conover agrees that the initial stop was legitimate, but he contends that there was no need for a patdown after he told Sergeant Tate that he had the knife in his hand. But the trial court found that Sergeant Tate was unaware of the knife in Conover’s hand until after the pat-down search. As Conover has not challenged this finding, it is a verity on appeal. Stenson, 132 Wn.2d at 697.

Further, Sergeant Tate also observed Conover making a furtive movement and placing his hand inside his jacket pocket. This movement caused concern that Conover was concealing a weapon and, along with Conover’s statement that he was carrying a knife, justified Sergeant Tate’s initial pat-down search. See State v. Kennedy, 107 Wn.2d 1, 11, 726 P.2d 445
(1986); State v. Wilkinson, 56 Wn. App. 812, 815, 785 P.2d 1139 (1990).

As it also was reasonable to conclude that a syringe had the potential to be used as a weapon, Sergeant Tate did not exceed the appropriate scope during the pat-down search when he felt the syringe in the pouch, removed the pouch, and placed it outside of Conover’s reach.

B. Search of the Pouch
Conover asserts that Sergeant Tate exceeded the proper scope of a search when he looked into the pouch. He asserts that a syringe in a pouch is not per se a weapon and that, subsequently, Sergeant Tate could open the pouch only if he had a valid search warrant or if there were facts supporting an exception to the search warrant requirement.

The Fourth Amendment prohibits warrantless searches unless an established exception to the warrant requirement justifies the search.[4] State v. Johnson, 128 Wn.2d 431, 451, 909 P.2d 293 (1996); State v. Smith, 119 Wn.2d 675, 678, 835 P.2d 1025 (1992). One such exception is a search incident to a lawful custodial arrest. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Smith, 119 Wn.2d at 678.

Property seized incident to a lawful arrest may be used to prosecute the arrested person for a crime other than the one for which the person was initially arrested if the initial arrest was not merely a pretext to conduct a search for evidence of some other offense. Smith, 119 Wn. 2d at 681 (finding that after a lawful arrest for consuming liquor in public, drug paraphernalia found in the defendant’s fanny pack during the search was admissible). The arrest need not precede the search but must be contemporaneous with it. Smith, 119 Wn.2d at 679.

This case is factually similar to Smith, in which the defendant had been wearing a fanny pack that fell off during the struggle that preceded his arrest. 119 Wn.2d at 676-77. The arresting officer handcuffed the defendant and placed him in her patrol car for approximately 9 to 17 minutes before searching the fanny pack. Smith, 119 Wn.2d 681-84.

The Smith court upheld the search as incident to the arrest and valid under the Fourth Amendment because “the object searched was within the arrestee’s control when he or she was arrested” and “the events occurring after the arrest but before the search did not render the search unreasonable.” 119 Wn.2d at 681 (citing United States v. Turner, 926 F.2d 883, 887 (9th Cir. 1991)). The Smith court further concluded that “[a]n object is . . . within the control of an arrestee for the purposes of a search incident to an arrest as long as the object was within the arrestee’s reach immediately prior to, or at the moment of, the arrest.” 119 Wn.2d at 681-82.

Here, Sergeant Tate removed the pouch from Conover’s jacket during the pat-down search that immediately preceded his arrest; thus, the pouch was clearly within Conover’s reach immediately before the arrest. And we find no events that rendered the search unreasonable. Sergeant Tate had probable cause to arrest Conover for both trespass and theft and had placed Conover under arrest for theft when he handcuffed him. Thus, Sergeant Tate did not invade Conover’s Fourth Amendment rights in opening and examining the contents of the pouch as part of a search incident to the arrest. Accordingly, we affirm.

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.

HOUGHTON, J. and MORGAN, P.J. concur.