STATE v. IRVIN, 19744-1-III (Wash.App. 2-7-2002)

No. 19744-1-III.The Court of Appeals of Washington, Division Three. Panel Seven.
Filed: February 7, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Spokane County, No. 001012463, Hon. Salvatore F. Cozza, October 30, 2000, Judgment or order under review.

Counsel for Appellant(s), William D. Edelblute, Attorney At Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206.

Counsel for Respondent(s), Kevin M. Korsmo, Spokane County Prosecutor’s Office, W. 1100 Mallon, Spokane, WA 99260.

Andrew J. Metts III, Deputy Prosecuting Attorney, Spokane Cnty Pros Offc, W 1100 Mallon, Spokane, WA 99260-0270.

FRANK L. KURTZ, C.J.

Matthew B. Irvin was arrested for disorderly conduct and then charged with possession of a controlled substance when a baggie of cocaine was found in his pocket during the booking process. Mr. Irvin appeals his conviction for the crime of unlawful possession of a controlled substance. He contends that (1) there is no evidence supporting three findings of fact entered at the conclusion of the CrR 3.6 hearing, and (2) the cocaine should have been suppressed because the officers lacked probable cause to arrest him for disorderly conduct. We affirm Mr. Irvin’s conviction.

FACTS
Matthew B. Irvin was arrested for disorderly conduct and then charged with possession of cocaine when a baggie of cocaine was found in his pocket during the booking process. Mr. Irvin moved to suppress this evidence on the ground that the search was unlawful because there was no probable cause for his arrest.

Testimony of Sergeant Hensley.
At the suppression hearing, Sergeant Jerry Hensley of the Spokane Police Department testified that he was on patrol the evening of January 10, 2000, when he received a call to respond to an altercation at Outback Jack’s, a bar, where subjects were fighting. When Sergeant Hensley arrived at Outback Jack’s, it appeared `that Mr. Irvin was in a yelling match with [Mr.] Payne and [Mr.] Yancey on the sidewalk out in front of the bar.’ Report of Proceedings (RP) at 6. The bar’s security staff was also outside. Sergeant Hensley could not hear what the two groups were saying.

Mr. Payne told the sergeant that `Mr. Irvin had attempted to provoke a fight with him, both verbally and physically.’ RP at 6. But that was `as specific as he got.’ RP at 6.

Sergeant Hensley also interviewed Mr. Yancey. According to the sergeant, Mr. Yancey told him that Mr. Irvin had been `posturing; had been belligerent, swearing; and had attempted to get these two subjects to fight with him physically at the bar.’ RP at 7.

Sergeant Hensley observed that Mr. Irvin was `posturing,’ `red faced,’ had `messed up’ clothes, was `extremely intoxicated,’ and appeared to have been in an altercation. RP at 7. Sergeant Hensley observed Mr. Irvin direct comments at Mr. Yancey and Mr. Payne. But, after the officers arrived, Mr. Irvin directed most of his comments at the officers. Mr. Irvin was belligerent to the point where the officers had to handcuff him and place him in the back of the patrol car so that they could conduct their investigation.

Mr. Yancey and Mr. Payne advised Sergeant Hensley that they did not wish to pursue assault or other charges against Mr. Irvin. At that point, Sergeant Hensley believed that he had probable cause to arrest Mr. Irvin for disorderly conduct, but the officers decided to release everyone if they would just leave the area. The officers released Mr. Yancey and Mr. Payne and waited until the two men walked out of sight before releasing Mr. Irvin from the back of the patrol car.

Sergeant Hensley noted in his report that he did not have probable cause for an assault charge at Outback Jack’s. However, at the hearing Sergeant Hensley explained that he did not have probable cause to arrest for assault because the two victims did not want to press charges. The sergeant testified the officers would have had probable cause to arrest for assault if the victims had wanted to press charges.

About 30 minutes later, the officers received `another in-progress-fight-type call’ from the Satellite Diner, and Sergeant Hensley and two other officers responded to that location. RP at 9. When Sergeant Hensley arrived at the scene, he saw Mr. Irvin `posturing’ inside the diner. RP at 9. Sergeant Hensley could not hear the conversation between Mr. Irvin and the others, but the sergeant could see Mr. Irvin yelling at people inside the diner. Sergeant Hensley saw Mr. Payne standing up at a table and Mr. Yancey sitting at the table looking toward the window. Mr. Payne was looking at Mr. Irvin who was standing in the entry way. Mr. Payne had a bottle of Tabasco sauce in his hand.

While other officers talked to Mr. Irvin, Sergeant Hensley spoke to Mr. Yancey and Mr. Payne. The sergeant was informed that Mr. Yancey and Mr. Payne had ordered something to eat when Mr. Irvin had entered and attempted to provoke a fight. According to Sergeant Hensley, Mr. Payne indicated that he had grabbed the bottle of Tabasco sauce `to defend himself from Mr. Irvin’ who had `once again, attempted to provoke a fight.’ RP at 10. Apparently Mr. Payne did not repeat to the sergeant any of the exact words Mr. Irvin had spoken.

When asked if Mr. Payne or Mr. Yancey had explained how Mr. Irvin had provoked a fight, Sergeant Hensley answered:

Yes. They said by his words and his actions that he was, basically, posturing; that he had, once again, come to that bar and confronted them; and that they were in fear of being assaulted and that’s why Mr. Payne brandished the Tabasco sauce bottle because he felt he was going to be assaulted.

RP at 11. Sergeant Hensley also compared Mr. Irvin’s demeanor on the second contact as the same as the first contact. Specifically, Sergeant Hensley stated: `[H]e was the same the second time as he was the first. He was extremely belligerent and intoxicated.’ RP at 11.

Sergeant Hensley further testified that an employee of the Satellite Diner, who identified himself as the head of security, told the officers that Mr. Irvin was a regular customer of the diner and that the employee had not seen Mr. Irvin do anything wrong. From the information he had, Sergeant Hensley agreed that it could have been happenstance that Mr. Irvin showed up at the same diner as Mr. Yancey and Mr. Payne.

At the end of the second incident, Sergeant Hensley determined that `we needed to arrest Mr. Irvin and take him to Spokane County Jail so we didn’t have another incident with him that night.’ RP at 12. Mr. Irvin was transported to the jail where a baggie of cocaine was discovered during the booking process. Testimony of Mr. Irvin. At the hearing, Mr. Irvin testified that he had gone to Outback Jack’s after an employee party at the Spokane Club. Mr. Irvin stated that he was assaulted by Mr. Yancey and Mr. Payne at Outback Jack’s and that, after the scuffle, he had spoken to the bar manager outside before the police arrived. Mr. Irvin testified that he did not make any threats toward anyone. After being held in the patrol car for about 20 minutes, Mr. Irvin walked to the Satellite Diner because he had a ride home to Cheney with a friend from the diner. Mr. Irvin had `no idea whatsoever’ that Mr. Payne and Mr. Yancey would be in the diner, but when Mr. Irvin walked in the door of the diner, `[t]hey saw me walk in the front door and they came running right at me.’ RP at 20. Mr. Irvin called 911 from a phone at the diner and went outside for the police to show up. He did not threaten any harm to anyone at the diner. Judgment. The court denied Mr. Irvin’s motion to suppress. At the conclusion of a stipulated facts bench trial, Mr. Irvin was found guilty of possession of a controlled substance. Mr. Irvin appeals.

ANALYSIS Challenge to Findings of Fact.
Findings of fact entered at the conclusion of a CrR 3.6 hearing are reviewed for substantial evidence. Substantial evidence exists when there is a sufficient quantity of evidence to persuade a fair-minded, rational person of the truth of the finding. State v. Maxfield, 125 Wn.2d 378, 385, 886 P.2d 123 (1994). Finding of Fact No. 3 states: `Mr. Payne and Mr. Yancey both stated that Mr. Irvin had provoked a physical fight with them inside the bar.’ Clerk’s Papers (CP) at 3. There is insufficient evidence to support this finding. Mr. Payne told the sergeant that `Mr. Irvin had attempted to provoke a fight with him, both verbally and physically.’ RP at 6. But that was `as specific as he got.’ RP at 6. Likewise, Sergeant Hensley testified that Mr. Yancey indicated that Mr. Irvin had been `posturing; had been belligerent, swearing; and had attempted to get these two subjects to fight with him physically at the bar.’ RP at 7. Hence, the evidence supports the conclusion that Mr. Irvin attempted to provoke a physical fight, not that Mr. Irvin provoked a physical fight.

Finding of Fact No. 7 states that Sergeant Hensley was later called to the Satellite Diner for `another fight in progress.’ CP at 4. There is insufficient evidence to support this finding. Sergeant Hensley testified that it was an `in-progress-fight-type call.’ RP at 9. The inference that there was an actual fight in progress goes beyond the evidence presented to the court. Finding of Fact No. 11 states that: `Mr. Irvin clearly appeared to be provoking another fight.’ CP at 4. There is insufficient evidence to support the finding that Mr. Irvin was provoking `another’ fight when there is no evidence supporting the conclusion there was a first fight.

However, contrary to the assertions of Mr. Irvin, there is substantial evidence supporting the finding that Mr. Irvin was in fact `provoking’ a fight. Sergeant Hensley testified that both Mr. Payne and Mr. Yancey told him that Mr. Irvin attempted to provoke a fight, that both men were in fear of being assaulted, and that Mr. Payne had grabbed a bottle of Tabasco sauce to defend himself.

In sum, the evidence is insufficient to support the conclusion that there was a physical fight inside the bar, that Sergeant Hensley was called to the scene of `another’ fight, or that Mr. Irvin attempted to provoke `another’ fight in the diner. However, there is substantial evidence to conclude that Mr. Irvin `attempted’ to provoke a fight in the bar, that Sergeant Hensley received an `in-progress-fight-type call,’[1]
and that Mr. Irvin attempted to provoke a fight inside the diner. Probable Cause to Arrest. A search incident to a lawful arrest is an exception to the warrant requirement. State v. Johnson, 128 Wn.2d 431, 447, 909 P.2d 293 (1996).

Mr. Irvin challenges the court’s determinations that his arrest and the subsequent search were lawful. We conduct a de novo review of the trial court’s legal conclusions. Id. at 443. Mr. Irvin challenges the admission of the cocaine arguing that the officers lacked probable cause for his arrest. Probable cause exists when facts and circumstances within the arresting officer’s knowledge are sufficient to cause a person of reasonable caution to believe that a crime has been or is being committed. State v. Thompson, 93 Wn.2d 838, 840, 613 P.2d 525 (1980); State v. Huff, 64 Wn. App. 641, 646, 826 P.2d 698 (1992). Generally, a warrantless arrest for a misdemeanor is not permitted unless the offense is committed in the police officer’s presence. Cerny v. Smith, 84 Wn.2d 59, 62, 524 P.2d 230 (1974) (citing State v. Wilson, 70 Wn.2d 638, 641, 424 P.2d 650 (1967)). However, RCW 10.31.100(1) allows for a warrantless arrest if the officer has `probable cause to believe that a person has committed or is committing a misdemeanor or gross misdemeanor, involving physical harm or threats of harm to any person or property. . . .’ Disorderly Conduct. Mr. Irvin first contends the court erred by concluding that Sergeant Hensley had probable cause to arrest him for disorderly conduct pursuant to RCW 9A.84.030, which reads as follows:

(1) A person is guilty of disorderly conduct if he:

(a) Uses abusive language and thereby intentionally creates a risk of assault; or

(b) Intentionally disrupts any lawful assembly or meeting of persons without lawful authority; or

(c) Intentionally obstructs vehicular or pedestrian traffic without lawful authority.

(2) Disorderly conduct is a misdemeanor.

The State contends that the officers had probable cause to arrest Mr. Irvin under RCW 9A.84.030 and/or City of Spokane Municipal Code (SMC) 10.10.020. As the State correctly argues, an arrest is not invalidated if, at the time of the arrest, the officer has sufficient information to support probable cause to arrest on any crime. See State v. Stebbins, 47 Wn. App. 482, 485, 735 P.2d 1353 (1987).

SMC 10.10.020, a disorderly conduct ordinance, provides:

No person with intent to cause, or recklessly creating, a risk of public inconvenience, annoyance, or alarm may

A. engage in fighting or in violent, tumultuous, or threatening behavior; or

B. make unreasonable noise; or

C. disturb any lawful assembly of persons without lawful authority; or

D. use any obscene or abusive language, or gestures in a manner likely to provoke a violent or disorderly response.

Violation of SMC 10.10.020 is a misdemeanor. RCW 9A.84.030.

RCW 9A.84.030 and SMC 10.10.020 establish the elements of `disorderly conduct.’ Disorderly conduct provisions have been limited to `fighting words,’ as these terms are not afforded constitutional protections. State v. Montgomery, 31 Wn. App. 745, 754, 644 P.2d 747 (1982) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031
(1942)). `Fighting words’ have been described as words `which by their very utterance inflict injury or tend to incite an immediate breach of the peace.’ Chaplinsky, 315 U.S. at 572.

A `fighting words’ analysis involves three steps: (1) the words must be directed at a particular person or group of persons and there must be an addressee; (2) the words themselves must be personally abusive to the ordinary citizen and commonly known to be inherently likely to provoke violent reaction; and (3) consideration must be given to the context or situation in which the words were expressed. City of Seattle v. Camby, 104 Wn.2d 49, 53, 701 P.2d 499 (1985).

The State maintains that the court is not limited to the application of a `fighting words’ analysis because the officers also observed `violent, tumultuous, or threatening behavior’ and the `disturb[ance of a] lawful assembly of persons.’ These arguments are unpersuasive in view of the evidence obtained at the CrR 3.6 hearing. There is no evidence indicating that `fighting’ occurred or that Mr. Irvin intentionally disrupted a lawful assembly at the diner, and disorderly conduct provisions aimed at speech are limited to `fighting words.’ Based on the record here, we must employ the `fighting words’ analysis when evaluating the evidence obtained at the CrR 3.6 hearing.

Mr. Irvin relies heavily on Camby to support his argument that the officers lacked probable cause to arrest for disorderly conduct. The Camby court had to determine whether there was sufficient evidence to support Mr. Camby’s conviction for harassment. Camby is of limited assistance because the probable cause standard is different than the sufficiency of the evidence standard.

In Camby, the court considered whether there was sufficient evidence to support Mr. Camby’s conviction for violation of the harassment ordinance, Seattle Municipal Code 12A.06.040, which read as follows:

`A person is guilty of harassment if with the intent to annoy or alarm another person he repeatedly uses fighting words or obscene language, thereby creating a substantial risk of assault.’

Camby, 104 Wn.2d at 51. Mr. Camby had been convicted of harassment as the result of an altercation at a Seattle restaurant. The restaurant’s doorman, Mr. Gray, escorted Mr. Camby to the exit after receiving complaints about him. Mr. Camby did not wish to leave and told Mr. Gray several times that he was going to take Mr. Gray outside and `kick [his] ass.’ Id. at 50. Mr. Gray motioned to a nearby police officer for assistance and the officer also asked Mr. Camby to leave. Mr. Camby then told Mr. Gray to `come outside so I can kick your fucking ass.’ Id. The officer again told Mr. Camby to be quiet and leave and Mr. Camby stated that `I’ll either get him tonight or later.’ Id. At trial, Mr. Gray testified that the threats had not caused him to lose his temper, that he was not compensated enough to fight, and that he felt somewhat more secure because of the officer’s presence. The officer testified that Mr. Gray had not been visibly angered by Mr. Camby’s conduct. Id. at 51.

The Camby court assumed that the first two steps of the `fighting words’ analysis had been met, and focused its attention on the third step. Id. at 53-54. The court concluded that:

Looking at the actual situation presented in this case, we find an intoxicated defendant being escorted out of a restaurant by a mild mannered, unaroused doorman-host with a police officer present. Given the specific context in which the words were spoken, it was not plainly likely that a breach of the peace would occur.

Id. at 54.

The evidence here is quantitatively and qualitatively different than the evidence presented in Camby. The Camby court was presented with the exact words employed by the speaker. Here, we have no testimony as to the exact words spoken, but we have numerous descriptions of those words as `yelling,’ `swearing,’ and `belligerent.’ RP at 7. We also have descriptions of Mr. Irvin as `posturing,’ `red faced,’ `extremely intoxicated,’ with `messed up’ clothes. RP at 7. Significantly, in contrast to Camby, here we have a series of exchanges observed by the officers and greater detail as to the effect and context of Mr. Irvin’s statements.

When the police pulled up to Outback Jack’s, people were outside on the sidewalk and Mr. Irvin was engaged in a shouting match with Mr. Payne and Mr. Yancey. Mr. Irvin was so belligerent that officers had to confine him to the back of a patrol car in order to perform their investigation. Sergeant Hensley believed he had probable cause to arrest Mr. Irvin for assault but released him because the witnesses were unwilling to testify. Thirty minutes later, Sergeant Hensley answered another `in-progress-fight-type call’ from a diner, looked in the window, and observed Mr. Yancey sitting at a table and Mr. Payne standing up at the table holding a bottle of Tabasco sauce and looking at Mr. Irvin who was standing in the entryway. RP at 9-10. When contacted by the sergeant, Mr. Irvin was the same as he was on the first contact, `extremely belligerent and intoxicated.’ RP at 11.

Mr. Irvin argues that the State failed to establish probable cause because there was no testimony as to the specific words that he addressed to Mr. Payne and Mr. Yancey. Mr. Irvin maintains a court examining probable cause must be presented with the actual words spoken in order to conduct a `fighting words’ analysis. Mr. Irvin points out that the court’s findings — based largely on Sergeant Hensley’s testimony — describe the words by using highly subjective conclusions which grant great deference to the officer’s opinions, and provide little in the way of facts. Mr. Irvin refers to the Camby court’s conclusion that the `determination of whether a substantial risk of assault is created is not best gauged by the officer on the scene and deference should not be given to this determination.’ Camby, 104 Wn.2d at 54-55.

Mr. Irvin also contends the court overemphasized the evidence concerning Mr. Payne’s reaction of grabbing a bottle. Again, Mr. Irvin relies on Camby, where the court concluded that the reaction of the addressee was only one factor to consider when evaluating the context in which the words were spoken. Id. at 54.

Even if we limit our inquiry to events occurring in Sergeant Hensley’s presence, we conclude that the facts known to the officer at the time of Mr. Irvin’s arrest were sufficient to cause a person of reasonable caution to believe that Mr. Irvin had spoken `fighting words’ that intentionally created `a risk of assault’ or were `likely to provoke a violent or disorderly response.’ RCW 9A.84.030(1)(a); SMC 10.10.020. While there was no evidence as to the specific words spoken, there was evidence describing the words and a great deal of testimony describing the effect and context of the statements. Contrary to the assertions of Mr. Irvin, the trial court did not rely solely on the officer’s assessment of the risk or on the reaction of one addressee.

Here, there was evidence of two separate encounters defused only by the intervention of security staff and police. Testimony as to the precise words spoken would be required in order to convict for the crime of disorderly conduct, but the detailed evidence presented here is sufficient to establish probable cause to arrest for that crime.

We affirm Mr. Irvin’s conviction.

The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

WE CONCUR: SCHULTHEIS, J. KATO, J.