State v. Hornaday
| Decision Date | 16 January 1986 |
| Docket Number | No. 50895-0,50895-0 |
| Citation | 713 P.2d 71,105 Wn.2d 120 |
| Parties | The STATE of Washington, Respondent, v. Kevin HORNADAY, Petitioner. En Banc |
| Court | Washington Supreme Court |
Scot D. Stuart, Okanogan, for petitioner.
Douglas Boole, Okanogan County Pros., Melanie Paige Romo, Deputy County Pros., Okanogan, for respondent.
A juvenile, Kevin Hornaday, appeals his conviction for resisting arrest. He contends that his arrest for illegal consumption or possession of alcohol was unlawful because he was taken into custody without a warrant and the alleged commission of the misdemeanor did not occur "in the presence" of the arresting officer. He argues that he cannot be guilty of resisting arrest because the arrest itself was unlawful.
On June 6, 1982, an Okanogan County police officer observed the defendant who appeared to be intoxicated. When the officer approached the defendant, he could smell a strong odor of alcohol on the defendant's breath. The officer asked the defendant for some identification. The defendant showed him his Washington State driver's license which indicated that he was only 20 years old. The officer arrested the defendant for illegal consumption or possession of alcohol. When the defendant refused to enter the backseat of the police car, he had to be forcibly placed there. The defendant was subsequently charged with illegal consumption or possession of alcohol, RCW 66.44.270, and with resisting arrest, RCW 9A.76.040. RCW 66.44.270 reads in part:
Except in the case of liquor given or permitted to be given to a person under the age of twenty-one years by his parent or guardian for beverage or medicinal purposes, or administered to him by his physician or dentist for medicinal purposes, no person shall give, or otherwise supply liquor to any person under the age of twenty-one years, or permit any person under that age to consume liquor on his premises or on any premises under his control. It is unlawful for any person under the age of twenty-one years to acquire or have in his possession or consume any liquor except as in this section provided and except when such liquor is being used in connection with religious services.
RCW 9A.76.040 reads:
(1) A person is guilty of resisting arrest if he intentionally prevents or attempts to prevent a peace officer from lawfully arresting him.
(2) Resisting arrest is a misdemeanor.
Prior to trial, the defendant moved to dismiss the charges. The District Court denied the motion, concluding that the defendant "was intoxicated and therefore was in possession of liquor because it was in his body." The defendant later stipulated to the facts surrounding the incident. The District Court found him guilty as charged. The defendant appealed. The Superior Court and Court of Appeals affirmed. This appeal follows.
The first issue is whether the misdemeanor occurred "in the presence of" the officer thereby validating his warrantless arrest.
RCW 10.31.100 reads in pertinent part:
A police officer having probable cause to believe that a person has committed or is committing a felony shall have the authority to arrest the person without a warrant. 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, except as provided in subsections (1) through (3) of this section.
(1) Any police officer having 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 or the unlawful taking of property or involving the use or possession of cannabis shall have the authority to arrest the person.
(2) Any police officer having probable cause to believe that a person has committed or is committing a violation of any of the following traffic laws shall have the authority to arrest the person:
* * *
(d) RCW 46.61.502 or 46.61.504, relating to persons under the influence of intoxicating liquor or drugs; ...
The first paragraph of the statute resembles the common law rule that a police officer, even with probable cause, may not arrest a person for a misdemeanor committed outside the presence of the officer, unless the officer has a warrant. State v. Bonds, 98 Wash.2d. 1, 9-10, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831, 104 S.Ct. 111, 78 L.Ed.2d 112 (1983). Accord, Stanley v. State, 230 Md. 188, 192, 186 A.2d 478 (1962). Thus, "[a]n arrest for a misdemeanor committed outside the presence of the officer ordinarily cannot lawfully be made even if the probable cause needed for a warrant is in the officer's hands and it appears that the failure to make an immediate arrest will result in further damage or in the successful flight of the suspect." (Footnote omitted.) See W. LaFave, Arrest: The Decision to Take a Suspect into Custody 18 (1965).
Subsections (1) through (3) set forth exceptions to the general requirement that a misdemeanor be committed in the presence of the officer. For instance, any police officer having 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 may arrest the person without a warrant. RCW 10.31.100(1). The crime of use or possession of cannabis and various traffic-related crimes are likewise exempted from the general warrant requirement. See RCW 10.31.100. The Legislature has noted the need to cover these specific instances.
The State, however, does not contend that the defendant's arrest falls within the purview of the enumerated exceptions. The State concedes the defendant did not "acquire" alcohol in the presence of the officer. The defendant's arrest was lawful therefore only if the arresting officer had probable cause to believe the crime was being committed in his presence. We defined probable cause for the purpose of this test in Tacoma v. Harris, 73 Wash.2d 123, 126, 436 P.2d 770 (1968) quoting from Garske v. United States, 1 F.2d 620, 622 (8th Cir.1924):
[F]or a crime, which they have probable cause to believe is being committed in their presence, though it be a misdemeanor, duly authorized peace officers may make arrest without a warrant. The probable cause which will justify arrest for a misdemeanor without a warrant must be a judgment based on personal knowledge acquired at the time through the senses, or inferences properly to be drawn from the testimony of the senses.
Whether the crime occurred "in the presence of" the officer turns on the meaning of the words "possession" and "consume" as used in RCW 66.44.270.
The statute does not define the term "possession". However, the language "possession of intoxicating liquor" is "clear, plain and unambiguous," State v. Johnson, 129 Wash. 62, 66, 224 P. 602 (1924). A defendant "possesses" a controlled substance when the defendant knows of the substance's presence, the substance is immediately accessible, and the defendant exercises "dominion or control" over the substance. In re R.B., 108 Wis.2d 494, 496, 322 N.W.2d 502 (Ct.App.1982). The term "possession" includes constructive as well as actual possession. Constructive possession of liquor denotes control of the substance. Cf. State v. Bostock, 147 Wash. 402, 404, 266 P. 173 (1928); State v. Davis, 16 Wash.App. 657, 659, 558 P.2d 263 (1977) ()
The defendant, citing Nethercutt v. Commonwealth, 241 Ky. 47, 43 S.W.2d 330 (1931), argues that, as a matter of law, liquor in one's stomach does not constitute "possession" of intoxicating liquor. The Court of Appeals found Nethercutt unpersuasive on the ground that the case was decided within the context of the prohibition laws whose purpose was to prohibit only the unlawful transportation or sale of such spirits, not their occasional use at social gatherings. The court concluded that the intent of the prohibition laws differed from the intent of RCW 66.44.270 which is to prohibit all forms of possession of liquor by an underage person unless otherwise provided. See State v. Hornaday, 38 Wash.App. 431, 434, 685 P.2d 653 (1984).
A similarity exists in the definitions of the terms "acquire," "possess," and "use" in the statutes relating to drugs and to liquor. State v. Reid, 66 Wash.2d 243, 247, 401 P.2d 988 (1965), which involved narcotics rather than liquor, distinguished between "user" and "possessor" even though the court acknowledged "that often the user of narcotics is also a possessor." Once a narcotic is injected into the vein, or swallowed orally, it is no longer in the individual's control for purposes of possession. State v. Flinchpaugh, 232 Kan. 831, 834, 659 P.2d 208 (1983); State v Downes, 31 Or.App. 1183, 572 P.2d 1328 (1977); Franklin v. State, 8 Md.App. 134, 258 A.2d 767 (1969).
The same is true of alcohol. Once it is within a person's system, the power of a person to control, possess, use or dispose of it is at an end. The drug is assimilated by the body. The essential element of control is absent. As observed in State v. Flinchpaugh, supra 232 Kan. at 834, 659 P.2d 208:
Once a controlled substance is within a person's system, the power of the person to control, possess, use, dispose of, or cause harm is at an end. The drug is assimilated by the body. The ability to control the drug is beyond human capabilities. The essential element of control is absent. Evidence of a controlled substance after it is assimilated in a person's blood does not establish possession or control of that substance.
Assuming then that the defendant had been drinking, the alcohol was no longer in his control and/or possession at the time of...
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State v. A.M.
...that "possession" is not a term of art that incorporates knowledge. Id. at 538, 98 P.3d 1190 (declining to follow State v. Hornaday, 105 Wash.2d 120, 125, 713 P.2d 71 (1986), which held that "possession" "clear[ly], plain[ly] and unambiguous[ly]" requires knowledge of the substance being po......
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...convicted of resisting arrest, because he was merely recalcitrant. His argument is based on a single sentence in State v. Hornaday, 105 Wash.2d 120, 131, 713 P.2d 71 (1986). In that case, the evidence showed that, after the defendant was arrested, he refused to voluntarily enter the backsea......
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