State v. Huff

• Decision Date: 12 March 1992
• Docket Number: No. 13249-4-II,13249-4-II
• Citation: 826 P.2d 698,64 Wn.App. 641
• Parties: The STATE of Washington, Respondent, v. Daniel P. HUFF, Appellant.
• Court: Washington Court of Appeals

Page 641

64 Wn.App. 641

826 P.2d 698

The STATE of Washington, Respondent, v. Daniel P. HUFF, Appellant.

No. 13249-4-II.

Court of Appeals of Washington,

Division 2.

March 12, 1992.

Review Denied June 2, 1992.

Robert A. Lewis and Knapp O'Dell, Lewis & Hagensen, Camas, for appellant, (appointed counsel for appeal).

Robert K. Leick, Pros. Atty., and Grant E. Hansen, Deputy Pros. Atty., Stevenson, for respondent.

MORGAN, Judge.

Daniel Huff appeals his conviction for possession of a controlled substance. We affirm.

On May 13, 1989, Huff was driving a late 1960's Lincoln Continental eastbound on Highway 14 in Skamania County. Naomi Morley was a passenger riding in the right front seat.

Deputy Cox of the Skamania County Sheriff's Office was on patrol. He saw the Lincoln weaving and suspected that the driver was intoxicated or having mechanical problems. He pulled in behind and turned on his emergency lights.

Huff did not stop. He continued east for another one-half mile, then turned south onto the Bridge of the Gods, a narrow two lane bridge spanning the Columbia River.

While following Huff with his lights on, Cox observed Morley looking back at him and making what appeared to be furtive movements. Cox then turned on his siren, and Huff stopped about 100 yards onto the bridge.

After stopping behind the Lincoln, Cox approached it. He immediately smelled the odor of methamphetamine. However, he could not tell whether it was coming from Huff or from inside the car.

Cox asked Huff for his driver's license. Huff said he did not have one, although he had previously had one in California. When asked about the car, Huff stated that it belonged to the friend of a friend. Eventually, he produced a registration. Cox ran a computer check and determined that the car had not been reported stolen. He then asked the sheriff's office to contact the owner, but apparently the owner could not be located.

Cox also discovered that Huff had an outstanding warrant for probation violation. Thus, he arrested Huff and placed him in the patrol car. Huff asked if Morley could take charge of the Lincoln.

Morley was still sitting in the front seat of the Lincoln. To explore whether the car should be released to her, Cox went back to the Lincoln and again smelled methamphetamine. He could not tell whether it was coming from Morley or from somewhere else inside the car.

Cox asked Morley for her driver's license, but she did not produce one. Instead, she gave a false name and showed him a fictitious birth certificate and social security card. Remembering her from prior contacts, Cox realized that she was lying and placed her under arrest for obstructing a public servant. He also removed her from the Lincoln.

Cox then asked Huff for permission to search the Lincoln. Huff refused, but Morley asked Cox to retrieve her purse from the front seat. As Cox was getting the purse, he once again smelled methamphetamine, and this time he became convinced that the odor was emanating from inside the car.

At this point, Cox decided to obtain a search warrant for the car. Thus, he impounded it and had it towed to the police station, where it was held pending preparation of the documents needed for a search warrant. The warrant was issued as requested, and the ensuing search revealed a pink purse containing methamphetamine. The pink purse was hidden in a pile of laundry in the back seat, and earlier in the chain of events, Morley had told Cox that the laundry belonged to her. The pink purse was a different purse from the one that Cox had retrieved earlier at Morley's request.

Huff was charged with possession of a controlled substance. Before trial, he made a motion to suppress the pink purse and its contents, but the motion was denied. At trial, he made motions to dismiss for insufficient evidence and to give certain proposed jury instructions, but those motionswere also denied. He was convicted and sentenced to 80 days in jail and twelve months community supervision.

On appeal, Huff argues that the trial court erred by denying each of his motions. We discuss the motion to suppress in sections I and II, and the other motions in section III.

I.

Huff's first argument is that the drugs are the fruit of an illegal arrest. He does not claim that the affidavit supporting the search warrant failed to show probable cause or that the search warrant was facially defective. However, he argues that Cox would not have decided to obtain the search warrant but for confirming that the odor of methamphetamine was emanating from inside the car as well as from Huff and Morley; that Cox would not have confirmed that the odor of methamphetamine was emanating from the car but for retrieving the first purse from the front seat at Morley's request; that Morley would not have made her request but for being arrested; and that Morley's arrest for obstructing a public servant was illegal because the relevant portions of the obstructing statute, RCW 9A.76.020(1) and (2), were held unconstitutional in State v. White, 97 Wash.2d 92, 640 P.2d 1061 (1982).

The State expressly concedes that Huff has standing to challenge the validity of Morley's arrest. For that reason only, we consider Huff's argument.

The argument fails because its premise is faulty. Morley's arrest was lawful.

The validity of an arrest is determined by objective facts and circumstances. Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142, 147 (1964); Ricehill v. Brewer, 459 F.2d 537 (8th Cir.1972); Klingler v. United States, 409 F.2d 299 (8th Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969); State v. Vanzant, 14 Wash.App. 679, 681, 544 P.2d 786, 788 (1975); Robert F. Utter, Survey of Washington Search and Seizure Law: 1988 Update, 11 U.Puget Sound Law Rev. 411, § 2.2(a) at 450 (1988). An arrest not supported by probable cause is not made lawful by an officer's subjective belief that an offense has been committed. Carroll v. United States, 267 U.S. 132, 161-62, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925); Director General of Railroads v. Kastenbaum, 263 U.S. 25, 28, 44 S.Ct. 52, 53, 68 L.Ed. 146 (1923). By the same token, an arrest supported by probable cause is not made unlawful by an officer's subjective reliance on, or verbal announcement of, an offense different from the one for which probable cause exists. ¹ United States v. Saunders, 476 F.2d 5 (5th Cir.1973); United States v. Bowers, 458 F.2d 1045 (5th Cir.), cert. denied, 409 U.S. 868, 93 S.Ct. 167, 34 L.Ed.2d 118 (1972); United States v. Brookins, 434 F.2d 41 (5th Cir.1970), cert. denied, 401 U.S. 912, 91 S.Ct. 880, 27 L.Ed.2d 811 (1971); Klingler v. United States, 409 F.2d 299 (8th Cir.1969), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969); Ricehill v. Brewer, supra; State v. Vangen, 72 Wash.2d 548, 433 P.2d 691 (1967); Seattle v. Cadigan, 55 Wash.App. 30, 776 P.2d 727, review denied, 113 Wash.2d 1025, 782 P.2d 1069 (1989); State v. Stebbins, 47 Wash.App. 482, 735 P.2d 1353 review denied,108 Wash.2d 1026 (1987). "The law cannot expect a patrolman unschooled in the technicalities of criminal and constitutional law to always be able to immediately state with particularity the exact grounds on which he is exercising his authority." McNeely v. United States, 353 F.2d 913, 918 (8th Cir.1965).

Under both the federal and state constitutions, probable cause is the objective standard by which the reasonableness of an arrest is measured. State v. Bonds, 98 Wash.2d 1, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831, 104 S.Ct. 111, 78 L.Ed.2d 112 (1983); State v. Stebbins, supra, Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 2254, 60 L.Ed.2d 824 (1979). Probable cause for a warrantless arrest 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 committed. State v. Fricks, 91 Wash.2d 391, 588 P.2d 1328 (1979); State v. Gluck, 83 Wash.2d 424, 426-27, 518 P.2d 703 (1974); Stebbins, 47 Wash.App. at 484, 735 P.2d 1353. More specifically, probable cause to arrest the occupants of a car for possession of a controlled substance exists when a trained officer detects that the odor of a controlled substance is emanating from a vehicle. ² State v. Hammond, 24 Wash.App. 596, 600, 603 P.2d 377 (1979) (passenger); State v. Compton, 13 Wash.App. 863, 864-65, 538 P.2d 861 (1975) (driver); 2 LaFave, Search and Seizure, § 3.6(b) at 36-38 (2d ed. 1987); see also State v. Ramirez, 49 Wash.App. 814, 819, 746 P.2d 344 (1987); Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 368, 92 L.Ed. 436 (1948). Other facts supportive of probable cause include furtive movements and lying to the police, both of which evidence consciousness of guilt. Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968) quoting Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (deliberate furtive gestures at the approach of the police are strong indicia of guilty mens rea); State v. Goodman, 42 Wash.App. 331, 711 P.2d 1057 (1985), review denied, 105 Wash.2d 1012 (1986) (improbable explanation and false answers may be considered in probable cause determination); State v. Bryan, 40 Wash.App. 366, 698 P.2d 1084 (1985) (false answers, indicating guilty mens rea combined with circumstantial evidence); State v. Sinclair, 11 Wash.App. 523, 531, 523 P.2d 1209 (1974) (false answers); State v. Haverty, 3 Wash.App. 495, 475 P.2d 887 (1970) (improbable explanation of possession of stolen property); see also United States v. Ortiz, 422 U.S. 891, 897, 95 S.Ct. 2585, 2589, 45 L.Ed.2d 623, 629 (1975) (dicta) (officer may consider suspect's response to questioning).

In this case, Cox had objectively sufficient probable cause to arrest Morley for possession of a controlled substance. As he was attempting to stop the car, he saw Morley look back at him and make furtive gestures. When he asked her for...