STATE v. ORTEGA No. 64008-9-I.
248 P.3d 1062 (2011)
159 Wash.App. 889
STATE of Washington, Respondent, v. Gregorio Bravo ORTEGA a.k.a. Martin Dominguez Hernandez, Appellant.
Court of Appeals of Washington, Division 1.
February 7, 2011.
Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.
Michael John Pellicciotti, Office of the King County Prosecuting Attorney, Seattle, WA, for Respondent.
¶ 1 Ortega appeals his conviction for possession of cocaine with intent to deliver. Ortega argues the arresting officer did not have the authority to arrest him without a warrant because Ortega did not commit a misdemeanor in his presence as required by RCW 10.31.100. Therefore, the search incident
¶ 2 After receiving complaints from local business owners, several officers from the Seattle Police Department's Community Police Team organized an investigation into suspicious drug activity in the Belltown neighborhood of Seattle. Officer Chad McLaughlin positioned himself to surveil the street from the second floor of a local business. Officers David Hockett and Anthony Gaedcke, the arrest team, positioned themselves nearby in patrol cars.
¶ 3 From his surveillance location, McLaughlin observed Gregorio Ortega walking aimlessly with co-defendant Alfonso Cuevas. As McLaughlin watched, Ortega and Cuevas attempted to contact passersby through eye contact and head nods. They nodded at two passersby, who then walked with Ortega and Cuevas a short distance until the four of them stopped, and another passerby joined them. Ortega huddled by a payphone with two of the individuals, appearing to make exchanges of small items, while Cuevas paced the sidewalk, looking around. After each exchange, the other individuals quickly left the area. After completing the second suspected transaction, Ortega and Cuevas began walking away together. As they walked away, Ortega and Cuevas were approached by a female, who then walked with them for a few yards. A short time later, Ortega and the female stopped and stepped off the sidewalk to make a quick hand-to-hand transaction while Cuevas again appeared to act as a lookout. Ortega and Cuevas quickly walked away, as did the female. McLaughlin believed he was observing narcotics transactions, but he could not confirm that any of the items exchanged actually constituted a drug sale.
¶ 4 After the third suspected narcotics transaction, McLaughlin believed he had probable cause to arrest Ortega for drug traffic loitering, a gross misdemeanor. McLaughlin radioed Hockett and Gaedcke, informing them that probable cause existed to arrest Ortega and Cuevas and giving specific instructions on the location and appearance of the suspects. Responding immediately by patrol car, Hockett arrested and searched Ortega, locating small rocks of cocaine and $780 in cash on his person. McLaughlin maintained visual contact with the suspects up to the time of the arrest, which occurred approximately 30 seconds after he radioed the arrest team. McLaughlin packed up his surveillance gear and met with Hockett and Gaedcke, immediately confirming that the suspects were the individuals he had observed.
¶ 5 The State charged Ortega with possession of cocaine with intent to deliver. In a pretrial hearing under CrR 3.6, the trial court heard evidence relating to Ortega's motion to suppress the evidence located during the search incident to arrest. The trial court then concluded that the officers were justified in arresting Ortega and denied the motion to suppress.
¶ 6 The case proceeded to trial. The jury found Ortega guilty as charged. The trial court sentenced Ortega to a standard sentence of 12 months plus one day. Ortega appeals.
¶ 7 An officer may conduct a warrantless search of the defendant's person only incident to a valid arrest. State v. Craig, 115 Wn.App. 191, 194-95,
¶ 9 The presence requirement originated in common law. William A. Schroeder, Warrantless Misdemeanor Arrests and the Fourth Amendment, 58 Mo. L.REV. 771, 788-89 (1993); see also City of Tacoma v. Harris,
People v. Phillips, 284 N.Y. 235, 237, 30 N.E.2d 488 (1940) (quoting 1 JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 193 (1883)); See also Schroeder, supra, at 788-89. The "in the presence" rule was a balance of "`accommodating the public need for the most certain and immediate arrest of criminal suspects with the requirement of magisterial oversight to protect against mistaken insults to privacy' with the result that `only in the most serious of cases could the warrant be dispensed with.'" State v. Walker,
¶ 10 The legislature codified the presence requirement in 1979. Former RCW 10.31.100 (Laws of 1979, 1st Ex.Sess., ch. 128, § 1). RCW 10.31.100, though in derogation of the common law, accords with the purpose of the common law in the presence rule. Walker, 157 Wash.2d at 316,
¶ 11 Ortega does not dispute that McLaughlin, as the observing officer, had probable cause to arrest him for the misdemeanor of drug traffic loitering under Seattle Municipal Code (SMC) 12A.20.050(B).
¶ 12 The State responds that probable cause transferred from McLaughlin to Hockett under the fellow officer rule, also known as the collective knowledge doctrine or the police team rule. The fellow officer rule is not a creation of English common law. Rather, it was developed as part of a general liberalizing of the common law presence requirement in response to the challenges of policing in modern times with modern technology. See J. Terry Roach, Comment, The Presence Requirement and the "Police-Team" Rule in Arrest for Misdemeanors, 26 WASH. & LEE L.REV. 119, 119-21 (1969). Washington has adopted the fellow officer rule in the felony context. See, e.g., State v. White,
¶ 13 No published misdemeanor prosecution case has explicitly held that the fellow officer rule applies. The State asserts that this court extended the fellow officer rule to misdemeanors in Torrey v. City of Tukwila,
¶ 14 The court in Torrey applied the federal fellow officer rule to a misdemeanor arrest. 76 Wash.App. at 39,
¶ 15 The State contends that Gaddy compels the application of the fellow officer rule here. Gaddy involved an arrest based on information obtained from the Department of Licensing. 152 Wash.2d at 70,
¶ 16 The fellow officer rule was not available at common law. It has not been extended to the misdemeanor context under RCW 10.31.100 exceptions to the presence requirement. Neither has the Supreme Court applied the rule to a misdemeanor prosecution. Without these factors, it is for the legislature to extend the arrest authority of law enforcement officers. State v. Whatcom Cnty. Dist. Court,
¶ 17 Although we decline to adopt the fellow officer rule in the misdemeanor context, we hold that RCW 10.31.100 is not violated under these facts. The observing officer viewed the conduct, directed the arrest, kept the suspects and officers in view, and proceeded immediately to the location of the arrest to confirm that the arresting officers had stopped the correct suspects. McLaughlin's continuous contact rendered him a participant in the arrest. Although McLaughlin was not the officer who actually put his hands on Ortega, McLaughlin was an arresting officer in the sense that he directed the arrest and maintained continuous visual and radio contact with the arrest team.
¶ 18 If Officer A was driving a squad car with Officer B and Officer A witnessed a suspect commit a misdemeanor while Officer B did not, we would not construe the in the presence rule to require that Officer A could arrest the suspect but Officer B would need a warrant. Such a view of an arrest by a witnessing officer would be artificially narrow. The same is true here.
¶ 19 We hold the arrest of Ortega without a warrant did not violate RCW 10.31.100. Because the arrest was lawful, the search incident to the arrest was valid. Suppression of the evidence obtained during the search was not required. Because we hold that probable cause existed for the misdemeanor, we need not consider the State's argument that it also had probable cause to arrest Ortega for the commission of a felony.
¶ 20 We affirm.
WE CONCUR: DWYER, C.J., and GROSSE, J.
GROSSE, J. (concurring).
I concur in the result for the reasons stated. However, the discussion of the fellow officer rule in the context of RCW 10.31.100 is unnecessary to the decision and could be read as the foretelling further judicial evisceration of the statute, something I do not think the majority intends.
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