Appeal from Superior Court, King (92-1-02479-5) County; Honorable Deborah Fleck, Judge. Judgment Date: 8-11-92.
Madsen, J., Durham, C.j., Dolliver, Smith, Guy, Johnson, Alexander, Talmadge, Sanders, J.j., concurring.
MADSEN, J.-- Petitioner Gregory K. White was convicted of possession of cocaine with the intent to deliver. He appealed to the Court of Appeals, Division I, on grounds that the trial court erred in denying his motion to suppress evidence. The Court of Appeals affirmed. At issue is whether police need a warrant to arrest a suspected felon in a toilet stall of a public restroom.
The facts are undisputed. On April 2, 1992, at approximately 5:20 p.m., a team of Seattle police conducted a narcotics surveillance operation near Third Avenue and Virginia Street in Seattle. Officer Magee was positioned on the roof of a parking garage overlooking the street. He used binoculars to aid his vision as he watched for narcotics transactions. Officers Pugel and Henshaw, acting as the arrest team, patrolled the immediate area awaiting instructions from Magee to make arrests.
Magee observed White and another male, a juvenile, walking together southbound on Third Avenue. The two turned the corner eastbound on Virginia Street where they stopped and stood three to five feet apart. An unidentified man wearing a white sweat suit approached White. After a brief discussion, White pointed to the juvenile. The man in the white sweat suit walked over to the juvenile and the two began to walk eastbound on Virginia
Street. White followed at a distance of three to five feet. As the three males walked slowly down the street the man in the white sweat suit pulled money from his pocket and counted it. The juvenile pulled something from the pocket of his shorts and dropped it to the ground. The man in the white sweat suit stopped, picked the object up from the ground, examined it, put it in his mouth, then handed the money he had just counted to the juvenile. As this occurred, White looked back and forth over his shoulders to the surrounding area.
Shortly thereafter the group separated. White and the juvenile walked in one direction as the man in the white sweat suit walked in the opposite direction. All the while White maintained his distance from the juvenile. When the juvenile caught up to White, Magee observed "hand movements" between them but could not tell whether anything had been passed. Verbatim Report of Proceedings (VRP) at 110. The two continued to walk together until they reached Steve's Broiler, a restaurant located at the corner of Fourth Avenue and Virginia Street. Once there White entered the restaurant and the juvenile remained outside.
Magee radioed Officers Pugel and Henshaw giving the location and description of the suspects. When the officers reached the location, the juvenile was found leaning against a light pole outside Steve's Broiler. Henshaw arrested him. Pugel went inside the restaurant to arrest White. Pugel asked the restaurant manager if a man meeting White's description had entered the establishment. The manager directed Pugel to the restroom. Pugel testified that upon entering the restroom he saw brown shoes and purple sweat pants from under one of the stalls, clothing matching the description Magee had given of one of the suspects. No one else was in the restroom. Pugel further testified that he looked over the stall door and saw White sitting on the toilet with his pants below his knees and currency lying on top of his underwear. At this point Pugel informed White that he was under arrest and
instructed him to come out of the stall with ...