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State v. Clay

September 3, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
CHRISTOPHER CLAY, B.D. 02-20-79, APPELLANT.



Agid, J.

The opinion of the court was delivered by: Agid

AGID, J. -- Christopher Clay appeals his Disposition for possessing a dangerous weapon on the ground the trial court erred in denying his motion to suppress a switchblade knife retrieved from his sock. Because we conclude that there was probable cause to arrest Clay and the search was proper incident to that arrest, we affirm.

FACTS

At approximately 10:25 p.m. on August 19, 1994, Redmond Police Officer William Corson was on bicycle patrol with his partner. He saw a blue BMW drive east on Avondale Way without headlights and stop in front of a mini-mart near the Annex, a club for teenagers. As Officer Corson approached the car to talk to the driver about his headlights, the driver looked at the officer and attempted to drive away. But he was unable immediately to put the car in gear and it jerked several times. Officer Corson made eye contact with the driver, motioned to him to stop, and ordered him to do so verbally. When the driver stopped, the officer approached him, told him he was driving without headlights and asked if he had a driver's license. The driver, Christopher Clay, responded that he did not have a driver's license because he was just 15 years old. Officer Corson asked Clay to step out of the car and then asked whether he had any weapons on him. *fn1 Clay told the officer he had a switchblade in his sock and offered to get it for the officer. Officer Corson told him to remain still and that he would get it himself. The officer patted Clay down and retrieved the knife from his left sock. He then called Clay's mother and, when she arrived, released both Clay and the car to her.

Clay was charged by amended information with possession of a switchblade, no valid operator's license, and taking a motor vehicle. Clay moved to suppress the switchblade on the ground that the search of his sock exceeded the permissible scope of a pat down search for weapons. Following a combined fact finding and hearing on the motion to suppress, the trial court denied the motion to suppress, dismissed the charge of taking a motor vehicle, and found Clay guilty of possessing a switchblade and driving without a valid operator's license. This appeal followed.

Discussion

Clay contends that the trial court erred when it denied his motion to suppress the switchblade found in his sock. Clay does not challenge the validity of the initial stop but argues that absent specific, articulable facts from which the officer could have inferred that Clay was armed and dangerous, the officer's search of Clay's sock exceeded the permissible scope of a search for weapons. Because we conclude that the officer had probable cause to arrest Clay once he learned Clay had a switchblade in his possession, we hold that the search was proper incident to his arrest. We need not consider whether the search would have been proper had there not been probable cause to arrest Clay. *fn2 "'The Fourth Amendment, made applicable to the States by way of the Fourteenth Amendment . . . guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."'" State v. Rodriguez-Torres, 77 Wash. App. 687, 690, 893 P.2d 650 (1995) (quoting Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135, 124 L. Ed. 2d 334 (1993)). Searches and seizures must be supported by probable cause whether or not a formal arrest has been made. State v. Hudson, 124 Wash. 2d 107, 874 P.2d 160 (1994) (citing Dunaway v. New York, 442 U.S. 200, 208, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979)).

Probable cause exists where the facts and circumstances within the arresting officer's knowledge and of which the officer has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in a belief that an offense has been committed.

Probable cause is not a technical inquiry. State v. Terrovona, 105 Wash. 2d 632, 643, 716 P.2d 295 (1986) (quoted in Rodriguez-Torres, 77 Wash. App. at 693). Warrantless searches and seizures are presumed per se unreasonable, "'subject only to a few specifically established and well delineated exceptions.'" Rodriguez-Torres, 77 Wash. App. at 690 (quoting Dickerson, 508 U.S. at 372).

An officer may inquire for safety purposes whether an individual who has been detained for investigatory purposes has a weapon in his or her possession. See Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Hobart, 94 Wash. 2d 437, 441, 617 P.2d 429 (1980). As Terry explained, there is a strong government interest in police officer safety:

We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives. Terry, 392 U.S. at 23-24 (quoted in State v. Collins, 121 Wash. 2d 168, 173, 847 P.2d 919 (1993)). Here, Officer Corson testified that he routinely asks individuals whom he has detained for investigation whether they have a weapon in their possession for officer safety reasons. If the answer is no, he simply proceeds with his investigation. The routine nature of the question itself demonstrates that the sole purpose in asking the question is to allow the officer to proceed with his investigation without fear.

Once Clay told the officer that he had a switchblade in his possession, the officer had probable cause to arrest Clay for possessing it and to search him incident to that arrest. State v. Johnson, 128 Wash. 2d 431, 451, 909 P.2d 293 (1996) (the rationale for a search incident to arrest rests in significant part on the need to remove weapons which might be used by the person arrested). Accord Sibron v. New York, 392 U.S. 40, 67, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). The question whether probable cause exists is an objective inquiry. Rodriguez-Torres, 77 Wash. App. at 693; State v. Goodman, 42 Wash. App. 331, 337, 711 P.2d 1057 (1985), review denied, 105 Wash. 2d 1012 (1986). For that reason, as long as probable cause exists at the time of the search, the search may be considered a search incident to arrest even it occurs shortly before arrest. Rodriguez-Torres, 77 Wash. App. at 694; State v. Brantigan, 59 Wash. App. 481, 485-86, 798 P.2d 1176 (1990); State v. Ward, 24 Wash. App. 761, 765, 603 P.2d 857 (1979), review denied, 93 Wash. 2d 1019, cert. denied, 449 U.S. 984, 66 L. Ed. 2d 247, 101 S. Ct. 402 (1980). The trial court did not err in denying Clay's motion to suppress the switchblade.

Affirme ...


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