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State v. Harrell

September 3, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
JASON V. HARRELL, B.D. 11-25-78, APPELLANT.



Superior Court County: King. Superior Court Cause No: 94-8-06477-9-SEA. Date filed in Superior Court: 5/24/95. Superior Court Judge Signing: May Wicks Brucker.

Written by: Agid, J. Concurred by: Grosse, J., Webster, J.

The opinion of the court was delivered by: Agid

AGID, J. -- Jason Harrell appeals his Dispositions for possession of an incendiary device and an explosive device on the grounds that the trial court erred in failing to suppress both his custodial statements and evidence seized as the result of a purportedly illegal search. He argues that he lacks the capacity to understand and knowingly and intelligently waive his Miranda *fn1 rights and that there was insufficient evidence to support the trial court's finding that he was guilty of possessing an explosive device. We conclude that although he was not formally under arrest at the time he was searched, the officer had probable cause to arrest Harrell and lawfully searched him incident to arrest. We also disagree with Harrell's contentions that his waiver was invalid and the evidence was insufficient and affirm.

FACTS

On August 7, 1994, a group of teenagers playing in Olympic View Park saw two teenage boys on an adjacent path just yards away. One was walking and the other was riding a bicycle. Three of the teenagers in the group recognized the boy who was walking as Harrell. Two saw Harrell carrying something under the jacket he had draped over one arm and saw him light what both assumed to be a cigarette. One then saw him make a throwing gesture but did not see what he threw. Moments later, there was an explosion and fire on the path on which the boys had been walking. Harrell and his companion were just a few feet from the explosion when it occurred. Harrell immediately climbed onto the back of his companion's bicycle, and both boys rode away, quickly leaving the park. The teenagers went to investigate. They saw a beer bottle and what looked like a sock or small towel amidst the flames that extended several feet from the bottle. While two of them attempted to extinguish the flames, the other two ran to call the fire department. By the time fire trucks arrived, the teenagers had put the fire out.

Fire Investigator Joy Veranth arrived at the park to investigate the fire and observed what she concluded were the charred remains of a molotov cocktail. Her Conclusion was based on evidence at the scene, including the flammable liquid spray pattern left on the asphalt, a white sock that had been used as a wick, broken glass fragments from what appeared to have been a beer bottle, the smell of gasoline, and charred grass at the edge of the asphalt. Veranth photographed the scene and took recorded statements from three of the teenagers who identified the two boys they had seen on the path as Toby Richmond and Harrell. They also identified Harrell as the boy they had seen handling the object he threw just before the explosion. Veranth then went to Harrell's home to speak with his parents. Because Harrell's mother thought he might be at the Crest View Apartments, Veranth followed her there. When they did not find Harrell at the Crest View Apartments, Veranth left.

At about the same time, Officer Jeffrey R. Dixon was dispatched to the Crest View Apartments to investigate a domestic violence incident involving Toby Richmond. The dispatcher also told him that Richmond might be with Harrell. When Veranth heard this transmission over the radio, she called Dixon and told him that the two were suspects in the incident she was investigating and that she wanted to speak to them. Shortly after arriving at the Crest View Apartments, Dixon saw Harrell riding a bicycle in the parking lot and advised him that he would be detained until Veranth arrived. Dixon initially intended to take Harrell with him while he made another round of the complex to look for Richmond. As he usually does for officer safety purposes, Dixon patted Harrell down prior to placing him in the back of his patrol car to wait for Veranth. The officer had noticed that the right pocket of Harrell's jacket, which Harrell was now wearing, bulged in a way that seemed unusual and, when Dixon's hand came in contact with it, felt what he described as a small, hard, long and oval object among a number of other items in the pocket. His immediate concern was that it was a weapon, possibly the barrel of a small gun. When Dixon removed the item from Harrell's pocket, it appeared to him to be a homemade bomb several inches long wrapped in black electrical tape with something that resembled a firecracker fuse extending from one end. *fn2 After patting Harrell down, Dixon handcuffed him because, based on their prior contacts, he felt uncomfortable placing Harrell in the back of the patrol car without handcuffs. Dixon testified that he did not subjectively intend to place Harrell under arrest at that time but intended only to detain him until Veranth arrived.

When Veranth arrived, Harrell was transferred from the back of Dixon's patrol car to the front seat of Veranth's car where Veranth questioned him. Veranth did not remove the handcuffs because she does not carry a weapon. She asked Harrell whether he was comfortable and whether he had ever been advised of his rights before. He responded affirmatively to both questions. Veranth read Harrell his Miranda rights from a standard card, explaining each one as she read. She noticed that he followed the words on the card with his eyes as she read. Veranth testified that Harrell indicated he understood his rights and that he was very forthcoming in describing the fire incident. At no time did he request a lawyer or indicate that he did not want to speak with her. After he told her what had happened once, Veranth asked him if she could record his statement. He answered without any hesitation that she could. He then repeated what he had told her for the tape recorder. After Harrell completed his statement, Dixon removed the handcuffs.

Harrell was charged with first degree reckless burning, possession of an incendiary device, and possession of an explosive device. At the fact finding hearing, Harrell moved to suppress both his custodial statements and the evidence seized as a result of the search. The trial court found that both the search and the custodial interrogation were lawful and denied both motions. The court found Harrell guilty of possession of an incendiary device and of an explosive device but dismissed the charge of first degree reckless burning. It denied his motion for reconsideration of the guilty verdict on the possession of an explosive device charge. This appeal followed.

Discussion

Admissibility of Explosive Device Harrell contends that the trial court erred when it denied his motion to suppress the explosive device found in his possession, arguing that absent specific, articulable facts from which the officer could have inferred that Harrell was armed and dangerous, the officer's search exceeded the permissible scope of a search for weapons. Because the officer had probable cause to arrest Harrell at the point at which he conducted the search, we hold that the search was proper incident to his arrest. We do not need to reach the question whether the search was also within the permissible scope of a patdown search for weapons for officer safety purposes.

"'The Fourth 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.

State v. Terrovona, 105 Wash. 2d 632, 643, 716 P.2d 295 (1986) (quoted in Rodriguez-Torres, 77 Wash. App. at 693). 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). Thus, when officers conduct a joint investigation, the cumulative information possessed by all the officers may be considered in assessing whether the police had probable cause to arrest. State v. Alvarado, 56 Wash. App. 454, 456, 783 P.2d 1106 (1989), review denied, 114 Wash. 2d 1015, 791 P.2d 534 (1990). For that reason, we need not limit our examination of the facts to those within the personal or subjective knowledge of the arresting officer. Alvarado, 56 Wash. App. at 456. As long as probable cause exists at the time of the search, the search may be considered a search incident to arrest even if it occurs shortly before an 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, ...


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