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State v. Perez

September 16, 1996


Appeal from Superior Court of King County. Docket No: 95-8-01871-0. Date filed: 06/07/95.

Authored by Mary K. Becker. Concurring: C. Kenneth Grosse, Faye C. Kennedy

The opinion of the court was delivered by: Becker

BECKER, J. -- Daniel Perez seeks reversal of his conviction for malicious mischief in the third degree. The police, investigating a report of someone with a handgun on school grounds, encountered Perez and an armed companion. Searching Perez, they found felt-tip pens but no weapon. They continued to detain him and, upon learning that there was fresh graffiti on the school doors, obtained his confession. Perez claims the police had no basis for detaining him and that the evidence should have been suppressed. We hold the police had probable cause to arrest Perez when they first encountered him.


On the basis of trial testimony, the trial court found facts establishing the following sequence of events. Officers Willis and Ferguson of the Renton Police Department responded to a 911 call reporting that a person with a handgun was outside the Teasdale Elementary School. The caller described the person as an Asian male, approximately five feet tall and wearing black clothing, associated with other persons and a red Mustang automobile. When the officers arrived they saw two Asian males next to a red Mustang. They also saw a pop can with a BB hole through it. School was not in session. The officers determined these two boys had no weapons, then put them in the patrol car while they checked the school for damage.

The officers found a school door open. After requesting their dispatcher to notify school security of the open door, they continued to look around. Officer Ferguson encountered an Asian male, dressed in black and holding a weapon. He yelled, "Police officer. Drop the weapon." Officer Willis followed Officer Ferguson out the door and saw a young man with a weapon at his waistband. Officer Willis testified that this person, later identified as Christopher Nguyen, looked like he was smiling, as if he "didn't realize what was going on."

A second young man came around the corner of the building. This was Daniel Perez, the appellant. He did not appear to be Asian and was not dressed in black. Officer Willis's first impression was that Perez and Nguyen were together, and that they might have been playing a game, such as hide and seek. Both officers drew their weapons. The officers ordered the boys to freeze, and then ordered them onto the ground. The boys did not immediately comply. Nguyen was trying to pull his shirt over the weapon. Perez, when ordered to freeze, looked back and forth between Nguyen and the officers. The officers then searched the two boys. The officers took the weapon, a pellet gun, from Nguyen. The search of Perez produced two felt-tip markers, one black and one blue. The officers then handcuffed the boys and placed them inside a patrol car. Officer Willis testified that they placed Nguyen under arrest and detained Perez for officer safety.

At this point, school security personnel who had responded to the call about the open door informed the officers that they had found fresh graffiti on another school door in the direction from which the two boys had come. Officer Willis went to the patrol car and read Perez his Miranda rights. Perez agreed to answer questions. In response to questioning, Perez initially denied knowing anything about the graffiti. The officer, having found the marking pens on Perez, continued to ask questions. Perez then admitted that he had written the numbers "Duce, Tre" and "23" on the school.

Perez moved to suppress any evidence obtained as the result of the stop and detention of Perez, including his statement. The trial court concluded that the police had probable cause to arrest Perez, and denied the motion.


Perez contends the officers lacked probable cause to arrest him. The foundational inquiry for the determination of probable cause is whether facts and circumstances within the officers' knowledge and of which the officers had reasonably trustworthy information are sufficient to warrant a person of reasonable caution in a belief that an offense has been or is being committed. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949); State v. Flowers, 57 Wash. App. 636, 641, 789 P.2d 333, review denied, 115 Wash. 2d 1009, 797 P.2d 511 (1990). An officer need not have evidence sufficient to prove every element of a crime beyond a reasonable doubt for probable cause to exist. State v. Knighten, 109 Wash. 2d 896, 903, 748 P.2d 1118 (1988). And probable cause is not negated simply because it is possible to imagine an innocent explanation for observed activities. State v. Fore, 56 Wash. App. 339, 344, 783 P.2d 626 (1989), review denied, 114 Wash. 2d 1011, 790 P.2d 168 (1990). Probable cause is at bottom a practical judgment. Probable cause, and its lesser companion, reasonable suspicion, are "fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed." Ornelas v. United States, U.S. , 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 64 U.S.L.W. 4373 (1996). Probable cause emanates not from a "sacrosanct adytum" but rather from the experiences of the events of everyday life as applied to the facts of the given case. United States v. Davis, 147 U.S. App. D.C. 400, 458 F.2d 819, 821 (D.C. Cir., 1972); State v. Dorsey, 40 Wash. App. 459, 469, 698 P.2d 1109, review denied, 104 Wash. 2d 1010 (1985).

That the officers may not have thought they had probable cause to arrest Perez does not make the arrest unreasonable under the Fourth Amendment. "The fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978).

Mere presence near a person independently suspected of criminal activity does not, without more, give rise to probable cause justifying an arrest. State v. Broadnax, 98 Wash. 2d 289, 294-96, 654 P.2d 96 (1982) (defendant was searched when he was present at the house where a warrant was being executed); Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979) (defendant was present as a patron in a tavern where a search warrant was being executed and the bartender was suspected of selling heroin). The "mere presence" doctrine protects persons innocently in criminal company; to establish probable cause for arrest, some additional circumstance must be shown "from which it is reasonable to infer knowledge of or participation in criminal enterprise". State v. Broadnax, 98 Wash. 2d 289, 302, 654 P.2d 96 (1982) (quoting United States v. Vilhotti, 323 F. Supp. 425, 432 (S.D.N.Y. 1971)).

Perez contends the facts leading up to his detention in the patrol car do not show that he knew of or was participating in a criminal enterprise. He argues that in the absence of some additional circumstance beyond his association with Nguyen, the police ...

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