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State v. Graham

December 5, 1996


Appeal from Superior Court, King County; 93-8-04867-1. Honorable Anthony P. Wartnik, Judge.

Authored by Richard P. Guy. Concurring: Barbara Durham, Barbara A. Madsen, James M. Dolliver, Charles Z. Smith, Charles W. Johnson, Gerry L. Alexander, Philip A. Talmadge, Richard B. Sanders

The opinion of the court was delivered by: Guy


GUY, J. -- The juvenile defendant in this appeal challenges his convictions for obstructing a public servant and for resisting arrest. He argues that a uniformed off-duty police officer who is working as a private security guard cannot be a "public servant" who is performing "official duties" for purposes of the obstructing statute, and is not a "peace officer" for purposes of the resisting arrest statute. We affirm the convictions and hold that a police officer, whether on duty or off duty, is a public servant and a peace officer. Whether the officer is identified as such and is engaged in performing official duties at any given time is a question of fact.


On August 10, 1993, two off-duty Seattle police officers, Kim Bogucki and Michelle Hackett, were working as security guards for the Denny Regrade Council, an organization of businesses in a downtown area of Seattle.

The officers were employed by the Seattle businesses to patrol a 3-block area between Stewart and Lenora Streets and Third and Fourth Avenues, an area in which the officers testified there was a large volume of illegal drug transactions. The officers, who patrolled the area on bicycles, were in uniform. *fn1 Both were armed.

At approximately 11 p.m., Officers Bogucki and Hackett turned a corner from Stewart Street onto Third Avenue and almost ran into the 17-year-old defendant, who was walking southbound on Third Avenue.

The officers observed that the defendant was carrying a large wad of money and was separating the $20 bills from the $10 and smaller bills.

Officer Hackett testified that she was looking at the defendant's hands and that it looked like he had a small plastic baggie with a white substance in it in his left hand. It appeared to Officer Hackett that the baggie contained rock cocaine. Officer Bogucki testified that the defendant was within 3 feet of her and that she saw a large amount of currency in wads and a small plastic cellophane wrapper containing white rocks, which she suspected were cocaine. Both officers had extensive experience and training in narcotics operations.

When the defendant saw the officers, he appeared startled. He looked very nervous and he shoved his hands into his front pants pockets and started across the street against the "Don't Walk" signal. Believing the defendant was in possession of a controlled substance, the officers told the defendant to come back to the curb. When he did not return voluntarily, the officers brought him back to the sidewalk. The defendant still had his hands in his pockets and the officers asked him to remove his hands from his pockets, for "officer safety" reasons. He refused, so the officers slowly took his hands from his pockets. The defendant was sweating profusely, looking around, and moving his feet. He appeared very nervous. His behavior led the officers to believe that what they had seen actually was narcotics. The officers then took money and other items out of the defendant's pockets. They removed $296, a pager, a birth certificate and other papers from his pockets and spread these items on the ground.

Officer Hackett believed the defendant was about to run and asked her partner, who was kneeling on the sidewalk examining the items, to stand.

She testified that the defendant asked why she needed the other officer to stand, and she stated, "Because I think you have dope on you." The defendant then ran from the officers. The defendant believed the two to be police officers and testified that he ran because he had an outstanding warrant for a traffic violation.

The officers yelled "Stop[!] police," but the defendant continued to run from the officers for about 4 blocks and was caught as he tried to get into a taxi. The defendant resisted by pulling away and flailing, kicking and screaming at the officers. The officers felt it was necessary to shackle the defendant.

The defendant was charged with obstructing a public servant in violation of former RCW 9A.76.020(3), and with resisting arrest in violation of RCW 9A.76.040. In a juvenile court fact-finding hearing, the defendant was found guilty of both offenses by the juvenile court commissioner.

The defendant appealed and the Court of Appeals affirmed in a partially published opinion. State v. Graham, 80 Wash. App. 137, 906 P.2d 992 (1995), review granted, 129 Wash. 2d 1010 (1996). This court then granted the defendant's petition for review.


1. Is a police officer who is off duty and working for a private security company a "public servant" discharging her "official powers or duties" for purposes of the obstruction statute, and a "peace officer" for purposes of the resisting arrest statute, when the officer stops a person suspected of violating this state's drug laws?

2. If the off-duty police officers involved in this appeal were acting as police officers, rather than private security guards, did they have probable cause to arrest ...

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