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State v. Jones

February 18, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
JERRY-JAROD L. JONES, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-1-04317-4. Date filed: 08/28/95.

PER CURIAM. Jerry Jones appeals from his conviction for possession of cocaine. He contends that the trial court erred in refusing to suppress the cocaine that police officers removed from his pants pockets. Because the circumstances known to the arresting officers, including their observation of Jones swallowing what appeared to be rock cocaine upon seeing the officers, established probable cause to arrest for possession of cocaine, the search was valid as incident to a lawful arrest. Accordingly, we affirm.

At about 9:45 p.m. on June 14, 1995, Seattle Police Officers Christopher Garrett and Yusef Edwards were patrolling in the area of 2nd Avenue and South Washington; both officers were in uniform and on mountain bikes. From about 10 feet away, Officer Garrett observed a man, later identified as appellant Jones, standing on the sidewalk. When Jones looked up suddenly and saw the officers, he "got a very fearful expression on his face" and threw "a small white rock-like substance from his hand into his mouth."

Officer Garrett dismounted from his bike, went over to Jones, and ordered him to spit out what was in his mouth. When Jones clenched his jaws tightly and kept chewing, despite repeated orders "to spit out the dope," Officer Garrett grabbed Jones's jaw. After a brief struggle, Officer Garrett was able to force open Jones's mouth, but it was empty. Officer Garrett then placed Jones under arrest. During the subsequent search, .18 grams of cocaine were removed from Jones's pants pocket.

Officer Edwards knew Jones from several previous contacts for liquor violations and "possible narcotics related violations" that had not resulted in any charges. As the officers approached Jones, Officer Edwards saw Officer Garrett jump off his bike. At this point, Jones "popped something" into his mouth that appeared to be "some sort of small rock object." Officer Edwards then helped hold Jones while Officer Garrett forced open his mouth.

At the suppression hearing, Jones testified that he had been arrested on numerous occasions by Officer Edwards, who had then taken him "out of the blue" to the police station and unsuccessfully searched him for drugs. According to Jones, the officers approached him, slammed him against a wall, and repeatedly told him to open his mouth. Jones could not recall if he had put anything in his mouth or whether the officers told him to spit it out, but acknowledged he might have been chewing some gum or candy. Jones maintained that the only thing the officers had found in his pockets was some crumbly soap he had received when being discharged from jail.

The trial court denied Jones's motion to suppress, concluding that the circumstances were sufficient to establish probable cause to arrest Jones for both possession of cocaine and obstructing a public servant and that the search was therefore valid as incident to a lawful arrest. The trial court subsequently found Jones guilty as charged on stipulated evidence.

On appeal, Jones contends that the officers lacked a lawful basis either to detain him initially or to search him. Because the circumstances prior to Jones's seizure were sufficient to establish probable cause to arrest for possession of drugs, we do not address Jones's contentions that the officers lacked an articulable suspicion to make an investigatory detention or that the subsequent search exceeded the scope of a lawful Terry *fn1 stop.

Probable cause for a warrantless arrest exists "when the facts and circumstances within the arresting officer's knowledge are sufficient to cause a person of reasonable caution to believe that a crime has been committed." (Citations omitted.) State v. Huff, 64 Wash. App. 641, 646, 826 P.2d 698, review denied, 119 Wash. 2d 1007, 833 P.2d 387 (1992). The determination of probable cause "takes into consideration the special experience and expertise of the arresting officer." State v. Fricks, 91 Wash. 2d 391, 398, 588 P.2d 1328 (1979).

In this case, both officers had extensive experience in narcotics operations and had participated in hundreds of arrests. Upon seeing the officers, Jones looked "fearful" and quickly threw what appeared to be rock cocaine into his mouth and then swallowed it. Officer Garrett, who observed Jones's conduct from about 10 feet away, testified that street-level dealers commonly dispose of drugs in this manner. Jones's reaction upon seeing the officers must also be assessed in light of his prior contacts with Officer Edwards. Furtive gestures and evasive behavior are circumstantial evidence of guilt. State v. Graham, 130 Wash. 2d 711, 726, 927 P.2d 227 (1996).

An experienced officer's observations of Jones's possessing what appeared to be rock cocaine, coupled with Jones's reaction upon seeing the officers and apparent attempt to conceal or destroy the substance, were sufficient circumstances to cause a person of reasonable caution to believe that Jones possessed an illegal drug. The fact that it is possible to imagine an innocent explanation for Jones's actions, such as chewing on a mint or piece of candy, or that Officer Garrett could not be absolutely certain about the identity of the substance, does not negate the existence of probable cause. State v. Graham, 130 Wash. 2d at 725. Because the officers had probable cause to arrest Jones, the subsequent search of his pockets was valid as incident to a lawful arrest. Cf. State v. Rodriguez-Torres, 77 Wash. App. 687, 893 P.2d 650 (1995) (suspicious transaction, coupled with defendant's attempt to flee upon seeing officers, constituted probable cause to arrest).

State v. Alcantara, 79 Wash. App. 362, 901 P.2d 1087 (1995), relied upon by Jones, is distinguishable. In Alcantara, a police officer observed Alcantara walking towards him from a distance of about 50 feet. Alcantara was looking at what appeared to be a plastic bag in his hand, but the officer could not ascertain the contents of the bag. Upon seeing the officer, Alcantara's eyes "widened" and he turned away immediately and began making "shoving motions" in the front of his pants. On appeal, this court rejected the State's contention that the foregoing circumstances constituted probable cause to arrest. Alcantara, 79 Wash. App. at 367. In this case, unlike Alcantara, the existence of probable cause rested on an experienced officer's observation of a distinctive object that appeared to be an illegal substance and the defendant's apparent attempt to conceal or destroy the substance upon seeing the officers. See also State v. Graham, 130 Wash. 2d at 725-26. *fn2

Affirme ...


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