Appeal from Superior Court of Pierce County. Docket No: 94-1-01034-6. Date filed: 10/18/94. Judge signing: Hon. Donald H. Thompson. This Opinion Substituted by the Court for Withdrawn Opinion of September 20, 1996, Previously reported at: 1996 App. LEXIS 496.
Authored by Carroll C. Bridgewater. Concurring: J. Dean Morgan, Karen G. Seinfeld.
The opinion of the court was delivered by: Bridgewater
BRIDGEWATER, A.C.J. -- Marcos Perea appeals his conviction of unlawful possession of a short firearm. The firearm was found during a search of his locked car after his arrest for driving with a suspended license. We hold that an arrest may be made for this offense based upon week-old information known to the officer who observed him operating his car. But we hold that because Perea lawfully exited and locked his car, the officers had no justification for entry into Perea's car to conduct a search incident to arrest. Thus, we reverse. *fn1
Perea drove a car while his license was suspended in the third degree. An officer who knew of the suspension from a records check performed seven days earlier recognized Perea and radioed another officer in a marked unit to stop Perea. The second officer, Officer Wise, caught up with Perea just as Perea pulled into the front yard of his house. Officer Wise activated his emergency lights as he pulled in behind Perea. Wise saw Perea turn and look in the direction of Wise's vehicle and then immediately step out of his vehicle and close the door very quickly. Officer Wise ordered Perea back to his vehicle, but Perea started to walk toward the house, also ignoring Wise's second order to return to his vehicle. By then the first officer had arrived and both officers advised Perea he was under arrest.
The police captured, searched, and handcuffed Perea, confiscated his car keys and put him into the patrol car. Subsequently, one officer proceeded to verify by a records check that Perea's license was suspended while the other officer used Perea's car keys to unlock and search the car. A loaded pistol was found under the front seat armrest.
Perea argues that driving on a suspended license is a minor traffic offense for which arrest is improper, and that his arrest was pretextual. RCW 46.20.342(1)(c), *fn2 however, provides that driving while suspended in the third degree is a misdemeanor. RCW 10.31.100(3) *fn3 provides officers having probable cause with the authority to arrest a person driving on a suspended license. Thus, the arrest was proper, not pretextual.
Perea next argues that his arrest was unlawful because the seven-day-old knowledge of his suspension was stale and could not form probable cause. We hold the arrest valid on two bases.
First, the detention was supported by well-founded suspicion. Lacking probable cause for arrest, police may briefly detain and question an individual if they have a well-founded suspicion based on objective facts that he is connected to actual or potential criminal activity. State v. Pressley, 64 Wash. App. 591, 595, 825 P.2d 749 (1992) (citing Terry v. Ohio, 392 U.S. 1, 25-26, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). A reasonable or well-founded suspicion exists if the officer can "'point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" Pressley, 64 Wash. App. at 595 (quoting Terry, 392 U.S. at 21). At a minimum, the seven-day-old information formed such articulable facts. Officers may temporarily detain a suspect pending the results of a police headquarters radio check. State v. Madrigal, 65 Wash. App. 279, 282-83, 827 P.2d 1105 (1992). The arrest was based on a lawful investigative detention, and it was valid.
Second, probable cause supported the arrest. Perea contends that, because driving privileges suspended in the third degree can be reinstated within one week, the officers' information was stale; thus, he argues that arresting him without a current records-check was unlawful. "The test for 'staleness' is one of common sense; if the facts indicate information is recent and contemporaneous, then it is not 'stale.'" State v. Anderson, 41 Wash. App. 85, 95, 702 P.2d 481 (1985) (citing State v. Riley, 34 Wash. App. 529, 534, 663 P.2d 145 (1983)), rev'd on other grounds, 107 Wash. 2d 745 (1987). We hold that the week-old information was ...