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State v. Nelson

May 27, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
DARIN KENNETH NELSON, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-1-07443-6. Date filed: 04/22/96. Judge signing: Hon. John M. Darrah.

PER CURIAM -- Darin Nelson appeals from his conviction for attempting to elude a police officer, contending that the trial court erred when it denied his motion to suppress. We hold that the officer had probable cause to arrest him and that all evidence was lawfully seized and affirm.

FACTS

On July 8, 1995, Trooper DeVere was operating a radar unit in a marked police car in the Mercer Island tunnel on Interstate 90, when he clocked a black racing motorcycle carrying a passenger at 72 miles per hour in a 55 mile per hour zone. He immediately activated his lights and followed it. The driver of the motorcycle speeded up to about 100 miles per hour as DeVere followed. He noticed that the driver wore blue pants and the passenger wore tan pants, but he could not tell what fabric they were made of. He also noticed that the passenger had brown hair which hung down slightly below the helmet.

After a short chase on the interstate, the motorcycle turned into a residential neighborhood and DeVere lost sight of it. He slowed down and listened for it out of his window. As he drove around the neighborhood, several residents told DeVere that they had seen the motorcycle pass by at a high speed. DeVere stopped at the corner of 150th S.E. and S.E. 45th Place when he saw Nelson and his girlfriend, Tara Bailey, standing on the corner. He had driven by the corner minutes before and had not seen them, so he stopped to ask them if they had seen the motorcycle. DeVere noticed that Nelson was wearing blue jeans and Bailey was wearing tan pants and had brown hair which reached the middle of her neck. He also noticed that there was a motorcycle bag on the ground between them. DeVere asked Nelson if he had seen a motorcycle pass by, to which Nelson replied that he had not. He asked why there was so much police activity in the neighborhood.

At this point, DeVere noticed that Nelson was sweating profusely and appeared to be shaking. Bailey was talking on a cellular telephone. He asked what they were doing standing on the corner, and they said that they had been at a barbecue nearby and that they were waiting for a ride home. Neither Nelson nor Bailey would make eye contact with DeVere, and he became suspicious that they were the driver and passenger of the motorcycle. He pulled his car closer to the couple and asked Nelson if he was riding a motorcycle. Nelson responded that he did not "think so." Nelson declined to answer any more questions, and DeVere placed them both under arrest.

After the arrest, he searched Nelson and discovered a motorcycle key in one of his pockets. Having found the key, DeVere and other officers who had arrived at the scene searched the neighborhood for the motorcycle and found it lying with two helmets and jackets in some bushes near where DeVere first saw Nelson and Bailey. Nelson moved to suppress the key, the motorcycle bag, the motorcycle, and the helmets and the jackets because they were seized as the result of an unlawful search. The trial court denied his motion.

Discussion

We first consider whether there was a seizure. Suppression is not appropriate unless the evidence is discovered because of some illegal governmental conduct. State v. Aranguren, 42 Wash. App. 452, 455, 711 P.2d 1096 (1985). "Not every encounter between an officer and an individual amounts to a seizure." Aranguren, 42 Wash. App. at 455. Only if a reasonable person would not feel free to leave or terminate an encounter with a police officer is a suspect seized. State v. Thorn, 129 Wash. 2d 347, 352, 917 P.2d 108 (1996). An individual is not seized when an officer approaches him in a public place to ask a question. Thorn, 129 Wash. 2d at 352. Here, Nelson and Bailey were not seized when DeVere approached them and, from his car, asked them if they had seen the motorcycle. They were free to leave and under no compulsion to answer any questions. When an officer discovers evidence without seizing a suspect, the discovery is not the product of any illegal governmental activity. Aranguren, 42 Wash. App. at 455. Because DeVere noticed the motorcycle bag as he approached Nelson and Bailey and before he arrested Nelson, no illegal governmental conduct resulted in its discovery.

Therefore, the only evidence which was the product of a search was the motorcycle key found in Nelson's pocket after he was arrested. While a warrantless search is generally presumed unreasonable, officers may search a suspect after a lawful arrest. State v. Smith, 76 Wash. App. 9, 13, 882 P.2d 190 (1994), review denied, 126 Wash. 2d 1003 (1995). An arrest is lawful if, at the time of the arrest, the officer has probable cause to arrest, or is aware of facts and circumstances sufficient to convince a reasonable person that the suspect has committed a crime. State v. Mance, 82 Wash. App. 539, 541, 918 P.2d 527 (1996).

Nelson contends that DeVere did not have probable cause to arrest him, and the key should have been suppressed. See Mance, 82 Wash. App. at 542. The trial court found that DeVere had probable cause to arrest based on its findings that Nelson and Bailey appeared on the street corner suddenly, after DeVere had been patrolling the area for some time; Nelson's pants were blue and Bailey's brown and Bailey's hair was medium length brown, like the driver and passenger of the motorcycle. There was also a black motorcycle bag on the ground between them, and Nelson was sweating profusely and appeared nervous. *fn1 We look to the totality of the circumstances and determine whether all facts, taken together and in light of the officers' experience and knowledge, are sufficient to establish probable cause. State v. Fore, 56 Wash. App. 339, 343, 783 P.2d 626 (1989), review denied, 114 Wash. 2d 1011, 790 P.2d 168 (1990). While one fact, standing alone, may not be sufficient to establish probable cause, taken in the context of other facts, it may contribute to a reasonable belief. Compare State v. Rodriguez, 32 Wash. App. 758, 762, 650 P.2d 225 (suspect's nervous behavior was insufficient to establish probable cause), review denied, 98 Wash. 2d 1005 (1982), with State v. Glover, 116 Wash. 2d 509, 514, 806 P.2d 760 (1991) (suspect's nervousness combined with his proximity to the suspected crime and inconsistent responses to police questions was sufficient to establish probable cause).

Here, Nelson and Bailey were near the area where the motorcycle had disappeared. Nelson was wearing blue jeans and Bailey was wearing tan pants, which were consistent with the attire of the driver and passenger of the motorcycle. In addition, Bailey's hair was the correct length to come down slightly below a motorcycle helmet and the same color as the motorcycle's passenger. The motorcycle bag on the ground between them suggested that they had been riding a motorcycle. This, together with the fact that Nelson was shaking and sweating profusely, and Bailey was not, suggested to DeVere that Nelson could have been the driver in the high speed chase and Bailey the passenger. All of these details were consistent with DeVere's observations during the chase. Suspecting that these were the two he was looking for, DeVere asked Nelson if he was riding a motorcycle and Nelson responded oddly that he did not "think so." Considering all these facts together, DeVere had probable cause to arrest Nelson, and the search incident to the arrest was lawful. The trial court properly denied Nelson's motion to suppress.

Affirme ...


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