Preview:

O= ILED

COURT OF APPEALS DIVISION I1 2013 JUL -2 AM 9*07
STATE OF WASHINGTON
BY. .
E UTY

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON,
No. 43102 5 II - -

Respondent,
V.

DENNIS WAYNE MILLER,

UNPUBLISHED OPINION

Appellant.

J. Dennis Miller appeals his conviction for unlawful possession of C -- JOHANSON A. .

methamphetamine, arguing

that the trial court erred in

denying

his motion to suppress.

We

affirm.

Miller moved to suppress the methamphetamine found on his person, arguing that the
search
was

unlawful because the arrest

was

unlawful. The trial court denied the motion to

suppress, making the following pertinent finding and conclusions:
I.FINDINGS OF FACT 2.
On

August 18, 2011 Clark County Sheriff's Deputy Robin
a

Yakhour was on patrol in Clark County. Deputy Yakhour had been advised by
another officer about stolen vehicle that
was

distinct in appearance. Deputy

Yakhour received this information one or two days prior to this incident. Deputy Yakhour also received information about a named potential suspect who she was familiar with. Deputy Yakhour knew that the defendant was not that named
suspect.

1 A commissioner of this court initially considered Miller's appeal as a motion on the merits
1 under RAP 18. 4 and then transferred it to
a

panel

of judges.

No. 43102 5 II - -

While patrolling, Deputy Yakhour saw a vehicle matching the The vehicle was parked in a driveway of a house in a residential area. The vehicle was facing the garage. The driver's side door of the car was open. Deputy Yakhour saw the defendant
3.

description

she received from the other officer.

partially inside the car. The defendant was half obscured from view and appeared
to be working on the car in the area of the steering column, 4. Deputy Yakhour took note of the license plate of the vehicle and continued driving. Deputy Yakhour contacted dispatch and dispatch confirmed that the vehicle was currently reported stolen. Deputy Yakhour also ran the license plate through the NCIC database from her in car computer. The NCIC check also confirmed the car was currently reported stolen. 5. Deputy Yakhour left her patrol car and approached the stolen car
on foot. The same' individual, the defendant, was on his knees outside of the car

With his shoulders under the steering column area, and appeared to be working on
the car. 6.

Deputy Yakhour pulled out her taser and ordered the defendant to
vehicle, show his hands, and get
on

get

out of the

the

ground.

The defendant

complied and got on the ground. Deputy Yakhour told him he was under arrest
for Possession of a Stolen Motor Vehicle. 7. The defendant asked what
him that the
car was

stolen.

going on. Deputy Yakhour told The defendant told Deputy Yakhour that he had
was

purchased the car and had a title and bill of sale. Deputy Yakhour continued to
detain the defendant.

Clark County Sheriff's Deputy Tim Boardman arrived as back up. Deputy Boardman placed the defendant in handcuffs.
8.

9. ....
C.

The Court finds that the actions of Deputy Boardman caused [ a

cigarette pack with a closed lid and a small closed metal container] to come out of
the defendant's pockets.

Deputy Boardman opened the cigarette ' pack and the metal container. He found suspected methamphetamine inside both containers.
10.

II.CONCLUSIONS OF LAW
3.
a.

Deputy Yakhour had probable cause to arrest the defendant for the

crime of Possession of a Stolen Motor Vehicle.

Deputy Yakhour had sufficient information at the time of arrest to

believe the vehicle was stolen

Deputy Yakhour was reasonable to believe that the defendant was in possession of the stolen vehicle and had knowledge that it was stolen because
b.

the defendant was exhibiting dominion and control over the vehicle at the time of
arrest.

2

No. 43102 5 II - -

4.
arrest.

The defendant's person was searched as a valid search incident to The items removed from the defendant's pockets were obtained and

searched as a part of a valid search incident to arrest.
Clerk's Papers at 1 -4.

Miller subsequently agreed to be tried on stipulated facts, and the court found him guilty.
Miller appeals.
ANALYSIS

Miller argues that the trial court erred in denying his motion to _ suppress because his
arrest was unlawful. He contends that Deputy Yakhour lacked probable cause to arrest him for

possession of a stolen motor vehicle. He relies upon State v. O' ain, 108 Wn. App. 543, 544 45, C 31 P. d 733 (2001), 3 which holds:

Officers who act on the basis of the dispatch are not required to have personal

knowledge of the factual foundation, and are not expected to cross -examine the dispatcher about the foundation for the transmitted information before acting on it. Rather, the collective knowledge of law enforcement agencies giving rise to the police dispatch will be imputed to the officers who act on it. If the resulting seizure is later challenged in court, the State cannot simply rely on the fact that there was such a dispatch, but must prove that the dispatch was based on a
sufficientfactual foundation to justify the stop at issue.
Emphasis added.)

Miller contends that the State failed to present evidence of the factual foundation for the

knowledge of Deputy Leukay, who had told Deputy Yakhour about the stolen vehicle, and failed to present sufficient evidence of the factual foundation for the dispatcher's and the computer's
reports that the vehicle was stolen.

Deputy Yakhour testified that, after seeing a vehicle resembling the vehicle, Deputy
Leukay had told her about and obtaining its license plate number:
Q.

Basically, I ran the plate through the MDC in my patrol vehicle, in my
3

patrol car. It' awe call it an MDC. It basically runs all our plates and all the s --

No. 43102 5 II - -

information

Licensing

returns

through that computer. And we get all of our Department of So through that computer.... when I got the return, on the

bottom of the DOL hit, it tells me, check NCIC ", you " is listed as stolen.

know, because the vehicle

Q. "
A.

Check NCIC ", what does that mean?

It' basically the code that says, This is stolen."So-- s "
Okay. And, did you also contact dispatch regarding the stolen car? I did. And, let them know where I was and I gave them the plate and they

Q.
A.

also said, Yes,this is stolen." "

1 Verbatim Report of Proceedings at 7 8. -

Deputy Yakhour's testimony was sufficient for the trial court to find that she had
probable cause to arrest Miller before he was searched incident to arrest. The testimony that the
MDC uses Department of Licensing data and that the dispatcher confirmed the stolen status of
the vehicle
was a

C sufficient factual foundation under the O' ain standard noted

above.

We

affirm the denial of Miller's motion to suppress and his subsequent conviction.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW
040; 2.6.it is so ordered. 0
i

3
p

J. C Johanson, A. . We concur:

2

Miller is correct that the trial court erred in finding that Deputy Yakhour checked the NCIC
not
so

computer system. She did
check NCIC." RP at 8. 1

testify. She only checked the MDC, which advised her to
E



Download 43102-5.pdf

Washington Law