Opinion
No. 61359-6-I.
February 23, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-09300-8, Laura Gene Middaugh, J., entered February 28, 2008.
Reversed and remanded by unpublished opinion per Agid, J., concurred in by Becker and Leach, JJ.
Connie Solowoniuk was asleep in her car in the middle of the road when Sheriff's Deputy Matthew Paul pulled up behind her car with his red and blue lights flashing. After eventually waking up to Paul's raps on the window, Solowoniuk screamed and yelled, said "fuck you," and drove away. Paul turned his siren on and arrested Solowoniuk when she stopped her car two blocks down the road. Solowoniuk moved to suppress evidence — a rock of crack cocaine in a pipe — found in the search pursuant to her arrest, claiming that Paul did not have probable cause to arrest her. The trial court suppressed the evidence, and the State appealed. We reverse because Solowoniuk gave Paul probable cause to believe that she was obstructing a law enforcement officer when she drove away.
FACTS
In the early morning hours of March 12, 2007, Paul was dispatched to investigate a car parked in the middle of the traffic lane of a two-way road. Paul stopped 5-10 feet behind the car and turned on the flashing blue and red lights of his marked patrol car. The parked car's motor was running, and its brake lights were on. Paul trained his spotlight on the car and approached the driver's side wearing his uniform, rain jacket, and hat. He shone his flashlight through the unfogged window and saw the sole occupant of the car, a person later identified as Solowoniuk, asleep or passed out behind the wheel.
Paul knocked on the window with his hands and flashlight. Solowoniuk awoke after several minutes and yelled at Paul to stop pointing the flashlight in her face. Paul lowered the flashlight, identified himself as a sheriff's deputy, and asked her to roll down the window. Solowoniuk continued to angrily yell and scream at Paul, yelling "fuck you" as she put her car into gear and casually drove away. Paul got back in his car, turned on his siren, and followed Solowoniuk, who drove a couple of blocks before stopping. Paul and his partners, who were then on the scene, approached Solowoniuk's car and arrested her. Deputy Ryan Abbott searched Solowoniuk's car and found narcotics pipes, one of which contained a rock of crack cocaine.
DISCUSSION
The State and Solowoniuk agree that Paul had a sufficient basis under Terry v. Ohio for his initial contact with Solowoniuk. And the State properly concedes that Paul did not have probable cause to arrest Solowoniuk during his initial contact with her because at that time she only appeared to be committing minor traffic infractions. The State argues that when Solowoniuk drove away she gave Paul reason to believe that she was committing two misdemeanor offenses: failure to stop and obstructing a law enforcement officer. "Any person who wilfully fails to stop when requested or signaled to do so by a person reasonably identifiable as a law enforcement officer . . . is guilty of a misdemeanor." And "[a] person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties."
392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
RCW 9A.76.020(1). RCW 9A.76.020(3) provides that "[o]bstructing a law enforcement officer is a gross misdemeanor."
Solowoniuk argues that a reasonable law enforcement officer would have concluded that she did not know the person knocking on her window was a sheriff's deputy. Therefore, she contends that a reasonable law enforcement officer would not have reason to believe that she was willfully attempting to hinder his investigation or willfully failing to yield to his flashing lights when she drove away.
On a motion to suppress, this court reviews factual findings under substantial evidence review. Here, Paul and Solowoniuk testified at the CrR 3.6 suppression hearing, and the trial court found both Paul and Solowoniuk credible. Because the trial court must determine probable cause from the viewpoint of a reasonable officer, Solowoniuk's testimony is largely irrelevant to that decision. But it does support the contested findings of fact and does not materially contradict Paul's testimony.
State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).
The determination of whether there is probable cause for an arrest is a question of law reviewed de novo. Probable cause exists where the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a person of reasonable caution in a belief that an offense has been committed. "`Probable cause to arrest must be judged on the facts known to the arresting officer before or at the time of the arrest.'" A determination of "`probable cause is not negated merely because it is possible to imagine an innocent explanation for observed activities,'" although probable cause does not arise from innocuous facts that do not necessarily indicate criminal activity.
State v. Chamberlin, 161 Wn.2d 30, 40-41, 162 P.3d 389 (2007).
State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986).
State v. Reid, 98 Wn. App. 152, 159-60, 988 P.2d 1038 (1999) (quoting State v. Gillenwater, 96 Wn. App. 667, 670, 980 P.2d 318 (1999), review denied, 140 Wn.2d 1004 (2000)).
State v. Graham, 130 Wn.2d 711, 725, 927 P.2d 227 (1996) (quoting State v. Fore, 56 Wn. App. 339, 344, 783 P.2d 626 (1989), review denied, 114 Wn.2d 1011 (1990)).
State v. Young, 123 Wn.2d 173, 196, 867 P.2d 593 (1994).
First, failure to stop is a traffic offense and "[t]he detention arising from an arrest [for a traffic offense not listed in RCW 10.31.100] may not be for a period of time longer than is reasonably necessary to issue and serve a citation and notice." We agree with the State that failure to stop is not an offense enumerated in RCW 10.31.100, and law enforcement officers may not make custodial arrests for violations of RCW 46.61.022. The relevant question is whether Paul had probable cause to believe that Solowoniuk was willfully obstructing, delaying, or hindering him in the discharge of his official duties; here, investigating why her car was parked in the road.
RCW 46.64.015. See also State v. Reding, 119 Wn.2d 685, 688-92, 835 P.2d 1019 (1992) (discussing RCW 46.64.015).
See State v. Feller, 60 Wn. App. 678, 680-81, 806 P.2d 776 (custodial arrest for misdemeanor traffic violation of driving without a valid driver's license improper), review denied, 117 Wn.2d 1005 (1991).
The trial court erroneously ignored the officer's testimony when it ruled that Paul lacked probable cause to arrest Solowoniuk after she drove away. Solowoniuk testified that she did not know Paul was a police officer and could not hear him when he identified himself because her car window was closed. But the evidence established that Paul's car was 5-10 feet behind her and all its lights were flashing. If Paul could clearly hear her ask him to lower the flashlight and say "fuck you," a reasonable officer would assume she could hear him identify himself as a police officer. Solowoniuk testified that she drove away because she was afraid, but she drove away "casually" and stopped only two blocks away. It was reasonable for Officer Paul to view this behavior as a willful refusal to cooperate in his investigation. Finally, the screaming and profanity Solowoniuk directed at Paul before she drove away is more consistent with anger about being stopped by a law enforcement officer than it is with confusion about the identity of a person knocking on a window.
See State v. Hudson, 56 Wn. App. 490, 497, 784 P.2d 533 ("The established rule is that flight constitutes obstructing, hindering, or delaying within the meaning of statutes comparable to RCW 9A.76.020(3)."), review denied, 114 Wn.2d 1016 (1990).
Solowoniuk argues that Paul should have realized that a citizen in her position would be unable to identify the person knocking on her window and would have an innocuous reason to drive away to safety. But the evidence available to Paul gave him reason to believe she knew he was a police officer and was driving away from the flashing lights of a police car without permission. From the viewpoint of a reasonable officer, Solowoniuk's actions willfully hindered his ability to do his job. Because Paul had probable cause to arrest Solowoniuk for obstructing a law enforcement officer, the evidence found in the search pursuant to that arrest should not have been suppressed.
We reverse and remand for trial.
We concur.