                                                                                    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DENNIS WAYNE MILLER,                                               UNPUBLISHED OPINION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
         JOHANSON A. .
                   C   —


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
         Yakhour was on patrol in Clark County. Deputy Yakhour had been advised by
         another officer about   a   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
under RAP 18. 4 and then transferred it to
            1                                  a   panel   of judges.
No. 43102 5 II
          - -



                 3.  While patrolling, Deputy Yakhour saw a vehicle matching the
      description      she received from the other officer.
                                                          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
      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
      get   out of the     vehicle, show his hands, and get     on   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             wasgoing on. Deputy Yakhour told
      him that the      car   was   stolen.   The defendant told Deputy Yakhour that he had
      purchased the car and had a title and bill of sale. Deputy Yakhour continued to
       detain the defendant.
                 8. Clark County Sheriff's Deputy Tim Boardman arrived as back up.
       Deputy Boardman placed the defendant in handcuffs.
                 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.
                 10. Deputy Boardman opened the cigarette ' pack and the metal
       container. He found suspected methamphetamine inside both containers.

                                      II.CONCLUSIONS OF LAW


                 3.        Deputy Yakhour had probable cause to arrest the defendant for the
       crime of Possession of a Stolen Motor Vehicle.
                 a.        Deputy Yakhour had sufficient information at the time of arrest to
       believe the vehicle was stolen
                 b.  Deputy Yakhour was reasonable to believe that the defendant was
       in possession of the stolen vehicle and had knowledge that it was stolen because
       the defendant was exhibiting dominion and control over the vehicle at the time of
       arrest.




                                                      2
No. 43102 5 II
          - -



                 4.     The defendant's person was searched as a valid search incident to
       arrest.    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
        patrol car. It' awe call it an MDC. It basically runs all our plates and all the
                      s —
                                                  3
No. 43102 5 II
          - -



         information       through that computer. And we get all of our Department of
         Licensing    returns   through that computer.... when I got the return, on the
                                                        So
         bottom of the DOL hit, it tells me, check NCIC ", you
                                             "                         know, because the vehicle
         is listed as stolen.
         Q. "     Check NCIC ", what does that mean?
         A.       It' basically the code that says, This is stolen."So—
                    s                               "
         Q.       Okay. And, did you also contact dispatch regarding the stolen car?
         A.       I did. And, let them know where I was and I gave them the plate and they
         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   sufficient factual foundation under the O' ain standard noted
                                                                   C                         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
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                                                                         Johanson, A. .
                                                                                   J.
                                                                                    C
We concur:




2
    Miller is correct that the trial court erred in finding that Deputy Yakhour checked the NCIC
computer system. She did         not   so   testify. She only checked the MDC, which advised her to
check NCIC." RP at 8.
            1


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