      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



                                                 No. 68718-2-1
STATE OF WASHINGTON,
                                                 DIVISION ONE                           C"1

                      Respondent,
       v.




                                                                                  ro    -^
CHRIS LAVONN MORRIS,                             UNPUBLISHED                            oorvt



                      Appellant.                 FILED: Julv 22. 2013             r:     $5^
                                                                                   ©      B:.
                                                                                   CO




       COX, J. - Probable cause to arrest exists when the facts within the

arresting officer's knowledge would warrant a person of reasonable caution in a

belief that an offense has been committed. In this case, the facts known to the

arresting officer provided probable cause to believe that Chris Morris possessed

a controlled substance with intent to deliver. We therefore affirm the trial court's

denial of Morris' motion to suppress and his conviction for possession of cocaine

with intent to deliver.

       Based on evidence recovered following the surveillance, arrest, and

search of Morris, the State charged him with possession of cocaine with intent to

deliver. At trial, Morris moved to suppress the cocaine and currency discovered

during his arrest, arguing that the police lacked probable cause to arrest him.
No. 68718-2-1/2




Following a suppression hearing, the court denied the motion to suppress and

entered the following unchallenged findings of fact.

            On June 9, 2011, Seattle Police Officer Donald Johnson of the Seattle

Police Department surveilled an area known for narcotics trafficking via a security

camera. The events he observed through the camera were recorded and played

at trial.


            Officer Johnson observed Morris walking and talking with Susie Atkins, a

known user of crack cocaine. Morris removed something from his pants pocket,

placed it in Atkins' right hand, and received something in return. The position of

their bodies prevented Officer Johnson from seeing exactly what was exchanged.

            Immediately after the exchange, Atkins peered closely at her open right

hand, as if examining a small object. Morris placed whatever he received from

Atkins into his right front pants pocket. At the same time, Morris appeared to drop

something on the ground. He picked it up and put it in his right front pants pocket.

            Shortly thereafter, Officer Johnson saw Morris remove currency from his

right front pants pocket. Morris appeared to count it, and then returned it to his

pocket.

            Around 18 minutes later, Mark Breithaupt, a known user of crack cocaine,

approached Morris. They spoke briefly, and then Breithaupt walked south a

short distance. A few seconds later, Morris also walked south a short distance.

He was then approached by Denise Sellers, another known user of crack
No. 68718-2-1/3




cocaine. Morris appeared to take something out of his right front pants pocket

and put it into Sellers' right hand. Sellers tossed an object from her right hand

into her mouth.


       Seconds later, Breithaupt approached Morris and handed him an item that

was consistent in color and shape with folded currency. At the same time, Morris

appeared to give Breithaupt an object that Breithaupt pinched between his thumb

and forefinger and placed in his mouth.

       Based on his training and experience, Officer Johnson knew that crack

cocaine purchasers often put crack cocaine in their mouths as a way of

concealing and testing it. Morris' interactions with the known cocaine users were

also typical of street level crack cocaine sales in the downtown Seattle area.

       Officer Johnson arrested Morris and searched his pockets. He found 2.3

grams of crack cocaine and $66 in paper currency.

       In denying Morris' motion to suppress the cocaine and currency, the trial

court entered the following conclusions of law:

      a. An officer does not necessarily have to see the object exchanged in
         order to have probable cause to believe that a suspect has delivered a
          controlled substance.
       b. When considering whether probable cause existed, the court must
          consider the officer's knowledge of the circumstances, including his
          training and experience.
       c. Based on the totality of the circumstances, including but not limited to
          the facts that the area was known to be a high narcotics trafficking
          area, the defendant had been approached by multiple known drugs
          users, the defendant had made quick exchanges with the known drug
          users, the defendant appeared to be providing a very small object in
          each exchange, and the defendant appeared in at least one exchange
No. 68718-2-1/4




           to be receiving money, Officer Johnson had probable cause to arrest
           the defendant,
       d. Officer Johnson's search of the defendant's pockets after arresting the
           defendant was a lawful search incident to a lawful arrest, and was
           therefore constitutional.

       Morris waived his right to a jury trial and, following a bench trial, the court

found him guilty as charged. Morris appeals.

                          PROBABLE CAUSE TO ARREST

       The sole issue on appeal is whether the superior court erred in concluding

that Officer Johnson had probable cause to arrest Morris for possession with

intent to deliver cocaine. We review probable cause determinations de novo.1

Probable cause exists when the facts and circumstances within the arresting

officer's knowledge would warrant a person of reasonable caution in a belief that

an offense has been committed.2 This standard takes into consideration the

special experience and expertise of the arresting officer.3

       Morris contends the facts and circumstances within Officer Johnson's

knowledge were insufficient to support a belief that an offense had been

committed. Citing State v. Fore. 56 Wn. App. 339, 343-45, 783 P.2d 626 (1989),

he notes that unlike the observation officer in that case, Officer Johnson did not

see what, other than money, was being exchanged. It is true that the officer in

Fore observed an exchange of "small plastic bags containing brownish or



       1In re Pet, of Petersen, 145 Wn.2d 789, 800, 42 P.3d 952 (2002); State v. Louthan. 158
Wn. App. 732, 740-41, 242 P.3d 954 (2010).
       2State v. Terrovona. 105 Wn.2d 632, 643, 716 P.2d 295 (1986).
       3State v. Graham. 130Wn.2d 711, 724, 927 P.2d 227 (1996).
No. 68718-2-1/5




greenish matter.. . ."4 But this court in Fore expressly rejected the proposition
that it is necessary for an officer to identify the object exchanged in order to

establish probable cause:

       However, absolute certainty by an experienced officer as to the
       identity of a substance is unnecessary to establish probable cause.
       . . . Here, the suspicious circumstances surrounding the
       exchanges, not the officer's ability to identify the substance,
       constituted the primary basis for the probable cause
       determination.^
Other decisions from this court reinforce this point and support the trial court's

decision in this case.

       In State v. Rodriguez-Torres. 77 Wn. App. 687, 693-94, 893 P.2d 650, 653

(1995), a police officer in a high narcotics area saw another man hand money to

Rodriguez-Torres, who was holding his left hand in a cupped fashion. The man

picked an item out of Rodriguez-Torres' left hand and looked at it. As the officer

approached, someone yelled "police!" The man dropped the item and left.

Rodriguez-Torres picked up the item and also left. The officer then stopped and

arrested Rodriguez-Torres. We held that the officer's "observations and

expertise provided probable cause to conclude that a drug offense had been

committed."6

       Similarly, in State v. White. 76 Wn. App. 801, 803-05, 888 P.2d 169, 171

(1995), we found probable cause to arrest based on an officer's observation of


       4 Fore, 56 Wn. App. at 343.
       5 la\ at 345 (emphasis added).
       6 Rodriguez-Torres. 77 Wn. App. at 693-94.
No. 68718-2-1/6




an apparent drug transaction. Using binoculars, an officer watched as White and

another man, Marek Murray, walked along a sidewalk. When they reached the

corner, the men separated and stood 3 to 5 feet apart. After several minutes, a

man wearing a white sweat suit approached White. The two spoke briefly, and

White pointed to Murray. The man in the sweat suit went to Murray and began

walking with him. White followed about 3 to 5 feet behind them. After a few

steps, the man in the sweat suit took money from his pocket and counted it.

Murray reached into his shorts and dropped something on the ground. The man

in the sweat suit stopped, picked up the object, looked at it, put it in his mouth for

a moment, and handed money to Murray. Shortly thereafter, Murray and the

man in the sweat suit walked in opposite directions. White walked ahead of

Murray, but Murray eventually caught up. The officer saw "hand movements,"

but could not tell what, if anything, had passed between White and Murray.

       The officer testified that he had witnessed hundreds of narcotics

transactions and that White's actions were consistent with those of a lookout or

setup person in a drug transaction. We held that the officer's observations

provided probable cause to arrest White for a drug offense.

       The facts and circumstances known to the arresting officers in White and

Rodriguez-Torres are comparable to Officer Johnson's knowledge in this case.

Officer Johnson observed Morris making exchanges of small objects for currency

with known crack cocaine users in a high narcotics area. The exchanges were
No. 68718-2-1/7




made in a surreptitious manner and were consistent with typical crack cocaine

exchanges seen in the area. Officer Johnson also saw two of the known drug

users place the items that they received from Morris in their mouths. Officer

Johnson knew from his training and experience that crack cocaine users often

transport crack in their mouths to avoid detection and to test authenticity.

       Considering the facts and circumstances known to Officer Johnson in light

of his training and experience, the trial court properly concluded that he had

probable cause to arrest Morris for possession with intent to deliver a controlled

substance. Likewise, the search incident to this arrest was proper.

       We affirm the judgment and sentence.

                                                   dw.-X
                                                   /rrtf



WE CONCUR:




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