            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON,                    )       No. 76902-2-1                     c:=)
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              Respondent,               )       DIVISION ONE                               C)
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                                        )                                                  LE T—
BLAYNE MICHAEL PEREZ,                   )                                         '9?      M CI)
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              Appellant.                )       FILED: October 29, 2018
                                        )

       LEACH, J. — Blayne Perez appeals his conviction for possession of a controlled

substance (heroin). He challenges the trial court's admission of heroin evidence found

after his arrest for theft, claiming that the arrest was unlawful. He contends that the

court cannot use the fellow officer rule to determine if the police had probable cause to

arrest him, without a warrant, for theft as authorized by RCW 10.31.100. Alternatively,

he challenges the sufficiency of the evidence supporting a number of the court's

findings related to his arrest. But the plain language of the statute, stating that "an"

officer must have probable cause to arrest the suspect, allows a court to use the fellow

officer rule to determine the existence of probable cause. And substantial evidence

supports the court's material findings, which in turn support the court's conclusion that

the officers had probable cause to arrest Perez. We affirm.
No. 76902-2-1/ 2


                                         FACTS

       On December 14, 2016, dispatch advised Officer Kristopher Munoz that loss

prevention officers at a nearby Target were "struggling" with a woman suspected of

theft.1 As Munoz approached the store entrance, an unidentified passerby pointed to a

black vehicle pulling out of a parking stall and stated, "There goes the suspect's

partner." She also stated that there was drug paraphernalia in the vehicle. Munoz used

dispatch to inform other officers that another suspect may be in the vehicle described by

the unidentified civilian. Munoz then handcuffed the female suspect later identified as

Brandy Williams. From the time that Munoz arrived, it took him approximately 30

seconds to one minute to physically take Williams into custody. By this time, the

unknown passerby had left.

       As Munoz walked Williams to his patrol car, he talked with Target's loss

prevention officer, Monico Valencia. Munoz "deal[s] with Mr. Valencia almost on a daily

basis when [he's] working" because of the "high level of theft" at that Target. Valencia

told Munoz that Williams arrived in a vehicle with two adult males, one of whom was

later identified as Perez. Valencia identified the same vehicle as being involved in the

theft that the passerby had identified. He stated that Perez and Williams entered the

store separately but met inside. They took gift bags from inside the store and put

merchandise in them. Perez stood at the entrance of the store with four unpaid items


       1 Perez challenges the trial court's finding that as loss prevention officers
attempted to subdue Williams, there was "merchandise strewn at her feet." The State
concedes that substantial evidence does not support the quoted portion of the court's
finding. Although not material to this appeal, we note this inaccuracy for the sake of the
record.

                                            2
No. 76902-2-1 /3


and watched Williams leave. When loss prevention officers confronted Williams, Perez

discarded the items he was holding, left the store, and entered a black vehicle. Based

on this information and the civilian's tip, Munoz suspected that Perez had either

shoplifted or attempted to shoplift. After Munoz's conversation with Valencia, Munoz

saw that an officer had detained the suspect vehicle in the parking lot.

       Once Munoz secured Williams in his patrol car, he approached the suspect

vehicle. By then, the officers who had stopped Perez had taken him into custody. All

three passengers consented to Munoz's request to search the vehicle.2 He found three

"baggies" of narcotics in the vehicle. Two contained heroin. While in custody, Perez

told Munoz that the heroin was his.

       After a hearing, the court denied Perez's request to suppress this evidence. At a

stipulated bench trial, the court found Perez guilty of possession of a controlled

substance (heroin). Perez appeals.

                                       ANALYSIS

       Perez challenges the constitutionality of his arrest. He offers two reasons why

the police did not have probable cause to arrest him for theft. We reject his claims.

       The Fourth Amendment to the United States Constitution and article I, section 7

of the Washington Constitution protect individuals' privacy rights.        Both provisions

prohibit a warrantless arrest, subject to limited, narrow exceptions.3        To justify a

warrantless arrest, the State must show that an exception to the warrant requirement


       2Unchallenged findings are true on appeal. State v. Hill, 123 Wn.2d 641, 644,
870 P.2d 313(1994).
      3 State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).


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applies.4 One exception allows the police to arrest a person when they have probable

cause to believe a crime is being committed.5 "Probable cause exists where the facts

and circumstances within the arresting officer's knowledge and of which the officer has

reasonably trustworthy information are sufficient to warrant a person of reasonable

caution in a belief that an offense has been committed. Probable cause is not a

technical inquiry."6 This determination rests on "the totality of facts and circumstances

within the officer's knowledge at the time of the arrest."7

                                     The Fellow Officer Rule

       First, Perez contends that the police did not have probable cause to arrest him.

He bases this claim on his argument that courts cannot use the fellow officer rule to

determine the validity of arrests for nonfelony offenses authorized by RCW 10.31.100.

We disagree.

       Perez raises an issue of statutory construction. This court reviews issues of

statutory interpretation de novo.5

       Article 1, section 7 of the Washington Constitution provides, "No person shall be

disturbed in his private affairs, or his home invaded, without authority of law." "Authority

of law" includes authority granted by a constitutional statute.5          RCW 10.31.100

describes when police officers have authority to arrest, without a warrant, individuals

committing misdemeanors or gross misdemeanors: "A police officer may arrest a

      4 State v. Snapp, 174 Wn.2d 177, 188, 275 P.3d 289(2012).
      5 State v. Grande, 164 Wn.2d 135, 141, 187 P.3d 248 (2008).
      6 State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986).
      7 State v. Fricks, 91 Wn.2d 391, 398, 588 P.2d 1328 (1979).
      8 State v. Sandholm, 184 Wn.2d 726, 736, 364 P.3d 87(2015).
      9 State v. Reeder, 184 Wn.2d 805, 817, 365 P.3d 1243(2015).



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No. 76902-2-1 / 5


person without a warrant for committing a misdemeanor or gross misdemeanor only

when the offense is committed in the presence of an officer, except as provided in

subsections (1) through (11) of this section." (Emphasis added.) RCW 10.31.100(1)

authorizes an individual's arrest for nonfelony theft offenses committed outside the

officer's presence: "Any police officer having probable cause to believe that a person

has committed or is committing a misdemeanor or gross misdemeanor, involving. .. the

unlawful taking of property ... , shall have the authority to arrest the person." Our

Supreme Court has held that RCW 10.31.100(1) is constitutional.10

       Here, the parties dispute the information a court can consider to decide whether

an officer making a nonfelony theft arrest had probable cause to make the arrest. Perez

asserts that the court may consider only the information known to the arresting officer.

The State contends that the court may consider all information allowed by the fellow

officer rule.

       "The fellow officer rule, also known as the police team rule, allows a court to

consider the cumulative knowledge of police officers in determining whether there was

probable cause to arrest a suspect."11 The arresting officer has probable cause to

arrest a suspect when an officer directing or communicating with him has probable

cause, regardless of whether he personally possesses sufficient information to

constitute probable cause.12




       10 State v. Walker, 157 Wn.2d 307, 310, 138 P.3d 113(2006).
       11 State v. Bravo Ortega, 177 Wn.2d 116, 126, 297 P.3d 57(2013).
       12 State v. Maesse, 29 Wn. App. 642, 646-47,629 P.2d 1349 (1981).



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       Perez relies on State v. Bravo Ortegal° to support his claim that the fellow officer

rule does not apply to arrests for nonfelony offenses authorized by RCW 10.31.100. In

Bravo Ortega, our Supreme Court interpreted an earlier version of RCW 10.31.100.14

This former statute stated, "A police officer may arrest a person without a warrant for

committing a misdemeanor or gross misdemeanor only when the offense is committed

in the presence of the officer.      ."15 In Bravo Ortega, an officer stationed on the

second floor of a building witnessed Ortega participate in drug transactions. Believing

that he had probable cause to arrest Ortega for drug-traffic loitering,16 the officer radioed

this information to other officers on the ground, who then arrested Ortega.17 Our

Supreme Court held that Ortega's arrest was unlawful because lujnder the plain

language of the statute, only an officer who is present during the offense may arrest a

suspect for a misdemeanor or a gross misdemeanor."15

       To support its holding, the court applied a rule of statutory construction,

expressio unius est exclusio alterius.19 This means "to express or include one thing

implies the exclusion of another.'"2° The court explained that RCW 10.31.100(7)21



       13 177 Wn.2d  116, 297 P.3d 57(2013).
       14 Bravo Ortega, 177 Wn.2d at 123-24.
       15 Bravo Ortega, 177 Wn.2d at 123-24 (alteration in original) (quoting former
RCW 10.31.100 (1979)).
       16 Bravo Ortega, 177 Wn.2d at 121.
       17 Bravo Ortega, 177 Wn.2d at 121.
       18 Bravo Ortega, 177 Wn.2d at 124.
       19 Bravo Ortega, 177 Wn.2d at 124.
       20 Bravo Ortega, 177 Wn.2d at 124 (quoting BLACK'S LAW DICTIONARY 661 (9th
ed. 2009)).
       21 The statutory provision the court examined in Bravo Ortega was RCW
10.31.100(6). In 2013, the legislature renumbered this provision as RCW 10.31.100(7).
LAWS OF 2013, Reg. Sess., ch. 278 § 4. We use the current numeration.

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No. 76902-2-1/ 7


provides express authority for an officer to rely on the request of another officer in

making an arrest for a traffic infraction. It stated that this provision did not apply to drug-

traffic loitering.22 The court reasoned that the expressio unius est exclusio alterius

doctrine supported its decision because RCW 10.31.100(7) expressly authorized an

officer to rely on the request of another officer when making an arrest for a traffic

infraction while the other subdivisions of RCW 10.31.100 authorizing warrantless arrests

did not. The court concluded that this meant that the legislature intended for the fellow

officer rule to apply only to arrests for traffic infractions.

       Perez acknowledges that the amendment to RCW 10.31.100 removed the

requirement that a nonfelony offense be committed in the presence of the arresting

officer. But he maintains that the expressio unius est exclusio alterius doctrine still

applies to this case. He claims that similar to the provision about drug-traffic loitering

considered in Bravo Ortega, RCW 10.31.100(1), authorizing a warrantless arrest for a

nonfelony theft offense, does not expressly authorize the arresting officer to rely on the

request of another officer. He cites the principle that criminal statutes should be literally

and strictly construed.23 He also relies on the rule of lenity, which, in the face of

statutory ambiguity, requires the court "to adopt the interpretation most favorable to the

defendant."24 We reject Perez's argument on two grounds.

       First, Bravo Ortega does not apply because, unlike the situation there, RCW

10.31.100(1) specifically states that the requirement that the offense be committed in


       22 Bravo Ortega, 177 Wn.2d at 124.
       23 State v. Garcia, 179 Wn.2d 828, 837, 318 P.3d   266(2014).
       24 State   v. Gonzales Flores, 164 Wn.2d 1, 17, 186 P.3d 1038(2008).

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No. 76902-2-1/ 8


the presence of an officer does not apply to arrests for nonfelony theft offenses. RCW

10.31.100(1) authorizes "[a]ly police officer" with probable cause to arrest an individual

for select nonfelony offenses, including theft. (Emphasis added.) The statute does not

require that the arresting officer make the probable cause determination. And under the

fellow officer rule, probable cause is established when an involved officer has probable

cause even if the arresting officer does not personally have probable cause. Thus, the

plain language of RCW 10.31.100(1) allows for application of the fellow officer rule to

arrests for select nonfelony offenses, including the theft offense at issue here.

       Even if Bravo Ortega were relevant, RCW 10.31.100 also permits application of

the fellow officer rule. The doctrine of expressio unius est exclusio alterius is a canon of

statutory construction that does not apply where, as here, the plain language of the

statute is unambiguous. The purpose of interpreting a statute is to determine the

legislature's intent.25 The plain meaning of the statute is the "surest indication of

legislative intent."26 To determine the plain meaning of a provision, a court looks to the

text of the statutory provision and "the context of the statute in which that provision is

found, related provisions, and the statutory scheme as a whole.'"27 An undefined term

is "given its plain and ordinary meaning unless a contrary legislative intent is

indicated.'"28 Only if the statute is ambiguous, meaning it is susceptible to more than



       25 Statev. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354(2010).
      26 Ervin, 169 Wn.2d at 820.
      27 Ervin, 169 Wn.2d at 820 (quoting State v. Jacobs, 154 Wn.2d 596, 600, 115
P.3d 281 (2005)).
      28 Ervin, 169 Wn.2d at 820 (quoting Ravenscroft v. Wash. Water Power Co., 136
Wn.2d 911, 920-21, 969 P.2d 75(1998)).

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No. 76902-2-1/9


one reasonable interpretation, does a court use statutory construction, legislative

history, and relevant case law to help discern legislative intent.29

       In Bravo Ortega, our Supreme Court held that the plain language of former RCW

10.31.100 did not permit application of the fellow officer rule.3° The court did not identify

any ambiguous language. It used the doctrine of expressio unius est exclusio alterius

only as additional support for its reasoning.31     The plain language of the amended

statute before this court is also unambiguous. It authorizes a police officer to conduct a

warrantless arrest for a nonfelony "when the offense is committed in the presence of an

officer."32 "An officer" means any officer, whereas "the officer," used in the former

statute, means the arresting officer. Thus, the plain language of RCW 10.31.100 allows

a police officer to arrest a suspect for a nonfelony if any officer was present during the

offense. Perez provides no persuasive explanation for how an officer authorized to

arrest a person for a crime committed outside his presence could ever have probable

cause without relying on the knowledge of others. The trial court correctly concluded

that the fellow officer rule applies to arrests for nonfelony offenses authorized by RCW

10.31.100.




       29 Ervin, 169 Wn.2d at 820.
       30 Bravo Ortega, 177 Wn.2d at 123-24, 127.
       31 Bravo Ortega, 177 Wn.2d at 123-24.
       32 RCW 10.31.100 (emphasis added).



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            Sufficiency of the Evidence Supporting the Trial Court's Findings

       Alternatively, Perez claims that even if the fellow officer rule applies, the police

did not have probable cause to arrest him and substantial evidence does not support

some of the trial court's contrary findings. We disagree.

       An appellate court reviews challenged findings of fact on a motion to suppress for

substantial evidence.33 "Substantial evidence exists where there is a sufficient quantity

of evidence in the record to persuade a fair-minded, rational person of the truth of the

finding."34 Unchallenged findings are true on appea1.36 This court reviews de novo

whether the trial court's conclusions of law flow from its findings.36

       Perez challenges the sufficiency of the evidence supporting three of the trial

court's findings. First, Perez challenges the court's finding that "Mr. Valencia informed

[Munoz] he observed a male suspect, whom he later identified as the Defendant Blayne

Perez, enter the Target store with the female suspect and conceal items in his clothing."

He also challenges a similar finding stating, "When [Perez] saw [Williams] being

detained he put down anything he had concealed and left the store." Perez asserts that

no evidence supports that he concealed items in his clothing. Valencia testified that

both Perez and Williams took gift bags from inside the store. Valencia stated that

Williams concealed merchandise in her bag and Perez had "merchandise with

him.. . and on him." Perez "discard[ed] the merchandise that he had selected as he


       33Hill, 123 Wn.2d at 644.
       34Hill, 123 Wn.2d at 644.
      36 Hill, 123 Wn.2d at 644.
      36 Nelson v. Dep't of Labor & Indus., 175 Wn. App. 718, 723, 308 P.3d 686
(2013).

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No. 76902-2-1 / 11


s[aw loss prevention officers] apprehend[ ] Brandy and then exit[ed] the store."

Although Valencia's testimony supports that Perez concealed items, it does not support

that he did so in his clothing. But whether Perez concealed the items in his clothing or

in a bag is immaterial. The material finding is that Perez concealed items. Valencia's

testimony supports this.

       Perez also challenges the court's finding that Valencia relayed to Munoz the

information contained in the two abovementioned findings as they "walked out of the

Target location." Perez claims that because Valencia did not testify that Valencia told

Munoz that Perez concealed any items, no evidence supports this finding. Valencia

testified that he told Munoz, "[Perez] had merchandise with him at one point." But

Munoz testified that Valencia also told him that both Williams and Perez "were selecting

items and placing them into bags." Munoz stated that Valencia told him that when

Williams left the store, Perez "stood by at the entrance to the store with four unpaid

items . . . . When she was confronted by loss prevention, Mr. Perez then got rid of the

items that he had in his possession." Munoz's testimony that Valencia told him Perez

placed items into bags is sufficient to support the finding that Valencia relayed to Munoz

that Perez concealed items.

       Perez next claims that because substantial evidence does not support the

findings discussed above, the court's findings do not support three of its conclusions of

law. But, substantial evidence supports the court's challenged findings as discussed

above, and the court's findings support its conclusions.
No. 76902-2-1 / 12


       First, Perez asserts that the court's findings do not support its conclusion that

"[s]ufficient information was known by other law enforcement officials involved in the

investigation to justify the detention of the Defendant for theft in the third degree as a

principal and accomplice." The court found that an unidentified female civilian provided

information about a male suspect involved in the theft and a related vehicle. Munoz

identified this vehicle as a black Volkswagen parked in the lot outside of the store. He

broadcast this information through his radio dispatch. Valencia identified the same

black Volkswagen as being involved in the theft. And Valencia told Munoz that Perez

and Williams entered the store together and that Perez concealed items and then

discarded them after seeing loss prevention officers detain Williams. The court also

found that Valencia relayed this information to Munoz as they walked out of Target

before police stopped Perez's vehicle. These findings support the court's conclusion

that based on Munoz's knowledge, the police had probable cause to believe that Perez

committed theft.

      Second, Perez challenges the court's conclusion stating, "The tip provided to

Officer Munoz possessed [the] necessary indicia of reliability under the totality of the

circumstances." He also takes issue with the following conclusion:

      The unknown informant[']s tip was corroborated by [Munoz's] observations
      and information provided by a known and named citizen informant. That
      information corroborated more than innocuous details. Therefore, the
      officer had sufficiently reliable information on which to detain the
      defendant based on probable cause to believe he committed the crime of
      theft.

      He claims the unknown citizen's tip was not sufficiently trustworthy to contribute

to a probable cause determination. Information an officer relies on to make his probable


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No. 76902-2-1 / 13


cause determination must be "reasonably trustworthy."37 Perez contends that Munoz

did not have a basis for determining whether the tip was reasonably trustworthy

because he knew nothing about the unidentified citizen or her source of knowledge. But

Valencia corroborated the citizen's identification of a black Volkswagen as the involved

vehicle. Munoz testified that he interacted with Valencia on almost a daily basis as a

result of the frequency of thefts at that Target. Because Munoz had an established

relationship with Valencia and Valencia corroborated the tip, under the totality of the

circumstances, the tip was sufficiently reliable.

       Perez also asserts that Valencia did not relay to Munoz more than innocuous

details. "Innocuous objects that are equally consistent with lawful and unlawful conduct

do not constitute probable cause."38        Perez relies on the principle that "[m]ere

knowledge or physical presence at the scene of a crime neither constitutes a crime nor

will it support a charge of aiding and abetting a crime."39 But, as discussed above, in

addition to Perez being physically present with Williams in the store and observing that

she was stealing, substantial evidence shows that Valencia relayed to Munoz that Perez

concealed items and discarded those items when he saw loss prevention officers detain

Williams. These details are not innocuous and support the trial court's conclusions.

       Perez further claims that because the trial court did not include in its written

findings that Perez concealed items in a bag, this court cannot consider this testimony

in deciding whether the court's findings support its conclusion stated above. Perez also


       37 Terrovona, 105 Wn.2d     at 643.
       38 State v. Neth, 165 Wn.2d 177, 185, 196 P.3d 658(2008).
       39 State v. J-R Distribs., Inc., 82 Wn.2d 584, 593, 512 P.2d 1049(1973).



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No. 76902-2-1 / 14


contends that even if this court does consider that testimony, the fact that Perez put

items in a bag is not an incriminating detail. Although the trial court found that Perez

concealed items in his clothing, it stated in its oral findings that Perez and Williams

"[e]ach selected and concealed items in bags." "An appellate court may consider a trial

court's oral decision so long as it is not inconsistent with the trial court's written findings

and conclusions."40 Perez claims that the trial court's oral finding that Perez concealed

items in a bag conflicts with its written finding that he concealed items in his clothing.

Because substantial evidence does not support the finding that Perez concealed items

in his clothing, this court does not consider it. And because it is possible for someone to

conceal items in both his clothing and a bag, the trial court's oral and written findings do

not conflict. The trial court's written finding does not require that this court exclude the

trial court's oral finding from its review. And, as we noted, the material fact is that Perez

concealed items, not where he concealed them.

       Alternatively, Perez maintains that the fact that he put items in a bag is an

innocuous detail that does not support his guilt. He contends that because customers

commonly put items into bags they bring from home before paying for items at

checkout, the fact that he put items into a bag was equally consistent with lawful

conduct as it was with unlawful conduct. But Valencia testified that the bags were gift

bags that Perez and Williams selected from the store. They were not reusable bags

individuals bring from home. The trial court did not err in concluding that Valencia's

testimony corroborated more than harmless details.


       40 State v. Kull, 155 Wn.2d 80, 88, 118 P.3d 307(2005).

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No. 76902-2-1 / 15


       Last, Perez asserts that because police did not have probable cause to arrest

him, the fruit of the poisonous tree doctrine requires suppression of any evidence that

he possessed heroin. This doctrine requires the suppression of physical or verbal

evidence resulting from an unconstitutional search or seizure.41 But because the trial

court did not err in concluding that the police had probable cause to arrest Perez for

theft, the fruit of the poisonous tree doctrine does not apply.

                                      CONCLUSION

       The plain language of RCW 10.31.100 allows for application of the fellow officer

rule to warrantless arrests for nonfelony offenses. And RCW 10.31.100(1) permits

application of the rule specifically to warrantless arrests for described nonfelony

offenses, including theft, when the suspect commits the offense outside of the presence

of an officer. Substantial evidence supports the court's material findings, which support

its conclusion that the police had probable cause to arrest Perez for theft. We affirm.




WE CONCUR:




       41Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S. Ct. 407, 9 L. Ed. 2d
441 (1963).

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