                                                                          FILED
                                                                       JULY 16, 2020
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 36703-7-III
                    Respondent,              )
                                             )
      v.                                     )
                                             )
ANTONIO MARCELL MITCHELL,                    )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      SIDDOWAY, J. — The test for staleness of information to establish probable cause

for arrest is one of common sense. State v. Perea, 85 Wn. App. 339, 343, 932 P.2d 1258

(1997). At issue in this case is whether an officer’s information that Antonio Mitchell

was subject to an active Department of Corrections (DOC) warrant on the evening of

December 4, 2018, required confirmation before an arrest the following evening, in

which he was found to possess methamphetamine. We hold that it was not stale and

affirm Mr. Mitchell’s conviction for possession of a controlled substance.

                    FACTS AND PROCEDURAL BACKGROUND

      On December 5, 2018, a woman called 911 for assistance because a man named

Antonio would not leave her home. Officer Christopher Conrath was one of three

officers who responded. He suspected that the interloper might be Antonio Mitchell, who
No. 36703-7-III
State v. Mitchell


he had been looking for the prior evening because there was an active DOC warrant for

his arrest. Upon arriving at the complainant’s apartment, the officers determined that the

interloper was Mr. Mitchell and arrested him. In a search incident to arrest, an officer

discovered a small amount of methamphetamine in one of Mr. Mitchell’s pockets. Mr.

Mitchell was charged with possession of a controlled substance (methamphetamine).

       Defense counsel obtained body camera videos and dispatch recordings, from

which he determined that before arresting Mr. Mitchell, the responding officers had asked

dispatch to confirm that the DOC warrant was outstanding. He concluded they did not

receive confirmation until about a minute after they had arrested him and searched his

person. Mr. Mitchell moved to suppress the methamphetamine on the basis that the

search was unlawful because the arrest was unlawful. He contended that the

confirmation of an active warrant that the officers had sought was required to be obtained

before they could make a lawful arrest.

       The evidence presented at the suppression hearing consisted of a recording of the

officers’ phone calls with dispatch on the evening of the arrest, Officer Conrath’s body

camera footage, and transcripts of both. After hearing the argument of counsel and

reviewing the recordings, the trial court orally denied the suppression motion, observing

that “the time between confirming the warrant the night prior and then contacting Mr.

Mitchell was minimal.” Report of Proceedings (RP) at 20. Written findings and

conclusions were later entered.

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No. 36703-7-III
State v. Mitchell


       Mr. Mitchell was found guilty following a stipulated facts trial. He appeals.

                                        ANALYSIS

       Mr. Mitchell argued in the trial court that without confirming the existence of an

active warrant, law enforcement did not have probable cause to arrest him and the

methamphetamine found in the search incident to the unlawful arrest should have been

suppressed. He relies on the Washington Constitution’s requirement that incursions on a

person’s private affairs be supported by “authority of law.” WASH. CONST. art. I, § 7.

Mr. Mitchell does not challenge the trial court’s findings of fact, which are verities for

purposes of this appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). We

review the trial court’s legal conclusions de novo. State v. Johnson, 128 Wn.2d 431, 443,

909 P.2d 293 (1996).

       On appeal, Mr. Mitchell argues in part that the trial court lacked evidence of the

trustworthiness of the information Officer Conrath obtained about the arrest warrant on

December 4, the night before his arrest. The lack of evidence is understandable given the

narrow focus of Mr. Mitchell’s motion. Mr. Mitchell relied solely on body camera and

dispatch evidence from the night of the arrest because the basis for his suppression

motion was that the officers were required to confirm the existence of an active warrant

at that time. Since a possible shortcoming in the information obtained by Officer Conrath

on December 4 was never raised as a basis for suppression, we will not consider that

argument for the first time on appeal. See RAP 2.5(a).

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No. 36703-7-III
State v. Mitchell


       The sole issue raised by Mr. Mitchell’s suppression motion was one of staleness—

whether day-old information that an arrest warrant was outstanding could be relied on

without confirming that the warrant remained active. As defense counsel argued to the

trial court, Officer Conrath

       might have ran his name the previous evening but he hadn’t in the interim.
       You know, a DOC warrant could be resolved a number of different ways.
       Mr. Mitchell could have contacted his DOC officer in the interim and—and
       been released. I mean, we simply don’t know that. We don’t have those
       facts.

RP at 13.

       A search of the arrestee’s person incident to arrest is one of the few carefully

drawn and jealously guarded exceptions to article I, section 7’s warrant requirement.

State v. Brock, 184 Wn.2d 148, 153, 355 P.3d 1118 (2015). However, only a lawful

arrest provides authority to search incident to arrest. State v. O’Neill, 148 Wn.2d 564,

585, 62 P.3d 489 (2003). The lawfulness of an arrest depends on the existence of

probable cause. State v. Moore, 161 Wn.2d 880, 885, 169 P.3d 469 (2007). “Probable

cause exists when the arresting officer is aware of facts and circumstances, based on

reasonably trustworthy information, sufficient to cause a reasonable officer to believe that

a suspect has committed or is committing a crime.” State v. Afana, 169 Wn.2d 169, 182,

233 P.3d 879 (2010).

       The “fellow officer” rule would allow Officer Conrath to rely on DOC information

that an arrest warrant had been issued for Mr. Mitchell. See State v. O’Cain, 108 Wn.

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No. 36703-7-III
State v. Mitchell


App. 542, 550-53, 31 P.3d 733 (2001). If the reliability of DOC’s information was

challenged, Officer Conrath’s good faith would not relieve the State of its burden to

prove that DOC had sufficient information of a valid arrest warrant and thereby probable

cause, see id., but that was not the nature of Mr. Mitchell’s challenge.

       The test for staleness of information to establish probable cause is one of common

sense. Perea, 85 Wn. App. at 343. Perea involved an officer’s arrest of a defendant for

driving on a suspended license based on week-old information. The defendant argued

that because it was possible for driving privileges to be reinstated within a week,

arresting him without a current records-check was unlawful. Id. This court rejected that

argument, holding that “if the facts indicate information is recent and contemporaneous,

then it is not ‘stale,’” and “week-old information was recent enough.” Id. Perea relied

on analogous case law addressing whether information in a search warrant affidavit is

stale. E.g., State v. Riley, 34 Wn. App. 529, 534, 663 P.2d 145 (1983). In that context,

our Supreme Court has held that the “totality of circumstances” is considered. State v.

Maddox, 152 Wn.2d 499, 506, 98 P.3d 1199 (2004).

       As the trial court noted, a warrant could be quashed within an hour, but we would

not expect an arresting officer to have to re-check DOC information that had been

retrieved an hour earlier. Officer Conrath’s day-old information that a DOC warrant had

been issued for Mr. Mitchell’s arrest was sufficient to cause a reasonable officer to

believe it remained active. It was recent enough.

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No. 36703-7-III
State v. Mitchell


       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                 _____________________________
                                                 Siddoway, J.

WE CONCUR:



_____________________________
Fearing, J.



_____________________________
Pennell, C.J.




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