                                                                          FILED 

                                                                       JULY 15,2014 

                                                                I n the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                         )         No. 31407-3-III
                                             )
                    Respondent,              )
                                             )
             v.                              )
                                             )
PAUL C. HARTZELL,                            )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      KORSMO, J. - Paul Hartzell was arrested for making a false statement to an

officer. We conclude that the arrest lacked probable cause and dismiss the convictions

for possession of a controlled substance and making a false statement.

                                         FACTS

      This case had its genesis in an arrest of Mr. Hartzell on July 10,2012. He entered

a drug store and purchased a syringe and hypodermic needle, and then proceeded to the

restroom and did not come back out. After about a half hour, staff at the drug store called

police regarding Mr. Hartzell's purchase and disappearance into the restroom.
No. 31407-3-III
State v. Hartzell

       Responding officers coaxed Mr. Hartzell out of the restroom. When he emerged,

the officers observed signs consistent with Mr. Hartzell being under the influence of

illegal stimulants. The officers asked Mr. Hartzell what he had taken. Mr. Hartzell

responded that he had injected testosterone, and claimed to have a prescription for

testosterone injections.

       The officers asked Mr. Hartzell what he had done with the syringe. Mr. Hartzell

answered that he had discarded it in the restroom. Not believing Mr. Hartzell, the

officers grabbed him and patted him down out of concerns for officer safety.

Hypodermic needles present a danger to officers in the field, and the officers also knew

from prior contacts that Mr. Hartzell had a violent history with law enforcement.

       During the pat down, the officers discovered the syringe and needle in Mr.

Hartzell's pocket. The officers then handcuffed Mr. Hartzell, and led him out of the store

toward their patrol car. While being led outside, Mr. Hartzell claimed that he had a

prescription for testosterone from a Dr. Jefferson. The officers called Dr. Jefferson's

office; the office confinned that Mr. Hartzell once had a prescription for testosterone, but

Dr. Jefferson had recently revoked the prescription.

       At that point, the officers made the decision to place Mr. Hartzell under arrest and

to perfonn a search incident to arrest. This search resulted in officers finding a bag of

white powder, which later tested positive for methamphetamine.


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No.31407-3-III
State v. Hartzell

       The State charged Mr. Hartzell with one count of unlawful possession of a

controlled substance and one count of making a false or misleading statement to a public

servant. Defense counsel filed a motion to suppress evidence of the methamphetamine

and a motion to dismiss the charges. He argued that the officers did not have probable

cause to arrest his client for making a false or misleading statement to a public servant.

       The court held a hearing and denied both motions. The court later entered

findings of fact and conclusions of law. The court determined that the officers had

probable cause to arrest Mr. Hartzell for making a false or misleading statement based on

the false statement about the syringe and the false statement about having a valid

prescription.

       The case then proceeded to trial. The jury found Mr. Hartzell guilty on both

counts. The court sentenced him to 18 months in prison. Mr. Hartzell thereafter timely

appealed to this court.

                                         ANALYSIS

       Mr. Hartzell raises two arguments. First, he challenges his warrantless arrest,

arguing that officers did not have probable cause to believe he had violated RCW

9A.76.175. He next challenges the constitutionality of that statute. Because we agree

with Mr. Hartzell's first argument, we do not address his constitutional challenge.




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No. 31407-3-III
State v. Hartzell

       When reviewing a denial of a CrR 3.6 motion to suppress, we consider whether

substantial evidence supports the challenged findings of fact and whether the findings

support the conclusions oflaw. State v. Griffith, 129 Wn. App. 482, 487, 120 P.3d 610

(2005). We review de novo the trial court's conclusions oflaw. State v. Carneh, 153

Wn.2d 274,281, 103 P.3d 743 (2004).

       In order to arrest Mr. Hartzell, the officers needed probable cause to believe that

Mr. Hartzell "knowingly [made] a false or misleading material statement to a public

servant." RCW 9A.76.175. A statement is material ifit is "reasonably likely tobe relied

upon by a public servant in the discharge of his or her official powers or duties." Id.

       Mr. Hartzell argues that his statements about having the needle and about having a

valid prescription were not the types of statements reasonably likely to be relied upon by

a public servant in the discharge of his or her official powers or duties. We agree. The

officers in fact did not rely on the false statements. Instead, the officers recognized the

falsity of the statements rather than rely upon them.

       No officer in the discharge of his or her official duties is going to reasonably

entrust a matter of officer safety to a suspect with a known history of violent encounters

with law enforcement. Indeed, the officers here did not entrust their safety to Mr.

Hartzell's word. Rather than accepting his statement that he had disposed of the syringe,

the officers patted him down to find the syringe. Their conduct, while not determinative,


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No.31407-3-III
State v. Hartzell

is implicit recognition of the fact that an officer is not going to reasonably rely on a

statement concerning officer safety from a suspect with a known history of violence

toward police officers.

       The trial court also found that the officers in this case had probable cause to arrest

Mr. Hartzell based on his false claim that he had a prescription for testosterone.

However, the existence of Mr. Hartzell's testosterone prescription was irrelevant to the

discharge of the officers' duties in this case. The record lacks any evidence suggesting

that officers were investigating Mr. Hartzell for suspected illegal use of testosterone.

When Mr. Hartzell emerged from the restroom, the officers believed that he had just

injected a stimulant because he exhibited signs consistent with stimulant use rather than

steroid use. One of the responding officers testified that the length of time that Mr.

Hartzell had spent in the restroom practically ruled out the use of testosterone and

indicated stimulant use. These facts demonstrate that a responding officer in this

situation is not going to reasonably rely on or be concerned about claims of prescription

steroid use. Had Mr. Hartzell told the truth about his testosterone prescription, the

officers still would not have believed, nor would they have had reason to believe, that he

had been injecting testosterone while in the restroom.

       We conclude that the officers lacked probable cause to arrest because Mr.

Hartzell's false statements were not material. In neither instance did the officers rely


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No.31407-3-III
State v. Hartzell

upon the false statements. Instead, the officers recognized that the statements were false

and took appropriate action to respond to the falsity. However, because neither statement

was "likely to be relied upon by" the officers "in the discharge of' their "official ...

duties," there was no violation ofRCW 9A.76.17S. The arrest was therefore improper

and the methamphetamine discovered as the fruit of the arrest should have been

suppressed.

       Reversed and remanded for dismissal of the charges.

       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.


                                                   IKorsmo, l
WE CONCUR:




Siddoway, C.J.                                      Brown,J.




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