IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

JASON RAY LEE,

Appellant.

No. 68105-2-1 i—» uJO

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DIVISION ONE

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UNPUBLISHED OPINION f^r

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FILED: April 22, 2013 ^ go

Appelwick, J. — Lee appeals his conviction for felony violation of a no-contact

order, challenging the trial court's denial of his motion to suppress. However, the trial

court concluded that the law enforcement officer who encountered Lee while attempting

to execute an arrest warrant had a legitimate basis to temporarily detain Lee and ask

him to identify himself. That conclusion is supported by the court's unchallenged factual

findings. Lee fails to demonstrate that the court erred in denying his motion to

suppress. We affirm.

FACTS

On May 13, 2011, several King County Sheriffs deputies went to Audrey

Sampson's apartment in Kenmore, Washington to execute arrest warrants issued for

two suspects. The lead officer, Deputy Jeff Durrant, knew that one of the individuals

subject to an arrest warrant was Sampson's boyfriend. All of the officers knew

Sampson.

Three officers went to the front door. The officers knocked and explained to

Sampson why they were there. Sampson told the officers that the two individuals they

were looking for were not there and the only person with her in the apartment was her
No. 68105-2-1/2

girl friend, Darla Kelly. Sampson agreed to allow the police to enter and verify this, as

long as they did not "mess anything up."

Officer Tracey Dodd walked into Sampson's apartment knowing only the warrant

suspects' names and birthdates.1 She asked Sampson again whether anyone besides

herself and Darla was in the apartment, and Sampson said, "No." But, as Officer Dodd

walked toward the back of the apartment, she encountered a male, later identified as

Jason Lee, pressed up against the kitchen pantry door, "obviously nervous, and visibly

shaking." Lee appeared to be trying to conceal himself and Officer Dodd thought he

might be one of the suspects they were looking for. She asked Lee to keep his hands

visible, move to the kitchen table, and to identify himself.

After initially giving a false name, Lee provided his name to Officer Dodd. Lee

said he had just been released from prison the day before. The officer ran a check on

Lee's name and discovered there was a protection order in place prohibiting his contact

with Kelly. After the other officers verified that the other person in the apartment was

Kelly, Officer Dodd placed Lee under arrest. Lee waived his Miranda2 rights and

acknowledged that he knew about the protection order but said that "Darla was

supposed to be getting it lifted."

1While it does not appear that Officer Dodd testified that she knew the suspects' dates

of birth at the pretrial hearing or at trial, the trial court's finding on that issue is

unchallenged and ultimately irrelevant to Lee's argument on appeal.

2Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L Ed. 2d 694 (1966).

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No. 68105-2-1/3

Lee was charged with felony violation of a no-contact order. He filed a motion to

suppress, arguing that his arrest was unlawful, because the police had no basis to

detain and investigate him. The trial court denied the motion, concluding that Officer

Dodd had a reasonable basis to temporarily detain Lee and ask him to identify himself.

Following a trial, the jury convicted Lee as charged.

DISCUSSION

We review the trial court's denial of a motion to suppress to determine whether

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

fact support the conclusions of law. State v. Garvin. 166 Wn.2d 242, 249, 207 P.3d

1266 (2009). Where, as here, the findings of fact are unchallenged, we consider them

verities on appeal. State v. Lohr. 164 Wn. App. 414, 418, 263 P.3d 1287 (2011).

Accordingly, our review in this case is limited to a de novo determination of whether the

trial court's conclusions of law are supported by the unchallenged factual findings.

State v. Armenta. 134 Wn.2d 1, 9, 948 P.2d 1280 (1997).

Lee argues that Officer Dodd's request for identification was an unconstitutional

intrusion into his private affairs under article I, section 7 of the Washington State

Constitution. On this basis, he claims that the trial court erred in denying his motion to

suppress. Lee points out that he was in a private residence when detained. He does

not, however, allege that the police officers executing the warrant were unlawfully

present in Sampson's residence. Nor does he cite any authority in support of his

suggestion that a heightened standard applies to his investigatory detention, because of
No. 68105-2-1/4

his location when the police encountered him. Ultimately, Lee acknowledges that his

detention was constitutionally permissible if it was supported by individualized

reasonable suspicion that he was engaged in criminal activity. And, here, the trial court

found that Officer Dodd possessed only limited information about the men the officers

were seeking to arrest. The court further found that having been told there were only

two females in the apartment, Officer Dodd came upon Lee who was obviously nervous

and appeared to be trying to hide. These facts sufficiently support the court's

conclusion that the officer had a specific articulable basis to temporarily detain Lee and

ask him to identify himself.

Lee also points out that while Officer Dodd had minimal information about the

arrest warrant suspects, Deputy Durrant testified at trial that he knew the suspects from

prior contacts. Lee argues that Deputy Durrant would have known upon seeing Lee that

he was not one of the individuals the officers were looking to arrest. According to Lee,

under the "fellow officer rule" Deputy Durrant's knowledge is imputed to Officer Dodd.

Therefore, Officer Dodd's articulated basis for detaining him is invalid in light of the

information possessed by Deputy Durrant.

But, Lee did not raise this argument below. Instead, Lee specifically claimed only

that Officer Dodd had no legitimate reason to ask him to identify himself, because the

individuals named in the arrest warrant were considerably older than he was.3 Under

RAP 2.5(a), "[t]he appellate court may refuse to review any claim of error which was not

3One suspect was 7 years olderthan Lee and the other was 14 years older.

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No. 68105-2-1/5

raised in the trial court." As an exception to this general rule, an appellant may raise an

issue for the first time on appeal if it is a manifest error affecting a constitutional right.

RAP 2.5(a)(3); State v. Kirkman. 159 Wn.2d 918, 926, 155 P.3d 125 (2007). A claim

falls within this exception, if the defendant identifies a constitutional error and

demonstrates that the alleged error actually affected the defendant's rights at trial.

Kirkman. 159 Wn.2d at 926-27. RAP 2.5(a) does not mandate appellate review of a

newly-raised argument where the facts necessary for its adjudication are not in the

record, because in such a case the error is not manifest. State v. Riley, 121 Wn.2d 22,

31, 846 P.2d 1365 (1993).

The record here is not sufficiently developed to resolve this issue. In opposing

Lee's motion to suppress, the State called only Officer Dodd to testify. Contrary to

Lee's assertion, the evidence at the suppression hearing and at trial did not establish

the extent of Deputy Durrant's familiarity with the arrest warrant suspects, or whether

Lee bore any resemblance to the suspects. Also, because Lee did not advance this

theory, Officer Dodd was not asked whether she would have asked Lee to identify

himself based solely on his behavior and the fact that Sampson misinformed the police

about who was present at the apartment. Without all the facts relevant to this issue in

the record, we cannot fairly resolve Lee's claim. The claimed error is not manifest and

does not satisfy RAP 2.5(a).

Even ifthe factual record were developed to allow review of this issue, the fellow

officer rule, also known as the police team rule, has not been recognized outside of the
No. 68105-2-1/6

context of probable cause to make a warrantless felony arrest. See State v. Ortega,

No. 85788-1, 2013 WL 1163954, at *4 (Wash. March 21, 2013). Nor does the rule

operate in the manner Lee advocates. Under the fellow officer rule, a court may

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

probable cause to arrest a felony suspect without a warrant. kL; State v. Maesse. 29

Wn. App. 642, 647, 629 P.2d 1349 (1981). While an arresting officer may lack personal

knowledge of the information that supplies probable cause to arrest, "cooperation

between investigating officers or an arrest directive made by an officer possessing

probable cause is sufficient to justify an arrest." State v. Alvarado. 56 Wn. App. 454,

456-57, 783 P.2d 1106 (1989).

Lee relies on State v. Mance. 82 Wn. App. 539, 918 P.2d 527 (1996), to argue

that the fellow officer rule applies equally to exculpatory information. Specifically, he

claims that where one officer has information that calls into question another officer's

basis for detaining a suspect, that knowledge must be "imputed" to the investigating

officer.

Mance does not support this expansive and unwieldy proposition. In Mance.

police stopped the defendant and arrested him, because the vehicle he was driving was

listed as stolen on the police department's "'hot sheet.'" ]dL at 540. In fact, the

defendant had purchased the vehicle, and the car dealer had reported it stolen based

on a misunderstanding, ja\ at 540-41. Upon learning of his mistake, the dealer called

the police to cancel the report, jd. at 541. No cancellation report was on file, however,

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No. 68105-2-1/7

when police arrested Mance two days later, jd. Mance resisted the arrest and in the

course of the ensuing struggle, spit out a large rock of cocaine. Id. He was convicted of

possession of cocaine and appealed, arguing that the trial court should have granted his

motion to suppress the cocaine, because his warrantless arrest was unlawful. kL

The appellate court determined that the arresting police officers were entitled to

rely on the information contained in the police bulletin to establish probable cause to

make the arrest. jd. at 542. The existence of the bulletin, however, did not insulate the

arrest from a challenge based on the insufficiency or inaccuracy of the information

underlying the bulletin. Id "If the issuing agency lacks probable cause, then the

arresting officer will also lack probable cause." jd. Thus, good faith reliance on

information provided by a fellow officer does not prohibit a defendant from challenging

the validityor accuracy of the information relied upon to support probable cause.

The Mance court relied on a factually analogous California case, People v.

Ramirez. 34 Cal. 3d 541, 194 Cal. Rptr. 454, 668 P.2d 761 (1983). Mance. 82 Wn.

App. at 543. In Ramirez, the California Supreme Court held that an arrest was illegal

where the arresting officer was informed of an outstanding warrant for the defendant's

arrest, but later inquiry revealed the warrant had been recalled six months earlier.

Ramirez, 34 Cal. 3d at 546. The Ramirez court reasoned that while the fellow officer

rule allows an officer without personal knowledge to rely on information provided by

other law enforcement personnel, the rule also imposes on law enforcement a

Responsibility to disseminate only accurate information." jd. at 547.
No. 68105-2-1/8

Both Mance and Ramirez involved the question of whether probable cause

supported a warrantless felony arrest.4 Mance and Ramirez do not remotely stand for

the position that information not communicated to the investigating officer may serve to

invalidate an investigatory stop, where the facts known to the officer were sufficient to

warrant the intrusion. The Mance court itself suggested that the rule would not apply,

and that the ultimately incorrect information in the police bulletin may have been

sufficient to support Mance's temporary detention. Mance, 82 Wn. App. at 545. We

agree. Extending such a rule to investigatory detentions would be contrary to wellsettled principles. Our constitutional requirements are satisfied if the detaining officer

can identify specific and articulable facts that, taken together with rational inferences

from those facts, reasonably warrant the intrusion." State v. Glover, 116 Wn.2d 509,

514, 806 P.2d 760 (1991). In evaluating the reasonableness of the officer's

determination, we look to totality of the circumstances known by the detaining officer at

the time of the stop. Id.: State v. Jones, 117 Wn. App. 721, 728, 72 P.3d 1110(2003).

Importantly, even ifthe fellow officer rule were applicable to an investigatory stop,

the facts here are distinguishable from the cases applying it. Officer Dodd relied on the

warrant, the representation of Sampson that only two women were present in the

house, and the fact that Lee was present to stop and question him. The warrant

4 In Ortega, our Supreme Court recently declined to apply the fellow officer rule to

warrantless misdemeanor and gross misdemeanor arrests because the rule is

inconsistent with the unambiguous presence requirement of RCW 10.31.100. Ortega,

2013 WL 1163954, at *4-*5.

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No. 68105-2-1/9

information was not erroneous. Unlike Mance and Ramirez, no erroneous information

was communicated to or relied upon by Officer Dodd.

Because Lee fails to demonstrate that the officer's request for his identification

violated his constitutional rights, the trial court did not err in denying the motion to

suppress. We affirm.

WE CONCUR:

N/te^/y^ /tCj.

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