FILED
JUNE 23, 2015
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. 32634-9-111
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
DANIEL BRYON KINGMA, )
)
Appellant. )
KORSMO, J. - Daniel Bryon Kingma appeals his conviction for unlawful
possession of methamphetamine, contending the trial court erred in denying his motion to
suppress evidence seized pursuant to a search incident for arrest for criminal trespassing.
Mr. Kingma contends that the search was unlawful because law enforcement lacked
probable cause to believe he committed a crime. We find no error and affirm.
FACTS
On October 14,2013, Grant County Corporal Gary Mansford was called to Dale
Kingma's residence regarding an alleged trespass by his son, Daniel Kingma, age 40. 1
When Corporal Mansford arrived at Dale's property, Dale explained that Daniel had
1 Toavoid confusion, we refer to Dale and Daniel Kingma by their first names.
We intend no disrespect.
No. 32634-9-II1
State v. Kingma
come onto the property to retrieve golf clubs that Dale had placed on the edge of the
property. According to Dale, when Daniel arrived he was high on drugs, yelling, and
wanting to fight. Dispatch confirmed that Daniel had been trespassed from his father's
property on October 6, 2013, by Grant County Sheriffs Deputy David Delarosa.
Dale told Corporal Mansford that he had last seen Daniel crossing the street to a
neighboes house. Corporal Mansford contacted Daniel in the neighbor's driveway.
Daniel admitted going onto his father's property, but claimed his father had invited him.
Corporal Mansford arrested Daniel for criminal trespass. During a search incident to
arrest, he found methamphetamine in Daniel's pocket.
The State charged Daniel with possession of a controlled substance
(methamphetamine). Clerk's Papers (CP) at 1. Daniel moved to suppress the
methamphetamine in a CrR 3.6 hearing.
At the hearing, Deputy Delarosa testified that on October 6, 2013, he responded to
a call from Dale regarding the theft of a car. He stated that Dale and Daniel eventually
agreed that "[Daniel] would leave the property and not come back." Report of
Proceedings (Jan. 15,2014) (RP) at 24. Deputy Delarosa told Daniel that he was
trespassed from his father's property and notified dispatch to flag Daniel in the Spillman
database as trespassed from Dale's property.
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No. 32634-9-III
State v. Kingma
Corporal Mansford testified that he had been involved in previous incidents
regarding Daniel trespassing on his father's property. He stated that when he arrived at
Dale's property on August 14,2013, Dale told him that Daniel had arrived to get some
golf clubs, but that Daniel had entered the property wanting to fight. Corporal Mansford
stated that Dale showed him a photograph he took of Daniel just before Corporal
Mansford arrived at the property. The photograph shows Daniel on Dale's property
flipping his two middle fingers to Dale. Exhibit 1. Corporal Mansford also obtained the
following written statement from Dale:
Danny Kingma trespassed on 10-14-13 wanted a set of golf clubs
Danny came onto my property yelling misc. profanity and wanted to fight.
This is my son and I have a business to run. And I can't have him on my
property.
Exhibit 2.
Corporal Mansford also testified that the Spillman database confirmed that Daniel
had been trespassed from his father's property about a week earlier. According to
Corporal Mansford, when he contacted Daniel, Daniel told him his father had invited him
onto the property to retrieve his golf clubs.
Dale did not testifY at the CrR 3.6 hearing. Daniel testified that he believed he had
the right to be on his father's property because he was not given written notice that he
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No. 32634-9-II1
State v. Kingma
was trespassed from the property. He also stated that he had made arrangements with his
father to return to the property and retrieve personal property.
Defense counsel argued that Daniel's claim that he was invited onto the property
negated probable cause and that a "reasonably cautious" officer would have investigated
the claim. RP at 85.
The trial court denied Daniel's motion to suppress the evidence, concluding,
"Corporal Gary Mansford had formed information that led to the deputy developing
probable cause to believe that Daniel Kingma had unlawfully trespassed upon [Dale's]
property." CP at 73. The court entered the following disputed findings of fact:
DISPUTED FACTS:
2.12 . On October 6,2013 Deputy Delarosa contacted Daniel Kingma 4156
Rd. F NE and verbally informed the defendant that he was trespassed from
that property. On the same date the information of the defendant being
trespassed was entered into the information syst~m "Spillman".
2.13 Dale Kingma informed Corporal Mansford that Daniel Kingma was
trespassing on Dale Kingma's property. That Daniel had arrived to retrieve
Daniel's golf clubs, and would not leave. When Dale asked him to leave
Daniel was attempting to fight Dale. Dale took a picture with his cell phone
of Daniel while Daniel was on the property and attempting to fight Dale.
2.14 Dale showed the picture he took of Daniel when Daniel was on the
property refusing to leave and attempting to fight to [sic] Corporal Mansford.
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No. 32634-9-111
State v. Kingma
2.15 Corporal Mansford testified he has been to that residence and
property before on the same type of call. At that time Daniel Kingma was
asked to leave the property and not return.
2.16 Dispatch advised Corporal Mansford that Deputy David Delarosa
had notified Dispatch that on October 6 th , 2013, Daniel Kingma had been
notified by Deputy Delarosa that he was trespassed from going to, or going
on, the property located at 4156 Rd F NE, Moses Lake, Washington.
2.l7 Deputy David Delarosa testified that on October 6 th , 2013 he had
informed Daniel Kingma verbally at the scene that Daniel was trespassed
from 4156 Rd F NE, Moses Lake Washington and was not to come back.
Deputy Delarosa then put the information that Daniel Kingma was
trespassed from 4156 Rd. F NE, Moses Lake Washington, in the Spillman
system for all officers and dispatches information.
2.[1]8 Both Deputy's [sic] testified that Daniel Kingma informed them that
he had been on the property but had been told by Dale Kingma he could go
on the property to get his golf clubs. Daniel Kingma told the Deputies that
he only went on the property when he was told he could go on the property.
CP at 72-73.
A jury found Daniel guilty of unlawful possession of methamphetamine.
ANALYSIS
Daniel argues that his arrest violated the Fourth Amendment to the United States
Constitution and article I, section 7 of the Washington Constitution because Corporal
Mansford lacked probable cause to arrest him. Specifically, he contends that (1)
information in the Spillman database was unreliable and (2) additional investigation was
required to establish whether Daniel was on his father's property for a legitimate purpose.
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No. 32634-9-111
State v. Kingma
Accordingly, he argues that the trial court should have suppressed the methamphetamine
seized during the search incident to arrest.
In reviewing the denial of a motion to suppress, we must determine whether
substantial evidence supports the trial court's findings of fact and whether the findings of
fact support the conclusions oflaw. State v. Hill, 123 Wn.2d 641, 647, 870 P .2d 313
(1994). We review de novo the trial court's conclusions of law pertaining to the
suppression of evidence. State v. Garvin, 166 Wn.2d 242,249,207 P.3d 1266 (2009).
Police may conduct a warrantless search incident to arrest as long as there is
probable cause to arrest at the time of the search. State v. O'Neill, 104 Wn. App. 850,
868-69, 17 P.3d 682 (2001). Probable cause exists where the facts and circumstances
known to the arresting officer are sufficiently trustworthy to cause a reasonable officer to
believe that an offense has been committed. State v. Moore, 161 Wn.2d 880, 885, 169
P.3d 469 (2007).
Daniel first assigns error to the trial court's disputed findings of fact 2.12 to 2.18.
However, in footnotes, he devotes argument only to findings 2.13, 2.14, 2.16, and 2.18,
contending there is no testimony to support findings of fact 2.13, 2.14, and 2.16, and that
finding of fact 2.18 omits the word "invited" in summarizing Corporal Mansford's
testimony. Regarding the remaining findings, 2.12, 2.15, and 2.17, Daniel does not
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No. 32634-9-II1
State v. Kingma
provide specific argument as required by RAP 1O.3(a)(6). Accordingly, we treat the
findings as verities on appeal. State v. Motherwell, 114 Wn.2d 353,358 n.3, 788 P.2d
1066 (1990).
We find substantial evidence supports the challenged findings. First, findings of
fact 2.13 and 2.14 are supported by Corporal Mansford's following testimony:
Dale Kingma had explained to me that his son Daniel had been trespassing
on the property. He had arrived there to get some golf clubs, had come onto
the property and wanted to fight his dad ...
[Dale] took a photograph of Daniel as he was getting more and more
aggressive, agitated. He stepped back, took a - took a photograph of - of
Daniel, and - called MAC dispatch.
RP at 42.
Finding of fact 2.16 is supported by Corporal Mansford's testimony that dispatch
confirmed that Deputy Delarosa had trespassed Daniel from his father's property on October
6,2013. As to finding 2.18, we find it immaterial that the court failed to use the word
"invited" in summarizing Corporal Mansford's testimony. The finding adequately reflects
that Daniel told law enforcement officers that his father invited him onto the property.
The court's findings, in turn, support the conclusion that Corporal Mansford had
probable cause to arrest Daniel for criminal trespass. To recap the findings; (1) Corporal
Mansford had been to Dale's property on previous trespass calls involving Daniel, (2)
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No. 32634-9-111
State v. Kingma
Dale stated that Daniel was trespassed from his property and that Daniel had entered the
property in an agitated and aggressive state, (3) dispatch confirmed that Daniel had been
trespassed from his father's property, (4) Dale showed Corporal Mansford a photo of
Daniel on his property, and (5) Dale provided a written statement, asserting that Daniel
trespassed on his property on October 14, 2013. Taken together, these facts would lead a
reasonable officer to conclude that Daniel was trespassing.
Daniel's arguments to the contrary are not convincing. He asserts that Corporal
Mansford did not have probable cause to arrest him because the information in the
Spillman database was unreliable and Corporal Mansford improperly assumed Daniel had
been given legally sufficient notice of the trespass. This argument misses the mark. Even
if the information in the Spillman database was incorrect, the probable cause determination
stands. Probable cause turns on what the arresting ofticer knew at the time of the arrest.
This information must be "reasonably trustworthy." State v. Conner, 58 Wn. App. 90, 97
98, 791 P.2d 261 (1990). We do not evaluate probable cause in a hypertechnical manner.
State v. Remboldt, 64 Wn. App. 505, 510,827 P.2d 282 (1992).
Corporal Mansford had no reason to doubt the reliability of the information
provided by dispatch. In the absence of circumstances indicating the report was
unreliable, the information was "reasonably trustworthy" and Corporal Mansford properly
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No. 32634-9-II1
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relied on it in forming probable cause. Conner, 58 Wn. App. at 97-98. Moreover, in
evaluating probable cause, we consider the totality of the known suspicious circumstances.
State v. Terranova, 105 Wn.2d 632,643, 716 P.2d 295 (1986). Thus, even if we were to
conclude that the facts of the Spillman notice were unreliable, the other facts, detailed
above, adequately established probable cause.
Next, citing State v. Blair, 65 Wn. App. 64, 827 P.2d 356 (1992), Daniel asserts
that Corporal Mansford should have conducted additional investigation to determine
whether Daniel was on the property for a legitimate purpose. We disagree. Although
Washington provides an affirmative defense to criminal trespass if "[t]he actor reasonably
believed that the owner of the premises ... would have licensed him or her to enter or
remain," it is well settled that officers are not required to weigh affirmative defenses.
RCW 9A.52.090(3); State v. Fry, 168 Wn.2d 1, 8, 10,228 P.3d 1 (2010); McBride v.
Walla Walla County, 95 Wn. App. 33,40,975 P.2d 1029 (1999). Thus, in this case,
whether Daniel believed he had permission to be on Dale's property is irrelevant to the
issue of probable cause.
Blair, the case on which Daniel relies, does not compel a different result. Blair
involved an agreement between the Seattle Police Department and the Seattle Housing
Authority authorizing the police department to warn and arrest anyone trespassing on the
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No. 32634-9-III
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premises of a public housing complex. The officer in that case testified that the
agreement allowed him to "admonish" any person whom he believed had engaged in
illegal activity or who had been arrested on the premises of the housing complex. Blair,
65 Wn. App. at 66. The officer admonishes the person not to return to the complex or he
or she will be arrested for trespassing.
The officer stopped Blair as he was walking into the housing complex and arrested
him for trespassing without investigating Blair's statement that he was visiting a friend.
In arresting Blair, the officer relied solely on the fact that he had previously instructed
Blair not to enter the complex when the officer had arrested Blair in a nearby parking lot
for drug activity. Division One of this court held that although the officer had an
articulable suspicion that Blair was trespassing, "the fact that the officer had told Blair not
to return to the premises does not, in itself, create probable cause for arresting him on the
charge of criminal trespass." Id. at 70 (emphasis added).
The facts here are markedly distinguishable. In addition to the information that I
Officer Delarosa had trespassed Daniel from the property, Dale informed Corporal
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Mansford that Daniel had trespassed on his property on the day in question. A logical
inference from Dale's statement was that Daniel was not invited or otherwise privileged to
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be on the property. Additionally, Blair predates McBride and Fry and did not analyze ~
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whether the affirmative defense negates probable cause. "In cases where a legal theory is
not discussed in the opinion, that case is not controlling on a future case where the legal
theory is properly raised." In re Electric Lightware, Inc., 123 Wn.2d 530, 541, 869 P.2d
1045 (1994).
In both McBride and Fry, the arresting officers had substantial facts and
information to support the respective potential affirmative defenses. Nevertheless, both
cases hold that an officer is not required to determine whether the affirmative defense is
met. Fry, 168 Wn.2d at 8; McBride, 95 Wn. App. at 40. Here, Corporal Mansford had a
legal foundation for the arrest based on probable cause. Under well settled precedent, he
was not required to dispel every explanation or hold a quasi-trial to determine whether
Daniel was invited onto the property. We therefore affirm the trial court.
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.
WE CONCUR:
Brown, J.
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