State of Wash. v. FORTUN-CEBADA

241 P.3d 800

STATE of Washington, Respondent,

v.Jorge FORTUN-CEBADA, Appellant.

No. 62679-5-I.

Court of Appeals of Washington,Division 1.

Oct. 25, 2010.

Christopher Gibson, Nielsen Broman & Koch PLLC, Seattle, WA, Jordan Broome McCabe, Bellevue, WA, for Appellant.

Jennifer H.S. Atchison, King Co. Pros. Att., Seattle, WA, for Respondent.

SCHINDLER, J.

¶ 1 The State charged Jorge Fortun-Cebada with possession of cocaine with intent to deliver. Fortun-Cebada seeks reversal of his conviction of possession of cocaine, claiming his attorney provided ineffective assistance of counsel by failing to move to suppress on the grounds that the police unlawfully seized the alleged buyer Wilbert Walker, and Walker's show-up identification of Fortun-Cebada was inherently unreliable. Fortun-Cebada also claims that because admission of out-of-court hearsay statements at the CrR 3.6 suppression hearing violated his constitutional right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), his attorney's failure to object constitutes deficient performance. We conclude that because the police did not unlawfully detain Walker, and Walker's show-up identification of Fortun-Cebada did not create a substantial likelihood of irreparable misidentification, Fortun-Cebada cannot establish ineffective assistance of counsel. We also conclude that admission of out-of-court hearsay statements at the pretrial CrR 3.6 hearing did not violate Crawford, and affirm.

FACTS ¹

¶ 2 On January 2, 2008, Seattle Police Officers Juan Tovar, Frank Poblocki and Jonard Legaspi were on bicycle patrol in a high narcotic area in the International District. The officers each had at least nine years of experience in street level drug transactions.

¶ 3 The Seattle Police Department had received a number of citizen complaints of drug dealing at a fast food restaurant located at 507 South Jackson Street. The police had also observed a marked increase in drug users at that location, and Officer Tovar had recently arrested several people near the minimart for using crack cocaine.

¶ 4 At around 11:45 a.m., the officers stopped at a red light near the restaurant at the corner of 5th Avenue South and South Jackson Street. As Officer Tovar, Officer Poblocki, and Officer Legaspi waited for the light to change, approximately eight people came out of the restaurant and walked westbound. Officer Tovar immediately recognized the person in the middle of the group as Jorge Fortun-Cebada, a known drug dealer. Fortun-Cebada was wearing a blue rain jacket. Officer Tovar recognized the other individuals in the group as crack cocaine users.

¶ 5 When Fortun-Cebada separated from the group a man, later identified as Wilbert Walker, immediately approached him. After Walker talked to Fortun-Cebada, they turned around and started walking together eastbound. Fortun-Cebada reached into his left pants pocket, pulled out his left hand, and cupped it next to his waist. Walker then looked into Fortun-Cebada's cupped hand. The officers watched as Fortun-Cebada and Walker made a hand-to-hand exchange, hugged, and then separated. The officers were not able to see what was exchanged. As Fortun-Cebada walked away he put his closed left hand in his left pant pocket and then pulled his open hand out of his pocket. The officers watched as Walker walked away and put his left hand into the front pocket of his sweatshirt.

¶ 6 Officer Tovar rode his bike across the street to talk to Fortun-Cebada. Meanwhile, Officer Poblocki and Officer Legaspi rode in different directions around the block to find Walker.

¶ 7 After a brief conversation with Fortun-Cebada, Officer Tovar asked, “[d]o you mind if I check your left pant pocket?” Fortun-Cebada responded “[n]o, you can't check me and if you don't have a reason to stop me then you can't touch me. I'm leaving.” Officer Tovar told Fortun-Cebada “[y]ou're free to go.” Fortun-Cebada then walked away toward the intersection.

¶ 8 Officer Poblocki and Officer Legaspi located Walker a couple of blocks away at the corner of 6th Avenue South and South King Street. Walker had both hands in the front pocket of his sweatshirt. Officer Poblocki asked him “if [he] could talk to him for a minute, and [Walker] said yeah, and he stopped walking.” Officer Poblocki told Walker to take his hands out of his sweatshirt pocket. Officer Legaspi was located off to the side. As Walker removed his left hand, Officer Legaspi saw a cream-colored rock in his pocket that looked like rock cocaine. The officers placed Walker in custody.

¶ 9 Walker waived his Miranda ² rights, identified himself as Wilbert Walker, and admitted that the cream-colored rock was cocaine. Walker told Officer Poblocki that he bought the crack cocaine for $20 “from some guy that he did not know on the sidewalk.” Officer Poblocki asked Walker if he would recognize the seller if he saw him again. Walker said that he would.

¶ 10 Officer Poblocki notified Officer Tovar that Walker was in custody and could identify the man who sold him the cocaine. Officer Tovar then approached Fortun-Cebada, told him that he was no longer free to leave, and read Fortun-Cebada his Miranda rights.

¶ 11 Shortly thereafter, Walker identified Fortun-Cebada as the person who sold him the crack cocaine. In response to Officer Poblocki's question, “do you recognize this guy from anywhere....”, Walker said “yeah, that is the guy that who I gave 20 bucks to and he gave me ... crack cocaine.”

¶ 12 The officers placed Fortun-Cebada under arrest. In a search incident to arrest, the police seized a rolled up $20 bill, a rolled up $5 bill, and a piece of tissue from his left pant pocket that contained three pieces of crack cocaine.

¶ 13 Later, at the precinct, Walker signed a written statement that states, in pertinent part:

I drove down to Chinatown by 5th and Jackson because I wanted to buy $20 worth of crack cocaine. About a year ago I went down there with a friend because she wanted to buy some crack. I saw a black guy going in and out of a little restaurant there and I asked him if he knew where to get “something” at. By “something,” I meant crack cocaine. He pointed at a guy on the sidewalk and I walked over to that guy. I told him, “can I get a twenty?” He said, “come on,” and we walked together for about 5 steps. I gave him $20 and he gave me a piece of what I thought was crack. He then gave me a hug like he knew me and he went his way and I went mine.

Walker also stated that “[t]he police asked me to look at a guy to see if he was the guy that sold me the crack. They drove me to 5th and Jackson and I saw they had the guy handcuffed that sold me the crack. He was wearing a blue jacket.”

¶ 14 The State charged Fortun-Cebada with one count of possession with intent to deliver cocaine in violation of RCW 69.50.401(1), (2)(a).

¶ 15 The defense filed a CrR 3.6 motion to suppress the cocaine seized from Fortun-Cebada, arguing the police did not have probable cause to arrest because Walker was not a reliable informant and the information he provided the police did not justify the detention of Fortun-Cebada.

¶ 16 Officers Tovar, Poblocki and Legaspi were the only witnesses to testify at the CrR 3.6 hearing. Officer Poblocki testified about contacting Walker and Walker's identification of Fortun-Cebada as the man who sold him the cocaine. During the cross-examination of Officer Poblocki, the defense introduced Walker's written statement into evidence.

¶ 17 During oral argument on the motion to suppress, defense counsel argued that the contact with Walker was an unlawful Terry stop. ³ But when the court questioned whether Fortun-Cebada had standing to challenge the police contact with Walker, defense counsel conceded that Fortun-Cebada did not have standing. Following the hearing, the defense filed a supplemental memorandum arguing that Officer Tovar was not justified in stopping Fortun-Cebada because Walker was not a reliable informant.

¶ 18 The court denied Fortun-Cebada's motion to suppress the cocaine. The court concluded that the initial police contact with Fortun-Cebada was a permissible social contact, and that the officers' observations of the exchange with Walker, and shortly thereafter, finding the suspected rock cocaine on Walker, provided reasonable suspicion to detain Fortun-Cebada. The court concluded there was probable cause to arrest Fortun-Cebada, and also rejected the defense argument that Walker was an unreliable informant.

Probable cause to arrest exists where the totality of the facts and circumstances known to the officers at the time of arrest would warrant a reasonably cautious person to believe an offense is being committed. The officers' observations coupled with their experience with narcotics investigations and Walker's identification of the Defendant as the person who just sold him crack cocaine provided the officers with probable cause to place the Defendant under arrest.

Walker satisfies the two prong test under Sieler.^{[ 4 ]} Walker satisfies the reliability prong because he was not anonymous, was being detained by police at the time of the tip, and given his situation, was unlikely to make the situation worse by giving false information to the officers. Moreover, Walker's tip was corroborated by the officers' observations of the hand-to-hand transaction with the Defendant immediately before they contacted him, the officers' prior information that the Defendant was a drug dealer, and the crack cocaine found in Walker's pocket.

¶ 19 Before trial, the defense moved to exclude any testimony as to Walker's out-of-court hearsay statements. The State agreed that any statement identifying Fortun-Cebada as the seller was inadmissible hearsay.

None of Mr. Walker's statements regarding the drug transaction are identifying the defendant as the seller. I would be offering the interaction with Officers Poblocki and Legaspi, of course, then when h...