State v. Montague

• Citation: 438 P.2d 571,73 Wn.2d 381
• Decision Date: 14 March 1968
• Docket Number: No. 39817,39817
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. Robert MONTAGUE, Appellant.

Page 381

73 Wn.2d 381

438 P.2d 571

STATE of Washington, Respondent, v. Robert MONTAGUE, Appellant.

No. 39817.

Supreme Court of Washington, Department 1.

March 14, 1968.

Rehearing Denied May 10, 1968.

James Arneil, Edward T. Engst, Wenatchee, for appellant.

E. R. Whitmore, Jr., Pros. Atty., David J. Whitmore, Deputy Pros. Atty., Wenatchee, for respondent.

WARD, Judge. ^*

This is an appeal from the judgment entered pursuant to the verdict of a jury finding the defendant guilty of the crime of unlawful possession of marijuana, a narcotic drug. Defendant's counsel makes two assignments of error in this court. In his first assignment of error, he claims that defendant's automobile was illegally searched, and that the fruit of the illegal search, the marijuana discovered therein, was seized and improperly admitted into evidence during the trial. His second assignment of error claims prejudicial misconduct on the part of the prosecuting attorney during the trial of the case.

Facts pertinent to the first assignment of error are as follows:

At about 5:30 a.m. on January 18, 1967, Officer Clifford Hahn of the Wenatchee police department observed the defendant, Robert Montague, driving on Wenatchee Avenue with only one headlight on his motor vehicle. Upon being stopped and questioned by Officer Hahn, the defendant was unable to produce either a valid operator's license or a registration for the car. The defendant was taken to the police station and an arrest citation was issued charging him with two violations, namely, defective equipment and no operator's license. He was unable to raise $34 bail, and after some discussion it was agreed that he would be released on his personal recognizance. Defendant then asked Officer Hahn to drive him back to his car, which request was granted, but, while en route, Officer Hahn received a call on his car radio informing him that there was a warrant on file for defendant's arrest on account of his failure to appear in police court on a prior traffic citation. The officer immediately returned defendant to the police station, and advised him that he would be released only upon furnishing bail. The police officer left the defendant at the police station and returned to the car for the dual purpose of checking the car registration and preparing the car for impoundment. Police procedure in Wenatchee required that, whenever a driver of an automobile was arrested and detained, his automobile would be removed from the street and placed in a public garage; that, preparatory to impoundment, the car would be searched for valuables; and, if any valuables were found, they would be taken to the police station for safekeeping, where they would be itemized and listed on a 'property card.' While engaged in making such search for valuables, Officer Hahn examined a brown paper bag on the floor of the car and found that it contained eight small plastic bags filled with the material which was later chemically analyzed and determined to be marijuana.

The defendant claims that this constituted an illegal search of his car, and that the trial court erred in denying his motion to suppress the marijuana as evidence.

The defendant first claims that Officer Hahn left the police station to return to the car while the defendant was making a telephone call to try to arrange bail, and that the officer, therefore, made his search without knowledge that it would be necessary to impound the car. The evidence, however, would warrant a contrary inference. After Officer Hahn returned to the car, he was in communication with the desk sergeant at the police station by car radio, and, while the evidence is silent with respect to whether they discussed the defendant's ability to obtain bail, it is evident that Officer Hahn knew that the car would have to be impounded because he asked the desk sergeant to call the garage to send a wrecker to tow the car in.

The primary issue in this case, therefore, is whether the search of an automobile is illegal when a police officer, following the routine inventory procedure prescribed by the police department, makes a search of an automobile which will have to be impounded and removed from the streets on account of the detention of the owner.

So far as we can determine, this direct issue has been before this court on only one prior occasion. That was in State v. Olsen, 43 Wash.2d 726, 263 P.2d 824 (1953). The legality of search and seizure in that case was considered by the court under facts quite comparable to those in the instant case. There, as in the instant case, a traffic violation, for which the defendant was arrested, was committed in the presence of a police officer. Defendant was placed in jail and booked for negligent driving. While the contents of his car were being placed in custody for safekeeping by police officers, this being a routine procedure, the police discovered a pistol, burglary tools, a police badge, and a sap. The court held that these articles were properly admissible in evidence on the trial of felony charges subsequently filed against the defendant for unlawfully carrying a pistol in a vehicle without a license, and for unlawfully having burglary tools in his possession. In the 14 years that have elapsed subsequent to our decision in that case, we note that the identical search and seizure question, which was before the court in that case, has been considered by the appellate courts of several other states, and also by the federal courts. The question has been arising with increasing frequency during the past few years.

The decisions which we have been able to find have all reached the same conclusion which we reached in State v. Olsen, supra, when the facts have been comparable. What is now frequently referred to as the inventory rule will not apply, however, and evidence of crime discovered during the taking of the inventory will be suppressed as evidence, unless there first be a lawful arrest. Miller v. State, 137 So.2d 21 (Fla.App.1962). Also, in Williams v. United States, 170 A.2d 233 (D.C.Mun.App.1961), the court refused to permit evidence of crime discovered during the taking of the inventory to be used in evidence following a valid arrest, where the court could find no reasonable grounds for the impoundment of the vehicle. Neither would this court have any hesitancy in suppressing evidence of crime found during the taking of the inventory, if we found that either the arrest or the impoundment of the vehicle was resorted to as a device and pretext for making a general exploratory search of the car without a search warrant. State v. Michaels, 60 Wash.2d 638, 374 P.2d 989 (1962); People v. Garrison, 189 Cal.App.2d 549, 11 Cal.Rptr. 398 (1961).

When, however, the facts indicate a lawful arrest, followed by an inventory of the contents of the automobile preparatory to or following the impoundment of the car, and there is found to be reasonable and proper justification for such impoundment, and where the search is not made as a general exploratory search for the purpose of finding evidence of crime but is made for the justifiable purpose of finding, listing, and securing from loss, during the arrested person's detention, property belonging to him, then we have no hesitancy in declaring such inventory reasonable and lawful, and evidence of crime found will not be suppressed.

This determination finds support not only in our prior decision, State v. Olsen, supra, but also in the reasoning set out in State v. Wade, 190 Kan. 624, 376 P.2d 915 (1962); St. Clair v. State of Maryland, 1 Md.App. 605, 232 A.2d 565 (1967); People v. Manzi, 21 A.D.2d 57, 248 N.Y.S.2d 306 (1964), aff'g 38 Misc.2d 114, 237 N.Y.S.2d 738 (Sup.Ct. 1963); People v. Simpson, 170 Cal.App.2d 524, 339 P.2d 156 (1959); People v. Ortiz, 147 Cal.App.2d 248, 305 P.2d 145 (1956); People v. Odegard, 203 Cal.App.2d 427, 21 Cal.Rptr. 515 (1962); People v. Garcia, 214 Cal.App.2d 681, 29 Cal.Rptr. 609 (1963); People v. Prochnau, 251 Cal.App.2d 22, 59 Cal.Rptr. 265 (1967); Heffley v. State, Nev., 1967, 423 P.2d 666 (1967); Cotton v. United States, 371 F.2d 385 (9th Cir. 1967).

In Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), the defendant was lawfully arrested and his car was impounded under the provisions of California Health and Safety Code, § 11611, authorizing a state officer making an arrest for violation of the narcotic laws to seize a vehicle used in the unlawful transportation of any narcotic, and to hold the car as evidence until a forfeiture be declared or a release of the car ordered. Pursuant to this statute, the accused person's car was impounded and, a week later, was searched. A majority of the United States Supreme Court held that such search was reasonable and lawful. The majority in its opinion said, at 61, 87 S.Ct. at 790:

But the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.

Apropos to the reasonableness of the search, the Supreme Court said, at 61, 87 S.Ct. at 790:

The forfeiture of petitioner's car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is no answer to say that the police could have obtained a search warrant, for '(t)he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.' United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 94 L.Ed. 653.

In Cooper, the impoundment of the car was expressly authorized under the factual situation before the court by...