City of Pasco v. Dixson, 42075

• Decision Date: 16 November 1972
• Docket Number: No. 42075,42075
• Citation: 81 Wn.2d 510,503 P.2d 76
• Court: Washington Supreme Court
• Parties: The CITY OF PASCO, Respondent, v. Douglas Earl DIXSON, Appellant.

Page 510

81 Wn.2d 510

503 P.2d 76

The CITY OF PASCO, Respondent, v. Douglas Earl DIXSON, Appellant.

No. 42075.

Supreme Court of Washington, En Banc.

Nov. 16, 1972.

Michael H. Rosen, American Civil Liberties Union of Washington, Seattle, Roy B. Erickson, American Civil Liberties Union, Richland, for appellant.

Campbell & Johnston, D. Wayne Campbell, Pasco, for respondent.

HALE, Associate Justice.

The Pasco police department did not mobilize its entire force simply to put down obscenity in Volunteer Park the summer evening of July 7, 1970. Their mission was to execute four warrants of arrest--two regular and two John Doe. Although they served but one of the warrants, they did make one warrantless arrest for public obscenity. This is the obscenity case.

According to Lieutenant Glen Butner, the department was aware of 'narcotics being bought and sold in Volunteer Park' across from the courthouse and intended to 'put a stop' to it. Police informants sent into the park had bought narcotics there, and on their information the four warrants were issued, two naming specific defendants and two naming John Doe. Lieutenant Butner said that his officers could identify the two John Does when they saw them, but that, at the time the warrants issued, their true names were unknown to the police. A plan was conceived to execute the four warrants, and Lieutenant Butner said that, to carry it out, 'We had approximately 24 male police officers that were there, and then there were--there was a clerk involved in it, too.' The entire police department was mobilized, Lieutenant Butner said, 'and we set up a plan of how we would arrive at the park, without the certain people that we had the warrants for . . . getting away from us.'

He described the plan:

There was a two-man squad that was to enter from the northeast side of the park, and a two-man squad was to enter from the southeast portion of the park, and the other two squads were to be let out of the van up in front of--well this street right straight across from the courthouse, on 4th street.

Although the police expected to find a large number of young people in Volunteer Park, the record shows that their raid was not in expectation of being called upon to put down a riot or public disorder or to quell concerted acts of violence, for none was evident before the raid and there was no sign of any impending public disorder or public danger. The police mission and the plan designed to carry it out was simply to serve the four arrest warrants and take into custody the defendants against whom they had been issued.

Closest to the events which led to the defendant's arrest was Officer Robert Martin who had been a Pasco policeman for 6 months. He testified that he was assigned to group two and reached the park in a Mayflower moving van, and that they unloaded from the van and entered the park at 9:05 p.m. He was the second man out of the van and, as he moved into the park with his fellow officers, he observed 150 to 200 people there. His testimony described the incident upon which the arrest was made:

The van pulled up along side of the park and we got out. I was the second one out, and there was two small groups almost right by where the van parked, and I contacted them and had them wait, and then I moved on through the park and contacted another group in the park, in which the defendant was sitting, and I told them to remain seated. Q. How many people were in this group? A. Approximately eight to ten. Q. Eight to ten? A. Yes, sir. Q. And what happened after you instructed these eight to ten people to be seated? A. Well, they all remained seated. They all sat down. Q. Including the defendant? A. Yes, everyone sat. Q. And then what happened? A. They were instructed that our purpose was--what was going on, and that we wanted them just to remain seated exactly where they were, with their hands in sight, until our superiors arrived. They all sat down, and all except the defendant obeyed this order to a 'T', except one other young lad that played a guitar while he was sitting there. Q. Did the defendant obey the order? A. Not per se. Q. Will you explain that? A. Doug, Mr. Dixson, the defendant, after he was contacted--well, first of all he had a pack of cigarettes which he threw out in front of them, and we asked him to return them to his pocket and leave them there. This was done with the purpose in mind, the purpose of the raid was a drug raid, and we wanted every person that we contacted to have whatever materials they had on them at the time to remain on them. This was the reason he was asked to pick up the cigarettes and put them back in his pocket. Q. Then what happened? A. This was done, and a few moments later I glanced at one of the other officers, Officer Miller, and glanced back at Doug, and he had removed the cigarettes from his pocket again and gave them another heave out in front of him probably two or three feet. The second time he was asked to pick up the cigarettes and place them back in his pocket, which was done, and they remained in his pocket after the second time he was asked. When we contacted him why he seemed rather reluctant to do what we said. He voiced the statement, he said 'Shit, you pigs got no right' after the cigarettes were put back in his pocket the second time. Also he had a young lady with him. He then embraced this girl in rather close contact . . . Q. What do you mean embraced her? A. He hugged her and gave her a kiss, and laid her in a prone position, and Doug, Mr. Dixson, the defendant, obtained a prone position except for his head which he raised on his elbow in this manner (demonstrates). He was told to refrain fron this type of activity. They both sat up then and separated.

Officer Martin continued:

A few minutes after this Lt. Butner and the Chief arrived, and they looked the group over. They had a bunch of people that they had warrants for. They looked at the group in general and said that none of these people were ones that they had a warrant for, so they were told to leave the park; that the park would be closed for the rest of the evening, and they would have to leave at this time, which they did, except for the defendant. Q. And what did he do? A. He stated he didn't have to leave; it was a public park, and he was going to sit right there. Lt. Butner stated that the park would be closed for the rest of the evening, and he would have to leave. Q. Then what happened? A. Mr. Dixson stated he would remain, and at this point we stated he wouldn't; that he was under arrest, and he was taken to the paddy wagon. Q. Then what happened? A. My attention from the defendant was taken away at this moment. He got up and was handcuffed, and I was busy with another lad, so I didn't know exactly what the defendant was doing until they got to the wagon, the police vehicle. At this time I noticed and looked to see where his whereabouts were, to see that there was no further trouble.

and, speaking of the defendant:

At the time I looked back at him he was stepping into the vehicle. As he went in he turned around to the Park in general, no particular individual, and hollered 'you fuckin' pigs.'

On cross-examination, Officer Martin acknowledged that 'The whole force, which consists of probably twenty-five to twenty-eight (police officers) took actual part in it;' that the raid and arrest took place shortly after 9 p.m.; that there were between 150 and 250 people in Volunteer Park the evening of July 7th; and that the police officers were shouting orders such as 'hold it' or 'sit' and he ordered one group in a louder than normal voice to 'sit.'

On cross-examination, he could give no authority for ordering peaceable citizens about except the directions he had received from his senior officer, but acknowledged that the defendant did comply with his orders to remain seated. Describing the cigarette incident on cross-examination, Officer Martin said that 'the second time the cigarettes were removed from his pocket I did in a rather loud manner tell him to keep them in his pocket.'

When asked why the defendant was arrested, the officer said, 'My original thought at the time of the arrest was disobeying an officer,' to which he added the failure to leave the park and the failure 'to remain seated with his hands in sight.' Describing his recommendation to Lieutenant Butner that the defendant be arrested, Martin testified:

Q. All right, now, when Lt. Butner came up and looked at the group and he saw that none of the people he was looking for were there, did you offer to allow everyone to leave at that time, everyone in this group that Doug and Ken were in? A. Yes, at that particular time Lt. Butner told the whole group to leave. Q. You never made the statement to Lt. Butner 'You are not going to let him go?', referring to Mr. Dixson here? A. Well, Doug stated he would remain; it was a public park, and at that time I mentioned to Lt. Butner that we should hold this individual. Q. In other words, you didn't make this statement in response to Lt. Butner's that they can all go? You didn't say at that point 'you are not going to let this guy go?' You didn't say that? A. No, I stated that I felt we should hold this individual, and I also stated regarding the other individual, the Devine boy, I stated to Lt. Butner that we should hold him.

He said that, according to city ordinance, the park did not close until midnight but when Dixson and the others were ordered to leave it that night, it was about 9:25 or 9:30 p.m.

Police Officer Jerry Miller testified he had been a Pasco policeman for about 13 months and that he was among the officers arriving at Volunteer Park in the moving van. When he reached the group in which defendant was seated, Officer Martin and another policeman were already there. He described the indicent as follows:

Well, when I first arrived at this group they had just been seated by Officer Martin, and there was also another officer at...