City of Tacoma v. Houston, 29698.

• Citation: 177 P.2d 886,27 Wn.2d 215
• Decision Date: 20 February 1947
• Docket Number: 29698.
• Parties: CITY OF TACOMA v. HOUSTON.
• Court: United States State Supreme Court of Washington

177 P.2d 886

27 Wn.2d 215

CITY OF TACOMA v. HOUSTON.

No. 29698.

Supreme Court of Washington, En Banc.

February 20, 1947

Robert Houston was convicted of offense of operating a house of prostitution in violation of an ordinance of the City of Tacoma, and he appeals.

Judgment reversed with directions to dismiss the complaint.

MALLERY C.J., and JEFFERS, J., dissenting.

Appeal from Superior Court, Pierce County; F. G. Remann, judge.

Stephen J. O'Brien, of Tacoma, for appellant.

Howard Carothers, Clarence M. Boyle, George F. Abel, and Hugo Metzler, Jr., all of Tacoma, for respondent.

STEINERT Justice.

By complaint filed in the police court of the city of Tacoma defendant was charged with the crime of operating a house of prostitution. Upon conviction of that offense, he appealed to the superior court, where he was again convicted in a trial Before a jury. From the judgment of conviction and sentence defendant appealed.

The evidence in the case consists solely of the testimony of five police officers. Appellant, Robert Houston, did not himself testify nor did he offer any other evidence. The facts are therefore to be found in the evidence submitted by the prosecution, as follows:

About three days prior to the events which gave rise to this charge, an army major, accompanied by a negro soldier, made verbal complaint to the Tacoma police department that the soldier had contracted a venereal disease in a certain house within that city. Two policemen, accompanied by the major and the soldier, procured an automobile and drove, as directed by the soldier, to a certain address which was pointed out by the informant as being the place where he had contracted the disease. The house was a residence building then owned and occupied as a home by the appellant, a negro, and proved to be one which had been under observation by the police for several weeks and which they had raided a number of times Before , making arrests and subsequently securing convictions upon charges not disclosed by the record in this case.

About two o'clock in the afternoon of October 22, 1944, which was the Sunday following the day identification was made by the soldier, the same two police officers drove to the place above referred to and, for the purpose of observation, stationed themselves in the alley back of the house, at a point commanding a full view of the premises. During a vigil lasting about two hours, the officers saw as many as twelve or fifteen negro soldiers and sailors, in uniform, entering the house singly or in pairs by way of the alley and, within twenty or thirty minutes thereafter, leaving by the same passage.

The officers thereupon communicated with the police department and requested that a patrol be sent to assist them. On arrival of the partrol, consisting of three policemen, the group of five officers approached the house from the rear, three of them going directly to the back door and the other two proceeding toward the front. All of the policement were in uniform.

At this time no warrant for the arrest of the appellant and no search warrant with reference to the house had been issued, and no complaint had been filed against any occupant of the premises.

One of the group of three policemen knocked at the back door, announced that he was a police officer, and demanded admittance. Some one from within drew aside the window shade and, having looked out, opened the door. While one of the officers remained at the door to prevent any escape, the other two immediately entered, going directly into the kitchen where they found the appellant with another man and two women, all negroes, fully dressed in street attire. At the same time, the officers heard a scurrying in other parts of the house. The officer who was in charge of the group of police proceeded to the front door, opened it, and admitted the two policemen who had approached that point. One of these two officers remained as guard, at the door, and the other one entered the front room.

A few minutes later, two of the officers proceeded upstairs and, as they reached the hall above, one of them saw a negro woman, stark naked, run from one room to another and close the door. Immediately thereafter the officer heard the sound of money being dropped or thrown upon the floor. Outside the door of the latter room a pair of shoes and socks, of the military type, were lying on the floor. The officers demanded entrance to that room and were admitted by the woman, who was still naked. A small amount of money was seen upon the floor.

The officers then went to the room from which the woman had come and there found a negro soldier lying naked on a bed. Hearing a commotion in the near-by bathroom, the officers proceeded thither and found two soldiers and a sailor, all negroes.

The commanding officer thereupon summoned a station wagon and, upon its arrival, all the persons who had been found in the house were taken to police headquarters where they were 'booked' as inmates of a house of prostitution. A search of their persons revealed a total sum of $17.50.

On the following day, October 23rd, the city attorney filed in the justice court a criminal complaint charging appellant with the crime of operating a house of prostitution, in violation of the provisions of a municipal ordinance of the city of Tacoma. It is undisputed that the crime with which appellant was charged constitutes merely a misdemeanor, not a felony. Upon that charge he was tried the next day and was found guilty. He thereupon appealed to the superior court.

About three months prior to the day of trial in the superior court the appellant moved the court to suppress all evidence to be produced through the testimony of the five policemen who had participated in the raid described above. This motion was based on the grounds that appellant's arrest was without warrant or complaint, and therefore illegal; that all of the purported evidence to be produced on behalf of the complainant had been procured by police officers without a search warrant, contrary to the provisions of the Federal and state constitutions and the statutes of the state of Washington; and that no offense had been committed in the presence of the officer and they had no probable cause for arresting him. The motion was denied. At the trial, the motion was renewed but was again denied. Over the objection of the appellant, the evidence was admitted, resulting in his conviction.

Disposing summarily of one of appellant's principal contentions, we will say at the outses that if the evidence as above set forth was admissible, we hold it to be sufficient to warrant the verdict which the jury returned and the judgment which the court entered thereon.

The crucial question in the case, however, is whether the evidence, obtained in the manner above described, was admissible over appellant's objection, for, if it was not admissible, then there was no evidence to support the conviction.

To answer that question in the affirmative would require a holding (1) that the entry by the officers was lawful, or (2) that, whether lawful or not, the evidence so obtained was nevertheless admissible.

If the entry was lawful, then it was proper for the officers to testify concerning those things that were open and plainly visible to them. State v. Llewellyn, 119 Wash. 306, 205 P. 394; State v. Miller, 121 Wash. 153, 209 P. 9; State v. Nilnch, 131 Wash. 344, 230 P. 129; State v. Nelson, 146 Wash. 17, 261 P. 796; State v. Parent, 156 Wash. 604, 287 P. 662.

However, Rem.Rev.Stat. § 2240-1 provides:

'It shall be unlawful for any policeman or other peace officer to enter and search any private dwelling-house or place of residence without the authority of a searchwarrant issued upon a complaint as by law provided.'

Rem.Rev.Stat. § 2240-2 provides that a violation of the foregoing section of the statute constitutes a gross misdemeanor.

Although the house involved in this action may have been one in which prostitution frequently was practiced, it was nevertheless a private dwelling-house or place of residence. The officers had no search warrant nor even a warrant of arrest, nor had any criminal complaint against the appellant been filed at that time. In fact, the purpose of the officers was not to make an immediate arrest for a crime that had been, or was then being, committed, but rather for the purpose of searching the premises and obtaining information upon which an arrest might then be made.

It is conceded, and also asserted, by the respondent that there is no statute in this state authorizing the issuance of a search warrant against premises suspected of being used as a house of prostitution or against the person suspected of operating such a house. There are admittedly a number of statutes providing for the issuance of warrants for the search of premises and seizure of intoxicating liquor, stolen goods, counterfeit coin, gaming apparatus, and other contraband articles found therein, but no statute relating to a situation or set of circumstances such as we have here.

Respondent argues that, since the law makes no provision for the issuance of search warrants in cases of this sort, none is required. The conclusion which respondent thus seeks to draw from the stated premise is non sequitur. Article I, § 7, of the state constitution provides that no person shall be disturbed in his private affairs, or his home invaded, without authority of law. In the absence of some statute which, under the permissible limits of the constitutional provision, grants such authority, no police officer may lawfully enter a person's home for the purpose of making a search therein, prior to the arrest, or the issuance of a warrant for the arrest, of such person.

Upon the facts...