City of Tacoma v. Horton

• Decision Date: 29 May 1963
• Docket Number: No. 36019,36019
• Citation: 382 P.2d 245,62 Wn.2d 211
• Court: Washington Supreme Court
• Parties: The CITY OF TACOMA, Respondent, v. Alice HORTON, Appellant.

Page 211

62 Wn.2d 211

382 P.2d 245

The CITY OF TACOMA, Respondent, v. Alice HORTON, Appellant.

No. 36019.

Supreme Court of Washington, En Banc.

May 29, 1963.

Jack E. Tanner, Tacoma, for appellant.

Marshall McCormick, City Atty., Robert R. Hamilton, Francis H. Chapin, Jr., Tacoma, for respondent.

PER CURIAM.

July 1, 1960, the residence of a Sergeant Mathis, at 1615 South L Street, was under surveillance by a Tacoma police officer. The sergeant was seen leaving the premises about 3:05 a. m. He was questioned, but not arrested, by the police officer (relative to a matter not in issue in this appeal), who took the sergeant to the police station for further interrogation.

At about five o'clock a. m., Sergeant Mathis took the police officer to his residence, unlocked the door, and invited him to enter. The police officer had a search warrant for the premises, but it was not served. Upon entering the premises, the police officer saw Alice Horton in bed and asleep with a Sergeant Edwards, who he knew was not her husband. When he questioned them, Sergeant Edwards admitted that, as a result of Alice Horton's invitation to him at the Congo Bar, he had had intercourse with her for an agreed financial consideration. The statement was denied by Alice Horton. She further stated that she was a temporary guest of Sergeant Mathis. She was arrested and charged with disorderly conduct, in violation of the city ordinance, in that she had solicited and practiced prostitution in the city of Tacoma.

Alice Horton entered a plea of not guilty. She made a pretrial motion, supported by affidavit, to suppress the evidence, contending that the search of the premises was illegal. The motion was denied. She waived a jury, and the cause was tried to the court. The motion to suppress was renewed at the beginning of the trial. Defense counsel offered to read to the trial court the former motion and affidavits, which had been considered by the judge who heard the motion calendar. The trial court reserved its ruling on the motion.

The plaintiff called as witnesses the Tacoma police officer and Sergeant Edwards, who testified substantially as above indicated. When the police officer was asked whether he had a search warrant for the premises at the time in question, he answered: 'Yes, we had a warrant, but we never made use of it. We didn't have to.' The plaintiff rested. The motion to suppress was renewed, and denied as follows:

'* * * I think the evidence shows that this man who let them in had evidence of possession. He had the key to the place. * * * Apparently they walked in with the person in possession and then saw this act being committed. The Court will deny the motion.'

The defendant did not offer herself as a witness; nor was any evidence offered to establish a defense.

The court found the defendant guilty of disorderly conduct, and sentenced her to 90 days in the county jail (30 days to be suspended upon good behavior). The defendant has appealed.

Appellant's sole contention on appeal is that the search was illegal and that the court erred in refusing to suppress the evidence. We do not agree.

The pretrial motion to suppress the evidence was denied. The motion and the affidavits, together with the oral testimony, were again considered by the judge who tried the case, and the motion was again denied. Neither the written motion nor the affidavits are in the record on appeal. Without the benefit of the evidence upon which the trial court denied the motion to suppress, we must assume that the evidence which the court considered was sufficient to establish the legality of the entry. See Pierce County v. King, 48 Wash.2d 43, 46, 290 P.2d 462 (1955); Whittaker v. Weller, 21 Wash.2d 716, 721, 152 P.2d 957, 155 P.2d 284 (1944); Alexiou v. Nockas, 175 Wash. 142, 143, 26 P.2d 619 (1933); Olson v. Hoar, 174 Wash. 696, 698, 26 P.2d 86 (1933); In re Jordan's Estate, 171 Wash. 624, 630, 18 P.2d 855 (1933).

Under these circumstances, we do not reach the alleged merits of the appeal.

The judgment and sentence is affirmed.

DONWORTH, Judge (dissenting).

The per curiam opinion fails to pass upon two important questions of constitutional law (based upon the constitution of the United States and also on our state constitution) which are presented by the record in this case. ¹

I dissent because these questions have been properly raised by appellant and, in my opinion, cannot and should not be ignored.

In order to understand these problems, it is necessary to review the proceedings had at the trial in the superior court, which tried the case de novo (without a jury) on appeal from the police court.

Appellant was originally tried and convicted in the police court of the city of Tacoma for the alleged violation of certain provisions of the city ordinances forbidding the solicitation and practice of prostitution. Another charge of unlawful cohabitation was abandoned by the city for lack of evidence.

At the commencement of the trial in the superior court, appellant's counsel renewed a motion to suppress the evidence. In answer to counsel's inquiry as to whether the court wished to hear argument at that time, the trial judge said:

'The Court: Maybe it would be better to hear the testimony first, and you reverse your motion. The Court will reserve, and the record may show you have renewed your motion.'

The city then produced as its first witness a police lieutenant, the head of the morals detail, who testified that he had known appellant for some time and that she was a married woman. He was asked about being at 1615 south 'L' street about 5 a. m. on July 1, 1960. He then testified:

'Q. And how was it, Lt. Hickey, that you were at that address? A. I was in company with Sgt. Mathis, who rented the place. * * * Q. Where did you first meet Sgt. Mathis on that evening? A. I picked him up about a block and a half from the residence, at about 3:05 in the morning, in company with a Sgt. Carroll. Q. Do you mean by picking him up you placed him under arrest? A. No, I didn't place him under arrest. We were conducting a surveillance of the residence, and they were seen to leave this residence, and we stopped him to question them, and they came to the station with us for further questioning. Q. Did they come voluntarily? A. They did. Q. Did you have a discussion then with Sgt. Mathis? A. Yes, I did. Q. Did you ask him where he resided? A. I did that. Q. What did he tell you?'

After an objection was interposed, followed by argument to the court, the judge ruled:

'The Court: I don't think you can prove this ownership by hearsay. You're going to have to qualify it, and you're going to have to get some reason why it is admissible. Q. (by Mr. Chapin) Lieutenant, do you know where Sgt. Mathis is at this time? A. I believe he is presently overseas in the service of the country. Q. Did you return to the premises in question with Sgt. Mathis? A. Yes, I did, sir. Q. Did you enter said premises? A. I did. Q. And, specifically * * * Mr. Tanner: Your Honor, before we continue, may I have a continuing objection * * * The Court: All right, you have it. The Court understood we sgt. Mathis? A. Yes, I sir. Q. motion. Proceed. Q. Who admitted you to the premises in question? A. Sgt. Mathis, by opening the door with a key he had in his possession.'

We pause at this point in the discussion of the testimony because the reader of this opinion now has precisely the same information as to what was taking place inside the house at 1615 south 'L' street as Lieutenant Hickey, the arresting officer, had when Sergeant Mathis put the key in the lock, to wit, no information whatever.

Lieutenant Hickey described what he saw after entering the house, as follows:

'Q. And after your entry into said premises, Lieutenant, what did you observe? A. Just inside the door was Alice T. Horton, in bed with a serviceman by the name of Edwards.

Q. And, Lieutenant, did Mr.--Sgt. Mathis offer any resistance to your being admitted? A. None whatsoever. The Court: What did you say the serviceman's name was? A. (by the witness) Edwards. Q. (by Mr. Chapin) He [Sergeant Mathis] had a key to the premises, is that correct? A. He did, sir. Q. Did you talk to the two parties [382 P.2d 248] in question? A. Yes, we did. Q. That is, by the to parties I of course mean the defendant and Mr. Edwards. A. We talked to both of them and took a statement from Edwards. Q. Did you talk to Sgt. Edwards in the presence of the defendant? A. Yes, we did.'

He then testified that appellant denied that sexual intercourse with airman Edwards had taken place, but that the latter stated to the contrary.

In concluding his direct testimony, Lieutenant Hickey stated:

'Q. Lieutenant, were there any statements made by the defendant concerning her--the reason she was in this particular establishment? How she happened to be there? A. To the best of my knowledge, Alice T. Horton just stated that she was staying there with Sgt. Mathis temporarily. Q. Staying there with Sgt. Mathis? A. Temporarily.'

On cross-examination, Lieutenant Hickey admitted that he did not make the arrest of appellant with a warrant.

The only other witness who testified at the trial was airman Edwards. He stated that he had met appellant at the Congo Bar and had asked her to take him home with her, which she did. He further stated that he paid her $10 and that he had had sexual relations with her at the south 'L' street address. As to the entry of the police into the house, he testified:

'Q. Did the police department arrive at that address some time later? A. Yes. Q. And who admitted them to the residence? A. I don't know. Q. Did you? A. No. Q. Did the defendant? A. I don't know. I was asleep.'

The city rested its case and appellant offered no evidence but renewed her motion to suppress all the evidence

'* * * on the grounds that it was obtained by illegal search and seizure, in violation of Article I, Section 7, of the Washington State Constitutio...