Sauve, Matter of, No. 50600-1

• Court: United States State Supreme Court of Washington
• Writing for the Court: PEARSON; WILLIAM H. WILLIAMS, C.J., UTTER, BRACHTENBACH, DOLLIVER, DORE and DIMMICK, JJ., and SHIMAS
• Citation: 103 Wn.2d 322,692 P.2d 818
• Docket Number: No. 50600-1
• Decision Date: 03 January 1985
• Parties: In the Matter of the Personal Restraint Petition of Maurice SAUVE, Petitioner.

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103 Wn.2d 322 692 P.2d 818 In the Matter of the Personal Restraint Petition of Maurice
SAUVE, Petitioner. No. 50600-1. Supreme Court of Washington,
En Banc. Jan. 3, 1985.

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[692 P.2d 819] Marston, Hodgins, Shorett, Gillingham, Hardman & Jones, David L. Shorett, Eileen P. Farley, Seattle, for petitioner.

Norman K. Maleng, King County Prosecutor, Deborah Phillips, Deputy Pros. Atty., Seattle, for respondent.

PEARSON, Justice.

Petitioner Maurice Sauve challenges the constitutionality of his conviction on several counts of robbery and possession of stolen property. Petitioner claims the rule announced in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), should apply to his case and that consequently this court must declare the warrantless arrest and search conducted in his home unconstitutional. In addition, petitioner claims his right to confront witnesses against him was violated and that a conviction for robbery and possession of stolen property violates the double jeopardy provisions of the state and

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federal constitutions. Because petitioner is unable to [692 P.2d 820] show actual and substantial prejudice resulting from the warrantless arrest and search, the failure of one witness to testify, and the dual convictions, his petition is denied.

The salient facts are as follows. On May 5, 1978, after receiving a tip from an informant, Seattle police officers arrested petitioner in connection with several robberies which had occurred earlier that day. The arrest was made in petitioner's home with neither an arrest warrant nor a search warrant. Following his arrest, petitioner was searched, was advised of his rights and consented to a search of his home. During the search police found credit cards belonging to two of the robbery victims. The police also found a gun. On June 19 and 20, 1978, a suppression hearing was conducted to determine the admissibility of the credit cards and gun. The police officer who arrested and searched petitioner testified at this hearing but the officer who received the informant's tip and relayed it to the arresting officer did not. The trial judge ruled that the evidence was admissible. In June 1978, petitioner was convicted of 11 counts of first degree robbery, 2 counts of first degree kidnapping, 1 count of second degree assault, and 2 counts of second degree possession of stolen property. In January 1979, petitioner was found to be a habitual criminal and on February 20, 1979, he was sentenced. In March 1979, petitioner appealed his judgment and sentence to the Court of Appeals.

Prior to the appellate court hearing petitioner's appeal, this court decided State v. Holsworth, 93 Wash.2d 148, 607 P.2d 845 (1980). In addition, the United States Supreme Court decided Payton v. New York, supra. Thereafter, pursuant to Holsworth, the Court of Appeals remanded the case to the trial court for a rehearing on matters concerning the habitual criminal charge. State v. Sauve, 28 Wash.App. 1032 (1981). On remand, the State abandoned the habitual criminal charges and on May 11, 1981, petitioner was resentenced to a maximum term of life with all counts to run concurrently. Petitioner appealed the May 1981 judgment

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and sentence and for the first time raised issues concerning the warrantless search. This appeal was dismissed by the Court of Appeals which held that because the warrantless arrest issues were not raised, but could have been raised in the first appeal, they cannot be considered in a second appeal. State v. Sauve, 33 Wash.App. 181, 652 P.2d 967 (1982). This court subsequently affirmed the appellate court's holding. State v. Sauve, 100 Wash.2d 84, 666 P.2d 894 (1983). Petitioner then renewed his challenges to the May 1981 judgment and sentence by filing a personal restraint petition with the Court of Appeals. The Court of Appeals then certified the case to this court. I

Petitioner first asserts that search and seizure issues may be raised in a personal restraint petition. The State urges this court to adopt a rule similar to the one promulgated by the Supreme Court in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). The State argues that, pursuant to such a rule, this court should decline to reach search and seizure issues initially raised by way of personal restraint petitions. We find it unnecessary to reach this issue. As several of our prior cases have held, this court will not decide an issue on constitutional grounds when that issue can be resolved on other grounds. Tommy P. v. Board of Cy. Comm'rs, 97 Wash.2d 385, 391, 645 P.2d 697 (1982). Recently this court adopted the rule that the petitioner in a personal restraint petition has the burden of showing an actual prejudice created by constitutional error. In re Hews, 99 Wash.2d 80, 89, 660 P.2d 263 (1983). As demonstrated below, petitioner has failed to show that the warrantless arrest and search amounted to error. Consequently, it is not necessary to decide whether search and seizure issues may be raised initially in a personal restraint petition.

II

Petitioner asserts that the rule announced in Payton v. New York, supra, [692 P.2d 821] should apply here and that consequently

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this court must declare his warrantless arrest and search unconstitutional and consider the evidence obtained therefrom fruit of the poisonous tree. In Payton, the Court held that the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect's home to make a routine felony arrest. As the facts of this case indicate, petitioner, contrary to the holding in Payton, was arrested and searched by police in his home without an arrest warrant. Petitioner's arrest, however, was made before Payton was decided. Hence, only if Payton were applied retroactively could petitioner show he was actually and substantially prejudiced by constitutional error.

To determine whether...