Sauve, Matter of

• Decision Date: 03 January 1985
• Docket Number: No. 50600-1,50600-1
• Citation: 103 Wn.2d 322,692 P.2d 818
• Parties: In the Matter of the Personal Restraint Petition of Maurice SAUVE, Petitioner.
• Court: Washington Supreme Court

Page 322

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.

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 federal constitutions. Because petitioner is unable to 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 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, should apply here and that consequently 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 to apply the rule announced in Payton retroactively, we turn first to United States Supreme Court decisions addressing the retroactivity issue. The Supreme Court began its consideration of the retroactive and prospective application of new legal principles in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). In Linkletter, the Court concluded that the United States Constitution neither prohibits nor requires that retrospective effect be given to any new constitutional rule. Linkletter, at 629. Two years after deciding Linkletter, the Court articulated a balancing test for determining the retroactivity of a new constitutional decision:

The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.

Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In applying the balancing test, the Supreme Court has reached several conclusions. First, when a new rule constitutes a clear break with past precedent, it almost invariably is nonretroactive. See, e.g., Desist v. United States, 394 U.S. 244, 22 L.Ed.2d 248 (1969). On the other hand, when the court merely applies settled precedent to new and different factual situations, the decision should apply retrospectively. United States v. Johnson, 457 U.S. 537, 549, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). This court has adopted the Stovall balancing test. See In re Haverty, 94 Wash.2d 621, 618 P.2d 1011 (1980).

Two of the most recent Supreme Court decisions addressing the retroactivity issue and reevaluating the balancing test are United States v. Johnson, supra, and Solem v. Stumes, --- U.S. ----, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984). In both instances the Court was presented with a new constitutional principle that was neither a clear break with the past nor a reapplication of a settled rule. These cases disclose new principles applicable to the retroactivity analysis.

In United States v. Johnson, supra, the Court was faced with deciding the retroactivity of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), to a case on direct appeal. The Court held that the interests of principled decision making and equal treatment of those similarly situated require retroactive application of decisions construing the Fourth Amendment to all convictions not yet final at the time the decision was rendered. Johnson, at 562, 102 S.Ct. at 2594. This court adopted this rule in State v. Counts, 99 Wash.2d 54, 659 P.2d 1087 (1983). Shortly thereafter Solem v. Stumes, supra, was decided. Solem involved the retroactive application of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ¹ to a case on collateral review. The Court concluded that the reliance interest of the police, the effect on the administration of justice, and the minimal effect on the truth-finding function dictate nonretroactive application of decisions amplifying the exclusionary rule to cases on collateral review. Solem, --- U.S. at ----, 104 S.Ct. at 1345, 79 L.Ed.2d at 591-92. The clear import of these cases is that in some instances the retroactive application of a new constitutional principle will depend on whether the case is on direct appeal or collateral review.

In light of the rules and principles outlined above and the recent United States Supreme Court cases, we conclude that when a petitioner seeks on collateral review to apply retroactively a new constitutional principle which is not a clear break with past precedent yet also not merely a reapplication of prior law, it is still appropriate to use the balancing test to determine the retroactivity or nonretroactivity of the new decision. The criteria guiding resolution of the issue, as stated previously, are: (a) the purpose to be served by the new standards; (b) the reliance of law enforcement authorities on the old standard; and (c) the effect on the administration...