State ex rel. Fong v. Superior Court

• Decision Date: 02 January 1948
• Docket Number: 30367.
• Citation: 188 P.2d 125,29 Wn.2d 601
• Parties: STATE ex rel. FONG et al. v. SUPERIOR COURT, Kings County.
• Court: Washington Supreme Court

188 P.2d 125

29 Wn.2d 601

STATE ex rel. FONG et al. v. SUPERIOR COURT, Kings County.

No. 30367.

Supreme Court of Washington

January 2, 1948

Department 2

Rehearing Denied March 8, 1948.

Original action in the Supreme Court by the State of Washington, on the relation of Thomas W. Fong and others, relators, against the Superior Court of the State of Washington for King County, the Hon. J. T. Ronald, Judge, respondent, for an alternative writ of review to review an order of the respondent denying relator's petition for return to them of certain personalty alleged to have been wrongfully seized and taken from them at time of their arrest, and denial of relators' motion to suppress such articles from introduction as evidence in pending criminal trial.

Order affirmed, and relators' petition in Supreme Court denied.

Lloyd Shorett and James D. McCutcheon, Jr., both of Seattle, for respondent.

ROBINSON Justice.

Relators Thomas W. Fong, James Lee Hing, and Joseph Bauer, were named as defendants in a criminal action now pending in King county, Washington, and were charged therein with the crime of burglary in the second degree, alleged to have been committed on May 22, 1947. On July 17, 1947, relators, two of whom had theretofore entered pleas of not guilty, filed in that action their petition for the return to them of certain personal property alleged to have been wrongfully and unlawfully seized and taken from them at the time of their arrest by city police officers. Simultaneously with the filing of their petition, they also filed a motion to suppress from introduction as evidence upon the trial of the pending criminal action all of the articles and personal property described in their petition. In due time, the petition and motion were presented to, and heard by, the superior court for King county, the Honorable J. T. Ronald respondent herein, presiding. At that hearing, the relators and the state of Washington, the latter appearing through the prosecuting attorney for King county, respectively introduced certain affidavits bearing upon the matter. The state also introduced the testimony of the arresting officers. The relators did not appear in person, nor was any evidence offered in their behalf other than the affidavits.

At the conclusion of the hearing, the respondent judge entered an order denying relators' petition and also their motion. Relators thereupon filed in this court their petition for the issuance of an alternative writ of review directing the respondent judge to show cause why he should not be required to certify to this court the record of the aforementioned proceeding. On the same day, there was filed in this court a statement of facts signed by the respondent judge and certified by him to contain all of the matters and proceedings occurring in the cause heard by him. Respondent in due time also filed his answer and return to relators' petition for writ of review. The matter was subsequently argued in this court and is now Before us for disposition on the record. The facts, as the respondent judge was entitled to find them from the evidence appearing as part of the statement of facts, may be summarized as follows:

Some time after midinight of January 20, 1947, a robbery and burglary occurred at the headquarters of the Hop Sing Tong in Seattle. Two safes were broken open, one by the 'drill and punch' method, and the other by ripping off the door of the safe. A large amount of money was taken.

In the early morning of January 21, detective M C. Griffin and two uniformed policemen visited the premises and conducted an investigation. From persons present during the commission of the crime, it was learned that three men had participated in the affair, two of whom had spoken to each other in the Chinese language; the third participant was not heard to speak. The victims of the felony furnished a description of one of the robbers in particular, giving his approximate age and height, his build, complexion, and race, and calling attention to his peculiar Chinese dialect and precision of speech. After thorough examination of the scene and careful scrutiny of the methods by which the safes had been burglarized, detective Griffin concluded that one of the three robbers and burglars was a white man who was the 'mechanic on the job' of safecracking.

During the course of the investigation on that day, and at later times, officer Griffin submitted the personal description which he had received to various members of the tong, and was told by three different individuals that the description fitted Thomas W. Fong, one of the relators herein. The officers also ascertained from one of his informants that Fong had the reputation of being capable of performing that kind of 'job' and had been implicated in many of the same character up and down the Pacific coast.

During the succeeding months, Griffin continued his investigation and frequently obtained additional bits of information on the subject, but was unable to locate Fong.

In February or March of 1947, detective Roy J. Mahoney joined in the investigation and received information from various sources to the effect that Fong was one of the three guilty parties. Mahoney was also advised by Captain George Lohrer of the sheriff's office that he had information connecting Fong with the crime.

On May 22, 1947, at about 2 o'clock in the afternoon, detective Griffin received a telephone call in which he was told that two Chinamen and a white man were registered at cabin No. 2 of the Star Motel, which is situated at Fourth avenue South and Bennett street, in Seattle; he was further informed that these persons were in possession of a set of burglary tools of the punch and rip type, and he also was given the license numbers of three automobiles used by the parties.

About 8 o'clock that evening, Griffin and Mahoney drove to the Star Motel and, through Mrs. C. W. Pollard, owner and manager of the premises, confirmed the information that had been telephoned in that afternoon. Mrs. Pollard had seen the burglary tools while servicing the cabin in the absence of the tenants, sometime after their arrival at about 11 o'clock that morning.

At the time the detectives made their visit, the cabin was dark, and none of the three automobiles was in the vicinity. The officers consulted the register in the motel and found the names Dick Young and James Young, as being the persons occupying cabin No. 2. Mrs. Pollard informed the detectives that both of these men were Chinamen and that the third man, who had not signed the register, was a white man. Mrs. Pollard had some question in her mind at that time as to whether the parties had then permanently vacted the cabin or whether they would be back later. She therefore asked the detectives to accompany her to the cabin to ascertain the situation. This they did. Entering the cabin after Mrs. Pollard had opened the door with her pass key, the detectives observed only a lot of paper strewn about the floor and an old gray overcoat thrown over a chair in one corner of the room. No tools, no luggage, and no other clothing of any kind were seen. Judging from appearances, the cabin had been permanently vacated.

The detecives then went back with Mrs. Pollard to her office and had some further conversation with her. After requesting her to inform them if anyone should later appear at the cabin, they left the premises. Toward midnight, the detectives returned and, after secreting their car, watched cabin No. 2 until 4 o'clock the next morning. No one, however, either entered or left the cabin during that time.

On the following day, May 23, 1947, detective Griffin, by checking the license numbers of the cars, learned that relators Fong and Hing were the persons registered at the cabin under the name of Young.

At about 8 o'clock that evening, Griffin and Mahoney returned to the Star Motel and again talked to Mrs. Pollard. Cabin No. 2 was dark at the time, and no automobile was near it. About 8:30 p.m., however, while the detectives were still talking to Mrs. Pollard, a car containing a Chinaman and a white man drove up and stopped near the office door. Mrs. Pollard said: 'This is one of them.' It proved to be the relators Hing and Bauer. The driver of the car, Bauer, remained outside while Hing came into the office to make a telephone call. About that same time, detective Mahoney sauntered from the office, while Griffin remained inside. Being unable to complete his call, Hing left the office within a few minutes. Griffin followed. As Hing started across the street from the office toward cabin No. 2, Griffin accosted him, saying: 'What are you doing way out here?' Hing replied: 'Oh, we are in cabin here. We are in the camp. We have a cabin over here. We have cabin camp. Yes, I register here. Yes, have funny name. We go under name James Young. I try to make a telephone call to get some Chinese girls. We are going to have a party out here tonight.'

This conversation took place about 15 or 20 feet from the corner of cabin No. 2. Mahoney was standing alongside Griffin while the latter was talking to Hing. Griffin thereupon put Hing under arrest. At that same moment, the officers observed a movement over at cabin No. 2. The door opened, and, from the doorway, the relator Bauer peered out. At sight of the officers, he turned and ran through the cabin into the lavatory in the rear. As he ran, he was seen to pick up something in the room and carry it with him. Griffin then commanded Hing to proceed forward into the cabin, while Mahoney raced past them both, pursuing Bauer into the lavatory. When overtaken, Bauer was in the act of pushing something down into the water bowl of the toilet with one hand and flushing the toilet with the other. Mahoney...