State v. Baker

• Decision Date: 20 January 1971
• Docket Number: Nos. 292,s. 292
• Citation: 4 Wn.App. 121,480 P.2d 778
• Parties: The STATE of Washington, Respondent, v. John Newell BAKER, Appellant. (41134) II and 293 (41136) II.
• Court: Washington Court of Appeals

Page 121

4 Wn.App. 121

480 P.2d 778

The STATE of Washington, Respondent, v. John Newell BAKER, Appellant.

Nos. 292 (41134) II and 293 (41136) II.

Court of Appeals of Washington, Division 2.

Jan. 20, 1971.

Paul J. Braune, Tacoma, appointed for appellant.

Joseph D. Mladinov, Sp. Counsel to Pros. Atty., Pierce County, Tacoma (Ronald L. Hendry, Pros. Atty. and Eugene G. Olson, Chief Crim. Deputy Pros. Atty., with him on the brief) for the State.

PETRIE, Judge.

On October 19, 1968, Rebecca Gardenhire was knocked down, injured and robbed of her purse. She described her assailant as a tall young male, probably white, with a rust-colored jacket and similarly colored hair. Included in the contents of her purse were her checkbook and two Sears credit cards. Several days later the Tacoma police learned that two women had been arrested in Renton using one of Mrs. Gardenhire's credit cards. With this basic lead, the Tacoma police began an intensive investigation which produced the following information: John Baker was the son of one of these women; he fit the general description of Mrs. Gardenhire's assailant; he was living in Puyallup and intended to leave for California; he had told another party that he and one Cronk had robbed Mrs. Gardenhire.

Given the apparent exigency, the Tacoma police rushed to Puyallup and found Baker and his girl friend, Christine, outside the house. With two Puyallup officers present, they arrested both of them and learned that Cronk was inside taking a shower. Both the girl and Baker were brought inside while the police informed Cronk that he was under arrest. While waiting for Cronk to get dressed, the police were talking to the girl in the kitchen. One of the detectives noticed a woman's purse on the counter and noted that the girl also had one. In an effort to determine whether this was the Gardenhire purse, he opened it and discovered marijuana. Baker, Cronk and Christine were then charged with possession of narcotics. At this point the police had neither arrest warrants nor search warrants.

During the search of the three at the stationhouse for inventory purposes, the other credit care of Mrs. Gardenhire was discovered in the sleeve of Cronk's sweater.

At police headquarters, Baker signed a 'Statement of Rights' form which had been given him. He then confessed to both the Gardenhire robbery and possession of marijuana and signed a statement reflecting this. The juvenile court waived jurisdiction; Baker was tried as an adult and found guilty by a jury in separate trials for each offense. His appeals have been consolidated to facilitate review.

The appellant's conviction for felonious possession of narcotics--marijuana--must be reversed and dismissed by virtue of the holding in State v. Zornes, 78 Wash.Dec.2d 9, 456, 475 P.2d 109 (1970), that the Laws of 1969, 1st Ex.Ses., ch. 256, §§ 7, 9, 10 and 11 removing marijuana from the Uniform Narcotic Drug Act, expressed the intention that its provision applied to pending actions.

Appellant's other assignments of error will be considered as they relate to the conviction of robbery.

Initially, appellant contends that the robbery charge should have been dismissed because trial was begun more than 60 days after the information had been filed. This is the requirement of RCW 10.46.010; ¹ but this statute also provides that the court may refuse to dismiss, if good cause to the contrary is shown. Our examination of the record of pretrial hearings reveals that the delay of 4 1/2 months was not directly attributable to either the prosecutor or the appellant; rather it seems that the motions of the appellant presented serious and difficult questions requiring pretrial hearings and studious deliberation in order for the court to make an informed decision. However, the illness of witnesses, the inherent difficulty of setting hearings and separate trials for both Cronk and Baker on each charge, the court's obligation to deal with other assigned duties during this period, and the crowded trial calendars combined to effect this relatively short delay. We note that no prejudice has resulted to appellant from this delay. The absence of Christine as a witness was not, as he contends, due to this delay, but rather to the fact that she was a Canadian juvenile and had been returned to her home by the authorities. Indeed, on oral argument, counsel for appellant indicated that he knew of this well within the 60-day period. We conclude that the court was correct in denying the motion to dismiss.

Appellant next attacks the court's denial of his motion to suppress the confession at the robbery trial. As admitted therein, it related only to his confession of robbery, all references to the possession of marijuana having been deliberately deleted. Contending that the entrance of the house by the police to arrest Cronk and the seizure therein of the pocketbook containing marijuana was an illegal search and seizure as to himself, appellant characterizes his confession as the 'fruit of the poisonous tree' and, therefore, inadmissible.

We are here concerned only with his confession to robbery. Assuming simply for the sake of argument that the marijuana was discovered in an illegal search and seizure, we fail to understand how this could possibly have induced or tainted appellant's confession to the totally distinct crime of robbery. The real question to be resolved is whether the confession has been obtained by exploitation of the 'illegality' or, instead, by means sufficiently distinguishable to be purged of the primary taint. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). There is nothing in the record even remotely suggestive that Baker's confession to the robbery was obtained by exploitation of the seizure of the marijuana. But we need not speculate as to the exact mechanism which triggered Baker's confession because we are of the opinion that the search and seizure complained of was constitutionally valid.

The alleged search was made incident to the arrest of Cronk inside the house, and not as incident to the arrest of Baker. That the police brought Baker inside while arresting Cronk can in no way vitiate the initial validity of the search. After careful analysis of the record we are convinced that this case is clearly distinguishable on its facts from Vale v. Louisiana, 399 U.S. 30, 26 L.Ed.2d 409, 90 S.Ct. 1969 (1970) and Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732 (1969). Those cases held under pre-Chimel standards, ² that the warrantless search of a defendant's dwelling was not reasonably contemporaneous in place to his arrest Outside the house, and therefore, was invalid as not incident to his arrest. But our case has precisely what those cases lacked, I.e., exigent circumstances. The police herein did have probable cause to arrest Cronk, reliable information that he was inside, and a reasonable basis for fearing his departure or destruction of evidence or both. In these circumstances, the seizure of the pocketbook in plain view was in the reasonable, though mistaken, belief that it was Mrs. Gardenhire's purse, and therefore, seizable as evidence of the robbery. It follows that opening if for identification purposes was also...