State v. Bonaparte

• Decision Date: 21 March 1983
• Docket Number: No. 11181-7-I,11181-7-I
• Citation: 34 Wn.App. 285,660 P.2d 334
• Parties: STATE of Washington, Respondent, v. Hester A. BONAPARTE, Appellant.
• Court: Washington Court of Appeals

Page 285

34 Wn.App. 285

660 P.2d 334

STATE of Washington, Respondent, v. Hester A. BONAPARTE, Appellant.

No. 11181-7-I.

Court of Appeals of Washington,

Division 1.

March 21, 1983.

Rehearing Denied April 26, 1983.

[660 P.2d 335] Phil Mahoney, Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., Alvin Littles, Deputy Pros. Atty., Seattle, for respondent.

RINGOLD, Judge.

The defendant, Hester A. Bonaparte, appeals from the judgment and sentence imposed after his conviction for possession of a controlled substance. He claims that the evidence should have been suppressed because police had no probable cause to arrest, and that the case should have been dismissed due to a violation of his constitutional right to a speedy trial. The principal issue presented is whether the marital privilege ¹ was violated.

We find no error and affirm.

Following a pretrial hearing the trial court denied Bonaparte's motions to suppress the evidence and to dismiss the case and entered findings of fact, which we summarize. On November 8, 1980 William Boggs, a federal narcotics agent, received a telephone call from Mrs. Bonaparte informing him that her husband, the defendant, was at the Los Angeles International Airport, would be purchasing drugs and then returning to Seattle. On several occasions over the previous month Boggs had received information from Mrs. Bonaparte, which he verified as accurate, that the defendant was engaged in narcotics transactions. Boggs located the defendant's vehicle at the Seattle-Tacoma Airport, but could find no airline reservation under his name.

Late evening on November 8, 1980 at the Seattle-Tacoma Airport Boggs and another agent observed Mr. and Mrs. Bonaparte disembarking from a Los Angeles flight and heading toward the parking garage. The agents stopped the defendant, identified themselves, requested that he show identification, and then asked to see his airline tickets. The defendant's identification was in his own name, but the tickets were issued under the names of David Vaughn and Mrs. P. Jones. Bonaparte explained that he must have been issued the wrong tickets, stated that he was not carrying drugs, and refused to submit to a bodily search. He was arrested, searched, and found to be carrying hydromorphone, a controlled substance.

The trial court concluded that the police had probable cause to arrest and that there were no violations of the speedy trial rule. The court found that Bonaparte fit the profile of a drug runner by virtue of his having travelled to The State's information was filed on May 28, 1981, and the defendant was arraigned on June 10, 1981. The pretrial hearing was concluded on September 23, 1981, and the trial on December 8, 1981.

and from Los Angeles on the same day, under an assumed name, and without luggage. The court determined that these facts coupled with the information received from Mrs. Bonaparte combined to form probable cause for arrest.

THE MARITAL PRIVILEGE

Bonaparte contends that by permitting Boggs to testify to the statements made by Mrs. Bonaparte, the trial court allowed Mrs. Bonaparte to testify against her husband in violation of the marital privilege, RCW 5.60.060(1). There are two distinct privileges contained in this statute. See generally Bigelow, The Marital Privileges in Washington Law: Spouse Testimony and Marital Communications, 54 Wash.L.Rev. 65, 67 (1978). The first is the testimonial privilege, which prevents a spouse from being examined as a witness for or against the other spouse without the consent of the other spouse. State v. Thorne, 43 Wash.2d 47, 55, 260 P.2d 331 (1953). The second is the confidential communications privilege, which prevents a spouse from being examined as to confidential communications made by one to the other during the marriage. Thorne.

There are different rationale for the two privileges. The testimonial privilege requires an existing marriage and endeavors to foster domestic harmony and prevent discord. Thorne. The communications privilege applies to all confidential exchanges and is intended to encourage mutual understanding and trust. Thorne.

It is his spousal testimonial privilege the defendant contends was violated by allowing Boggs to relate Mrs. Bonaparte's statements. He relies on State v. Clark, 26 Wash.2d 160, 173 P.2d 189 (1946), where the court said:

The statute [RCW 5.60.060] means just what it says. No spouse shall be examined as a witness for or against the other spouse without the consent of such spouse.

We do not believe that it is proper to permit a third person to relate a statement made by one spouse against the other which that spouse would not be allowed to relate if called as a witness. Testimony should not be permitted to enter through the back door which the statute forbids to enter through the front door.

(Citations omitted.) Clark, at 168, 173 P.2d 189.

The testimonial privilege, however, has been severely criticized by commentators as lacking a modern policy rationale.

The privilege has sometimes been defended, after the manner in which we find reasons for inherited customs generally, as protecting family harmony. But family harmony is nearly always past saving when the spouse is willing to aid the prosecution.

C. McCormick, Evidence § 66, at 145 (1954). Washington courts have accordingly narrowly interpreted the testimonial privilege, holding that it does not prevent third persons from testifying to statements made by a spouse out of court. 5 K. Tegland, Wash.Prac., Evidence § 210, at 429 (1982).

In two recent cases we have held that the testimonial privilege does not bar a spouse's statements offered to demonstrate probable cause rather than to prove the truth of the matter stated. This court in State v. Osborne, 18 Wash.App. 318, 569 P.2d 1176 (1977), upheld a search warrant based upon an officer's affidavit which recited statements made to him by the defendant's wife. We explained: "It is clear that evidence that would not be competent or admissible at trial may nevertheless furnish 'probable cause' for the issuance of a search warrant." Osborne, at 322, 569 P.2d 1176. State v. Diana, 24 Wash.App. 908, 604 P.2d 1312 (1979), held that statements by the defendant's wife furnished the police with probable cause to enter the family house. Following the analysis in Osborne, the court in Diana held the privilege inapplicable. These previous decisions are controlling. We find no violation of the testimonial privilege here.

PROBABLE CAUSE TO ARREST

Bonaparte next contends that Mrs. Bonaparte's statement that her husband would be returning to Seattle carrying drugs cannot form the basis for probable cause to arrest because it is a statement of intent to commit a crime in the future. He relies on United States v. Roberts, 333 F.Supp. 786 (E.D.Tenn.1971) where the court stated: "A search warrant will not issue upon an affidavit reciting only the anticipation of a future offense." Roberts, at 787. Roberts is distinguishable. In Roberts the defendant contended that the search of his vehicle was invalid because police had adequate time and information to obtain a warrant. Rejecting this argument, the court found that the police had insufficient reason to believe that defendant was transporting contraband until they spotted his vehicle on the highway, which then furnished them with probable cause to conduct a warrantless search. If accepted, Bonaparte's argument would prevent most informants' tips from furnishing the basis for probable cause.

The defendant next argues that statements allegedly made to Boggs by Mrs. Bonaparte's daughter over the telephone cannot form the basis for probable cause to arrest because the daughter's reliability was not...