State v. Bowman, 582--II
| Decision Date | 28 December 1972 |
| Docket Number | No. 582--II,582--II |
| Citation | 504 P.2d 1148,8 Wn.App. 148 |
| Parties | The STATE of Washington, Respondent, v. Charles Lynn BOWMAN, Appellant. |
| Court | Washington Court of Appeals |
William N. Goodwin, Jr., Tacoma, Court-appointed for appellant.
Joseph D. Mladinov, Sp. Counsel to Pros. Atty., Pierce County, Tacoma , for respondent.
Defendant has appealed from a judgment and sentence following a jury verdict of guilty to the crime of possession of LSD, a dangerous drug. The circumstances which gave rise to this charge developed while officers of the Tacoma Police Department were executing a search warrant at the home of Raymond and Patricia Webb in the city of Tacoma.
The defendant assigns error first, to the trial court's denial of a motion to suppress the evidence seized. He contends that a copy of the search warrant was not served on him pursuant to statutory mandate.
The events leading to the defendant's arrest are not in dispute. On April 23, 1971, the Tacoma Police Department obtained a warrant to search for dangerous drugs and narcotics on premises located at a specified address in Tacoma. Armed with the warrant, seven city police officers converged on the house. One group of officers went to the front door, the other to the rear door. Officer Walter executed the warrant by knocking on the front door, gaining admission by permission of the householder, Raymond Webb, and reading the warrant to all those present in the house, including the defendant. Webb was served with a copy of the warrant, the defendant was not. While the warrant was being read, Officer Thomas Heerema observed the defendant with a small plastic baggie partially protruding from his left hand. The defendant was seated on a davenport directly in front of Heerema. The officer testified that the defendant slowly moved his left hand down his leg toward the floor. As soon as the warrant had been completely read, Heerema seized the baggie from the floor at the defendant's feet. Later examination revealed that the baggie contained an orange powder identified as LSD. It is this baggie, alone which provides the basis for the unlawful possession charge against this defendant.
At the time the warrant in the instant case was issued, RCW 69.40.100 1 provided that a search warrant for dangerous drugs shall be executed in the following manner:
A copy of said warrant shall be served upon the person or persons found in possession of any such dangerous drugs, furniture or fixtures so seized, and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found, or, if there be no door, then in any conspicuous place upon the premises.
The defendant contends that the provisions of a statute governing the execution of a search warrant must be strictly complied with--anything short of strict compliance renders the search proceedings void--and any evidence obtained thereby inadmissible. We disagree.
Defendant was present during the reading of the warrant and at the time when the copy was served upon the householder. The deviation from the directive of the statute was technical in nature, and the officer's substantial compliance with its terms did not result in any disadvantage to the defendant. In Tacoma v. Mundell, 6 Wash.App. 673, 495 P.2d 682 (1972), we upheld the validity of a search warrant which was not personally served upon the defendant at the time of his arrest, but was placed in his property box and received by him the following day upon his release from jail on bail.
Demanding strict compliance with the rules governing the execution of valid search warrants, no matter what the circumstances, would unduly hamper the orderly enforcement of criminal law without, in this case, materially protecting a countervailing personal right of the defendant. Accordingly, we hold the trial court was correct in denying defendant's motion to suppress the evidence.
The defendant next assigns error to the trial court's denial of his motion for mistrial made after the deputy prosecutor displayed a large clear plastic bag to the jury containing numerous drug items which had no relevancy to the charges against him.
The search of the Webb residence resulted in the seizure by police officers of numerous drugs and drug related items, including the small baggie allegedly possessed by the defendant. These items were placed in a large clear plastic bag (state's exhibit 2) but were not admitted into evidence at trial. Motions in limine were made by counsel for defendant prior to trial in order to prevent the prosecution from displaying exhibit 2 to the jury or making any reference to other drugs or paraphernalia seized in the search. Defendant's counsel also offered to stipulate to the chain of evidence regarding the small baggie in an attempt to avoid any prejudicial effect which would result from showing exhibit 2 to the jury. These motions were denied. Instead, the trial court instructed the deputy prosecutor to extract the small baggie from exhibit 2 at the appropriate time.
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