State v. Byers, No. 43491

• Court: United States State Supreme Court of Washington
• Writing for the Court: HAMILTON; REVELLE; UTTER; STAFFORD
• Citation: 539 P.2d 833,85 Wn.2d 783
• Docket Number: No. 43491
• Decision Date: 11 September 1975
• Parties: The STATE of Washington, Respondent, v. John Ray BYERS and Kenneth Thurman Mauler, and each of them, Petitioners.

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85 Wn.2d 783 539 P.2d 833 The STATE of Washington, Respondent,
v.
John Ray BYERS and Kenneth Thurman Mauler, and each of them,
Petitioners. No. 43491. Supreme Court of Washington, En Banc. Sept. 11, 1975.

[539 P.2d 834] Voris Lipscomb & Belcher, Michael C. Lipscomb, Bellingham, for petitioners.

David S. McEachran, Whatcom County Pros. Atty., Bellingham, for respondent.

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HAMILTON, Associate Justice.

The defendants were charged with the crime of burglary in the second degree. A pretrial motion to suppress certain evidence upon the basis of an alleged illegal arrest was heard and granted in part. Trial to the court sitting without a jury ensued, and defendants were found guilty as charged. Defendants appealed to the Court of Appeals, Division One. The convictions were affirmed by unpublished opinion. Defendants petitioned for review before this court. The petition was granted. State v. Byers, 84 Wash.2d 1014 (1974). We affirm the convictions.

The facts are undisputed. On April 17, 1972, at approximately 2:54 a.m., a Mr. Ellis, who resides near the Portage on Lummi Shore Road in a somewhat remote area of Whatcom County, Washington, advised the sheriff's office by telephone that he had just heard a rapping sound and the breaking of glass emanating from an unoccupied house in close proximity to his residence. He asked that the circumstances be investigated. The radio dispatcher in the sheriff's office radioed two deputies then separately patrolling in that area of Whatcom County, advised them of the Ellis report, and dispatched them to the scene. Their respective routes to the scene placed them on Lummi Shore Road traveling south. While so enroute and at approximately 3:07 a.m., they were advised that Mr. Ellis had reported that a car with a noisy exhaust had left the scene traveling north on Lummi Shore Road.

At 3:09 a.m., the deputies intercepted and stopped an automobile proceeding north on the roadway approximately 3 miles from the Ellis residence. They requested identification of the driver, defendant Byers, and inspected the automobile. Inspection revealed the car was occupied by the defendants and two young girls, all under the age of 21, except defendant Mauler; that there were in plain sight on the front and back seats several bottles of varying kinds of wine and some beer; and that the vehicle had a loud exhaust and a defective rear license plate light. Upon inquiry, the deputies were advised by defendants that the

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vehicle had shortly before run out of gas and that defendants had walked to the home of Byers' parents in the Portage for a can of gas.

The officers requested that the occupants of the car accompany them to the area of the Ellis residence. The defendants[539 P.2d 835] acceded to the request and the group arrived at the premises at about 3:17 a.m. Mr. Ellis identified the noisy exhaust on defendants' vehicle as the type of exhaust he had heard and recalled that the rear license plate light was not functioning. Inspection of the unoccupied residence revealed pry marks on a back door, a broken window upon which there was some blood, and an open kitchen cabinet. Visual observation indicated defendant Byers had a fresh cut on his hand. Defendants were then placed under arrest and advised of their constitutional rights, understanding of which they acknowledged.

At 4:22 a.m., a detective from the sheriff's office arrived and was briefed on the situation. Further examination of the automobile revealed a small shank screwdriver on the dashboard which had some blood on it and matched the pry marks on the rear door of the unoccupied residence. Defendants' vehicle was then impounded and the wine, beer, and screwdriver were secured as evidence. Thereafter, defendants were transported to the county jail and booked. They were again read their constitutional rights and signed a waiver of those rights. They each acknowledged a full understanding of their rights. Upon interrogation, each confessed to the burglary and signed a written version of their respective confessions.

Before trial, defendants moved to suppress the confessions and the physical evidence contending that all were the result of an illegal arrest. Upon conclusion of the motion to suppress hearing, the trial court determined that while the officers had probable cause to stop defendants' vehicle on Lummi Shore Road, they did not then have probable cause to arrest and that the physical evidence thereafter acquired was the fruit of an unlawful arrest and

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inadmissible. The trial court further determined, however, that the confessions were freely and voluntarily given, and otherwise untainted by an illegal arrest, hence, admissible. On review, defendants contend the trial court erred with respect to the admissibility of the confessions asserting that they, too, were the fruit of the unlawful arrest.

The trial court characterized its determination that the officers had probable cause to stop defendants' vehicle, but lacked probable cause to then arrest defendants as 'a finding of fact.' Normally, on appellate review, great significance is attached to factual findings of a trial court; however, we find in this case two reasons for reviewing the so-called finding of fact. First, in those cases wherein fundamental constitutional rights are in issue, it is incumbent upon a reviewing court to make its own independent examination and evaluation of the facts. McNear v. Rhay, 65 Wash.2d 530, 398 P.2d 732 (1965). Second, in those instances where the facts are undisputed, a determination of the presence or absence of probable cause to stop or arrest becomes a question of law, the judicial determination of which becomes a conclusion of law reviewable on appeal. Eberhart v. Murphy, 113 Wash. 449, 194 P. 415 (1920); 5 Am.Jur.2d Arrest § 49 (1962).

In the instant case, we agree with the trial court that there existed ample facts establishing probable cause for the officers to stop the defendants' vehicle at the time and place it was stopped. Cf. State v. Gluck, 83 Wash.2d 424, 518 P.2d 703 (1974).

We cannot agree, however, with the trial court's conclusion that, lacking probable cause, an illegal arrest occurred at the time and place the officers requested the defendants to accompany them back to the scene of the suspected burglary.

Although one officer testified that, subjectively, he considered the defendants to be under arrest at the site of the stop, the record does not indicate that the defendants were then so advised. The officers, so far as the record reveals, simply directed or requested the defendants to accompany

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them some 3 miles south on Lummi Shore Road to the scene of a suspected [539 P.2d 836] burglary, to which request defendants acceded. In this respect, there is nothing ipso facto unconstitutional in a brief detention of citizens under circumstances not otherwise warranting or justifying arrest for purposes of limited inquiry in the course of a routine police investigation. The test of the validity of such brief detention is whether from the totality of the circumstances it appears that the detention was based upon reasonable grounds and was not arbitrary or harassing. Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966), Cert. denied 388 U.S. 922, 87 S.Ct. 2123, 18 L.Ed.2d 1370 (1967); United States v. Brown, 436 F.2d 702 (9th Cir. 1970); Gaines v. Craven, 448 F.2d 1236 (9th Cir. 1971); United States v. Richards, 500 F.2d 1025 (9th Cir. 1974).

The distinction between an arrest and an investigative field detention is one which admits of no simple definition. In Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), different members of the Supreme Court were unable to agree whether an arrest or a simple detention had taken place. (Compare, e.g., Mr. Chief Justice Warren's majority opinion With Mr. Justice Harlan's concurrence.) The question is not one of labels, but rather involves a balancing of the intrusion made on an individual's freedom against society's need to investigate crime. The more significant the intrusion, the more cause an officer must have in order for his actions to pass the test of reasonableness.

A determination of the reasonableness of an investigative detention must be made on a case-by-case basis, because facts of individual cases will differ in terms of the information available to officers and the scope of the actual detention. See Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This case is made more difficult by the fact that these officers, apparently alone in the area, felt it necessary both to detain the suspects and to immediately investigate the reported possible burglary. The transporting of the subjects to the scene was a precautionary measure,

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but such does not in itself automatically make the detention unreasonable. In United States v. Richards, supra, officers investigating a failure to pay for an airport rental car became suspicious of smuggling activities when they discovered a plastic bag and a border parking lot receipt in the automobile, and learned that the airplane flown by the suspect was owned by a man suspected of smuggling narcotics and stolen guns. When appellant again landed his airplane at the same airfield, the officers placed the aircraft under surveillance. Appellant and a companion drove up to the plane and unloaded luggage and a rifle scabbard; then, after glancing around, they loaded a package wrapped in Christmas paper into the airplane. After parking their car, they went back to the plane and started its engine. Officers approached the plane, and one raised his badge and ordered appellant to shut off the engine and get down. When appellant hesitated, another officer moved in front of the plane, drew and pointed his gun, and ordered them to get out of the plane. The two men complied, whereupon one officer identified himself, told appellant he was suspected of...