State v. Byers, 43491

• Decision Date: 06 January 1977
• Docket Number: No. 43491,43491
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. John Ray BYERS and Kenneth Thurman Mauler, and each of them, Petitioners.

Page 1

88 Wn.2d 1

559 P.2d 1334

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.

Jan. 6, 1977.

Voris, Lipscomb & Belcher, Michael C. Lipscomb, Bellingham, for petitioners.

David S. McEachran, Whatcom County Pros. Atty., David E. Rhea, Jr., Deputy Pros. Atty., Bellingham, for respondent.

UTTER, Associate Justice.

John Ray Byers and Kenneth Thurman Mauler were charged with the crime of burglary in the second degree. The case was tried to the court sitting without a jury which found defendants guilty as charged. An appeal to the Court of Appeals, Division One, followed and that court affirmed the convictions by an unpublished opinion. This court granted a petition for review. State v. Byers, 84 Wash.2d 1014 (1974). We reverse the convictions.

The facts are essentially 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 sould 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 en route and at approximately 3:07 a.m., they testified they were advised that Mr. Ellis had reported that a car 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 the driver's license of the driver, defendant Byers, the automobile registration, and inspected the automobile. The car was occupied by the defendants and two young girls, all under the age of 21, except defendant Mauler. There were in plain sight on the front and back seats several bottles of varying kinds of wine and some beer. The vehicle had a loud exhaust and a defective rear license plate light. Upon inquiry, the deputies were advised by defendants that the 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. At this point, the trial court found, in a preliminary hearing to suppress evidence, the defendants were under arrest. This arrest was not made because some of the occupants of the car were underage and there was liquor in the car. Neither of the arresting officers ever claimed that they acted on the basis of a suspected violation of the Alcoholic Beverages Control Act. Sergeant Franklin stated clearly that he 'felt that a burglary had occurred and that possibly one or all of the subjects in the vehicle were involved and that is why I returned them to the scene.'

The defendants arrived at the Ellis 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 formal 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 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 court that tried appellants found, as a matter of fact, that they 'were arrested on Lummi Shore Drive . . .' This finding, drawn from an assessment of live testimony we have not heard and undisputed by the parties at all stages of this litigation, is based on substantial evidence. Boise Cascade Corp. v. Pierce County, 84 Wash.2d 667, 529 P.2d 9 (1974); State v. Smith, 84 Wash.2d 498, 527 P.2d 674 (1974); State v. Chapman, 84 Wash.2d 373, 526 P.2d 64 (1974); House v. Erwin, 83 Wash.2d 898, 524 P.2d 911 (1974). Sergeant Franklin, the arresting officer who testified on the subject of the arrest, acknowledged that he 'told' the defendants to come with him to the scene of the suspected burglary. He said that '(t)hey were brought back,' that he 'returned them to the scene.' When pressed by defense counsel for more detail, he said:

Q. Now, at the time you stopped Mr. Byers, he was not free to say, 'Thank you, Sergeant Franklin' and leave, was he? A. No. Q. He was under arrest at that time? A. Yes.

Appellants' status was not altered by the fact that they did not test the officers' resolve by attempting to escape and being subdued.

A person is restrained or imprisoned when he is deprived of either liberty of movement or freedom to remain in the place of his lawful choice; and such restraint or imprisonment may be accomplished by physical force alone, or by threat of force, or by conduct reasonably implying that force will be used.

Kilcup v. McManus, 64 Wash.2d 771, 777, 394 P.2d 375, 379 (1964). Nor does the fact that appellants were not formally 'advised' that they were under arrest change what their circumstance was and what they knew it to be. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Strickler, 490 F.2d 378 (9th Cir.1974); Jackson v. United States, 408 F.2d 1165, 1169 (8th Cir. 1969); State v. Sullivan, 65 Wash.2d 47, 395 P.2d 745 (1964); Seattle v. Sage, 11 Wash.App. 481, 523 P.2d 942 (1974). Even if it were shown that Sergeant Franklin's statements to appellants were couched in terms amounting to a 'request,' the coercion implicit in the situation appellants confronted would compel us to hold they were arrested. See United States v. Guana-Sanchez, 484 F.2d 590 (7th Cir.1973) (defendant 'invited' to follow officers' car in his); United States v. Jones, 352 F.Supp. 369 (S.D.Ga.1972), Aff'd, 481 F.2d 1402 (5th Cir. 1973) (defendant 'asked' to get in police car); Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974) (defendant 'asked' to go to police headquarters).

Appellants were under arrest from the moment they were not, and knew they were not, free to go. United States v. See, 505 F.2d 845, 855 (9th Cir. 1974). 'When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete.' Henry v. United States, supra, 361 U.S. at 103, 80 S.Ct. at 171. When they went further and forced the defendants and their companions to drive 3 miles and wait there while the reported incident was investigated, the fact of arrest was placed beyond question. United States v. Selby, 407 F.2d 241 (9th Cir. 1969); Cf. Plazola v. United States, 291 F.2d 56, 60 (9th Cir. 1961):

(T)here can be no doubt that when a car is stopped, the occupant required to get out, then required to leave his vehicle to get into an officer's car and be transported to another spot located two miles away . . . being required to await a search of another's vehicle . . . his liberty of movement has been sufficiently restricted to constitute an arrest.

The trial court found that the arrest here was unfounded and illegal and there is substantial evidence to support this finding. The answers to remaining questions on this appeal, those primarily dealt with in both the State's and the appellants' arguments, follow hard upon this conclusion, as the confessions did upon the arrest. The physical evidence seized from appellants linking them with the burglary and the statements they made confessing it, the only bases on which their convictions could stand, were obtained only as a result of their arrest. By any existing rule of law, both the evidence and the confessions were therefore infected with its illegality and should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); McNear v. Rhay, 65 Wash.2d 530, 398 P.2d 732 (1965). The trial court so ruled as to the physical evidence, but not as to their confessions, which it held untainted because 'voluntary.'

In focusing on the 'voluntariness' of appellants' confessions, the trial court misconceived the issue before it. Voluntariness is...