State v. Christian
| Decision Date | 28 May 1981 |
| Docket Number | No. 47264-5,47264-5 |
| Parties | The STATE of Washington, Respondent, v. Arthur L. CHRISTIAN, Jr., Petitioner. |
| Court | Washington Supreme Court |
Gary C. Hugill, Richland, for petitioner.
C. J. Rabideau, Franklin County Pros., Pamela Cameron, Deputy Pros. Atty., Pasco, for respondent.
Arthur Christian, Jr. appealed a conviction of unlawful possession of a controlled substance. The sole issue present in the petition for review is whether the trial court erred in denying Christian's motion to suppress evidence seized from his apartment during a warrantless search. We affirm the trial court and the Court of Appeals. 26 Wash.App. 542, 613 P.2d 1199.
The findings of fact entered following the suppression hearing are not challenged. Thus, we accept them as verities on appeal. Riley v. Rhay, 76 Wash.2d 32, 454 P.2d 820, cert. denied, 396 U.S. 972, 90 S.Ct. 461, 24 L.Ed.2d 440 (1969).
The findings establish that sometime in May of 1978 Christian and his brother decided to vacate Christian's apartment and so notified the apartment house manager. The rent had been paid to midnight May 31. The manager told Christian to vacate the apartment before noon June 1 and leave his keys on the kitchen table. Although Christian requested a longer time and asked to give the keys directly to the manager, the manager did not agree. Christian knew the manager intended to enter and clean the apartment before noon June 1.
On May 31 Christian and his brother obtained a truck and continued removing their personal property. By that night most of their belongings had been removed. The manager observed Christian and his brother moving items out of the apartment on the night of the 31st and concluded they had vacated the apartment as ordered.
Thereafter, at approximately noon on June 1st, the manager entered to clean the apartment for re-rental as he had informed Christian he would. Upon entering he observed no personal belongings in the living room, but did find a set of beam-type scales on the kitchen table. When he looked in the refrigerator he found a white powder in plastic bags as well as two hypodermic needles. Suspecting the bags contained drugs, he contacted Lt. Butner of the police department shortly after noon and informed him substantially of all the foregoing events. He also informed Lt. Butner he was of the opinion Christian and his brother had vacated the apartment. His description of the scales and white powder in plastic bags was consistent with a suspected presence of narcotics and controlled substances.
The manager asked Lt. Butner to accompany him to the apartment and dispose of the drugs. Upon reaching the apartment the door was locked. The manager knocked on the door and, after receiving no answer, used his pass key to enter the front door which opened into the living room area. Lt. Butner and another officer were admitted and upon entering noted no furniture in the living room or within view which appeared to belong to other than the apartment owners. Lt. Butner observed a pair of dirty, worn coveralls laying across the sofa. The lieutenant went directly to the kitchen, opened the refrigerator and removed two cellophane bags containing white powder. A field test revealed they contained cocaine.
The trial court made three additional critical unchallenged findings of fact. First, Christian's tenancy expired as of midnight May 31; he did not intend to continue the tenancy; and Christian "did know that the manager ... intended to enter said apartment and clean the apartment before noon of June 1, 1978." Second, "the manager ... acted reasonably and in the good faith belief that the defendant and his brother had vacated the apartment at the time he requested the officers to enter the apartment to remove the suspected narcotics or drugs." Finally, "Lt Butner acted reasonably and in good faith in relying upon the information supplied to him by ... the ... manager, to the effect that the tenancy had been terminated as of midnight, May 31, 1978, and that the occupants of the apartment had vacated the apartment by noon of June 1, 1978."
Although not in the findings, the record indicates Christian and his brother returned while the manager and the police were in the apartment. Further, after the refrigerator had been entered the officers saw a few other personal items in the apartment but no search was made of the apartment.
In light of the foregoing, the trial court refused to suppress the scales and narcotics, holding the entry of the apartment by the officers and subsequent seizure of the controlled substance was not unreasonable or in violation for the fourth amendment to the United States Constitution, or article 1, section 7 of the State Constitution. 1
Christian contends the trial court erred by failing to suppress evidence seized from the apartment in the warrantless search made without his consent. The Court of Appeals affirmed the trial court. We in turn affirm the Court of Appeals.
Many "facts" relied on by Christian run counter to the trial court's findings of fact. While there is testimony to support his version of certain events, the trial court chose not to believe it, adopting quite different findings. Since Christian did not assign error to the trial court's findings of fact, we accept them as verities on review. Riley v. Rhay, supra.
The sole issue is whether, under the facts of this case, the warrantless search and seizure was reasonable. We hold it was. The test for determining whether the Fourth Amendment applies is first whether "a person (has) exhibited an actual (subjective) expectation of privacy and, second, (whether) that ... expectation (is) one that society is prepared to recognize as 'reasonable.' " Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J. concurring).
Given the peculiar unchallenged facts of this case, we are compelled to hold Christian had no reasonable expectation of privacy. He had decided to terminate the tenancy a considerable time earlier; his rent was not paid; he had informed the manager of his intent to terminate the tenancy as of midnight May 31st; his request for additional...
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