State v. Cottrell, 975--III

• Decision Date: 27 January 1975
• Docket Number: No. 975--III,975--III
• Citation: 532 P.2d 644,12 Wn.App. 640
• Parties: STATE v. Washington, Respondent, v. Kerry Joseph COTTRELL, Appellant.
• Court: Washington Court of Appeals

Page 640

12 Wn.App. 640

532 P.2d 644

STATE v. Washington, Respondent, v. Kerry Joseph COTTRELL, Appellant.

No. 975--III.

Court of Appeals of Washington, Division 3.

Jan. 27, 1975.

Rehearing Denied April 30, 1975.

Neil C. Buren of Hazel & Weeks, Yakima, for appellant.

Jon R. Harlan, Pros. Atty., James E. Davis, Deputy Pros. Atty., Yakima, for respondent.

McINTURFF, Chief Justice.

Defendant appeals from a finding of guilty to charges of possession of amphetamines and heroin with intent to deliver.

About 5 p.m. on June 28, 1973, a search warrant was obtained on the application of Michael K. Bansmer, a Yakima City Police officer, to search the defendant's residence and the persons of Charlotte Cresswell and Kerry Cottrell 'if found thereon.' About 11 p.m., Officer Bansmer, along with several other police officers, went to the address in the warrant and placed the house under surveillance. Later, observing a woman loading a car at that residence, the officers moved in and began a search of the premises. Officer Bansmer remained outside with the woman; about the same time, the defendant and Charlotte Cresswell drove up, parking their vehicle in the public street behind the automobile being loaded. Before the defendant and Charlotte Cresswell got out of the car, Officer Bansmer, with his gun in hand, went up to the car, advised them to get out, directed them into the house, searched the defendant and found a quantity of heroin and amphetamines in his boot.

Defendant urges the trial court erred in denying his motion to suppress. Primarily, the defendant contends that the warrant was improperly executed as to the search of defendant's person because he was not on the premises at the time the officer first came in contact with him. The state does not argue that defendant physically went onto the premises but, instead, urges that the search of defendant was valid because (1) the search of defendant on the public street contiguous to the residence was at a place so inseparable from and related to the premises that it must be deemed to be a portion of the premises; and (2) the search was valid under the stop and frisk principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In essence, the search warrant commanded the officer to search the premises at 1005 North Third Street, and all buildings and outbuildings thereon; and the persons of Charlotte Cresswell and Kerry Cottrell, if found thereon. The question then is whether the term 'premises' includes a vehicle parked on the street at the curb in front of the house to be searched. We find no federal or Washington cases precisely in point.

It is constitutionally essential to the validity of a search warrant that it describe with sufficient particularity the place to be searched, to enable the officers to locate the premises with certainty. U.S. Const. Amend. 4; Const. art. 1, § 7; State v. Van Valkenburg, 165 Wash. 195, 4 P.2d 832 (1931); State v. Chisholm, 7 Wash.App. 279, 499 P.2d 81 (1972); Annot. 11 A.L.R.3d 1307 (1967). See J. Cook, Constitutional Right of the Accused: Pretrial Rights § 27 (1972). The search of persons on premises authorized to be searched pursuant to a search warrant is limited. Tacoma v. Mundell, 6 Wash.App. 673, 495 P.2d 682 (1972); Olympia v. Culp, 136 Wash. 374, 377, 240 P. 360 (1925); State v. Ryan, 163 Wash. 496, 502, 1 P.2d 893 (1931). However, the protection offered by the constitutional provisions should not allow absurd results. United States v. Hall, 488 F.2d 193 (9th Cir. 1973). Cf. State v. McFarland, 84 Wash.2d 391, 526 P.2d 361 (1974).

As a general rule search warrants must be strictly construed and their execution must be within the specificity of the warrant.

In 68 Am.Jur.2d, Searches and Seizures § 107 (1973), at 761--62 it is stated:

Although it would appear that a search made under the authority of a search warrant may extend to whatever is covered by the warrant's description, provided that such description meets the requirement of particularity, the Fourth Amendment confines an officer executing a search warrant strictly within the bounds set by the warrant, and he must comply strictly with all the directions contained in it. Search warrants must be strictly construed, and the fact that persons are commissioned officers and armed with a warrant to enter premises confers on them no exemption from the mandates of the Constitution and laws or from the established rules for proceeding in executing and returning the warrant.

Although searches under a warrant are to be preferred to warrantless searches, the predilection of the law for searches made under a warrant is valid only if the searches are conducted according to law and according to the mandates of the warrants themselves. A search that is not so conducted, even though it purports to be done under a warrant, is a misuse of the statutory, if not of the constitutional, process; the warrant in such a case effects a deceptive assertion of authority upon the person on whom it is served and purportedly gives an undeserved protection to the officer.

(Footnotes omitted. Italics ours.) 4 R. Anderson, Wharton's Criminal Law and Procedure § 1560 (1957) at 184--85. See 79 C.J.S. Searches and Seizures §§ 81a and 83d (1952).

There are cases construing a search warrant for specifically described residences or buildings, as applied to vehicles on premises. ¹ In all of those cases the descriptions of the premises to be searched included such addenda as 'and curtilage' or 'and appurtenances.' The curtilage concept of the word 'premises,' I.e., the inclosed space of ground and buildings immediately surrounding a dwelling house, ² is reasonable and has been used in many states, but even this concept does not include the public street in front of the premises.

The line between reasonable and unreasonable searches is not always clear. Here the affiant and the court drew the line by limiting the authorized search of these persons to the particular premises 'if found thereon.' We further note the words 'if found thereon' appear on the face of the warrant in typewritten language, expressly added to an otherwise printed form search warrant. (See appendix.) In addition, the affidavit upon which this warrant issued requests a search of the persons 'if found therein.' The inherent power of the court to expressly define the nature and extent of the search should not be viewed lightly since this is a paramount responsibility of the court. We therefore hold that when the defendant was taken from a vehicle parked on a public street in front of the house described in the search warrant, he was not On the Premises described in the search warrant, thus this search of the defendant was beyond the language and the authority of the warrant. Dolen v. State, 187 Tenn. 663, 216 S.W.2d 351, 353 (1948). See Atkins v. Harris, 202 Tenn. 489, 304 S.W.2d 650, 653 (1957); 79 C.J.S. Searches and Seizures § 83d at 902--903 (1952).

APPENDIX

By so finding it must now be determined whether the search of defendant can be upheld as a search incident to a lawful arrest, thus requiring a determination that the officers had probable cause to arrest defendant when he arrived in his automobile, or as a valid stop and frisk under Terry v. Ohio, Supra.

In State v. Darst, 65 Wash.2d 808, 811--812, 399 P.2d 618, 620 (1965), the court stated:

If an officer believes And has good reason to believe that a person has committed, or is about to commit a felony, he may arrest without a warrant. This is but another way of saying that an officer must have probable cause to believe that a felony has been or is about to be committed and that the person arrested committed or is about to commit it. State v. Jack, 63 Wash.2d 632, 388 P.2d 566; State v. Maxie, 61 Wash.2d 126, 377 P.2d 435; State v. Hughlett, 124 Wash. 366, 214 P. 841, similarly as to a citizen's arrest. Even a strong belief held in good faith if unsupported by the circumstances will be insufficient to make a search valid. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. The probable cause essential to support an arrest without a warrant is a belief based upon facts within the knowledge of the arresting officer, persuasive enough to convince a judge that a cautious but disinterested man would also believe the arrested person guilty. State v. Smith, 56 Wash.2d 368, 353 P.2d 155; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168; 4 L.Ed.2d 134; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790.

We conceive of no interpretation of the facts of record which would be sufficient to sustain the arrest of defendant as based upon probable cause. When Officer Bansmer held his gun on defendant nothing had yet been discovered in the residence as a result of the search under way. Defendant's actions in parking the automobile in the public street in front of his residence did not give Officer Bansmer probable cause to believe a felony had been or was about to be committed by the defendant. Succinctly, there existed no other circumstances authorizing arrest other than the information previously set out in the affidavit ³ in support of the issuance of the search warrant. Probable cause for arrest did not exist.

The state argues the search of defendant was valid as a 'stop and frisk' under Terry v. Ohio, Supra. In Terry, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909 (392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889), the court stated:

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is...