State v. Day
| Decision Date | 04 December 1972 |
| Docket Number | No. 1632--I,1632--I |
| Citation | 503 P.2d 1098,7 Wn.App. 965 |
| Parties | STATE of Washington, Respondent, v. Steven Roy DAY, Appellant. |
| Court | Washington Court of Appeals |
Douglas E. Gilson, Bellingham (Court-appointed), for appellant.
Jane A. Mason, Whatcom County Pros. Atty., David S. McEachran, Deputy Pros. Atty., Bellingham, for respondent.
Steven Roy Day was found guilty by a Whatcom County jury of the crime of unlawful possession of a firearm, a felony. He appeals.
Defendant Day assigns error to the trial court's order denying his motion to suppress evidence seized at the time of his arrest. The motion to suppress was not made until the morning of the trial, and the only evidence presented to the trial court in support of defendant's motion was his own testimony which is summarized as follows:
Defendant Day stated that he was arrested on or about July 15, 1971, in Whatcom Falls Park where he and a female companion had gone at about 2:30 on the morning of the 15th to spend the night. He testified that he gained access to the park without breaking any gates and that he did not see any No Trespassing signs. He said that at about 6:00 o'clock in the morning he was awakened and placed under arrest. He was subsequently charged in municipal court with trespassing, but that charge was dismissed. He testified as follows:
The case was dismissed because there was no, you had to have, in order for a trespassing to be violated, there had to be a chain across the road or a sign posted saying No Trespassing, and there was neither one.
The state then called Bellingham Police Officer Burch who testified that he was on a routine patrol at Whatcom Falls Park on the morning of July 15th because the police department had received complaints from the water department about vandalism in the area of the filtration plant within the park. In the course of making this patrol, he saw two vehicles parked just below the filtration plant, and when he inspected the area he saw three males and one female lying on the ground in sleeping bags. He also noticed that the female and defendant Day were in the same sleeping bag. He testified that he recognized the defendant Day, and stated as follows:
Q Did you know anything about this individual? A Yes. I knew that he was a convicted felon, burglar. Q And you knew that the charge was burglary, is that correct? A Yes. Q What else did you see, Mr. Burch, in the area besides this individual? A Underneath Mr. Day's, approximately his right shoulder was the butt and holster of a pistol sticking out.
Officer Burch went on to testify that he radioed for assistance and awaited the arrival of another officer. Upon reaching the scene, the other officer removed the weapon from underneath Day's shoulder, and then the two officers awakened defendant Day. On cross-examination, Officer Burch stated that Day was arrested at approximately 5:40 a.m. and charged with trespassing and contributing to the delinquency of a minor. The police officer's testimony was not contradicted, and the defendant offered no rebuttal evidence. On this showing, the trial court refused to grant the motion to suppress, and the pistol was later admitted into evidence.
On this appeal, defendant Day first points out that he was arrested without a warrant on the ground that a misdemeanor was committed in the officer's presence. From this, defendant contends, that because the only charge which was litigated in justice court--trespassing--was dismissed, there could have been no reasonable basis for the officer to believe that a misdemeanor had been committed in his presence. Consequently, defendant argues, the arrest was unlawful and, therefore, the pistol seized at the approximate time of the arrest should have been suppressed as illegally obtained evidence.
Thus, defendant Day's basic contention is that there is insufficient evidence in the record to prove that the Bellingham police observed conduct that would lead them reasonably to believe in good faith that the misdemeanor of trespassing was being committed in their presence such that they could lawfully arrest the defendant for that offense without a warrant. See State v. Twitchell, 61 Wash.2d 403, 378 P.2d 444 (1963); State v. Melrose, 2 Wash.App. 824, 470 P.2d 552 (1970). Similarly, he points out that the misdemeanor charge of contributing to the delinquency of a minor was dropped, and although the state asserts that the police were justified in believing that such offense was also being committed in their presence, our own review of the record indicates that it is inconclusive on that issue. The state also urges that defendant's arrest was legal because the police had probable cause to believe that the felony of unlawful possession of a firearm had been committed or was being committed in their presence. See State v. Isham, 1 Wash.App. 415, 461 P.2d 569 (1969). Defendant responds to this argument by pointing out that he was not arrested for the felony offense, but rather he was arrested for the misdemeanor offenses referred to previously; consequently, he argues, if the misdemeanor arrest was unlawful because it was made at a time when the police had no reason to believe a misdemeanor was being committed in their presence, the felony charge arising therefrom must also be invalid. See State v. Regan, 76 Wash.2d 331, 457 P.2d 1016 (1969).
It is not clear from the record whether or not the defendant was arrested for the felony charge at the time the pistol was seized by the police. The testimony presented at the hearing on defendant's motion to suppress, including the record then before the trial court, did not indicate the specific grounds for the arrest, but only that Day first was charged with two misdemeanors, followed some 2 months later by the felony charge of unlawful possession of a firearm. Further, there is a strong inference that may be drawn from the record to support defendant's contention that he was arrested initially only for the misdemeanor offenses. In this connection, Officer Burch testified as follows on cross-examination:
Q When did you arrest Mr. Day? A The time, I believe, was approximately 5.40 a.m. Q And charged him with what? A On my Complaint I charged him with trespassing and contributing to the delinquency of a minor. Q And subsequently charge was presented in court on the trespass only? A Yes, sir. Q And that was dismissed? A Yes, sir.
At the same time, the trial court could have accepted the uncontradicted testimony of the police officer that he recognized the defendant Day as a felon who previously had been convicted of burglary, and that he observed a pistol under Day's arm or shoulder. This evidence, if believed, is sufficient to have given the officer probable cause to believe that the felony of unlawful possession of a firearm had been committed, or was being committed in his presence, and thus could support a warrantless arrest. Day argues that the trial court should not have believed the police officer when he said he recognized Day as a convicted felon, inasmuch as no charge relating to that testimony was lodged against Day until more than 2 months after the incident. The most that can...
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