State v. Donohoe

• Decision Date: 13 February 1985
• Docket Number: No. 6306-9-II,6306-9-II
• Citation: 695 P.2d 150,39 Wn.App. 778
• Parties: The STATE of Washington, Respondent, v. Michael T. DONOHOE, Appellant.
• Court: Washington Court of Appeals

Page 778

39 Wn.App. 778

695 P.2d 150

The STATE of Washington, Respondent, v. Michael T. DONOHOE, Appellant.

No. 6306-9-II.

Court of Appeals of Washington Division 2.

Feb. 13, 1985.

Review Denied April 19, 1985.

Albert Armstrong, Court Appointed Atty., Vancouver, for appellant.

James M. Peters, Deputy Pros. Atty., Vancouver, for respondent.

REED, Acting Chief Judge.

Michael Donohoe was convicted for possession of stolen property in the second degree. He appeals, challenging the trial court's denial of his motion to suppress evidence seized after a warrantless search. We affirm.

On January 30, 1982, at approximately 1:30 a.m., Vancouver police officers Johnson and McNicholas answered a call to investigate a vehicle prowl. They were met at the scene by a friend of the victim, who informed the officers that a blue and white Chevrolet Blazer occupied by two young men had been seen in the vicinity of the victim's vehicle around the time the theft probably had occurred. Nearby, the policemen noted fresh tracks left by a wide tire with a mud or snow traction pattern. The officers were given a list of the stolen property, of a value sufficient to classify the theft as a felony. A description of the suspect vehicle and the stolen property was broadcast over the Vancouver Police radio.

Between 2:30 and 3 a.m. that same morning, another Vancouver policeman observed two young men leave a blue and white Chevrolet Blazer with Idaho plates parked near a Vip's Restaurant. The officer could see that the vehicle contained numerous articles of property. Although no positive identification was made at that time, some of the items were similar to those stolen.

An hour and a half later, around 4:25 a.m., Officer Johnson observed a blue and white Chevrolet Blazer, bearing Idaho plates and equipped with wide snow tires, parked some four to six blocks from the crime scene. Noting that the two young white male occupants were watching him "somewhat intently," Johnson stopped his patrol car next to the vehicle without using its emergency equipment. Kenneth Nilson stepped from the Blazer to meet Officer Johnson at the patrol car, at which time the policeman noted the odor of intoxicants about the person and breath of Nilson. When Officer McNicholas arrived at the scene, defendant Michael Donohoe also left the Blazer. Officer Johnson had determined that Nilson was not free to go and told him that he wanted to search the Blazer. After an ambiguous conversation concerning Nilson's willingness to consent, ¹ a search was conducted and various items of stolen property were discovered. Nilson and Donohoe were given their Miranda warnings. A further search revealed additional stolen property.

On appeal, the defendant argues that under the fourth amendment to the United States Constitution there was insufficient cause for an investigatory stop ² or a warrantless search. We disagree. ³ A search of an automobile is reasonable under the Fourth Amendment if there is probable cause to search, United States v. Ross, 456 U.S. 798, 807-808, 102 S.Ct. 2157, 2163-2164, 72 L.Ed.2d 572, 583 (1982); Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543, 549 (1925). Probable cause to search, in turn, requires circumstances within the knowledge of the seizing officer that create a reasonable belief the vehicle contains an item subject to seizure. Carroll v. United States, supra; United States v. Freitas, 716 F.2d 1216, 1220 (9th Cir.1983). We need not prolong this opinion by listing those circumstances supporting probable cause here as we only would be repeating the facts heretofore enumerated. Suffice to say they are sufficient.

Binding precedent has found far fewer circumstances to warrant a "reasonable belief" that a vehicle contained evidence of a crime. Colorado v. Bannister, 449 U.S. 1, 3, 101 S.Ct. 42, 43, 66 L.Ed.2d 1, 4 (1980) (probable cause to search vehicle where occupants of car matched description of suspects and the officer saw in an open glove compartment items similar to those stolen); Chambers v. Maroney, 399 U.S. 42, 45-48, 90 S.Ct. 1975, 1978-79, 26 L.Ed.2d 419, 425-26, reh. denied, 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1970) (where light blue station wagon with four occupants had been seen in vicinity of robbery, police had probable cause to search similar car seen to contain clothing like that worn by robbers); State v. Gibson, 76 Wash.2d 814, 816-17, 459 P.2d 22 (1969), cert. denied, 399 U.S. 912, 90 S.Ct. 2206, 26 L.Ed.2d 566 (1970) (police action "reasonable" where vehicle parked in vicinity of crime scene was searched because it was similar in color to that of car seen cruising area earlier, although its license plate differed from the description); State v. Morsette, 7 Wash.App. 783, 785-86, 502 P.2d 1234 (1972) (searched car in vicinity that was similar to "light Pontiac" seen pulling away from parking space near burgled store). The instant search is indistinguishable from those upheld by both federal and Washington decisions. ⁴ Here, the known circumstances gave police a "reasonable belief" the Blazer contained items from the vehicle theft and therefore made the search of that vehicle unobjectionable under the Fourth Amendment.

At oral argument defense counsel for the first time asserted a right to exclude the evidence under Article I, section 7 of the Washington State Constitution. This provision requires an "automobile search" to be supported by both probable cause and a showing of further exigent circumstances making the acquisition of a telephonic warrant impracticable. State v. Ringer, 100 Wash.2d 686, 701-03, 674 P.2d 1240 (1983). However, defendant is precluded from raising the additional state requirement by his failure to object on this ground at the suppression hearing or to brief this issue on appeal. State v. Ferguson, 100 Wash.2d 131, 138, 667 P.2d 68 (1983); State v. Fortun, 94 Wash.2d 754, 756, 626 P.2d 504 (1980); State v. Pleasant, 38 Wash.App. 78, 81, 684 P.2d 761 (1984); State v. Hayes, 37 Wash.App. 786, 790, 683 P.2d 237 (1984). Although this court can choose to consider for the first time on appeal "manifest error affecting a constitutional right," RAP 2.5(a)(3), a defendant can waive such rights by his action or inaction in the trial court. ⁵ 3 W. LaFave, Search and Seizure § 11.1, at 474 (1978). Here defendant not only neglected to raise the issue at the suppression hearing or in his brief on appeal, but when counsel first asserted the state constitution at oral argument he admitted he consciously had foregone the Article I, section 7 claim at trial placing his hopes exclusively on the Fourth Amendment. Defendant must accept the consequences of this affirmative choice. See Henry v. Mississippi, 379 U.S. 443, 450-52, 85 S.Ct. 564, 568-70, 13 L.Ed.2d 408, 414-15 (1965); State v. Valladares, supra.

In any event, if Donohoe properly had raised the state constitution, we would uphold the search as one incident to a lawful arrest, another well recognized exception to both the Washington and federal warrant requirements. The validity of a search incident to a lawful arrest is recognized under both the state and federal constitutions. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); State v. Ringer, supra. Such a search may precede the arrest if probable cause to arrest exists from the outset. Rawlings v. Commonwealth of Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980); State v. Smith, 88 Wash.2d 127, 138, 559 P.2d 970, cert. denied, 434 U.S. 876, 98 S.Ct. 226, 54 L.Ed.2d 155 (1977). In the instant case, there was probable cause to arrest for the theft because the circumstances confronting the police before the search warranted a cautious man in believing the accused was guilty. Gerstein v. Pugh, 420 U.S. 103, 112, 95 S.Ct. 854, 862, 43 L.Ed.2d 54, 64 (1975); State v. Scott, 93 Wash.2d 7, 11, 604 P.2d 943, cert. denied, 446 U.S. 920, 100 S.Ct. 1857, 64 L.Ed.2d 275 (1980).

Again, binding precedent compels our finding of a search incident to a lawful arrest. Chambers v. Maroney, supra; State v. Gluck, 83 Wash.2d 424, 425-27, 518 P.2d 703 (1974) (after learning a tavern had been robbed, police arrested occupants of a car they earlier had seen pull away from the tavern); State v. Nolan, 69 Wash.2d 961, 962-65, 421 P.2d 679 (1966) (arrested occupants of car matching description of white and grey 1955 Oldsmobile seen parked near scene of burglary after police observed within it items similar to those stolen); State v. Hoffman, 64 Wash.2d 445, 446-49, 392 P.2d 237 (1964) (owner of maroon Buick convertible arrested where a similar car was seen parked in front of a burgled tavern, defendant had been driving in area at time of burglary and was fully clothed when confronted early that morning at his home); State v. Young, 39 Wash.2d 910, 917-18, 239 P.2d 858 (1952) (arrest of occupants of dark 1949 Chevrolet panel truck valid under federal and state constitutions where a similar truck had driven through gas station moments before robbery). ⁶ Indeed, the Blazer as equipped in this case "was 'defendant's Achilles' heel; the improbability of two such cars carrying four such occupants at that time of night in this section of [the city] is manifest.' " State v. Kohler, 70 Wash.2d 599, 605, 424 P.2d 656 (1967), cert. denied, 389 U.S. 1038, 88 S.Ct. 773, 19 L.Ed.2d 826 (1968). See also State v. Young, 39 Wash.2d at 917, 239 P.2d 858.

Because the search of the Blazer was valid under the Fourth Amendment both as a search incident to arrest and under the "automobile exception," no warrant was required. The evidence was properly admitted.

Affirmed.

J. GUTHRIE LANGSDORF, J. Pro Tem., concurs.

PETRICH, Judge (dissenting).

Although the evidence adduced at the suppression hearing in the present case arguably would support different and stronger findings of fact with regards to probable cause, we must accept the facts as reflected in the...