State v. Duarte

• Decision Date: 26 April 1971
• Docket Number: No. 708--I,708--I
• Citation: 484 P.2d 1156,4 Wn.App. 825
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Craig M. DUARTE, Appellant.

Page 825

4 Wn.App. 825

484 P.2d 1156

STATE of Washington, Respondent, v. Craig M. DUARTE, Appellant.

No. 708--I.

Court of Appeals of Washington, Division 1, Panel One.

April 26, 1971.

Rehearing Denied May 27, 1971.

Review Denied July 1, 1971.

Stern, Gayton, Neubauer & Brucker, O. J. Humphrey, III, Seattle, for appellant.

Christopher T. Bayley, King County, Pros. Atty., Stuart P. Riley, Deputy Pros. Atty., Seattle, for respondent.

HOROWITZ, Chief Judge.

Defendant was convicted in a case tried to the court below without a jury on two counts of selling a dangerous drug (lysergic acid diethylamide, or LSD--25). He appeals from the conviction and sentence imposed.

The facts as stated in the agreed statement, which raise the basic question in this appeal, are as follows:

'(Defendant), Craig M. Duarte, was charged by information filed May 14, 1970, with two counts of selling the dangerous drug LSD 25; the first count charged a sale on February 3, 1970, and the second count charged a sale on February 23, 1970.

'On several occasions, Officer James K. Yoshida, while assigned as an undercover agent of the Narcotics Detail of the Seattle Police Department, went to the (defendant's) house at * * *, Seattle, Washington, with the ultimate motive, but without the present intent, of making a purchase of dangerous drugs. On each of these initial visits there was general conversation about nothing in particular, together with incidental talk of possible future purchases of drugs in small amounts; however, no transaction was actually conducted or agreed upon.

'At the conclusion of each preliminary visit, there was no understanding that the discussion would continue regarding future purchases of drugs. Officer Yoshida conceded that he left the house without ever having received an invitation to return, and without ever having received any promises regarding the definite availability of drugs. The first two times he and Police Officer Donald H. Meyers returned to the (defendant's) house, it was without invitation and without prior announcement. On February 3, 1970, the date of the first alleged sale, Officer Yoshida again went to the (defendant's) house at * * * Seattle, Washington. On this occasion he was admitted by the (defendant) who recognized him from the previous visits. At some point during the ensuing conversation, Officer Yoshida or Officer Michael Houston offered to buy some LSD. Officer Houston thereafter purchased all there was available: two or three capsules of LSD. On this occasion Officer Meyers was impliedly invited to return at an indefinite date.

'On February 23, 1970, the date of the second alleged sale, Officer Yoshida, together with Officer Meyers, again went to the (defendant's) house and again was admitted by (defendant). Sometime after admittance into the house, the officers offered to buy another small quantity of drugs. On this occasion they purchased another two or three capsules of LSD.

'There was no other evidence of drug activity at (defendant's) house.'

Defendant, prior to the trial, filed a motion to suppress evidence on the ground that there had been an unlawful search and seizure. The court denied the motion. Thereafter, the court permitted the introduction in evidence of the drugs purchased in the defendant's home. The basic question raised on this appeal is whether the court erred in permitting the introduction in evidence of the drugs purchased.

Preliminarily, it should be noted that the court below entered no findings of fact, the case being tried on an agreed statement of facts. It is normally reversible error if findings of fact and conclusions of law are not entered in criminal cases tried to the court. State v. Wilks,70 Wash.2d 626, 424 P.2d 663 (1967); State v. Russell, 68 Wash.2d 748, 415 P.2d 503 (1966); State v. Helsel, 61 Wash.2d 81, 377 P.2d 408 (1962); RCW 4.44.050 and RCW 10.46.070. As pointed out in Jones v. Bard,40 Wash.2d 877, 246 P.2d 831 (1952), an assignment of error based on the admission of evidence will not be considered unless the findings based on such admitted evidence are challenged. If not challenged, evidence submitted, whether properly or improperly, is merged in the court's findings of fact. Simpson v. Hutchings, 41 Wash.2d 287, 248 P.2d 572 (1952); Jones v. Bard, Supra. In the instant case, however, the only question contested was the admissibility of the evidence raised on a motion to suppress, and submitted to the court on the agreed statement of facts. After the court ruled the evidence admissible defendant, by virtue of the agreed statement of facts, waived his right case for entry of formal findings of fact effect, stipulated after the evidence was ruled admissible, it was not necessary for the trial court to enter a finding on the question. See Cogswell v. Cogswell, 50 Wash.2d 597, 313 P.2d 364 (1957); 89 C.J.S. Trial § 612b (1955). Under these circumstances, and in view of the fact that only one error is assigned and argued, we think it would be pointless to remand the case for entry of formal findidngs of fact so that we could consider then what we are now in the position to consider. We therefore consider the error assigned and the question of admissibility of the evidence properly before us.

The question here involves the admissibility into evidence of the drugs sold by defendant in the course of a face to face voluntary sales transaction to an undercover agent--a stranger--lawfully present in the home of defendant pursuant to at least the latter's implied invitation. The legal question is whether the narcotic sale, which took place in defendant's home, is a subject of Fourth Amendment protection. If it is so protected, the absence of a search warrant would require that the motion to suppress be granted. See Comment, The Applicability of the 'New' Fourth Amendment to Investigations by Secret Agents: A Proposed Delineation of the Emerging Fourth Amendment Right to Privacy, 45 Wash.L.Rev. 785 (1970); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). No electronic surveillance problem exists so as to give rise to the additional issue of violation of a possible constitutional right of privacy. See dissenting opinion of Mr. Justice Douglas in Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966). Nevertheless, the electronic surveillance cases recognize the principles on the basis of which the admissibility in evidence of the drugs here involved may be upheld.

Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d

374 (1966), supports the propriety of admitting the drug evidence below. In that case a friend invited by Hoffa to visit and stay with him in his hotel room, who was treated by the court, for the purposes of the opinion, as a paid informer for the government, heard incriminating conversations carried on by the defendant in his presence. In holding the informer's evidence of the conversations admissible, the court pointed out:

What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. * * *

* * * The petitioner * * * was not relying on the security of the hotel room; he was relying upon his misplaced confidence that Partin would not reveal his wrongdoing. * * *

Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.

Hoffa v. United States, Supra at 301--302, 87 S.Ct. at 413 (footnotes omitted).

Two years after Hoffa, the Supreme Court of Washington decides State v. Wright, 74 Wash.2d 355, 444 P.2d 676 (1968), Noted, 45 Wash.L.Rev. 411 (1970). That case held admissible evidence obtained by an informer, equipped with an electronic transmitting device, who had been invited into the defendant's home. The court followed the principle of Hoffa and, in accordance with earlier United States Supreme court opinions ¹ which the court determined were not overruled Sub silentio by Katz v. United States, Supra, extended it to include an agent wired for sound.

The analysis of the Washington Supreme Court in Wright has been vindicated in the plurality opinion of United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). There a government informer elicited incriminating statements from the defendant on eight different occasions, including once in the defendant's home. These statements were monitored by police officers by use of electronic devices. The court held that the eavesdropping did not constitute an illegal search and seizure. Relying upon Hoffa v. United States, Supra, which held that the Fourth Amendment does not protect a defendant from the risk that his incriminating conversations will later be divulged by one in whom he confides, the court in United States v. White, Supra, went one step further and held that the defendant must also assume the risk that the person to whom he speaks is equipped with a recording device. The plurality opinion of the court states:

Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. * * * Given the possibility or probability that one of his colleagues is cooperating with the police, it is only speculation to assert that the defendant's utterances would be substantially different or his sense of security and less if he also thought it possible that the suspected colleague is wired for sound.

United States v. White, Supra, 401 U.S. at 752, 91 S.Ct. at 1126. Thus, the principle of Hoffa was extended to electronic eavesdropping committed with the consent of one of the parties, and it was applied to conversation in...