State v. Ferguson

• Decision Date: 22 December 1970
• Docket Number: 191--II,Nos. 211--I,s. 211--I
• Citation: 479 P.2d 114,3 Wn.App. 898
• Parties: The STATE of Washington, Respondent, v. Lawrence Duncan FERGUSON and Keith Richard Garner, true name Keith Richard Maddux, Appellants.
• Court: Washington Court of Appeals

Page 898

3 Wn.App. 898

479 P.2d 114

The STATE of Washington, Respondent, v. Lawrence Duncan FERGUSON and Keith Richard Garner, true name Keith Richard Maddux, Appellants.

Nos. 211--II, 191--II.

Court of Appeals of Washington, Division 2.

Dec. 22, 1970.

Review Denied Feb. 23, 1971.

[479 P.2d 116] A'Lan S. Hutchinson, Tacoma, appointed, for appellant ferguson.

R. G. Hutchins, Tacoma, appointed, for appellant Garner.

Joseph D. Mladinov, Sp. Counsel to Pros. Atty., Pierce County, Tacoma (Ronald L. Hendry, Pros. Atty. and Eugene G. Olson, Chief Crim. Deputy Pros. Atty. with him on the brief) for the State.

PEARSON, Judge.

At approximately 10 p.m. on October 22, 1969, there was a robbery at the Seven-Eleven Store at 40th and McKinley Avenue in Tacoma. One man, who was armed with an automatic pistol, held up the lady clerk who was on duty. As the robber left, he met a coustomer who was just coming into the store at the door. Both the customer and the clerk saw the robber's face, since he was The victim and the witness called the Tacoma police and gave a vague description of the robber and of an older, dirty stationwagon. Officers Moore and McCoy, who were on patrol in a nearby area of the city, received a radio report of a robbery in progress and proceeded, as they said, to set up a checkpoint. That is, they proceeded to a position which the fleeing felons might pass as they sought to escape, in this case an entrance to Interstate 5 located at 28th and Portland Avenue. At about 10:10 p.m., just as they were about to reach their checkpoint, the officers noticed an old model, dirty, light-colored stationwagon proceeding toward the freeway. They turned their own car around and, with the siren and red light, stopped this car, which had two occupants. Officer McCoy saw the passenger lean forward, as though he were putting something under the front seat. The officers approached the car and Moore requested the driver to produce his operator's license and to step out of the car, since there had been a robbery which the officers were investigating. The driver was defendant Garner. Officer McCoy then asked the passenger to exit the vehicle and to produce identification. This man was the defendant Ferguson. Officer Moore radioed for a record check on the two individuals and then went back to the stationwagon where, on looking through a window, he observed the handle of what turned out to be a .32 caliber Beretta automatic pistol. The officers then frisked their suspects and, when they felt a bulge in one of Ferguson's pockets, recovered some $28.25. The money, the gun, and the defendants were then transported to the police station.

unmasked. The customer also remembered seeing an older model, General Motors stationwagon, light in color but dirty, with a figure in the driver's seat, parked in the dimly lighted parking lot of the store. The car had its engine running.

After their arrival at the station, a detective gathered up nine photographs and took them out to show to the two witnesses. With considerable uncertainty, the store clerk picked out a photograph of defendant Garner. The customer In addition to the identifications, Ferguson made an oral confession to two detectives, though he refused to sign a written statement. Evidence of the confession was introduced at trial. Both men were convicted and both have appealed. The appeals raise somewhat different issues and will be discussed separately.

picked out photographs of both defendants, but also expressed uncertainty. Both witnesses identified defendant Ferguson at trial. Neither was able to identify Garner.

DEFENDANT LAWRENCE FERGUSON

Defendant Ferguson raises two major issues: (1) whether the search which revealed the money on his person was reasonable, and (2) whether the use of photographs for identification purposes was proper, where the suspects were in custody before the identification was undertaken.

It is axiomatic that the touchstone of any discussion of a search and seizure is reasonableness. Reasonableness is measured by considerations of degree--the breadth of the invasion of personal liberty entailed in the custodial detention must be compared with the state interests advanced thereby before reasonableness can be determined. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonableness is thus preeminently a fact question. Cf. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

When we consider all of the circumstances, we feel that the conduct of the officers here was not unreasonable. The initial interference with the defendant's freedom of movement was a relatively small one, and the reasons for it must be ranked above mere suspicion. When the officers first saw the defendants, they were near an entrance to a freeway, on which they could quickly effect an escape. They were driving in a car that matched the description of the car the witness had seen--a 1962 Oldsmobile stationwagon, light in color and dirty. As the officers approached the car, one of them saw the passenger bend forward as though he were hiding something under the front seat. The officers were aware that an armed robbery had occurred and that the vehicle stopped was within an area where the fleeing felons might be. The officers then asked for identification and asked the two people to step out of the car. The defendants appeared nervous but complied. As of this time, the interference with personal liberty was comparatively slight and the reasons for it quite strong. See State v. Ellison, 77 Wash.Dec.2d 888, 467 P.2d 839 (1970). When persons are stopped near the scene of a robbery and shortly thereafter, in a car matching the available description of the getaway vehicle, it does not seem to us unreasonable to ask the occupants of the car to identify themselves and to remain a few moments while records are checked. See Terry v. Ohio, Supra; State v. Todd, 78 Wash.Dec.2d 361, 474 P.2d 542 (1970). Neither can we characterize the later search as unreasonable. Officer Moore, after requesting the record check, went back to the defendant's vehicle and looked in through a window. He saw the handle of what truned out to be a pistol projecting from under the front seat of the car. Of course, as the Supreme Court of Washington has said, merely looking through a window and seeing what is there to see does not constitute a search within the meaning of the fourth amendment of the United States Constitution. See State v. Brooks, 57 Wash.2d 422, 357 P.2d 735 (1960); State v. Sullivan, 65 Wash.2d 47, 395 P.2d 745 (1964); Marshall v. United States, 422 F.2d 185 (5th Cir. 1970). We think that once the officer found a partially hidden weapon in a car resembling one that had been described as being used in a robbery that was nearby in both time and place, he was justified in frisking the two defendants. Officer Moore said that when he frisked defendant Ferguson, he felt a bulge in one of the pockets. We think the officer was justified in searching inside this pocket. This search disclosed the $28.25 and a closed pocket knife, with a blade in excess of 3 inches. The money and the pistol were properly admitted into evidence.

This leaves us with the more difficult of defendant Ferguson's contentions, that regarding the use of photographs to identify him after he was in custody and available for a lineup.

Our starting point for consideration of this question is the now-famous 'lineup trilogy'--United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In Wade, the Supreme Court noted the progression of its decisions toward rendering the Sixth Amendment right to assistance of counsel an effective right. In doing this, the court stated that it was seeking to give defendants legal assistance at crucial stages in the process ultimately leading to trial stages where the issue of guilt or innocence may well effectively be resolved, leaving the trial only as a formality to be decided on the basis of pretrial occurrences. Eyewitness identifications are notoriously inaccurate and eye-witnesses are subject to many forms of subtle suggestion. Once an identification has been made, the Supreme Court has recognized how difficult it is for the identifying witness to retract his identification or even to realize he may be wrong in it. Without being present, trial counsel would be sorely pressed in determining whether any prejudicial suggestion as to the identification occurred. This rationale has also been applied to the states through the Fourteenth Amendment. Gilbert v. California, Supra; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

Somewhat on the other side of the argument stands Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). This case allowed photographic identification of an accused bank robber who was at large when the identification was made. Matters of police necessity were weighed against the considerations advanced in Wade. The court was careful, however, to point out in its decision that it was approving only the procedure before it. Questions in this area are largely ones of fact and of striking a balance between police needs and individual rights.

It seems to us that in the case we face now, the procedure complained of transgresses Wade and does not fall within the protection of Simmons. The same type of difficulties which the court mentioned in Wade seem to us likely to be present in the instant case. The chance of subtle, even unintentional influence on a wavering witness is probable, particularly one who has recently faced the emotional shock of witnessing a crime of violence. Police may understandably, though perhaps innocently and unintentionally, seek to...