State v. Fields

• Decision Date: 10 January 1975
• Docket Number: No. 43278,43278
• Citation: 530 P.2d 284,85 Wn.2d 126
• Parties: The STATE of Washington, Petitioner, v. Robert Edwin FIELDS, and Art Theater Guild, Inc., doing business as the Midtown Theater, and each of them, Respondents.
• Court: Washington Supreme Court

Page 126

85 Wn.2d 126

530 P.2d 284

The STATE of Washington, Petitioner, v. Robert Edwin FIELDS, and Art Theater Guild, Inc., doing

business as the Midtown Theater, and each of them,

Respondents.

No. 43278.

Supreme Court of Washington, En Banc.

Jan. 10, 1975.

Rehearing Denied March 13, 1975.

Christopher T. Bayley, Pros. Atty., Corydon J. Nelsen, Deputy Pros. Atty., Seattle, for petitioner.

Victor V. Hoff, Seattle, for respondents.

BRACHTENBACH, Associate Justice.

This is an appeal from an order quashing a search warrant and suppressing the evidence obtained pursuant thereto. Defendants were charged with violating RCW 9.68.010 which makes it a gross misdemeanor to exhibit certain obscene materials. The search warrant had been issued under authority of our new criminal rules, specifically CrR 2.3(b) which, among other matters, authorizes a search warrant to search for and seize evidence of a crime. We reverse.

The trial court reasoned that the statute, RCW 10.79.015, which authorizes search warrants, limits, so far as applicable here, issuance of warrants to investigation of felonies while CrR 2.3(b) expands the grounds for issuance to all crimes, including misdemeanors. The trial court concluded that the subject matter related to substantive law rather than procedure and was thus beyond this court's rule making power.

Clearly CrR 2.3(b) authorizes the issuance of a search warrant in a substantially broader class of crimes than does RCW 10.79.015. The precise issue is whether in the exercise of its rule making power the Supreme Court may so expand the grounds for issuance of a search warrant beyond those legislatively authorized. Resolution of the question thrusts us into the procedure versus substantive law dichotomy.

Exhaustive research of the case law by the court has not revealed the exact origin of the search warrant nor a delineation of the source of the power to issue it. It is said that the search warrant was not known at early common law. Buckley v. Beaulieu, 104 Me. 56, 71 A. 70 (1908). Other cases state that the right to issue search warrants clearly existed at common law. People v. Drury, 250 Ill.App. 547, 571 (1928). A lower Pennsylvania court has held that the search warrant is a creature of the common law and may be issued without statutory authority. Commonwealth v. Saba, 29 Northampton County 320 (Pa.1944). It is reported that since ancient times it has been customary for justices to issue search warrants for the seizure of stolen property. 34 Harv.L.Rev. 361 (1920--21). Even the use of the search warrant to search for stolen property has been described as having 'crept into the law by imperceptible practice.' 19 T. Howell, State Trials, Entick v. Carrington 1029, 1067 (1753--1771).

Much has been written about the oppressive use in England of general warrants, particularly in reference to their use in searching for articles of seditious libel by authors and printers. Lord Camden's opinion in Entick v. Carrington, Supra, declaring such warrants illegal is described as a landmark of liberty. See 34 Harv.L.Rev. 361 (1920--21) and numerous references cited therein. From our history we know that in the colonies the writs of assistance, similar to the English general warrants, were used to combat smuggling. Open opposition to these broad oppressive writs developed, an event which John Adams described as the first act of opposition to the arbitrary authority of Great Britain. 8 Old South Leaflets, No. 179 at 60 (1817).

It was in this historical context that the Fourth Amendment to the United States Constitution was adopted, declaring the right of the people to be free from unreasonable searches and seizures and limiting the issuance of warrants to those founded on probable cause, supported by oath or affirmation and requiring specificity. A comparable right is contained in Const. art. 1, § 7. Unfortunately this background merely demonstrates the reason for the Fourth Amendment and does not answer the question whether the rule making power of the court includes authorization of the issuance of search warrants Within constitutional limits, nor does it solve the substance versus procedure issue.

There are several grounds which justify our rule. First, the legislature has authorized the supreme court to adopt rules of procedure. RCW 2.04.190: 'The supreme court shall have the power to prescribe . . . the forms of writs and all other process . . . (and) of taking and Obtaining evidence . . .' (Italics ours.) The scope of the statute is sufficiently broad to include specification of those instances when a search warrant will issue because the statute specifically refers to the taking and obtaining of evidence. It has been held that 'the object of search warrants is to obtain evidence--if it were already available there would be no reason to seek their issuance.' State v Bullard, 267 N.C. 599, 601, 148 S.E.2d 565, 567 (1966). Likewise, '(t)he function of a search warrant is authority to an officer for the taking into his custody of the property . . . devoted to an alleged unlawful or criminal use . . .' Lodyga & Mantych v. State, 203 Ind. 494, 501, 179 N.E. 542, 545 (1932).

Quite apart from the statutory authority, this court has the inherent power to govern court procedures. State ex rel. Foster-Wyman Lumber Co. v. Superior Court, 148 Wash. 1, 267 P. 770 (1928). This stems from the constitutional provision that all judicial power of the state is vested in the supreme Court and the various other courts designated in the constitution. Const. art. 4, § 1.

Proceeding under either the statutory authority or the inherent power of the court, we must still determine whether delineation or the grounds for issuance of a search warrant involves a matter of substance or procedure. If it is substantive law, it is beyond or authority.

It is well established that the issuance of a search warrant is part of the criminal process. State v. Noah, 150 Wash. 187, 272 P. 729 (1928); Brooks v. Wynn, 209 Miss. 156, 46 So.2d 97 (1950); Dunn v. State, 40 Okl.Cr. 76, 267 P. 279 (1928). E. Fisher, Search and Seizure ch. 1, § 35 at 63 (1970). Once we categorize the issuance of a search warrant as part of the criminal Process, it follows that it involves a matter of procedure. This conclusion flows from the definition of legal process.

The term 'legal process' in its broadest sense is equivalent to procedure and embraces any form of order, writ, summons or notice given by authority of law for the purpose of acquiring jurisdiction of a person or bringing him into court to answer.

Cutler v. Cutler, 28 Misc.2d 526, 528, 217 N.Y.S.2d 185, 188 (1961).

In a larger sense, 'process' is equivalent to procedure, and may include all steps and proceedings in a cause from its commencement to its conclusion.

Mobley v. Jackson, 40 Ga.App. 761, 766, 151 S.E. 522, 524 (1930).

We note that at least two states have authorized by court rule the issuance of search warrants. Rule 41 of the Colorado Rules of Criminal Procedure is even broader than our rule and much more extensive than their statutory basis for issuance. C.R.S. ch. 39, § 39.2.6. In fact a statute in conflict with the court rule, requiring additional information in the warrant, was declared invalid although the rule making power of the court was not in issue. People v. Leahy, 173 Colo. 339, 484 P.2d 778 (1970).

Maine has a similar rule which replaced an existing statute. Rule 41, M.R.Cr.P. State v. Cadigan, 249 A.2d 750 (Me.1969).

However, defendants argue that since their right here involved emanates from the constitution such right is necessarily substantive. What is that right? It is that of protection against unreasonable search and seizure, made without probable cause. State v. Much, 156 Wash. 403, 287 P. 57 (1930). The boundaries of the right are the same under the Fourth Amendment as under Const. art. 1, § 7. State v. Miles, 29 Wash.2d 921, 190 P.2d 740 (1948). Defendants still possess their right to be free of an unreasonable search and seizure, made without probable cause. They have no constitutional right to be immune from a reasonable search and seizure under a warrant issued upon probable cause as to any particular class of crime. The court rule has not diminished any substantive constitutional right--indeed it obviously could not.

The order of the trial court quashing the summons and suppressing the evidence obtained pursuant thereto is reversed.

HALE, C.J., and FINLEY, HUNTER, HAMILTON, WRIGHT, UTTER and STAFFORD, JJ., concur.

ROSELLINI, Associate Justice (dissenting).

The majority concedes that Cr.R. 2.3(b) has extended the authority of ...