State v. Goodman

• Decision Date: 19 December 1985
• Docket Number: No. 6701-3-II,6701-3-II
• Citation: 42 Wn.App. 331,711 P.2d 1057
• Parties: The STATE of Washington, Respondent, v. Johnnie Dwight GOODMAN, Appellant, and Roy Lee Henley, Defendant.
• Court: Washington Court of Appeals

Page 331

42 Wn.App. 331

711 P.2d 1057

The STATE of Washington, Respondent, v. Johnnie Dwight GOODMAN, Appellant and Roy Lee Henley, Defendant.

No. 6701-3-II.

Court of Appeals of Washington Division 2.

Dec. 19, 1985.

Review Denied Feb. 21, 1986.

Jeffrey Adams, Seattle, for appellant.

Barbara Corey-Boulet, Deputy Pros. Atty., Tacoma, for respondent.

PETRICH, Judge.

Johnnie Goodman appeals his convictions for second degree burglary and second degree possession of stolen property. The issues on appeal are whether the trial court erred in refusing to suppress items seized in a warrantless search of Goodman's car, and in ruling that evidence of his prior convictions would be admissible if Goodman testified in his own defense. We affirm the second degree burglary conviction and reverse the second degree possession of stolen property conviction.

Shortly after midnight July 23, 1982, Detective Jackson of the Tacoma Police Department responded to a suspicious activity report that two men had been seen walking around in a residential area and getting in and out of a parked car. Jackson found Goodman, whom he knew as a convicted felon from previous contacts, sitting in his car in front of a house. Goodman answered the detective's questions, saying he was waiting for a friend who was visiting in the neighborhood, but could not recall the friend's name or whom the friend was visiting. After some conversation and a clean warrant check, Goodman drove off.

Jackson parked his patrol car a few blocks away and began to walk the area with his dog, K-9 Ryker. From his observation point in a side yard, he saw Goodman drive past, alone, eleven or more times in the next half hour. On his last circle, Goodman had a passenger, later identified as Roy Henley. Jackson saw Goodman drive down a cul-de-sac, stop the car, turn out the lights, and open the trunk. Henley got out, ran to a side yard, and returned with a light-colored suitcase which he put in the trunk. The two men got back in the car. Goodman turned the car around and, with the lights on, began to drive off.

Jackson radioed for assistance, and two other officers in the area stopped Goodman's car, asking the two men to step out. The detective arrived to question them. When asked about the suitcase, Goodman first denied knowing anything about a suitcase, then said it was Henley's. Henley also first denied knowing about the suitcase, but when told Goodman had said it was Henley's, Henley said he had found it sitting beside the road, did not know whose it was, and wanted to find the owner. Jackson opened the locked trunk, took out the suitcase, and searched it. Inside were a marine radio-telephone, a rotary grinder, and a pair of binoculars. Jackson also looked in the back of Goodman's car, and saw a hypodermic syringe on the back window deck and a black purse on the back seat, which he did not remove.

Jackson and his dog then went to the point where Henley had been when he put the suitcase into the trunk and tracked Henley's scent back to a nearby house, which had been ransacked. Tools, stereo equipment, and other items were found stacked near the back door. The items in the suitcase were later identified as belonging to the couple living in the house. Jackson notified the other officers that he had located the burglary, which was directly linked to Goodman and Henley through the tracking dog. Before learning a burglary had in fact occurred, the other officers searched the interior of Goodman's car, finding a syringe and a black purse containing credit cards and checks belonging to the woman living in the ransacked house.

The trial court found that Jackson was unaware that a burglary had occurred when he searched the suitcase, nor could he, at that time, articulate any specific criminal activity he suspected. He had believed the two were engaged in criminal activity from the totality of the circumstances, his own experience, and his knowledge of Johnnie Goodman. He did not discover the actual burglary until after the suitcase and the car's interior had been searched. The trial court denied Goodman's motion to suppress, and he was convicted in a jury trial.

Standing

The State asserts on appeal that Goodman lacks standing to challenge the search of the suitcase. As standing is a substantive rather than a jurisdictional issue, no constitutional rights are involved when the State raises the issue. State v. Grundy, 25 Wash.App. 411, 415-16, 607 P.2d 1235 (1980), review denied, 95 Wash.2d 1008 (1981). Standing may not be challenged for the first time on appeal.

Nonetheless, under Washington law, a defendant has "automatic standing" to challenge a search and seizure if: (1) possession is an essential element of the offense charged, and (2) the defendant was in possession of the item at the time it was seized or searched. State v. Simpson, 95 Wash.2d 170, 181, 622 P.2d 1199 (1980). Goodman meets both requirements. A mere denial of ownership does not eliminate standing. State v. Allen, 93 Wash.2d 170, 172, 606 P.2d 1235 (1980). The State's assertions of voluntary abandonment and police exercise of the community caretaking function are without factual support.

Probable Cause

Central to the determination of the propriety of the refusal to suppress a warrantless search is the existence of probable cause to arrest the defendant or to search a given location for contraband or evidence of a crime. If probable cause to arrest and search exists, then it must be determined whether the search is justified as an incident to the arrest or if not, whether exigent circumstances justify the warrantless search. We conclude that the police had probable cause to arrest Goodman and that the discovery and search of the victim's purse in the passenger compartment of Goodman's car was proper as an incident to that arrest, ¹ but that police could not validly search the suitcase found in the locked trunk compartment. That search cannot be justified either as an incident to the arrest, or by exigent circumstances.

Warrantless searches and seizures may be permitted within the confines of "a few specifically established and well-delineated exceptions" to the warrant requirements of the Fourth Amendment and Const. Art. I, Sec. 7. ² State v. Chrisman, 100 Wash.2d 814, 817, 676 P.2d 419 (1984); State v. Houser, 95 Wash.2d 143, 149, 622 P.2d 1218 (1980). The warrant requirement will be excused only when the societal costs of obtaining a warrant outweigh the reasons for seeking the approval of a neutral and detached magistrate. State v. Houser, 95 Wash.2d at 149, 622 P.2d 1218; State v. Moore, 29 Wash.App. 354, 358, 628 P.2d 522, review denied, 96 Wash.2d 1003 (1981). A warrantless search, like any search, must be based on probable cause, a test of reasonableness. To make a valid warrantless search, an officer must have sufficient reliable information to warrant a person of reasonable caution in believing that evidence of crime would be found in the place to be searched. Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925); United States v. Freitas, 716 F.2d 1216, 1220 (9th Cir.1983); State v. Southard, 32 Wash.App. 599, 602, 648 P.2d 504 (1982). An officer may, of course, examine the facts he knows in light of his own experience and expertise. State v. Cottrell, 86 Wash.2d 130, 132-33, 542 P.2d 771 (1975). See generally 1 W. LaFave, Search and Seizure § 3.2(b)-(e) (1978).

The circumstances known to the arresting officers here were that: (1) Goodman gave a vague explanation, which the detective did not think credible, for his presence in the area; (2) Goodman had been circling the immediate area where the suitcase was picked up repeatedly for more than half an hour; (3) Henley got into Goodman's car at an unknown point, then got out and ran to bring back a suitcase; (4) Goodman and Henley gave inconsistent statements about who owned the suitcase and why it was in the trunk; (5) Goodman was on parole; and (6) the events occurred about 1 a.m. in a neighborhood where Goodman did not live.

The basic elements of probable cause have been summarized as follows: An officer must have reasonable grounds to believe that a suspect has committed, is committing, or is about to commit a felony, based on circumstances sufficiently strong to warrant a prudent person in believing the suspect guilty. Probable cause is based upon the totality of facts and circumstances known to the arresting officers. The test is one of reasonableness considering the time, the place, and the pertinent circumstances, and the officer's special expertise in identifying criminal behavior. State v. Scott, 93 Wash.2d 7, 10-11, 604 P.2d 943 (1980).

Probable cause is an objective test. Taking the circumstances as a whole, we think that the detective had probable cause to believe a felony had been or was being committed by Goodman and his companion, and that evidence of such a crime would be found in the suitcase secured in the trunk of Goodman's car. The detective's inability to articulate the specific crime he suspected will not defeat that conclusion. As another court has stated, "[W]e would not consider ourselves bound by a police officer's inability to articulate his conclusions if the facts clearly demonstrated the existence of probable cause...." United States v. Day, 455 F.2d 454, 456 (3d Cir.1972). Accord, State v. Vanzant, 14 Wash.App. 679, 544 P.2d 786 (1975). If the standard is met, it will not matter that the officer could not say at the moment of his search whether he suspected, for example, burglary, robbery or armed robbery, or possession of stolen property. United States ex rel. Frasier v. Henderson, 464 F.2d 260 (2d Cir.1972); La Fave, supra, at 485-86. This is especially true where, as here, the known facts could support the elements of closely related or similarly defined crimes. The "every day life" evaluation called for, State v. Scott, supra, does not require that type of...