State v. Gunkel

• Decision Date: 14 December 1936
• Docket Number: 26339.
• Citation: 188 Wash. 528,63 P.2d 376
• Parties: STATE v. GUNKEL et al.
• Court: Washington Supreme Court

63 P.2d 376

188 Wash. 528

STATE v. GUNKEL et al.

No. 26339.

Supreme Court of Washington

December 14, 1936

Department 1.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Joseph Gunkel and Ambrose Landy were convicted of robbery under separate judgments, and they appeal.

Affirmed.

Edward M. Connelly, of Spokane, for appellants.

Ralph E. Foley and J. J. Wrabek, both of Spokane, for respondent.

STEINERT Justice.

Appellants as defendants, were charged by information with the crime of robbery, and, upon a trial by jury, were found guilty. Their motion for new trial having been denied, separate judgments of conviction and sentence were entered. From such judgments this appeal was taken.

Appellants' assignments of error may be grouped under three heads: (1) Error in admitting certain personal property in evidence, over appellants' objections based on constitutional grounds; (2) error in admitting certain of the same property in evidence over appellants' objections on the ground that such evidence was irrelevant, immaterial, and incompetent; and (3) error in denying appellants' motion for directed verdict.

The facts material to a consideration of these assignments are as follows: On the morning of December 23, 1935, shortly Before noon, two employees of Montgomery Ward & Co., a department store in Spokane, while on their way to a bank for the purpose of making a deposit of the store's receipts, which they were then carrying in two canvas sacks, were held up and robbed, on one of the principal streets of the city, by two men visibly armed with automatic pistols. Many people were on the street upon the occasion and witnessed the robbery. The two robbers were not wearing masks and, according to some of the witnesses, were bareheaded, at the time. After committing the deed, the two bandits escaped in a waiting automobile operated by a confederate. The sacks that were thus taken contained several thousands of dollars, consisting of silver, American and Canadian currency, money orders, and bank checks.

On December 30, 1935, at about 1 o'clock in the morning, appellants registered, under assumed names, at a hotel in Seattle, paying a week's rent in advance.

It appears that, while appellants were in Seattle, the police of that city were making an investigation with reference to a certain crime, or crimes, that had been committed in Spokane, although, concededly, the investigation was not in connection with the robbery involved in this case. Although appellants were under suspicion of the crime concerning which the investigation was in progress, their true names and exact location in Seattle were not then known to the Seattle police. The extent of the information which the police department actually had does not appear from the record, but it does appear that two Seattle detectives, who had been assigned to the robbery detail, were directed by their captain to locate the appellants. lants. The captain gave the detectives certain information concerning the matter to be investigated by them, but, when one of the detectives attempted to state, at the trial, what that information was, he was prevented from so doing by appellants' counsel.

On the morning of January 6, 1936, at about 10 o'clock, the two detectives, in pursuance of their investigation, went to the hotel where appellants were stopping and there interviewed the clerk at the desk. After the interview, the detectives returned to the police station. Later, about noon, they went back to the hotel and then proceeded to the room which appellants were occupying. The detectives knocked at the door twice, and, in response, Landy opened it and inquired what they wanted. On being told by the officers that they were city detectives, Landy attempted to shut the door. The officers resisted his attempt and succeeded in pushing themselves into the room. They did this, however, without having a search warrant.

Appellant Gunkel was, at the time, lying on a bed in the room. Landy, standing near the door, reached toward his hip pocket, whereupon one of the officers covered him with a gun and commanded him to raise his hands. Landy backed into the bathroom but kept his hand on his hip. After some maneuvering, the officer got close enough to Landy to reach around him and grab his hand. In it was a .32-caliber automatic pistol, fully loaded. After disarming Landy, the officer placed him under arrest. At about the same time, the other officer arrested Gunkel.

After the appellants had been handcuffed, Landy offered to give the officers money if they would allow him and Gunkel to get out of town, at the same time declaring 'We haven't done anything in your town.' In the meantime, one of the officers had found Gunkel's wallet, and the money therein, consisting of a roll of bills, was exposed to view. Landy told the officers to look under the pillow where they would find more money. The pillow was turned back, and another roll of bills was found, among them being $70 in Canadian currency. Landy then asked: 'Now, will you let us get out of town?' He was told that he and his companion would be taken to jail.

The officers then searched the room and found a .45-caliber automatic pistol, fully loaded, four cartridge clips, three boxes of shells, a leather-bound sap, also an old .45 Colt revolver in a suitcase, and a canvas sack which was later identified as one of the sacks that had been taken in the robbery. All of these articles were retained by the police until the time of trial.

An information charging appellants with robbery was filed February 19, 1936. A list of the State's witnesses was filed March 2, 1936. The trial took place April 7, 1936.

Upon the trial, the events leading up to, and including, the commission of the crime and the subsequent escape were related in detail. Landy was identified positively as one of the robbers. As to Gunkel, there was sufficient evidence of identification to make the question an issue of fact for the jury. Neither of the defendants testified.

One of the detectives was called by the State to testify concerning the arrests and the search of appellants' room. After he had told how the entrance to the hotel room had been effected and how he had taken the pistol from Landy, the State offered the gun in evidence as an exhibit. Appellants' counsel then asked permission to interrogate the witness 'on voir dire.' In response to counsel's questions, the witness testified that the officers did not have a search warrant at the time of the arrests and, further, that they then had no information indicating any connection between the appellants and the particular robbery. What information or evidence they had concerning appellants' connection with some other crime or crimes, committed in Spokane, does not specifically appear from the record, but it does appear therefrom that appellants were under suspicion and that the police authorities were acting under information concerning the two men with reference to a crime or crimes thought to have been committed by them in Spokane.

At the conclusion of his interrogation, counsel for appellants objected to the admission of the gun in evidence and announced, also, that he would object to the introduction of any of the other articles above named. The court took the offer of the State, and the objection of the appellants, under advisement until the following morning, and then, after overruling appellants' objection, admitted to gun and, subsequently, the other articles, in evidence, on the ground that no motion to suppress the evidence had been timely made. This constitutes the basis of the first group of assignments of error.

The record discloses that there was considerable argument between counsel concerning the search and the manner in which the articles had been obtained. While the argument is not set forth with completeness in the statement of facts, it does appear from the remarks of both the court and the prosecutor that it would have been necessary for the state to procure affidavits in order to show that there were reasonable grounds for making the arrests, and that to obtain such affidavits would require time.

Appellants' contention is rested, fundamentally, upon the protection afforded by the Federal and State Constitutions and state statutes against unlawful searches and compulsory evidence. Fourth and Fifth Amendments so the United States Constitution; article 1, sections 7 and 9, Washington Constitution; Rem.Rev.Stat. §§ 2240-1, 2240-2.

This is not a new question in this State. There have been many cases of like import, all based upon instances where articles seized by police officers without a search warrant, or upon an invalid warrant, were subsequently offered in evidence against the person from whom, or on whose premises or property, they were taken. The following cases are illustrative of the variant states of facts and circumstances under which particular articles were seized: State v. Gibbons, 118 Wash. 171, 203 P. 390; State v. Dersiy, 121 Wash. 455, 209 P. 837, 215 P. 34; State v. Smathers, 121 Wash. 472, 209 P. 839, 215 P. 35; State v. Hughlett, 124 Wash. 366, 214 P. 841; State v. Nilnch, 131 Wash. 344, 230 P. 129; State v. Pielow, 141 Wash. 302, 251 P. 586; State v. Buckley, 145 Wash. 87, 258 P. 1030; State v. Beaupre, 149 Wash. 675, 272 P. 26; State v. Vennir, 159 Wash. 58, 291 P. 1098; State v. Kinnear, 162 Wash. 214, 298 P. 449, 74 A.L.R. 1400; State v. Raum, 172 Wash. 680, 21 P.2d 291; State v. Stilts, 181 Wash. 305, 42 P.2d 779.

These cases either specifically announce, or else recognize, the well-settled principle, or rule, that the State may not use for its own profit, evidence that has been obtained in violation of law. But these same cases also state, or...