State v. Hartzog

Decision Date26 June 1980
Docket NumberNo. 3335-III-8,3335-III-8
Citation615 P.2d 480,26 Wn.App. 576
PartiesSTATE of Washington, Respondent, v. Herman Donald HARTZOG, Appellant.
CourtWashington Court of Appeals

Wayne Lieb, Institutional Legal Services, Seattle, Craig Davenport, Walla Walla, for appellant.

Arthur R. Eggers, Pros. Atty., Walla Walla, for respondent.

MUNSON, Judge.

Herman Hartzog appeals a conviction under RCW 69.50.401(c) 1 for possession of a controlled substance, an amphetamine. Hartzog was an inmate of the Washington State Penitentiary at the time he was found with the drug and at the time of trial.

On May 12, 1977, 7 months prior to Hartzog's trial, the Walla Walla Superior Court issued a general courtroom security order requiring certain security measures be taken with all penitentiary inmates appearing before the court. See Appendix I. Hartzog challenges the security order on the basis those measures, specifically probe searches prior to entry into the courtroom and shackling during trial, denied his right to due process and a fair and impartial trial.

We hold (1) the courtroom security order of the Superior Court of Walla Walla County must be applied only on an individualized basis, after a hearing from which the court determines and provides reasons for the implementation of each provision in the order; and (2) the crime of possession of a controlled substance (RCW 69.50.401(d)) does not require proof of intent or guilty knowledge.

We deem it necessary to supply background on the courtroom security order because the question of its broad applicability is before this court for the first time.

HISTORY OF THE COURTROOM SECURITY ORDER

The penitentiary at Walla Walla is a maximum security prison where ordinarily the highest security-risk convicted felons are incarcerated. Many of the prisoners are repeat offenders serving longer sentences for more serious crimes than inmates of other penal institutions in the state. The The incidents which formed the basis for the Walla Walla Superior Court security order are recounted in both the record of a hearing held May 12, 1977, and the security order itself. During the closing stages of a trial held 2 months prior to the issuance of the order, a bomb made with a Bic lighter exploded in the conference room adjacent to the courtroom, severely injuring a penitentiary correctional officer. Prison officials later told the court an inmate witness had made the bomb and smuggled it into the courthouse. During that trial, an inmate witness threw water in the face of a juror; one of the defendants, Gilcrist, made an obscene gesture to the judge; and both defendants, Gilcrist and Agtuca, during the trial spilled coffee and milk on themselves and ripped their clothing, apparently in an attempt to disrupt or delay the proceedings. See State v. Gilcrist, 91 Wash.2d 603, 614, 590 P.2d 809 (1979). The Walla Walla courthouse has been the scene where inmates in shackles have destroyed books and thrown objects through walls; where one inmate has tried to choke another; and where an escaping prisoner was chased and fired upon by guards as he ran through the courthouse and onto a public street.

Walla Walla County Superior Court has jurisdiction over those cases which arise from felonies committed within the penitentiary.

As a result of the Walla Walla Superior Court's experiences, combined with information and recommendations of prison and law enforcement officials, the court adopted these security measures to be required of all inmates who came to court. The basis of the order is found in the order itself:

Psychiatric evaluation reports received by the Court, the testimony of inmates at hearings and trials, and the conduct of inmates both in and out of the courtroom evidence that many individuals are being brought into the courtroom who constitute an extreme danger to the public, jurors, court personnel, custodial staff and security staff. Heedless of the consequences of their actions, they are willing to murder or maim innocent people merely for . . .

their morbid amusement, trial delays, mistrials or escape diversions.

While some of these inmates are predictable risks obviously requiring special precautions, the predictability comes from past experience. The prison setting itself can trigger violent action in an individual who has not exhibited it before. Therefore, this Court deems there is no way to reliably distinguish the violent from the nonviolent. All inmates are potentially dangerous.

Prior to trial, Hartzog moved to set aside the courtroom security order, specifically objecting to the required body cavity search before each courtroom appearance and to being shackled in arm and leg restraints throughout the trial. The trial court denied the motion. In his ruling the trial judge relied in part on the routine nature of the security measures. He also relied on an order issued by this court in State v. Snook, No. 2425-III, June 9, 1977, incorporated by reference into his oral ruling.

In Snook, this court denied the State's motion for discretionary review, finding no error in the Walla Walla Superior Court's courtroom security order as applied in that case. This court's denial of the State's motion was based primarily on the record which contained a diagnostic evaluation of Snook as " 'an anti-social personality . . . with aggressive homicidal and suicidal trends,' " as well as the criminal history of the inmate witnesses scheduled to appear during his trial. In denying the State's motion, this court did not reach "the broad applicability of the order regarding courtroom security as it appears to apply to any inmate, defendant or witness brought into court from the Washington State Penitentiary." 2 See also State v. Gilcrist, supra. 3 Thus, the After the trial court denied Hartzog's motion to set aside the order, Hartzog's counsel informed the court Hartzog and his witnesses would not submit to shackling and probe searches. He was therefore absent during his trial although his testimony and that of his witnesses was viewed by the jury on videotape.

courtroom security order itself, as applied to all penitentiary inmates, and specifically to Hartzog, is before this court for the first time.

BODY CAVITY SEARCH

The courtroom security order provides:

1. Inmates will be searched at the prison before departure. They will be brought to the Walla Walla County Jail where they will be skin and probe searched under the supervision of the sheriff's personnel. As needed, they will be brought to the courtroom in the joint custody of the sheriff's personnel and penitentiary custodial staff.

According to an undisputed affidavit submitted by Hartzog, he was arraigned on October 27, 1977. Prior to his leaving the penitentiary, his clothes were taken from him and he was put in a jumpsuit. He was then shackled and transported approximately 3 miles to a room in the county courthouse. There, in the presence of the sheriff, a correctional officer, and a member of the penitentiary hospital staff, he was ordered to take off his jumpsuit. He then bent over a radiator and the hospital staff member probed Hartzog's rectum with his finger. He put his jumpsuit back on and was escorted to court. 4 Hartzog's affidavit also stated he would not appear personally in court to testify in his own behalf if he were ordered by the court to submit to a On January 19, 1978, the court denied Hartzog's motion to set aside the courtroom security order. Hartzog then sought a temporary restraining order in federal district court. That court issued a temporary restraining order enjoining the Walla Walla Superior Court from conducting body cavity searches on Hartzog or any inmate witness who would be called to testify in his criminal trial, "except that such searches may be conducted upon an individualized showing of probable cause."

rectal probe search each time he was required to appear at the Walla Walla courthouse.

On January 25, 1978, the Walla Walla court held a probable cause hearing in compliance with the federal court's order on the probe search requirement. The prosecutor submitted to the court the criminal and institutional records of Hartzog and his two witnesses, Manuel Rosalez and Lanny Sargeant. See Appendix II. The prosecutor also introduced for "illustrative" purposes only a "keister cache," a metal device which can be inserted in the rectum and used both for carrying contraband and as a weapon. 5 There was no allegation such a device had been used by Hartzog or his witnesses. 6

After the hearing, the trial judge held there was probable cause for the searches based upon the nature of the crimes for which Hartzog and his witnesses had been convicted and upon the records of the inmates while in prison. The This record does not reflect whether these inmates were searched prior to arriving at the courthouse. The prevailing rule is that visual and body cavity searches, within the confines of a penal institution, are reasonable if performed by qualified personnel in a reasonable and nonabusive manner. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Daughtery v. Harris, supra.

trial court relied exclusively upon Daughtery v. Harris, 476 F.2d 292 (10th Cir. 1973), cert. denied 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91 (1973).

In Bell v. Wolfish, supra, the court weighed the significant and legitimate security interests of convicted prisoners and pretrial detainees against the institutional consideration for prison security and held visual body searches were reasonable under the Fourth Amendment. The court noted, in determining the reasonableness of such searches, "Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, supra at 99 S.Ct. 1884. Although prisoners retain at least some degree of...

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    ...and theadequacy and availability of alternative remedies.'"Hartzog, 96 Wn.2d at 400 (alteration in original) (quoting Hartzog, 26 Wn. App. 576, 588, 615 P.2d 480 (1980), aff'd in part, rev'd in part, 96 Wn.2d 383 (quoting State v. Tolley, 290 N.C. 349, 368, 226 S.E.2d 353 (1976))). At the h......
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2 books & journal articles
  • Survey of Washington Search and Seizure Law
    • United States
    • Seattle University School of Law Seattle University Law Review No. 9-01, September 1985
    • Invalid date
    ...47-48 (1983) (strip search of prisoner permitted after prisoner had contact with visitor); State v. Hartzog, 26 Wash. App. 576, 583-84, 615 P.2d 480, 484-85, (1980) (visual and body cavity searches of prisoners leaving penal institution for court appearance are permissible, but second searc......
  • Survey of Washington Search and Seizure Law: 1988 Update
    • United States
    • Seattle University School of Law Seattle University Law Review No. 11-03, March 1988
    • Invalid date
    ...47-48 (1983) (strip search of prisoner permitted after prisoner had contact with visitor); State v. Hartzog, 26 Wash. App. 576, 583-84, 615 P.2d 480, 484-85 (1980) (visual and body cavity searches of prisoners leaving penal institution for court appearance are permissible, but second search......

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