State v. Hoffpauir, 6895-1-III

• Decision Date: 24 June 1986
• Docket Number: No. 6895-1-III,6895-1-III
• Citation: 722 P.2d 113,44 Wn.App. 195
• Parties: STATE of Washington, Respondent, v. Michael R. HOFFPAUIR, Appellant.
• Court: Washington Court of Appeals

Page 195

44 Wn.App. 195

722 P.2d 113

STATE of Washington, Respondent, v. Michael R. HOFFPAUIR, Appellant.

No. 6895-1-III.

Court of Appeals of Washington, Division 3 Panel One.

June 24, 1986.

Review Denied Oct. 7, 1986.

C.E. 'Monty' Hormel, Hormel & Aiken, Ephrata, for appellant.

Paul A. Klasen, Pros. Atty., Mary Ann Brady, Deputy, Ephrata, for respondent.

McINTURFF, Judge.

Michael Hoffpauir appeals his convictions of first degree burglary and third degree theft. The dispositive issue is whether the voice identification procedure used by the local marshall was sufficiently suspect to warrant suppression as an inadmissible fruit of an illegal detention or to give rise to a substantial likelihood of misidentification. We affirm.

On May 8, 1984, Coulee City Marshall Charles Stokoe responded to a call from Mrs. Gertrude Baycroft at 12:45 a.m. She informed the marshall there had been an intruder in her home, approximately 5' 6"', 145 lbs., wearing a baseball cap. She further indicated she would be able to make a voice identification as he had spoken with a speech impediment. The intruder had taken approximately $6 and some change and had asked for and received a "big love".

Because the marshall was familiar with Mr. Hoffpauir's manner of speech, and had observed Mr. Hoffpauir walking down the street sometime earlier that evening, he proceeded to Mr. Hoffpauir's temporary residence at the Coulee City Garden Apartments. Finding Mr. Hoffpauir home, the marshall (who was in uniform and driving a marked car) asked Mr. Hoffpauir to accompany him "because there had been a problem downtown." Mr. Hoffpauir agreed and climbed into the back seat of the patrol car, even though the marshall advised him he did not have to go, nor was he under arrest. While enroute, he told Mr. Hoffpauir they were proceeding to the Baycroft residence at First and Douglas to enable Mr. Hoffpauir to talk to her, to "ask her about the weather."

They proceeded to the front door; the marshall told Mr. Hoffpauir to stand to the side of the door. After Mrs. Baycroft appeared, he asked her to listen to Mr. Hoffpauir. "[A]t first he tried to disguise his voice, he tried deepening his voice and I told him, 'No, go ahead and talk to her in your normal voice', and when he did she confirmed he was the subject." Mr. Hoffpauir was then arrested, advised of his rights and subsequently found guilty by a jury of first degree burglary and third degree theft.

First, Mr. Hoffpauir argues he was entitled to constitutional protections prior to his participating in the voice identification process. Specifically, he contends the marshall's actions constituted a deception that violated his rights, citing State v. Hawkins, 27 Wash.App. 78, 615 P.2d 1327 (1980); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) and Hayes v. Florida, 470 U.S. 811, 106 S.Ct. 1643, 84 L.Ed.2d 705 (1985).

Our review of Hawkins discloses issues concerning statements made by the defendant during police interrogation after he voluntarily submitted himself to police custody. Here, there were no statements made by Mr. Hoffpauir during the ride to the Baycroft home. Further, probable cause to arrest arises when an officer has reasonable grounds to suspect the individual is guilty of a crime. Mere suspicion before the supporting circumstances are reasonably developed is not enough to turn "routine investigation" into custodial interrogation. State v. Green, 91 Wash.2d 431, 436, 588 P.2d 1370 (1979).

The court found Mr. Hoffpauir accompanied the marshall voluntarily. The marshall stated he did not have enough to support probable cause absent the voice identification. Mr. Hoffpauir's testimony at trial does not indicate he was being coerced or acting under duress. The marshall advised Mr. Hoffpauir he was under no obligation to accompany him nor was he under arrest. Based upon the record, there is substantial evidence to support the court's finding Mr. Hoffpauir's actions were voluntary. People v. Herron, 89 Ill.App.3d 1048, 412 N.E.2d 1365 (1980), cert. denied, 454 U.S. 1080, 102 S.Ct. 633, 70 L.Ed.2d 614, (1981); United States v. Mendenhall, 446 U.S. 554, 64 L.Ed.2d 497, 100 S.Ct. 1870 (1980); reh'g denied, 448 U.S. 908, 65 L.Ed.2d 1138, 100 S.Ct. 3051 (1980).

If this court were to conclude the ride was not taken voluntarily, Davis and Hayes, cited by Mr. Hoffpauir, would require us to reverse the judgment. In both of those cases the suspects did not consent to be transported, and the police were without probable cause for an arrest, nor did they have a warrant; their convictions were reversed. However, that is not the situation here, and as noted in Hayes at 106 S.Ct. 1647:

There is thus support in our cases for the view that the Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect's connection with that crime, and if the procedure is carried out with dispatch. Of course, neither reasonable suspicion nor probable cause would suffice to permit the officers to make a warrantless entry into a person's house for the purpose of obtaining fingerprint identification.

(Citations omitted.) While it is necessary in this case to substitute voice identification for fingerprinting, the concept is the same. We also note that had the evidence not supported the court's conclusion Mr. Hoffpauir consented to be transported, the marshall would not have had the authority to remove Mr. Hoffpauir from his home, absent a warrant. Cf. State v. Gardner, 28 Wash.App. 721, 626 P.2d 56 (1981) (suspects transported 6 blocks so their footprints could be matched with those by a stolen van); Buckingham v. State, 482 A.2d 327 (Del.Super.Ct.1984) (transporting of robbery suspect to store for identification proper); Wilkerson v. United States, 427 A.2d 923 (D.C.1981), cert. denied, 454 U.S. 852, 102 S.Ct. 295, 70 L.Ed.2d 143 (1981) (transporting of rape suspect half block to crime scene for identification proper); District of Columbia v. M.M., 407 A.2d 698 (D.C.1979) (transporting reasonable where crime scene close proximity to stop and purpose was to identify suspect); People v. Lippert, 89 Ill.2d 171, 432 N.E.2d 605 (1982), cert. denied, 459 U.S. 841, 103 S.Ct. 92, 74 L.Ed.2d 85 (1982) (transport legitimate investigatory procedure where short distance is involved and purpose is to identify suspect).

Mr. Hoffpauir next argues he was entitled to the assistance of counsel prior to the voice identification, because he was in custody after he entered the police vehicle. State v. Smith, 36 Wash.App. 133, 672 P.2d 759 (1983). Additionally, he contends he was asked to violate his Fifth Amendment right against self-incrimination.

Counsel is required at all lineups and show-ups after criminal proceedings have commenced, but is not required from initial detention to formal arrest. Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972); United States v. Wade, 388 U.S. 218, 235-37, 87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149 (1967); State ex rel. Juckett v. Evergreen Dist. Ct., 100 Wash.2d 824, 828, 675 P.2d 599 (1984); Heinemann v. Whitman Cy., 105 Wash.2d 796, 800, 718 P.2d 789 (1986).

In State v. Judge, 100 Wash.2d 706, 675 P.2d 219 (1984), the court held the taking of a blood sample was not a "critical stage" of the proceedings where the defendant was under arrest but had not been charged with negligent homicide. The same conclusion was reached with respect to a pre-information lineup, State v. Woods, 34 Wash.App. 750, 760, 665 P.2d 895 (1983) (although the defendant was represented by a public defender at the lineup).

The right to counsel at a show-up for purposes of making a voice identification has been answered in State v. Packard, 184 Conn. 258, 439 A.2d 983, 990 (1981):

Since at the time of the voice-up, criminal charges had not been formally made nor had adversary judicial proceedings been initiated against the defendant, it is not necessary for us to decide whether this voice identification procedure was more similar to a lineup or to a photographic display. Under both the [United States v.] Ash, [413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) ] and Wade-Kirby rules, the sixth amendment did not grant the defendant the right to have counsel present at the time his voice was identified by the victim.

(Footnote omitted.) See also State v. Furrow, 424 A.2d 694, 697 (Me.1981); State v. Emery, 230 N.W.2d 521, 524 (Iowa 1975). Here, the record indicates there was no probable cause to arrest nor was a formal arrest made until after the voice identification had been completed. Thus, no Sixth Amendment right to counsel attached.

Neither did the voice show-up violate Mr. Hoffpauir's Fifth Amendment right against self-incrimination. See United States v. Wade, 388 U.S. at 222-23, 87 S.Ct. at 1930:

We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance ... Similarly, compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a "testimonial" nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt.

See also United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); State ex. rel Juckett v. Evergreen Dist. Ct., supra, where chemical testing of blood or breath is not a violation of privilege against self-incrimination, nor is appearance in police lineup. Accord, State v. Cook, 70 Wash.2d 715, 720, 424 P.2d 1006 (1967).

Third, Mr. Hoffpauir contends the voice show-up was "unnecessarily suggestive and conducive to irreparable mistaken...