State v. Johnson
| Decision Date | 11 May 1967 |
| Docket Number | No. 38944,38944 |
| Citation | 427 P.2d 705,71 Wn.2d 239 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Joe J. JOHNSON and Jack R. Irrgang, Appellants. |
Edward Heavey, Timothy H. Hill, Seattle, for appellants.
Charles O. Carroll, Pros. Atty., J. Robert Walker, Deputy Pros. Atty., Seattle, for respondent.
This appeal is taken from the conviction and sentence of the defendants (appellants), Joe J. Johnson and Jack R. Irrgang, for the crime of grand larceny in the taking of coins from parking meter receptacles at the Seattle-Tacoma International Airport. The sole issue in this case relates to the admissibility in evidence of certain coins, including a bag of quarters, seized from the defendant Irrgang's 1956 Pontiac automobile as the result of an alleged unlawful search. The pertinent facts are as follows:
On the evening of February 28, 1966, an observant citizen, David Rystrom, advised Officer Weldon Emerson, a security officer at the airport, that someone was tampering with a parking meter in the main front parking lot of the airport complex. The officer accompanied Mr. Rystrom to where he had observed the meter tampering. They noticed the defendant Johnson get out of a 1956 Pontiac 4-door sedan and walk towards them. Johnson was staggering and bumped into a car and several parking meters. Rystom told the officer that this was the man he had seen at the parking meter.
Officer Emerson then addressed Johnson and asked him what he was doing at the airport and what business he had in the 1956 Pontiac. The defendant replied: Emerson, observing a heavy odor of alcohol on Johonson's breath and considering the remarks he had made, concluded that Johnson was intoxicated and placed him under arrest for being drunk in public. Feeling that Johnson was trying to get him away from the automobile, and suspecting other crimes, Emerson directed that the three of them cross the parking lot to the Pontiac, some 90 feet away. At the car, Emerson looked through the side window into the back seat, and noticed 4 quarters on the floorboard of the car. (The airport meters in question take quarters only.) He handcuffed the defendant Johnson and directed Rystrom to open the doors of the car and check the contents.
Rystrom entered the car and found some paper dollars and change on the front seat, the 4 quarters on the floorboard of the rear seat, a few loose quarters and a shaving kit full of quarters in the shadows of the back seat area. At that time Emerson seized the paper money and took the defendant to the security office of the airport. The defendant was held in the office on the charge of public drunkenness.
Officer Emerson then returned to the parking lot, with another officer, to keep the automobile under surveillance and see if anybody else returned. The defendant Irrgang arrived a few minutes later and stopped in front of the meter next to the Pontiac. Emerson struck up a conversation with him and asked if the Pontiac was his car. Irrgang acknowledged it was and Emerson, advising him that someone had been seen in his car, asked him if it would be all right if he looked into the trunk of the vehicle. Emerson advised Irrgang that he wasn't obliged to consent. Irrgang consented. Emerson found some loose quarters in the trunk space; and then asked Irrgang if the shaving kit in the back seat belonged to him. Irrgang replied that it didn't. Emerson thereupon picked up the loose quarters from the trunk and those previously seen on the seats and floorboard of the vehicle and put them all in the shaving kit. He took the kit and Irrgang to the security office.
At the office the defendants were advised that they were under arrest; Johnson was charged with the crime of public drunkenness, a misdemeanor; and tampering with a parking meter, a gross misdemeanor; Irrgang, with the crime of aiding and abetting in the tampering of a parking meter. A preliminary count of the silver from the shaving kit at this time revealed it to contain approximately $24 worth of quarters.
Both defendants were advised of their constitutional rights at this point in the interrogation, although Irrgang contends that such advice did not come until after the final search.
Irrgang was asked by officers if he would mind a search of the entire automobile; he replied, 'be my guest' and handed them the keys. The security officers returned to the automobile and conducted a thorough search of the car and the area immediately around the vehicle and the parking meters in and around the remainder of the main parking lot. They found a number of quarters in the glove compartment of the vehicle, and the area search revealed other quarters scattered on the pavement. The final count of the quarters so found, including the $24 in the shaving kit, came to over $250. The determination was made that about 30 parking meters had been looted and 2 days' later the defendants were charged with the felony of grand larceny.
At a pretrial hearing as to be the lawfulness of the arrests and the searches and seizures of evidence, the trial court ruled that the arrests were lawful; that Johnson's arrest for intoxication was valid; and that the three searches of the automobile were incident to the arrest for drunkenness. It denied the motion to suppress the coins and shaving kit taken by officers in these searches. Both defendants appeal from this ruling and the convictions and sentences entered. Error is assigned to the denial of the motion to suppress.
Defendant Johnson argues that his arrest for being drunk in public was only a pretense used by the officer as a legal basis to search the automobile for evidence of meter tampering; that he could not be arrested for meter tampering without a warrant, since this constituted a misdemeanor which had not been committed in an officer's presence; and that the search was not incident to the arrest for drunkenness.
For the search to have been lawful, it must have been incident to a lawful arrest in the absence of the consent of the defendant. State v. Schwartzenberger, 70 Wash.Dec.2d 99, 422 P.2d 323 (1966); and State v. Wilson, 70 Wash.Dec.2d 614, 424 P.2d 650 (1967); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961).
There is no evidence in this record to support the trial court's finding that the initial search of the car was incident to the arrest of Johnson for intoxication. To the contrary, the testimony of the officer admittedly shows that the search was made in pursuance of the statements of the defendant admitting car prowl, which the officer disbelieved suspecting an attempt by the defendant to throw him off...
To continue reading
Request your trial
-
State v. Parker
...of a lawful custodial arrest a full blown search, regardless of the exigencies, may not validly be made. See, e.g., State v. Johnson, 71 Wash.2d 239, 242, 427 P.2d 705 (1967) (lawful arrest is a prerequisite to a lawful search); State v. Miles, 29 Wash.2d 921, 933, 190 P.2d 740 (1948) (if a......
-
State v. Aiken
...there was, therefore, no unlawful seizure of the revolver. The trial court did not err in admitting this evidence. State v. Johnson, 71 Wash.Dec.2d 231, 427 P.2d 705 (1967). Wheat contends the court erred in refusing to permit Aiken's attorney, Anthony Savage, Jr., to give testimony as to W......
-
State v. Mak
...87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065, reh'g denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967); State v. Johnson, 71 Wash.2d 239, 244-45, 427 P.2d 705 (1967).119 See RCW 9A.32.030(1)(c).120 See State v. Griffith, 52 Wash.2d 721, 732, 328 P.2d 897 (1958); RAP 2.5.121 See In......
-
State v. O'NEILL
...of a lawful custodial arrest a full blown search, regardless of the exigencies, may not validly be made. See, e.g., State v. Johnson, 71 Wash.2d 239, 242, 427 P.2d 705 (1967) (lawful arrest is a prerequisite to a lawful search); State v. Miles, 29 Wash.2d 921, 933, 190 P.2d 740 (1948) (if a......
-
Survey of Washington Search and Seizure Law
...if the arrest was merely a pretext for conducting the search for evidence of another offense. State v. Johnson, 71 Wash. 2d 239, 242-43, 427 P.2d 705, 707 (1967). Cf. State v. Corner, 28 Wash. App. 439, 445, 624 P.2d 204, 208 (1981) (second body-search made after decision to release defenda......
-
Survey of Washington Search and Seizure Law: 1988 Update
...if the arrest was merely a pretext for conducting the search for evidence of another offense. State v. Johnson, 71 Wash. 2d 239, 242-43, 427 P.2d 705, 707 (1967). Cf. State v. Carrier, 28 Wash. App. 439, 445, 624 P.2d 204, 208 (1981) (second body search made after decision to release defend......
-
Survey of Washington Search and Seizure Law: 1998 Update
...471 U.S. 386, 389, 105 S. Ct. 2066, 2068, 85 L. Ed. 2d 406, 412 (1985) (mobile motor home). See, e.g., State v. Johnson, 71 Wash. 2d 239, 427 P.2d 705 (1967). In addition, there is a reduced privacy interest when several persons or families occupy premises in common rather than individually......
-
Survey of Washington Search and Seizure Law: 2005 Update
...to follow federal law holding pretextual traffic stops as not violating the Fourth Amendment); State v. Johnson, 71 Wn.2d 239, 242-43, 427 P.2d 705, 707 (1967); cf. State v. Corner, 28 Wn. App. 439, 445, 624 P.2d 204, 208 (1981) (holding that a second body search was invalid when made after......