State v. Keating

• Decision Date: 14 February 1963
• Docket Number: No. 2,No. 35891,35891,2
• Citation: 378 P.2d 703,61 Wn.2d 452
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Patrick Eugene KEATING, Appellant

Page 452

61 Wn.2d 452

378 P.2d 703

The STATE of Washington, Respondent, v. Patrick Eugene KEATING, Appellant.

No. 35891.

Supreme Court of Washington, Department No. 2.

Feb. 14, 1963.

Rehearing Denied April 3, 1963.

Henry Opendack, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Seattle, James E. Kennedy, William F. West, Deputies Pros. Atty., for respondent.

HAMILTON, Judge.

Defendant was convicted of the crime of maliciously damaging a building by explosion, a felony under RCW 70.74.280. ¹

Upon appeal, defendant assigns error to the reception in evidence of his confession and tape recorded admissions. Defendant contends, in his brief and upon oral argument, that his arrest was unlawful for lack of probable cause, thereby rendering his subsequent admissions and confession inadmissible, as 'fruits of the poisonous tree.' He does not otherwise challenge the voluntariness of his confession and admissions.

Briefly, the salient facts are these: On July 21, 1960, at about 10:45 p. m., and explosion occurred outside the bedroom wall of a Mr. and Mrs. Fletcher. Considerable damage resulted, and the Fletchers, who had retired for the night, were endangered. Upon questioning by police, the Fletchers reported the defendant, a former brother-in-law of Mr. Fletcher, had a long-standing grudge against Mr. Fletcher because he believed Fletcher to be interested in his wife. The Fletchers described other occurrences about their property (tires slashed, sugar in the gas tank, and a house fire), which they suspected the defendant had perpetrated. They reported they had contacted the defendant's sister, Mr. Fletcher's former wife, who advised them that she knew the defendant had some dynamite, that she had warned him not to use it against Fletcher, and that she believed he was responsible for the explosion.

With this information, the police immediately placed the defendant's home under surveillance. At about 1:30 a. m., July 22, 1960, the defendant and his wife left their home in a taxi, at which time the police arrested them and took them first to a precinct station, then to police headquarters. Interrogation did not commence until arrival at the headquarter's office. Defendant's wife was released and later returned, purportedly at the defendant's request.

Prior to leaving home, the defendant had observed the police surveillance, and called an attorney. The attorney, and his two partners, met the defendant at police headquarters, conferred with him and, along with defendant's wife, were present at the time of the tape recorded admissions and defendant's confession.

Defendant was thereafter charged with the crime of which he stands convicted.

Immediately prior to trial, a hearing was held before the trial judge, under the provisions of Rule of Pleading, Practice and Procedure 101.20W, RCW Vol. O, to determine the voluntariness of defendant's confession.

At this hearing, the defendant, represented by counsel other than counsel he first contacted, contended his initial counsel did not advise him of his right to remain silent, but, rather, urged him to be truthful and cooperate with the police; that he became distrustful of such counsel and requested other counsel; and that he confessed only because the police threatened to detain his wife and place his children in custody of others.

The state produced testimony to the effect that defendant's confession was voluntarily offered after he had conferred with his attorneys, and had been advised of his rights; that defendant indicated he wished his wife present before making a statement, whereupon his wife, who had been released and was on her way home, was returned; that a captain of police, another officer, defendant, his wife, and two of defendant's attorneys then went into the captain's office for the purpose of taking defendant's statement; that the conversation between the parties was recorded upon a tape recorder, along with the defendant's confession being reduced to writing. The tape recording and the written confession were introduced in evidence.

At the conclusion of the hearing, the trial court, upon the evidence presented, found defendant's admissions and confession to be voluntary. The jury subsequently empaneled to try the case, likewise, by special interrogatory, found defendant's admissions and confession voluntary.

The brief record before us includes a narrative statement of the state's evidence, the testimony of defendant and his wife, and the exhibits, including the tape recording. A review thereof satisfies us that the trial court's finding of voluntariness is amply supported by the evidence.

Assuming, arguendo, defendant's arrest to be without probable cause, the basic question presented is whether, under the circumstances here revealed, a voluntary confession with accompanying admissions becomes, by virtue of the unlawful arrest, inadmissible in evidence at a subsequent trial.

Defendant, relying upon Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), in effect, contends the United States Supreme Court has extended, and we should adopt, under the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution, an exclusionary rule akin to the 'McNabb rule' ² (McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943))...