State v. Kinnear

• Decision Date: 23 April 1931
• Docket Number: 22412.
• Citation: 298 P. 449,162 Wash. 214
• Court: Washington Supreme Court
• Parties: STATE v. KINNEAR.

298 P. 449

162 Wash. 214

STATE v. KINNEAR.

No. 22412.

Supreme Court of Washington, En Banc.

April 23, 1931

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

John Kinnear was convicted of possessing intoxicating liquor, and he appeals.

Reversed and remanded, with directions.

TOLMAN C.J., and FULLERTON, J., dissenting.

Revelle Simon & Coles, of Seattle, for appellant.

Charles R. Denney and F. W. Mansfield, both of Everett, for the State.

BEELER J.

The defendant was charged by information with the crime of being a bootlegger. He seasonably moved to suppress as evidence the intoxicating liquor seized by the officers at the time of the arrest on the ground that the search and seizure were without a warrant and without probable cause in violation of the Fourth and Fifth Amendments to the Federal Constitution, and section 7, art. 1, of the state Constitution. The motion being denied, the cause was called for trial, and, at the conclusion of the prosecuting attorney's opening statement to the jury as to what he intended to prove, the court ruled the statement was insufficient to sustain the charge of bootlegging, and thereupon the trial proceeded merely on the included offense of possession. At the close of the state's case, the defendant challenged the legal sufficiency of the evidence and moved for a directed verdict, which was denied. The defendant, relying on his motion to suppress, offered no testimony in his own behalf. He was found guilty and sentenced to pay a fine of $150 and serve sixty days in the common jail. The defendant has appealed.

The only question presented for our consideration is the legality of the search and seizure which was made without a warrant. The facts and circumstances surrounding the search and seizure may be briefly narrated: Two deputy sheriffs, Johnson and Clark, on numerous occasions prior to September 20, 1929, had received reports that liquor and narcotics were being smuggled and carried by airplane and landed at the Everett Airport, and although they had spent many hours watching planes, they had never previously apprehended any one. The officers had never heard of appellant; they never had him under surveillance, nor suspected him of dealing in nor handling liquor or narcotics. At about 4:15 p. m., September 20, 1929, the officers, while on the streets of the city of Everett, noticed what they were pleased to term 'a strange looking plane' circling over the city and thence to the airport, and thereupon they repaired to the port and watched the defendant as he landed and stepped from his plane, at which time Officer Clark 'noticed some cow dung on he plane indicating that the plane had landed in some out-of-the-way place.' The officers then accompanied appellant to the airport office, where he registered and telephoned to the Renton Airport, distant some thirty miles, which Clark testified he had heard mentioned in connection with liquor activities; that about this time one Scott, reputed to be a liquor dealer and who had been arrested in Canada with a load of whisky on his own airplane, and who had previously been manager of the airport, arrived, and, according to the testimony of officer Johnson, 'looked surprised and did not talk to Kinnear nor go near the plane, and Scott's actions were very peculiar, and Scott's peculiar actions and previous reports which affiant had heard regarding Scott made affiant suspicious that something was wrong.' While at the office of the airport, some individual, whose identity is undisclosed, came in and spoke to Officer Clark, whom he knew to be a deputy sheriff, saying: 'There is something in that ship'; that both officers remained in the airport office for about 20 to 25 minutes carrying on a general conversation with appellant, and at the conclusion Clark and appellant left, the latter going to a nearby highway, and Clark, who waited until appellant was out of sight, went to the plane, unfastened and removed the canvas or cover from the front cockpit and discovered the liquor, split open a sack, extracted a bottle, and returned and reported the matter to Officer Johnson, and thereupon appellant was placed under arrest. On cross-examination the deputy sheriff, Clark, in part testified:

'By Mr. Coles: Q. Mr. Clark at the time you went out to the airport in the afternoon of September 20th, had you had any prior information as to this particular aeroplane in question? A. No, sir.

'Q. Did you have any prior information as to the defendant, John Kinnear? A. No, sir.

'Q. Had you ever heard of him before you arrested him? A. No, sir.

'Q. When his aeroplane was landed were you in a position where you could see the front cockpit of this aeroplane? A. No.

'Q. After the plane was taxied up to the hangar did you see this front cockpit covered by a canvas snapped down? A. Yes, sir.

'Q. Was it impossible for you to see into the front cockpit? A. Yes, sir.

'Q. You could not see into the front cockpit? A. No, sir.

'Q. Before you went up to search this aeroplane did you have any reason to believe, based upon any evidence whatsoever, that this defendant or this aeroplane was violating the law?

'By Mr. Denney: I object to that as calling for the conclusion of the witness.

'By Mr. Coles: We are inquiring into his state of mind at the time he made this search.

'By the Court: Of course, your question is whether he had reason to believe. You can ask him what he knew.

'Q. Did you know anything about what this plane contained at the time you searched it? A. No, sir.

'Q. Did you know what you were going to find in this plane when you searched it? A. No, sir.

'Q. You then went up and searched this front cockpit? A. Yes, I did.

'Q. And for the first time you were able to see into the cockpit and saw the sacks? A. Yes, sir.

'Q. And you then split one of the sacks open and you found it contained liquor? A. Yes, sir.

'Q. And up to that time you did not know that this defendant or his aeroplane was in any way violating the law? A. No, sir.

'Q. Now, Mr. Clark, I would like to have you tell the court how this front cockpit was covered and how you uncovered it. A. Well, it was an ordinary cockpit on a plane and had--I don't know, but it is kind of black canvas or oilcloth, or more like the top of an automobile--that kind of material--and on the sides are little snaps and--the same as putting curtains on cars--and there are recesses for those snaps to go around and close it up and that is all I can tell you about it.'

So the question is: Did the officers have reasonable cause to believe that intoxicating liquor was concealed in the airplane so as to justify them in making the search and seizure without a warrant?

The officers, by their sworn statements, admit they neither had nor gained any knowledge concerning the presence of liquor in the plane by their own senses, either by the sense of smell or the sense of sight. The liquor was concealed in the forward cockpit covered with a black curtain, something akin to an automobile curtain, and securely fastened. The sacks or containers were completely concealed. Since the officers admit they had no personal knowledge of the presence of liquor before they searched the plane, the question becomes narrowed: Did the officers have reasonable cause to believe that liquor was in the plane from the information conveyed to them by others, and from what they observed while at the airport?

It is essential to note at the outset that the only information received by Johnson before going to the airport, as disclosed by his affidavit, was limited to reports that the Everett Airport was used by liquor and narcotics smugglers as a place to land their planes. On the other hand, Clark, in addition to his affidavit, was called as a witness at the time of the hearing on the motion to suppress. He was carefully examined by both parties. It was Clark who saw the 'foreign litter' on the plane, and who heard the Renton Airport mentioned in connection with liquor activities. The statements, 'There is something in that ship,' and 'Something interesting is going to happen at the airport,' were made to Clark. Johnson nowhere in his affidavit states that he observed the litter or heard these statements. It is especially essential to note that Clark alone made the search and seizure unaided and unassisted by Johnson. Furthermore, the officers had received no information from any source that appellant contemplated landing his plane on the afternoon of September 20, or at any other time. In the very nature of things, they could have received no such information, because appellant was compelled to make a forced landing, being caught in a severe electrical storm. True, officer Clark swore that on the day previous he had received information 'that something interesting was going to happen at the Everett Airport.' But his affidavit fails to show what was expected to happen, how it was to happen, or when it was to happen. It is likewise true that both officers swore that they had received numerous reports that liquor and narcotics were being landed at the airport, yet it would seem that this information was materially nullified by their own admissions--that, although they had spent many hours watching planes, they had never apprehended any one. The record is silent whether this watching extended over days, weeks, or months. It is very significant that the officers, as they arrived at the airport and saw appellant step from his plane on which one of the officers claims he saw 'foreign litter,' failed to place appellant under arrest if they believed a felony was being committed. It is very significant that the officers during the twenty or twenty-five minutes while engaged in a general conversation...