State v. Knudsen

• Decision Date: 28 September 1929
• Docket Number: 21698.
• Citation: 154 Wash. 87,280 P. 922
• Court: Washington Supreme Court
• Parties: STATE v. KNUDSEN.

280 P. 922

154 Wash. 87

STATE v. KNUDSEN.

No. 21698.

Supreme Court of Washington

September 28, 1929

Department 1.

Appeal from Superior Court, King County; W. P. Brown, Judge.

Christen Knudsen was convicted of being a bootlegger, and he appeals. Affirmed.

John J Sullivan, of Seattle, for appellant.

Ewing D. Colvin and Ethan Allen Peyser, both of Seattle, for the State.

BEALS, J.

Defendant was charged by information with the crime of being a bottlegger, the charging portion of the information reading as follows:

'He said Christen Knudsen, in the County of King, State of Washington, on the 7th day of August A. D. 1928, wilfully unlawfully and feloniously did then and there carry about with him certain intoxicating liquor for the purpose of the unlawful sale of the same.'

The trial of defendant to the court sitting without a jury, a jury having been expressly waived by all the parties, resulted in a judgment of guilty and sentence thereon, from which defendant appeals.

Error is assigned upon the refusal of the trial court to suppress certain evidence consisting of intoxicating liquor seized by federal officers without a search warrant, upon the failure of the trial court to make findings of fact and upon the rendition of the judgment of guilty and the imposition of sentence thereon.

The first question presented on this appeal is the legality of the seizure of certain intoxicating liquor by federal officers and the admission thereof and testimony concerning the same as evidence against appellant. The arresting officers had no warrant of arrest directing the apprehension of appellant, nor did they make the search complained of by authority of any search warrant. Appellant seasonably moved to suppress the evidence seized by the arresting officers, and assigns error upon the denial of this motion.

This court has adopted the rule laid down by the Supreme Court of the United States to the effect 'that it is beneath the dignity of the state and contrary to public policy for the state to use for its own profit evidence that has been obtained in violation of law.' State v. Buckley, 145 Wash. 87, 258 P. 1030, 1031, in which opinion the authorities are considered and referred to.

The evidence introduced by the state in support of the arrest of appellant and of the search of his automobile and seizure of intoxicating liquor found therein is clearly set forth in a stipulation between respondent and appellant to the effect that a witness for the state who was an officer of the federal prohibition department would, if present at the trial of appellant, testify as follows:

'That on or about July 26, 1928, he received information over the telephone from an unknown person that one Christen Knudsen was part owner in and deliveryman for a still located in the south end of this county, and that said Knudsen was engaged in supplying most of the whiskey for the trade in the Howell Street district, Seattle, Washington; that the informant told Corwin that the said Knudsen drove a Dodge truck, Washington license No. 582-457, and that his daily practice was to bring in from the still each night a load of whiskey, which was taken to a cache in Seattle. From the foregoing Corwin recalled that he knew said Christen Knudsen and knew that he had been convicted of the crime of possession of intoxicating liquor in the State court. On August 7, 1928, Corwin received information from the same unknown person that Knudsen would drive a load of whiskey into a garage in the vicinity of Yale Avenue North and Eastlake Avenue at about ten p. m. Thereupon Corwin, together with agents Bell and Fryant and driver Herbert Fletcher went to the vicinity of Yale North and Eastlake Avenue, the same being about two blocks from a certain private garage located at 2002 Yale Avenue North. At about ten p. m. the Dodge truck above mentioned was seen by Corwin approaching the said garage. Corwin, together with the agents above named followed the said truck about two blocks and observed that it was very heavily loaded. The fenders thereof, because of the excessive load, were almost touching the wheels. Although the driver's seat was normally in an exposed position, on this particular night it was tightly closed in with side curtains.'

Another federal prohibition officer, who was present at the trial, testified as follows:

'We laid wait for Knudsen. We seen Chris Knudsen's truck pull in to 2002 Yale Avenue North. The license number of the truck was known to us. As he backed into the garage I jumped out--The Court: That was in King County, Washington? The Witness: Yes. I jumped out of the car when we turned around the next block. I went into the garage first. I seen Chris Knudsen at the wheel of the car with the headlights on. I told him I was a federal officer. I looked through the curtain of the truck and seen quite a few kegs. I told the boys he was there. We made a search of the car, found about a hundred gallonsof moonshine whiskey, and placed him under arrest.'

Two other witnesses who were present at the arrest of appellant gave similar testimony.

It clearly appears from the record that the federal officers who made the arrest, search, and seizure had no warrant of arrest for the apprehension of appellant, nor did they have any search warrant authorizing the search of his person, premises, or property.

Two questions of major importance must be considered in determining this appeal: First, did the anonymous telephone calls received by the federal prohibition officers constitute probable cause for the apprehension of appellant, and did the information so received justify the actions of the officers in proceeding to arrest appellant and make the search which they made, without the procurement of a warrant of arrest or a search warrant? Second, if it be held that the information anonymously received was insufficient to of itself justify the proceedings of the federal agents, did what they saw while lying in wait near and at the premises occupied by appellant constitute reasonable or probable cause for belief on their part that appellant was in their presence violating the law and justify his arrest and the search of his automobile?

This court, in the case of State v. Buckley, 145 Wash. 87, 258 P. 1030, held that the search of a room occupied by the defendant and other persons and the seizure of certain property therein was unlawful, and that the property seized was inadmissible in evidence against defendant on his trial. In the case cited the search was made by police officers who were called by the occupants of a suite of rooms in an apartment house whose property had been stolen by a burglar. Upon arrival of the police their attention was called to another room in the apartment house, and occupants of which had been noisy during the evening prior to the burglary. The officers knocked at the door of this room and, upon the same being opened, entered the room without waiting for an invitation. They then made the search which resulted in the finding of the stolen articles. The search, not being authorized by any search warrant, was held illegal, and it was held that evidence uncovered in the course of this search should be suppressed.

Appellant also cites the case of State v. Gibbons, 118 Wash. 171, 203 P. 390, in which case the arrest of defendant and the search of his automobile in the absence of a warrant of arrest or a search warrant were held to have been without authority of law; it following that intoxicating liquor found as a result of the search was inadmissible in evidence upon the trial of the defendant charged with its unlawful possession.

Respondent contends that the case last cited is no longer authority, but while some of the language used in the opinion has been subsequently explained and held inapplicable to certain different situations presented by later cases, we cannot find that the principle of law laid down in the Gibbons Case has ever been repudiated by this court.

In the case of State v. Hughlett, 124 Wash. 366, 214 P. 841, it was held that in case of a lawful arrest by a peace officer the officer may lawfully and without a search warrant search the person arrested and take from him any evidence tending to prove the crime with which he stood charged. It was also held that the rule allowing such search without a warrant should also extend to articles which the person arrested was carrying and to an automobile of which he had possession and control at the time of his arrest. In the case last cited this court discussed the question as to what constitutes probable cause for arrest, and found that the facts presented by the record then before the court brought that case within the rule laid down by the authorities, and that the defendants in that action had been lawfully arrested. The arrest having been lawful, the search complained of was held justified.

The following authorities from other jurisdictions are in point upon the first proposition above stated, namely, the sufficiency of information anonymously conveyed to constitute probable cause for arrest and search without warrants:

In the case of Salata v. United States, 286 F. 125, the United States Circuit Court of Appeals for the Sixth Circuit held that testimony of a federal prohibition agent to the effect that a report had come in to his office concerning the source of which the witness had no knowledge, to the effect that liquor was being dispensed in defendant's place of business, did not constitute probable cause for the issuance of a search warrant.

The Court of Appeals of the District of Columbia, in the case of Schencks v. United States, 55 App. D. C. 84, 2 F (2d) 185, held that an affidavit by a federal officer in which the affiant simply stated that h...