State v. Marks

• Decision Date: 03 May 1990
• Docket Number: No. 56671-2,56671-2
• Citation: 790 P.2d 138,114 Wn.2d 724
• Parties: STATE of Washington and City of Spokane, Appellants, v. Grover Phillip MARKS, Marie Marks, James Senator Marks, II and Jane Marks, Respondents.
• Court: Washington Supreme Court

Page 724

114 Wn.2d 724

790 P.2d 138

STATE of Washington and City of Spokane, Appellants, v. Grover Phillip MARKS, Marie Marks, James Senator Marks, II and Jane Marks, Respondents.

No. 56671-2.

Supreme Court of Washington En Banc.

May 3, 1990.

As Changed July 25, 1990.

Donald C. Brockett, Spokane County Prosecutor, Patricia A. Thompson, Deputy, Spokane, for State of Wash.

James C. Sloane, Spokane City Atty., Rocco N. Treppiedi, Asst., Spokane, for City of Spokane.

Leroy C. Kinnie, Spokane, for James Senator Marks and Jane Marks.

Mark E. Vovo, Spokane, for Grover Marks and Marie Marks.

DORE, Justice.

The Spokane trial court held that the police exceeded authorization in search warrants and conducted an illegal search in which they confiscated money and hundreds of items of property. The court suppressed all seized evidence, dismissed the underlying criminal charges, and ordered the police to return all confiscated property to the defendants. The State accepted the suppression ruling but objected to the order of dismissal and return of property to defendants, rather than to third parties who claimed ownership interest in the property.

We partially reverse and hold that the court shall conduct an evidentiary hearing to determine who has the superior right to possession of the remaining seized property now located in the Spokane Police Department's property room. We also reinstate the dismissed charges against defendants but prohibit the State from using the tainted evidence, previously suppressed in this proceeding, in attempting to prove its case.

FACTS

The Spokane Police Department and Sheriff's Office received information that defendants were involved in buying and selling stolen property. They employed the services of a young informant who had confessed to selling large quantities of stolen property to the defendants, two families living at south 428 and 802 Thor in Spokane, Washington. On three different occasions, between June 10, 1986 and June 17, 1986, the informant made contact with the defendants under the direction of the police. During these contacts, the informant sold property to the defendants which he indicated was stolen. During two of these contacts the informant was "wired" with a listening device which was court authorized, and the transactions were videotaped . ¹ On June 18, 1986, another operation was set up by the police for the informant to make a sale to defendants. At approximately 10 a.m., the informant went to the residence of James and Jane Mark at South 802 Thor to sell property. The informant, however, reported back to the police that the resident was not interested and apparently knew it was a "setup". The police, feeling their investigation had been compromised, aborted the attempted sale. The officers then prepared search warrants for both residences. The search warrants were signed by a judge at approximately 3:10 p.m. and delivered to each residence at approximately 3:30 p.m.

The police conducted a general search of the homes, as well as searching all individuals who were inside the respective residences. All items of jewelry worn by the children, women and men, including rings, watches, bracelets, and even gold fingernails, were removed and confiscated by the police conducting the search. During the course of the search, several thousand items were found as well as a large amount of cash. The police did not check the search warrants to determine whether they had the authority to make such a sweeping search. In fact, none of the officers conducting the search saw a copy of the search warrants prior to searching the premises. Not only did the police fail to read the search warrants, there is strong evidence in the record indicating that the police began searching the defendants' homes before the warrants were issued. Memorandum opinion, at 7. For example, the officers videotaped much of the seized property before removing it from the residences. A watch is shown in the police videotape made at South 428 Thor. This watch shows the time of 1:07. It was evident from the videotape that the watch was operating. In addition, an ambulance was called to the defendant's residence at 2:56 p.m., on June 18, 1986. An officer testified that the ambulance was called when the search was nearly completed to deal with the physical problems experienced by some of the occupants of the defendant's house. Memorandum opinion, at 4-6. The search warrants itemized only 57 items of property to be seized and did not specify that cash was to be taken. However, approximately 200 items of personal property were seized at South 802 Thor, and approximately 440 items, including seven canisters of money, were removed from South 428 Thor. Approximately $1.6 million was counted by the police. No inventory or receipt for any property or money seized was left with any of the defendants or anyone at their residences. Many items that were confiscated by the police officers were inaccurately identified and lost. There is doubt as to the identity of items taken and the whereabouts of large sums of cash.

On December 18, 1986, defendants were charged with trafficking in stolen property in the first degree. On June 26, 1986, Judge Tanksley, Jr., ordered the return of the approximately $1.6 million in cash that had been seized from the residence of South 428 Thor. In July 1986, the Spokane Police Department, without any court order or approval and in an attempt to have possibly stolen items identified, held a public viewing of items of jewelry seized on June 18, 1986. While the public had a chance to view the seized property, the defendants were denied such an opportunity.

In November 1987, Judge Murphy conducted a hearing on defendants' motion for return of the seized property. Every piece of property that was seized was brought before the hearing. The court ordered the State to return to the defendants all property that had not been identified as stolen. As to those items that had been characterized as stolen, the court found that they were "subject to further proceedings." Clerk's Papers, at 43.

On May 13, 1988, the defendants moved for an order "suppressing all evidence seized in this case and for dismissal of all charges ...". Clerk's Papers, at 47. Judge Schultheis conducted a hearing from May 31, 1988 to June 29, 1988. In its memorandum opinion of September 14, 1988, the court held the police had exceeded the authority of the search warrants and had confiscated hundreds of items that were not set forth in the search warrants. Finding of fact 21. It also determined that the police were guilty of mismanagement and governmental misconduct. Accordingly, the court granted the defendants' motion to suppress and dismiss all charges.

At a hearing on November 8, 1988, the defendants requested the court to order the State to return the remaining property, being held in the police property room, that was seized on June 18, 1986. The only property retained by the State at this time was alleged to be the product of burglaries, subject to third party claims. The prosecuting attorney objected and argued that a hearing should be held to determine the ownership of the property. The court held that no hearing was necessary since the court had suppressed the evidence and had granted defendants' motion to dismiss.

Subsequent to the court's ruling, the city attorney ordered the property room not to return the property to the defendants. In response to the City's action, the defendants made a motion to have the City and/or County of Spokane held in contempt. A hearing was held on November 22, 1988. The State submitted an affidavit demonstrating that at least 37 claimants had identified the property in dispute. The court ordered the return of the property to defendants unless the claimants listed in the State's affidavit filed a civil claim against the defendants. On December 9, 1988, the court entered its formal order dismissing the case pursuant to CrR 8.3(b) and another suppressing the evidence. Neither the State nor the City appealed the order suppressing the evidence. They did appeal, however, the order dismissing the case and the order directing the return of the property to the defendants without an evidentiary hearing. We accepted certification.

I.

SUPPRESSION OF THE EVIDENCE, NOT DISMISSAL, IS THE PROPER

REMEDY, WHEN CREDIBLE UNTAINTED EVIDENCE IS

ACQUIRED PRIOR TO A VIOLATION

On appeal, error is assigned to the court's order of dismissal:

It is ordered that this matter is hereby dismissed pursuant to CrR 8.3(b) as set out in the Findings of Fact and Conclusions of Law.

Clerk's Papers, at 323. ²

Our recent case of Seattle v. Orwick, 113 Wash.2d 823, 784 P.2d 161 (1989) controls the outcome of the dismissal issue. In Orwick, we held dismissal of charges pursuant to CrR 8.3(b) is an extraordinary remedy that can be exercised only when "there has been prejudice to the rights of the accused which materially affect[s] his or her rights to a fair trial." Orwick, at 830, 784 P.2d 161. If the defendant has not been prejudiced by governmental misconduct, dismissal will not be required. Orwick, at 831, 784 P.2d 161; State v. Baker, 78 Wash.2d 327, 474 P.2d 254 (1970).

Dismissal is unwarranted in cases where suppression of evidence may eliminate whatever prejudice is caused by governmental misconduct. Orwick, 113 Wash.2d at 831, 784 P.2d 161 (citing, State v. Grant, 9 Wash.App. 260, 511 P.2d 1013, review denied, 83 Wash.2d 1003 (1973)). In Grant, the court, in upholding the trial court's denial of dismissal, held that the suppression of an illegal tape demonstrated an absence of any prejudice to the defendant. Consistent with this view, the United States Supreme Court has not suggested "that searches and seizures contrary to the Fourth Amendment warrant dismissal of the indictment. The remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression." United States v....