State v. Martin

• Decision Date: 22 June 1970
• Docket Number: No. 135,135
• Citation: 472 P.2d 607,2 Wn.App. 904
• Parties: The STATE of Washington, Respondent, v. Jon W. MARTIN, Appellant. (39499) II.
• Court: Washington Court of Appeals

Page 904

2 Wn.App. 904

472 P.2d 607

The STATE of Washington, Respondent, v. Jon W. MARTIN, Appellant.

No. 135 (39499) II.

Court of Appeals of Washington, Division 2.

June 22, 1970.

Review Denied Sept. 22, 1970.

Nicolai, Montgomery & Sorrel, Norman Brown Binns, Seattle, appointed, for appellant.

Charles O. Carroll, King County Pros. Atty., Robert Wacker, Seattle, for respondent.

PEARSON, Judge.

The appellant, Jon W. Martin, was charged with various crimes involving assaults of a sexual nature upon women in the Seattle area. He was found by a jury to be guilty of kidnapping in the first degree, sodomy, and four counts of assault in the second degree. Judgment and sentence were entered on February 1, 1967. Defendant's appeal ¹ challenges the lawfulness of the search and seizure of certain items and their admission in evidence against him.

Defendant was arrested without warrant in the late afternoon of September 29, 1966 in Seattle. There is no question that the police had probable cause to arrest him, and defendant has conceded as much on appeal.

Acting on information obtained from the family of defendant, two police officers went to the Seattle hotel where they had reason to believe defendant was staying. The police spotted defendant as he was sitting in his car, parked on Madison Street, in the same block as the hotel where he resided. The police car was double parked nearby, alongside defendant's car, and the two arresting officers approached defendant as he sat behind the wheel reading a newspaper. Defendant was immediately told that he was under arrest, removed from his car, handcuffed, and placed in the back seat of the patrol car, where he was 'informed of his rights.'

The two officers then got into the police car and, because they were double parked and obstructing traffic, drove to a grocery store parking lot about half a block away. The police officers testified that one of them immediately returned to defendant's car and completely searched it, including the glove compartment and trunk. In the automobile, the police found photographs of nude women which had been placed between the leaves of a magazine found stuffed down between the rear seat cushions. Some of these were photographs of the assault victims, allegedly taken by the defendant. The police also found a camera case in the trunk. These items were seized and introduced in evidence at the trial.

After the search of the car, the police asked defendant if they could search his hotel room. Defendant voiced no objection to such a search and, in fact, the police testified that he urged them to search the room. When the police officers told defendant that he would have to accompany them on the search of the room, he refused unless his handcuffs were removed. The search of the room was made with defendant present and in handcuffs. However, the officers testified that they placed his coat over his wrists in such a way that the handcuffs could not be seen. The only item seized in the hotel room was an adhesive tape dispenser, which was admitted in evidence. The state claims the tape dispenser was used by defendant in taping up the victims' eyes.

The issue before us is whether the warrantless searches of the defendant's car and of the defendant's hotel room were legal.

The defendant has argued that the important decision of the United States Supreme Court, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), renders the search of the defendant's car illegal. Chimel was decided June 23, 1969, over 2 1/2 years after the search involved in this case. The state has countered by claiming that the standards of Chimel should not be applied retroactively to searches made before the decision. ² We agree.

The United States Supreme Court has not yet decided the question of the retroactivity of the principles enunciated in Chimel. See Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732 (1969). However, the question of the retroactivity of Chimel has been considered by several federal and state courts of appeal. The overwhelming majority of those courts has rejected retroactive application of the Chimel doctrine. ³ The following decisions are those in which the named court has considered and rejected retroactive application of Chimel, holding that its standards apply only to searches conducted after June 23, 1969: United States v. Bennett, 415 F.2d 1113 (2d Cir.1969) cert. denied, Haywood v. United States, Jessup v. United States, 396 U.S. 852, 90 S.Ct. 113, 117, 24 L.Ed.2d 101; United States v. Schartner, 426 F.2d 470 (3d Cir.1970); Porter v. Ashmore, 421 F.2d 1186 (4th Cir.1970); Lyon v. United States, 416 F.2d 91 (5th Cir.1969) cert. denied 396 U.S. 1023, 90 S.Ct. 597, 24 L.Ed.2d 516; Turner v. United States, 426 F.2d 480 (6th Cir.1970); United States v. Blassick, 422 F.2d 652 (7th Cir.1970); Williams v. United States, 418 F.2d 159 (9th Cir.1969); Scott v. Maryland, 7 Md.App. 505, 256 A.2d 384 (1969); Arizona v. Bustamante, 11 Ariz.App. 129, 462 P.2d 822 (1969); Derouen v. Sheriff, Washoe County, 85 Nev. 637, 461 P.2d 865 (1969); People v. Edwards, 80 Cal.Rptr. 633, 458 P.2d 713 (Cal.1969); New Mexico v. Reyes, 81 N.M. 404, 467 P.2d 730 (1970); Thornton v. Texas, 451 S.W.2d 898 (Tex.Cr.App.1970).

Many of the above-cited cases employ the reasoning of the United States Supreme Court in Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), where the court held that the ruling of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), concerning wiretaps, did not apply to wiretaps conducted before the date of the Katz decision. We are in agreement with the growing number of appellate courts which limit Chimel to prospective application. The goal of deterring police searches rendered illegal by the Chimel decision would not be served by excluding evidence obtained by searches made before the decision was announced. Moreover the police in this case (and undoubtedly many others) relied on the Pre-Chimel standards concerning the scope of searches incident to an arrest. Given the large number of criminal cases involving search and seizure questions, we think there would be a detrimental burden on the administration of justice in applying the Chimel standards retroactively. For the reasons outlined above, we hold that the standards of Chimel should not apply to searches conducted before June 24, 1969.

Having decided that the Chimel standards do not apply to the search, we must determine the validity of the automobile search under the rules applicable to searches and seizures before Chimel. The Pre-Chimel rules concerning search and seizure were delineated in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950) and Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). These cases established that police could search things under the immediate control of the person arrested, provided the search is substantially contemporaneous ('not too remote in time or place') to the arrest. Above all, the search must not be unreasonable under the circumstances of the case. State v. Schwartzenberger, 70 Wash.2d 103, 422 P.2d 323 (1966); State v. Wilson, 70 Wash.2d 638, 424 P.2d 650 (1967).

We think the search of the Martin automobile was reasonable within those standards, and was incident to a lawful arrest. The automobile was owned by and under the immediate control of defendant....