State v. Martin
| Citation | 73 Wn.2d 616,440 P.2d 429 |
| Decision Date | 25 April 1968 |
| Docket Number | No. 39111,39111 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Claude W. MARTIN, Appellant. |
Miller & Sackmann, W. Walters Miller, Ritzville, for appellant.
Paul Klasen, Pros. Atty., Ephrata, for respondent.
*
The defendant was charged in justice court in the city of Moses Lake with speeding, a misdemeanor, and with the gross misdemeanor defined in RCW 46.52.020, generally referred to as the hit and run statute. He was convicted in justice court on both counts, and on appeal was again convicted on both counts in the superior court, and now appeals from the judgment entered on the jury's verdict.
The defendant's 14 assignments of error may be grouped for discussion as follows: (1) Error in denying defendant's motion to suppress evidence made before the commencement of trial; (2) errors in the admission and rejection of evidence during the trial; (3) error in the giving of instructions to the jury; (4) failure of the state to make a prima facie case on either count.
The facts which are pertinent to the issues raised are as follows. On July 6, 1965, at about 9 p.m., Airman Ed Downs was riding his black Honda motorcycle near the entrance to Larson Air Force Base, near Moses Lake. He was struck from the rear by a car. His motorcycle was thrown 75 feet from the highway and Airman Downs landed along side the road about 110 feet from where he was struck. He sustained a broken leg and other injuries, but dragged himself to the edge of the highway where he was able to flag down a passing car by waving the white helmet which he wore at the time of the accident. He was given first aid by a passenger in the car that stopped. A piece of metal chrome auto stripping, one end of which was embedded about 3 inches in his buttocks was withdrawn and given to State Trooper Robert McBride who investigated the accident.
The automobile which struck Airman Downs did not stop at the scene of the accident and Airman Downs did not see the automobile. The only means of identification at that time was the strip of metal chrome which showed some light blue paint on its surface.
At about 1:30 a.m., on July 7, 1965, Trooper McBride was operating a radar check for speeders near one of the entrances to Larson Air Force Base and observed the defendant's car. He stopped his patrol car, took a radar reading and determined that the car was traveling 50 miles per hour in a 40-miles-per-hour zone. Trooper McBride overtook the speeding car and informed the driver, who was the defendant, that he would be arrested for speeding. Walking to the front of defendant's car, Trooper McBride noted that the right front fender of the car was dented, that a part of the chrome strip was missing, that there was black paint on the fender, and that this damaged area on the defendant's car appeared to be the only part of the car not covered by a coating of mud. Trooper McBride straightened out the piece of chrome stripping which was in his possession and noted that in length it matched the chrome missing from defendant's damaged right front fender. When asked about the missing chrome strip, defendant claimed that he ran into a ditch in Okanogan several days previously and disclaimed any knowledge of any hit and run accident.
The defendant was then requested to follow the trooper to Moses Lake in his own car, and at the Moses Lake police department, the defendant was issued a citation for speeding and for having a loaded gun in the car. The trooper then went to the home of the justice of the peace in Moses Lake and at about 2:30 a.m., filed a complaint against the defendant under the hit and run statute and obtained a warrant for his arrest. The defendant was thereupon arrested on the hit and run charge and fully advised of his constitutional rights, after which the defendant stated that he had been home all evening and that no one had used his car. The following day photographs were taken of the defendant's automobile, some with the motorcycle placed in juxtaposition to the damaged fender. Paint samples were taken from defendant's car and sent with paint samples from the piece of metal chrome to the crime laboratory in Spokane for analysis and comparison. The two samples of paint registered almost identical readings on the spectograph.
The charge against the defendant for carrying a loaded weapon in a vehicle was dismissed and the loaded gun was not offered in evidence.
The defendant presented a pretrial motion to Defendant's counsel expressed the theory supporting his motion in the affidavit which he filed as follows:
(T)he charge of speeding placed against the defendant was a ruse in attempt to obtain posession of the defendant and his automobile without warrant, and that the evidence unlawfully obtained by said officer was obtained as the result of an illegal search and seizure while said automobile was unlawfully under the control of said officer.
On the pretrial hearing the defendant testified that he was not arrested for speeding when stopped by the officer, but was arrested as a hit and run driver. State Trooper McBride testified that the sequence of the two arrests was as set out in the foregoing statement of facts. The trial court chose to believe the testimony of Trooper McBride rather than the testimony of the defendant. There was substantial evidence to sustain the trial court's conclusion. Neither did the trial court believe that the arrest for speeding was merely a ruse by which the arresting officer sought to illegally obtain evidence of hit and run. We find nothing in the record which would justify us in setting aside the trial court's conclusion.
It may be noted that the jury found the evidence sufficient to convict the defendant on the speeding charge. The defendant appeals from the conviction on both counts, but in his brief he devotes to a discussion of the conviction of speeding one paragraph consisting of four lines without specific assignment of error and without citation of authorities. We cannot take his appeal on the speeding charge any more seriously than does the defendant himself.
The defendant urges that this case should be disposed of under the rule of State v. Michaels, 60 Wash.2d 638, 644, 374 P.2d 989, 992 (1962): 'An arrest may not be used as a pretext to search for evidence.' It will be noted, however, that there was a vital difference in the facts in State v. Michaels. In that case the court said at 644, 374 P.2d at 992: 'In the present case there is no pretense that the arrest was made with any idea in mind except to gain access to the automobile and search it; * * *.' Also, at 645, 374 P.2d at 993:
The evidence in this case conclusively shows that the arrest was made for the sole purpose of searching the automobile to ascertain whether it contained any contraband property. It was a mere pretext for the search and was therefore unlawful. Consequently, the defendant's motions to suppress should have been granted.
In one other important respect, State v. Michaels, supra, is distinguishable from the instant case. In Michaels the trunk of the defendant's car was opened and searched, and a gambling device was discovered. In the present case, the evidence to which the defendant's motion to suppress was directed, consisted of the following items: (1) a chrome strip which originally came from defendant's car, but which was handed to the state trooper at the scene of the accident after the end of it had been removed from Airman Down's body; (2) a set of photographs of the defendant's automobile taken after his arrest on the hit and run charge while the automobile was in the police parking lot near the Moses Lake jail where the defendant had himself parked the car; (3) an envelope containing some flecks of blue paint taken from the fender of defendant's car after his arrest for hit and run. None of these items of evidence could be considered the product of a search.
No search under the constitutional interdiction takes place when items having evidentiary value are outside a building and in plain view, nor if they are in plain sight inside a building to which access has been lawfully gained. See State v. LaPierre, 71 Wash.Dec.2d 375, 428 P.2d 579 (1967), and cases cited therein. See also 47 Am.Jur., Search and Seizure § 20 (1943).
In City of Tacoma v. Houston, 27 Wash.2d 215, 219, 177 P.2d 886, 889 (1947), we said:
If the entry was lawful, then it was proper for the officers to testify concerning those things that were open and plainly visible to them. State v. Llewellyn, 119 Wash. 306, 205 P. 394; State v. Miller, 121 Wash. 153, 209 P. 9; State v. Nilnch, 131 Wash. 344, 230 P. 129; State v. Nelson, 146 Wash. 17, 261 P. 796; State v. Parent, 156 Wash. 604, 287 P. 662.
See also State v. Rinkes, 70 Wash.Dec.2d 825, 828, 425 P.2d 658 (1967).
The arrest for speeding, being a lawful arrest, the arresting officer was not required to close his eyes or turn his back in order to avoid seeing evidence of a hit and run offense. As we said in State v. Roff, 70 Wash.Dec.2d 584, 588, 424 P.2d 643 (1967):
It has been said that police officers 'Once in the apartment lawfully, * * * need not 'look the other way, or disregard the evidence (their) senses bring (them)', for 'mere observation' does not 'constitute a 'search".' United States v. Scott, 149 F.Supp. 837, 841 (D.C.Cir.1957).
The appellant claims that there was error in the admission of evidence in the superior court. He contends that he was denied his constitutional right of confrontation with witnesses against him under art. 1, § 22 of the Washington State Constitution. This claim of error is...
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