State v. McDonald

• Decision Date: 19 September 1968
• Docket Number: No. 39578,39578
• Citation: 74 Wn.2d 474,445 P.2d 345
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Peter George McDONALD, Appellant, and Eugene Woods, Defendant.

Page 474

74 Wn.2d 474

445 P.2d 345

The STATE of Washington, Respondent, v. Peter George McDONALD, Appellant and Eugene Woods, Defendant.

No. 39578.

Supreme Court of Washington, Department 2.

Sept. 19, 1968.

James Alfieri and Richard G. Martinez, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Edmund P. Allen, Deputy Pros. Atty., Seattle, for respondent.

HILL, Judge.

This is an appeal by Peter George McDonald from a conviction of a gross misdemeanor under RCW 9.19.050--MAKING OR HAVING BURGLAR TOOLS. ¹ His co-defendant, Eugene Edward Woods, was also convicted but did not appeal. This was a non-jury case.

The nature of the question raised on this appeal requires a detailed consideration of the circumstances surrounding the arrest. At approximately 4:50 a.m., December 17, 1966, a Seattle police officer, on solo car patrol, observed a vehicle double parked with its lights on, facing westbound on North 45th. The officer was proceeding east on the same street. As the police car approached, the other vehicle started forward slowly. The plainly marked police car slowed as the two came about abreast; the driver and passenger in the other car looked directly at the police car and the officer as he began a slow U-turn to check on the other vehicle. It immediately sped away, running a stop sign at North 45th and Phinney, turning south on Phinney, and then ending on the curb in an attempt to make a high-speed turn east on North 44th. The officer 'blocked-in' the other vehicle by stopping the police car behind it. The officer alighted and with drawn pistol approached the other vehicle, ordering the occupants to throw out their car keys. When the officer looked in the back seat to check for other occupants, he saw 'several pry bars laying on the floor, a 2-cell Ever Ready flashlight, an 8 inch shank yellow-handled screwdriver, one 2-foot wrecking bar, one 2-foot pry bar, and a 21-foot length of 3/4 manila rope.' He testified that the Mercury-vapor street lights made it 'easy to see' the interior of the car. The officer then radioed for assistance. Another officer arrived within a very short time. He testified that a rope and a number of pry bars were in plain view in the car on the curb.

Contemporaneously with the arrest of the occupants of the car (McDonald and Woods), the officers searched them and it. Under the right front seat (which the appellant had occupied), they found two fully loaded pistols: one, a .38 air weight snub nose, fully loaded; the other, a .380 Berretta, fully loaded, with 'one in the chamber, ready to go, cocked.' A switchblade knife was found concealed upon the person of the driver (Woods.) The search revealed further significant items. ²

The appellant makes 12 assignments of error. His brief makes a general argument with no attempt to designate the specific assignment of error which is being discussed. Our analysis of this blanket coverage indicates that three assignments of error (i.e., 6, 7 and 8) were not argued, ³ and that the other nine can be divided into three distinct groupings, presenting the following contentions:

1. That the complaint was based on a statute violative of the Due Process Clause of the United States Constitution in that it is so vague as to afford no reasonable notice of what action is proscribed therein; (Assignment of Error 1).

2. That the court erred in refusing to grant appellant's motion to suppress all evidence obtained pursuant to a search that, though incident to a lawful arrest, was unreasonable in scope, and therefore invalid; (Assignments of Error 2, 3, 4 and 5).

3. That the court erred in refusing to grant appellant's motion to dismiss on the insufficiency of the evidence; (Assignments of Error 9, 10, 11 and 12).

Appellant urges that RCW 9.19.050, 'MAKING OR HAVING BURGLAR TOOLS,' is unconstitutional as being unreasonably vague and indefinite; (see Note 1, supra). This statute has been the law of this state in essence since 1893 ⁴ and in its present form since 1909 ⁵. Arguments made by the appellant on the issue of constitutionality were answered by this court in State v. Fitzpatrick, 141 Wash. 638, 251 P. 875 (1927), and several times since. The constitutionality, construction and application of similar statutes in other states is discussed at length in an annotation in 103 A.L.R. 1313--1325. One of the more recent decisions dealing with the constitutionality of such statutes is State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967), in which the Kansas court said:

The conduct forbidden by K.S.A. 21.2437 is the possession (or making, mending, etc.) of tools or devices suitable for and commonly used in unlawful breaking and entering, With intent to use those tools for that unlawful purpose. We think even the most stupid member of the housebreaking cult would understand that such undesirable conduct falls within the prohibition of the statute. In State v. Hill, 189 Kan. 403, 411, 369 P.2d 365, 371, 91 A.L.R.2d 750, we defined the test to be applied in these words:

'* * * The test is whether the language conveys a sufficient definite warning as to the proscribed conduct when measured by common understanding and practice.' (Citing cases.)

We quote another paragraph from the same opinion which seems to be particularly appropriate to the instant case:

The defendant calls attention to the general rule that penal statutes must set up ascertainable standards and, where a statute either requires or forbids the doing of an act in terms so vague and ambiguous that men of ordinary understanding or common intelligence can only guess at its meaning and differ as to its application, it lacks the first essential of due process. (21 Am.Jur.2d, Criminal Law, § 17, p. 99.) We are in accord with this principle, but fail to see its application here. (p. 1004.)

We also are in accord with that principle, but, like the Kansas court, we fail to see its application here. Appellant's challenge to the constitutionality of RCW 9.19.050 is fully answered by our own decisions going back to the Fitzpatrick case in 1927, and by the 1967 Kansas case, which we have just quoted.

Appellant next argues that the tools, guns, et cetera, taken from the car in which he was riding, were inadmissible, as the fruits of an unreasonable, and therefore invalid, search.

At the outset of any consideration of the argument relative to the propriety of the search it must be emphasized that this is not the case of a motorist being stopped for a minor traffic violation and a search then being made of his person and car. There had been a serious misdemeanor committed in view of the officers, a desperate effort made to flee and avoid arrest; there were, in plain view of the officer before any search was made, tools which were customarily used by burglars, and it was at an hour when normally honest artisans and artificers are not abroad. The trial judge himself gave the apt answer to this assignment of error when he ruled on the admissibility of the articles found in the car:

THE COURT: Motion to suppress is denied. If this Officer had done anything other than what he did, we would want him fired from the Police force. He did the only thing a reasonable man could do. He observed an automobile on the street and made a u-turn, not to molest the parties at all, but to see what the situation was, why they were there double-parked with their lights on. There is no indication that he would have done anything further had this car gone about its business. He may have. He may not.

The car then obviously started to run from a police car and committed a serious traffic violation in doing so. An officer can't stand by when that happens. He does the only thing he reasonably can do. They violated a traffic law in a very serious manner, going through a stop sign, and they are trying to run from the police. He blocks the car, pulls a gun to protect himself and looks in the car to protect himself. Seeing what happens to be there to be seen while a lawful arrest is in progress is not a search, and he can act on the basis of what he lawfully and property sees. He did so. These men were under arrest. He saw evidence then of a further offense that was right there in his presence. He called for further assistance.

I see no conceivable basis for suppressing this evidence.

The third contention covered by the assignments relates to the insufficiency of the evidence to sustain the conviction, and is so patently without substance as not to merit discussion, except as to one issue never presented to the trial court. It is argued here for the first time that, though the evidence may have been sufficient to convict his co-defendant, the owner and driver of the car, since it must be assumed that the guns and burglar tools found in his car belonged to him; it therefore follows that appellant must be assumed to have been merely an innocent passenger going along for an early morning ride. The case was tried from start to finish on the theory of joint possession of the tools and guns. Neither defendant testified; neither defendant acknowledged ownership of the guns or the tools, though Woods had told an officer that he owned the car. A search of the record reveals not the slightest evidence that they were claimed to be in the exclusive possession or control of either defendant. No motion for dismissal was ever made in behalf of McDonald on the basis that the evidence was insufficient to prove that he, as an individual, had possession of the guns and tools found in the car. The trial court made a specific finding 'That the defendants, Eugene Edward Woods and Peter George McDonald, possessed the tools under circumstances evincing an intent to use or employ or allow the same to be used or employed in the commission of a crime.'

Error is assigned to the making of this finding, but there can be no question that the above is a finding which any trier of the facts--jury or judge--was entitled to make on the evidence...