State v. McFarland

• Decision Date: 12 September 1974
• Docket Number: No. 42929,42929
• Citation: 526 P.2d 361,84 Wn.2d 391
• Parties: STATE of Washington, Respondent, v. James Everett McFARLAND, Petitioner.
• Court: Washington Supreme Court

Page 391

84 Wn.2d 391

526 P.2d 361

STATE of Washington, Respondent, v. James Everett McFARLAND, Petitioner.

No. 42929.

Supreme Court of Washington, En Banc.

Sept. 12, 1974.

Rehearing Denied Oct. 29, 1974.

Lawrence W. Moore, Tacoma, for petitioner.

Ronald L. Hendry, Pros. Atty., J. D. Mladinov, Sp. Counsel, Tacoma, for respondent.

FINLEY, Associate Justice.

James E. McFarland was found guilty of unlawful possession of a controlled substance by a Pierce County Superior Court jury. The trial court denied a motion to suppress and admitted certain evidence allegedly tainted under the 'fruit of the poisonous tree' doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), a derivative of the exclusionary rule created in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and extended to the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Court of Appeals affirmed the verdict of the jury in an unpublished opinion. We granted a petition for review. Herein, we affirm the decision of the Court of Appeals and the trial court.

Prior to the advent of the criminal prosecution in the Superior Court involved in the instant case, petitioner McFarland was involved in a criminal prosecution in the Tacoma Municipal Court in which he pleaded guilty to two traffic counts and was convicted on a third count of assault. It must be conceded that he was not adequately apprised of his right to counsel and was not, in fact, represented by counsel at his trial and conviction on the assault charge in the Tacoma Municipal Court. Furthermore, the municipal court judgment might well have been set aside or voided on appeal, but no such definitive action was or has been taken to date. After his conviction in municipal court, McFarland was sentenced to 90 days in the city jail and ordered committed. Thereupon, before leaving the court room, he gave oral notice of appeal, an appeal bond was set, and McFarland was immediately taken to the city jail. Shortly thereafter at the city jail he was booked and searched. Approximately 20 amphetamine tablets were found on his person. As a result of this, he was charged in the superior court in the instant case with unlawful possession of a controlled substance, and counsel was appointed for him. He pleaded not guilty and, as hereinbefore indicated, moved to suppress the evidence obtained at the city jail as having been acquired during a search incident to a commitment declared unlawful by Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

The exclusionary rule of Weeks and Mapp has spawned the so-called 'fruit of the poisonous tree' doctrine which requires the suppression of all evidence that is derived as a consequence of an illegal search or seizure.

Commentators agree that the most important social good or purpose of the so-called exclusionary rule, described in the common vernacular, is to 'police the police,' I.e., to discourage and deter police conduct violative of the Fourth Amendment protection against unreasonable searches and seizures. Thus, in situations where there is no police deterrent effect to be served by exclusion of particular evidence, the United States Supreme Court has steadfastly rejected application of the exclusionary rule. See, e.g., United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Cf. Cardwell v. Lewis, --- U.S. ---, 94 S.Ct. 2464, 41 L.Ed.2d --- (1974).

In our judgment, the instant case does not involve an unwarranted intrusion by the police violative of the 'unreasonable search and seizure' provisions of the Fourth Amendment. It does involve a routine and, we daresay, justifiable booking and an administrative search when McFarland arrived at the jail pursuant to a then outstanding Tacoma Municipal Court judgment. Assuming at the present that the Tacoma Municipal Court judgment was not only voidable but void on due process constitutional grounds, Cf. Haislip v. Morris, 84 Wash.2d 106, 524 P.2d 405 (1974), this has Not, in fact, depreciated in any way the actual probative value of the 20 amphetamine tablets as evidence. Now, in retrospect, it is claimed that by some kind of legal alchemy or relation-back theory or, at best, by a dubious collateral attack on the Tacoma Municipal Court judgment, the evidence, I.e., the 20 amphetamine tablets should be labelled verboten--'fruit of the poisonous tree'--and properly subject to McFarland's motion to suppress in the instant case.

By way of summary, it seems to us significant that in the instant case, an independent judicial proceeding in the Tacoma Municipal Court, was followed by the necessary and routine custodial jail search. Hence, there was no police misconduct directly involving an unlawful search and seizure violative of the Fourth Amendment, and thus, the ostensible purpose of the exclusionary rule as embodied in the 'fruit of the poisonous tree' doctrine is in no way to be served in the instant case by exclusion of the allegedly tainted evidence, 20 amphetamine tablets found on McFarland's person at the time he was searched and transferred to the custody of the Tacoma City jail. For the reasons indicated, the judgment of the trial court should be affirmed. It is so ordered.

HALE, C.J., and HUNTER, HAMILTON, WRIGHT and BRACHTENBACH, JJ., concur.

HALE, Chief Justice (concurring specially).

I join in the opinion but would make further reference to the absurd consequences produced by latter-day judicial thinking on the suppression of sound evidence in criminal cases. In many cases, the rule of suppression sounds the death knell of the state's case for light and transient causes arising out of a minor and sometimes even trifling infraction of a rule of evidence committed by a distant peace officer at a distant place. In this case, I cannot find where any officer committed any error whatever with respect to the arrest and search of the defendant, and the judge's error--if any--was unrelated to the present case.

Defendant accepted the burdens of his guilt in two traffic offenses, freely acknowledging them in open court by his plea of guilty; his guilt in another charge was established by trial. He now asserts that the claimed errors, based upon a failure of the court to notify him that his right to counsel would be at public expense, occurring in these three cases should be visited upon the state in another wholly separate, distinct and unrelated offense.

From the moment that the defendant entered the courtroom of the municipal court, throughout all stages of his arraignment, trial, sentencing and trip from the courtroom to the jail, he was engaged in the commission of a crime. During that interval, in the presence of the judge, court attaches and peace officers, he was liable to arrest and prosecution for the crime he was then actively engaged in committing--the concealed and unlawful possession on his person of a contraband and illegal drug. And, it is immaterial whether the illegal and concealed object on his person was a deadly weapon, a grenade or bomb, heroin or amphetamine. In any event, the court's failure to appoint counsel in three municial court cases had no relevance to the proof of guilt in the unlawful possession of drugs case--nor should it operate to immunize the defendant from prosecution for other crimes committed by him in the courthouse during the trial of the very charges which brought him there.

Aside from the doubtful conclusion that it was error to allow the defendant to plead guilty after he had been succinctly advised in writing by the judge that he had both a right to counsel and to a continuance enabling him 'to prepare a proper defense or to seek advice,' the error should not be deemed transferable to another case involving a separate and distinct crime having no connection whatever with the crimes or the trials in which the error is said to have occurred.

What was strenuously argued here is actually a new theory of jurisprudence--the theory of floating error, fluttering from place to place until it lights on a point where it will do the defendant the most good. Defendant's convictions without counsel in the three municipal court cases, it is argued, were conceived in error notwithstanding that the defendant, after being advised of his right to counsel at the outset made no claim of indigency and did not request counsel. The record discloses a singular lack of curiosity on defendant's part concerning appointment of counsel at public expense and further discloses no inclination to request counsel until after he had testified in his own behalf. He freely and voluntarily elected both to plead guilty to two charges and to go to trial without counsel on the third.

To be reversible, the claimed error must be proximate to the conviction. Error should not be transferable from one cause to a different and wholly unrelated one; nor should it be judicially expanded to create an immunity from prosecution for other and different crimes tried in other and different cases. This should be specially true of error arising in the trial of an offense committed before, during and after a judicial proceeding not connected with the judicial proceedings in which the error is claimed. Accordingly, it should be stated as a principle that error asserted in the prosecution of one set of crimes is not proximate and cannot be transferred to the prosecution of a wholly separate, distinct and unrelated crime.

There is another reason, however, why a failure to advise of the right to counsel at public expense in the municipal court cases cannot operate as error in the illegal possession of drugs case, and that is the lack of causation. This error cannot be deemed to have contributed to a wrongful conviction, for an attorney...