State v. Melrose

• Decision Date: 08 June 1970
• Docket Number: No. 258--I,258--I
• Citation: 2 Wn.App. 824,470 P.2d 552
• Parties: The STATE of Washington, Respondent, v. William Barton MELROSE, Appellant.
• Court: Washington Court of Appeals

Page 824

2 Wn.App. 824

470 P.2d 552

The STATE of Washington, Respondent, v. William Barton MELROSE, Appellant.

No. 258--I.

Court of Appeals of Washington, Division 1, Panel Two.

June 8, 1970.

William G. Jenkins (court appointed), Seattle, for appellant.

Charles O. Carroll, King County Pros. Atty., John R. Cuningham, Deputy Pros. Atty., Seattle, for respondent.

HOROWITZ, Acting Chief Judge.

Defendant Melrose was convicted of the crime of grand larceny in violation of RCW 9.54.010(5). ¹ The property alleged to have been stolen consisted of a camera with an attached light meter, all of which was alleged to be of value in excess of $75. Defendant appeals, raising two basic questions; namely, (1) the claimed error of the trial court in refusing to suppress certain evidence, and (2) the sufficiency of evidence of value to prove the crime charged. The facts presented are as follows.

On July 1, 1969, two Seattle Police Department detectives were interrogating a pawnbroker operating a pawnshop in Seattle concerning certain items sold to him within the preceding 24 hours in order to determine if any of the items were stolen property. The pawnbroker told them that on two different occasions a person had sold items to him, giving different names and different addresses on each occasion. While discussing these transactions, the person who had sold the items entered the store. That person was the defendant. The pawnbroker informed the detectives that the person was entering. As the defendant approached the pawnbroker, the two detectives then stood aside and overheard the entire conversation which ensued between the pawnbroker and the defendant. The defendant was carrying an Exakta 35 mm. camera and light meter. He offered to sell the items to the pawnbroker for $10. The latter agreed. Defendant then informed the pawnbroker that his name was Roger Rodrigues and that his address was 2031 Lane Street. The address so given differed from the address he had last given to the pawnbroker. The detectives then stepped forward, identified themselves and requested some identification from the defendant. The defendant produced identification showing his name to be William Barton Melrose. He was asked if that was his true name and he replied in the affirmative. At this point they placed the defendant under arrest for using a false name and false address. At that time he was advised of his constitutional rights. He stated he understood his rights and further stated that the camera was not stolen. The officers then and there interrogated the defendant concerning the camera, light meter and ownership. He stated that the camera belonged to his wife who had bought it in Japan some seven years before. He failed to show a familiarity with the camera or to recognize the light meter as such. Following this, the officers took possession of the articles sought to be sold and took the defendant to the station house. After further investigation, he was charged with the crime of grand larceny.

Immediately prior to the trial on the merits, the defendant, through his counsel, moved to suppress evidence next described on the ground that the arrest was unlawful. The evidence sought to be suppressed consists of the items taken from the defendant at the time of the arrest; evidence later obtained identifying the camera taken from the defendant in the pawnshop as belonging to its owner, a Mr. Ham; and testimony by Mr. Ham concerning a telephone conversation with the defendant in which the latter admitted or confessed to having taken the property here involved. At the time of the motion to suppress, there was no showing as to just how the police officers discovered Mr. Ham's connection with the defendant or with the articles involved. The motion also sought to suppress in a somewhat qualified way 'any testimony as to any admissions or confessions alleged to have been made by the defendant at the time of his arrest * * *' or any admission by the defendant to Mr. Ham that may have been overheard by a police officer. The trial court denied the motion.

The initial question presented is the lawfulness of the arrest. Seattle, Wash., Code § 10.56.050 (1969) provides Anyone who pledges, sells or consigns any property to or with a pawn shop or pawnbroker shall sign the records required to be kept by such dealer with his true name and shall include his correct residence address.

The violation of this section is a misdemeanor. Seattle, Wash., Code § 10.02.230 (1969). The evidence is undisputed that the defendant did not sign nor did the police officers see the defendant sign the record of the sale kept by the pawnbroker. The officers merely heard the defendant give the pawnbroker a name and residence address which upon their interrogation and information prior to arrest appeared false. The ordinance does not make it a criminal offense for the person selling the property to the pawnbroker to orally give a false name or false address. Had the arresting officers waited, the defendant might well have committed the crime described in the ordinance. The most that can be claimed is that the defendant attempted to commit the misdemeanor without actually committing it. State v. Charley, 48 Wash.2d 126, 291 P.2d 673 (1955); State v. Swane, 21 Wash.2d 772, 153 P.2d 311 (1944).

It is well settled that a police officer may not make a warrantless arrest for a misdemeanor including one made such by a city ordinance, and whether constituting a breach of the peace or not, unless the misdemeanor is committed in the presence of the arresting officer. State v. Greene, 75 Wash.Dec.2d 533, 451 P.2d 926 (1969); City of Tacoma v. Harris, 73 Wash.2d 123, 436 P.2d 770 (1968); State v. Wilson, 70 Wash.2d 638, 424 P.2d 650 (1967).

We need not consider whether the defendant's conduct, which does not involve a breach of the peace, if sufficient to constitute an attempt to commit the misdemeanor for which he was arrested, would itself have been a crime committed in the presence of the officer. The Seattle ordinance does not make or purport to make an attempt to violate Seattle, Wash., Code § 10.56.050 (1969) a crime. RCW 9.01.070 dealing with attempts to commit crimes under state law has not been incorporated in the Seattle Criminal Code. RCW 35.21.180; RCW 35.22.280; Cf., City of St. Paul v. Webb 256 Minn. 210, 97 N.W.2d 638, 76 A.L.R.2d 1423 (1959). Nor can it be properly contended, as urged by the state, that the arrest was lawful on the theory that the police officers had reasonable cause to believe that the misdemeanor was committed in their presence, even though they were mistaken. The police officers saw and heard the entire transaction and were charged with knowing from the evidence observed by them that the defendant's conduct did not constitute a violation of the city ordinance involved. A warrantless arrest based on probable cause of guilt (City of Tacoma v. Harris, Supra; Sennett v. Zimmerman, 50 Wash.2d 649, 314 P.2d 414 (1957)) means probable cause of guilt of conduct which violates the law for which the arrest is made. It does not mean probable cause of guilt of conduct which does not constitute the violation of such law. In the former case, it may be said that the officer is privileged to make the arrest, even though he acts under excusable mistake of fact. See City of Tacoma v. Harris, Supra; White v. Jansen, 81 Wash. 435, 142 P. 1140 (1914). In the latter case he acts under an inexcusable mistake of law. Restatement (Second) of Torts, § 121 Comment (i) (1965). Here, the state failed to prove that the conduct in the officers' plain view constituted a crime. Accordingly, no misdemeanor was committed in the officers' presence. See State v. Miles, 29 Wash.2d 921, 190 P.2d 740 (1948); State v. Silverman, 48 Wash.2d 198, 292 P.2d 868 (1956).

The mere fact of unlawful arrest does not necessarily vitiate the conviction. It is the admission of evidence obtained incident to or as a result of the arrest that can upset the conviction. Wilkins v. State, 237 Md. 617, 205 A.2d 593 (1964). The overall effect of our decisions is that in the absence of the arrested person's consent, articles taken from the person unlawfully arrested, and post arrest statements made in the course of the interrogation incident to such arrest and even reasonable search are not admissible against the defendant, either for the crime for which he has been arrested or for another crime charged because they are the fruits of such unlawful arrest and search. State v. Johnson, 71 Wash.2d 239, 427 P.2d 705 (1967); City of Tacoma v. Houston, 27 Wash.2d 215, 177 P.2d 886 (1947); In re McNear v. Rhay, 65 Wash.2d 530, 398 P.2d 732 (1965); Cf., State v. O'Bremski, 70 Wash.2d 425, 423 P.2d 530 (1967). See State ex rel. Fong v. Superior Court, 29 Wash.2d 601, 609, 188 P.2d 125 (1948). Even the testimony of a witness discovered pursuant to an unlawful interrogation is inadmissible. See State v. O'Bremski, Supra, 70 Wash.2d at 428, 423 P.2d 530. Accordingly, a motion to suppress such wrongfully obtained evidence seasonably made before trial will be granted; and if denied and if the error is one not harmless beyond a reasonable doubt, a denial constitutes reversible error. State v. Duckett, 73 Wash.2d 692, 440 P.2d 485 (1968); State v. Johnson, 71 Wash.2d 239, 427 P.2d 705 (1967). In the instant case involving illegal arrest, it cannot be fairly said that consent was knowingly and intelligently given by the defendant to disclose the matter sought to be suppressed. See Annot., 9 A.L.R.3d 858, 864 (1966); Cf., In re McNear v. Rhay, Supra, 65 Wash.2d at 541, 398 P.2d 732. It is not clear whether the police officers discovered Mr. Ham's connection with the matter from the defendant in their possible later interrogation or whether the evidence involving Mr. Ham and his ownership of the articles involved came from an independent source. There is a possibility that the police obtained the leads leading to Mr. Ham's...