State v. Michaels

• Decision Date: 28 September 1962
• Docket Number: No. 35473,35473
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. George A. MICHAELS, Appellant.

Page 638

60 Wn.2d 638

374 P.2d 989

The STATE of Washington, Respondent, v. George A. MICHAELS, Appellant.

No. 35473.

Supreme Court of Washington, En Banc.

Sept. 28, 1962.

Maurice Kadish of Kadish & Kane, Seattle, for appellant.

Charles O. Carroll, Norman W. Quinn, Liem E. Tuai, Seattle, for respondent.

ROSELLINI, Judge.

This is an appeal from a judgment entered on a verdict of guilty in a prosecution for illegal possession of gambling devices, a gross misdemeanor under RCW 9.47.030. The defendant appeals, assigning error to the denial of his various motions to suppress the evidence which formed the chief part of the case against him, contending that it was obtained through an illegal search and seizure.

The defendant was arrested for failing to signal for a left turn by officers who had been alerted to look for the automobile which he was driving. The record does not reveal the content of the information which had been given them concerning the automobile. They searched it, without the consent of the defendant, and found in the trunk suitcases containing dice, some magnets, magnetized dice, and other items. This prosecution followed.

The defendant, in advance of the trial, made three separate motions to suppress the evidence, which were denied. The state contends that he waived his objections, however, because he did not again object when the evidence was introduced at the trial, citing State v. Jackovick, 56 Wash.2d 915, 355 P.2d 976. Although that case contains a broad statement that a failure to object to the admission of evidence constitutes a waiver of a previous motion to suppress the evidence, it was actually decided upon another ground. The case cited in that opinion as the authority for the rule was State v. Hartness, 147 Wash. 315, 265 P. 742. In that case, when the defendants' motion to suppress the evidence was argued before the trial court, the court concluded that the evidence as then presented did not justify a granting of the motion, and left the question open for further consideration when the evidence should be offered at the trial. This court held that, since the evidence on which the court acted at that time was not in the record, the ruling was presumptively correct, and it was thus incumbent upon the defendnats to raise the question at the trial. Their failure to do so was held to be a waiver of the objection.

It hardly needs to be said that the purpose of requiring objections to be made in the trial court, is to give the court an opportunity to rule on the objection at a time when the facts are before it and the arguments have been heard. In the Hartness case, it appeared from the record that the trial court had found the facts before it insufficient to justify a decision on the motion prior to the trial, but expressly left the question open to be decided at the time the evidence was offered. By failing to take advantage of the opportunity afforded them by the court to challenge the evidence when it was offered (and when apparently additional facts had been disclosed to the trial court), the defendants of course waived their previous objections.

In this case, however, the trial court had all the facts before it when the pretrial motions were made, and the ruling which it made on the last of them was final in its terms. To have objected to the introduction of the evidence after this definitive ruling would have been a useless act, and this the law does not require. We find in the record of this case no evidence of a waiver of the objection.

The affidavits upon which these motions were heard have not been brought before this court, either as a part of the statement of facts or in the transcript. Ordinarily, this fact would preclude a review of the trial court's ruling. Westlake v. Westlake, 52 Wash.2d 77, 323 P.2d 8. Rulings of a trial court are presumptively correct, and the burden is upon one challenging the correctness of such rulings to show that they were erroneous. In the absence of a showing that the evidence before the court did not justify the ruling, the presumption of correctness must prevail.

In the case before us, the circumstances of the arrest and search were disclosed by the testimony of the arresting officers, which is found in the statement of facts. The state does not contend that the affidavits revealed any material facts which were not disclosed by this testimony; and the attorney for the state stated in open court that, to the best of his knowledge, there were no additional pertinent facts contained in the affidavits. This being the case, the facts were before the trial court and are before us. Thus, we are in position to decide whether the motions were properly denied. In State v. Gibbons, 118 Wash. 171, 203 P. 390, this court adopted the federal rule, as announced in Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654, that if it appears from the direct or cross examination of the state's witnesses that the evidence was obtained unlawfully, it is the duty of the trial court, upon motion, to exclude it. See also, State v. Dersiy, 121 Wash. 455, 209 P. 837, 215 P. 34.

The search was made without a warrant. In 47 Am.Jur. 513, § 18, it is said:

'The guaranty of freedom from unreasonable searches and seizures is construed as recognizing a necessary difference between a search of a dwelling house or other structure in respect of which a search warrant may readily be obtained and a search of a ship, motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. However, those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent officer authorized to search probable cause for believing that their vehicles are carrying contraband or illegal merchandise. The measure of the legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes contains contraband goods which are being illegally transported.'

Among the authorities cited in the footnotes to this statement is State v. Kinnear, 162 Wash. 214, 298 P. 449, 74 A.L.R. 1400, wherein we held that reasonable and probable cause is such cause as would justify the issuance of a search warrant. Also in accord is State v. Knudsen, 154 Wash. 87, 280 P. 922. The burden was upon the arresting officers to show that the search was made with reasonable and probable cause if that was their contention. But they have not suggested that the search was made in this case with reasonable and probable cause to believe that the automobile contained gambling devices or other illegal merchandise. The state places its reliance on its showing that the search was made as an incident to the arrest for failure to give a left-turn signal.

The defendant urges, however, that the search was not incident to the arrest, but rather the arrest was a mere pretext for searching the automobile to see what might be uncovered.

The well-settled rule is that an officer may take into custody a person who commits a misdemeanor in his presence and upon making the arrest, may search the person and his immediate environs for evidence of the crime or tools which would aid in the arrested person's escape. This rule is clearly stated in Stative v. Cyr, 40 Wash.2d 840, 246 P.2d 480:

'The constitutional requirement that searches and seizures be made only pursuant to 'authority of law' is complied with where such search and seizure is made incident to a lawful arrest. Thus it is the general rule that, where a person is legally arrested, the arresting officer has a right to search such person and take from his possession money or goods which the officer reasonably believes to be connected with the supposed crime, and discoveries made in this lawful search may be shown in evidence at the trial.' (citing cases.)

The state relies upon two cases in which this court does not appear to have given full effect to the requirement that such a search, in order to be lawful, must be for items connected with the crime for which the person was arrested, or which might aid in his escape. The first of these cases was State v. Deitz, 136 Wash. 228, 239 P. 386. In that case, officers had arrested the defendant for driving without lights and without the license plates required by law, had searched his automobile and found moonshine whisky in the rear compartment. This court held that the whisky was admissible in evidence. Insofar as the opinion reveals, however, the defendant did not argue that the arresting officers had no right to search the car or that the search was not made for items connected with the crime for which he was arrested, but simply argued that cause the items were not connected with that crime, they could not be used against him. We held that, since the officers had the right to search the car, the search was lawful, and the evidence was not illegally obtained. The question of whether an arrest can be used as a pretext for searching an automobile was not at issue in that case and was not decided.

The more recent of the two cases relied upon by the state is State v. Olsen, 43 Wash.2d 726, 263 P.2d 824. The defendant in that case was also arrested for traffic violations. However, his offense was negligent driving, and the arresting officer impounded his car, an act which was reasonable under the circumstances. While its contents were being inventoried for safe keeping, the officers found evidence of another crime, with which he was charged and of which he was convicted. We held that the evidence was obtained lawfully. Again, there was no contention that the arrest was made for the sole purpose of searching the car. The case stands for the proposition that, where an automobile...