State v. Miles

• Decision Date: 03 March 1948
• Docket Number: 30258.
• Citation: 29 Wn.2d 921,190 P.2d 740
• Parties: STATE v. MILES et al.
• Court: Washington Supreme Court

190 P.2d 740

29 Wn.2d 921

STATE v. MILES et al.

No. 30258.

Supreme Court of Washington

March 3, 1948

Department 1

Rehearing Denied June 3, 1948.

Clarence E. Miles and Clarence E. Kast were convicted of the possession of burglar tools, and they appeal.

Judgments reversed with instructions.

MALLERY C.J., dissenting.

Appeal from Superior Court, King County; Calvin S. Hall, judge.

Warren Hardy, of Seattle, for appellant Miles.

Warner Pierce & Peden, of Seattle, for appellant Kast.

Lloyd Shorett and James D. McCutcheon, Jr., both of Seattle, for respondent.

SIMPSON Justice.

The defendants in this case were jointly charged with two offenses, being (1) burglary by entering and robbing the offices of Dr. Charles R. Rogers located at the northwest corner of Third and James streets in Seattle, and (2) with the possession of burglar tools.

At the conclusion of the trial, the jury returned a verdict of not guilty on the burglary charge, and guilty of the possession of burglar tools. After the denial of motions for new trial, defendants appealed to this court.

Their assignments of error call in question the action of the trial court in the following particulars: (1) Admission of some fourteen exhibits in evidence; (2) overruling motions to suppress certain exhibits admitted in evidence; (3) refusing to grant motions for directed verdicts; and (4) refusing to grant motions for new trial.

Preliminary to stating the facts produced at the trial we find it necessary to relate the events which occurred prior to the introduction of evidence.

The record does not indicate the date of the filing of the information charging burglary. The information in the case charging possession of burglar tools was filed July 24, 1947. The charging portion of the information was as follows:

'They, the said Clarence E. Miles and Clarence E. Kast, and each of them, in the County of King, State of Washington, on or about the 14th day of July, 1946, wilfully and unlawfully then and there did have in their possession various and sundry burglar tools.'

Upon motion presented by the prosecuting attorney, the cases were upon the 9th day of September, 1946, consolidated for trial. March 7, 1947 the prosecuting attorney, through one of his deputies, gave to counsel for defendants a notice that the state would, on March 19, 1947, move to amend the information relating to the charge of having burglary tools in possession, by adding the following words:

"under circumstances evincing an intent to use or employ, or allow the same to be used or employed in the commission of a crime, or knowing the same were intended to be so used;"

On the day of trial, March 19, motions presented again by the defendants for separate trials were denied by the court. The court then allowed the information charging possession of burglar tools to be amended as proposed by the state. Before the trial started, counsel for appellants presented to the court motions to suppress certain evidence obtained without a search warrant at the time of the arrest. The court did not pass upon the motions to suppress the evidence, but stated that he would consider them when the evidence was offered. Appellants were then arraigned and entered pleas of not guilty. The jury was selected and the deputy prosecuting attorney made his opening statement to the jury. At the close of the statement, counsel for appellants again pressed their motions for the suppression of the evidence. The motions were based upon the grounds of illegal search and illegal arrest. The court denied the motions.

The following question and answer indicates the position taken by the court:

'Mr. Warner: You hold that we are not in a position from a timely standpoint for even a motion for the suppression of the records at this time until they offer evidence of illegal search and illegal arrest?

'The Court: Yes, I think so. You may renew that later.'

The evidence showed as follows: About 3:30 a. m., July 15, 1946, police officers, Roy J. Mahoney and Albert T. Kuehl, arrested appellants while they were standing on the sidewalk near an automobile owned by Kast. The officers did not have warrants of arrest or search warrants. Following the arrest, the officers immediately searched the appellants. They took from appellant Miles a piece of celluloid. The evidence on the part of the state showed that the piece of celluloid could be used for opening a lock. The objection to the admission was that the piece of celluloid was obtained as a result of an unlawful arrest and unlawful seizure. Included in the objection was a motion to suppress the evidence. The court overruled the objection and admitted the offered exhibit. At the time of the arrest, the officers demanded that appellant Kast open the turtle back of his car. Kast complied with the request and the officers found several tools, consisting of punches, a circular cutting saw, a punch, two screwdrivers, an axe, two flashlights, small chisel, ballpeen hammer, a jimmy or crowbar, car tools, a pair of pliers, a pair of gloves, and a sledge. When the state offered the tools in evidence, counsel objected on the ground that the arrest was unlawful. At the same time the attorneys for appellants moved that the evidence be suppressed. The objections were overruled and the motion denied. The exhibits were then admitted in evidence.

The circumstances surrounding the arrest are described by the arresting officers as follows: About 2:45 on the morning of July 15, 1946, they were riding in a police car and received a radio message that a 'stick-up' had been committed by two young men at the Feek Dairy Lunch at Third avenue and Seneca, Seattle. (Appellants were about forty years of age.) Shortly after receiving the radio message, they apprehended appellants and made the arrest as heretofore related.

At the time the tools were admitted in evidence, appellant Miles asked the court to instruct the jury that those exhibits could not be considered as evidence as against him. The court refused to so instruct the jury.

The robbery of Dr. Rogers' office was not discovered until several hours after the arrest of appellants. The record discloses the following:

'Recross Examination

'By Mr. McCutcheon [Questioning Officer Mahoney]:

'Q. You recall that on cross examination I had just asked you if you believed these men had committed a felony. Now to resume my cross examination. Didn't you as a matter of fact take into account your knowledge that the defendants were old offenders for the crime of robbery?

'Mr. Warner: That is objected to as immaterial. That is not the basis on which he arrested them.

'The Court: He may answer the question.

'A. That is right.

'Mr. McCutcheon: That is all.

'Redirect Examination

'By Mr. Warner:

'Q. You did not arrest them for robbery? A. We arrested them in regard to a robbery that had been committed a short time Before and for suspicion of it.

'Q. You arrested them for robbery, did you? A. Suspicion of robbery, yes.

'Q. For suspicion, yes.'

Appellant Kast maintains that his arrest and the search of his car were in direct violation of his constitutional rights as provided by the fourth and fifth amendments to the constitution of the United States, and §§ 7 and 9, Art. I, of the constitution of the state of Washington; that the evidence obtained under the arrest and seizure should have been suppressed. Appellant Miles makes the same contention, together with the additional one that the admission of the so-called burglar tools was in any event erroneous as far as his trial was concerned.

The state takes the position that the arrest and search were legal. That the search and seizure arose out of an arrest, that the search was incidental thereto, and that any articles found as a result of the search were admissible in evidence. The state takes the position also that the motions presented to suppress the evidence were neither timely nor supported by affidavits or testimony.

It will be observed that the fourth amendment to the constitution of the United States, and § 7 of Art. I of our state constitution, although they vary slightly in language, are identical in purpose and substance. The latter portion of the fifth amendment to the constitution of the United States, and § 9 of Art. I of the constitution of this state, give to individuals the same protection.

The rights of individuals as guaranteed by our constitution, are not to be lightly considered. The framers of our constitutions, Federal and state, realized that laws affecting the liberty of men must be safeguarded since the wisdom of the ages has taught that unrestrained official conduct in respect to depriving men of their liberties would soon amount to a total loss of those liberties. Where procedure relating to arrest and search is provided, it must be strictly followed.

This conclusion is fortified by the following excerpts from Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 263, 65 L.Ed. 647:

'It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915c, 1177, and in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 ) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the constitution by these two amendments. The effect of the decisions cited is: That such rights are declared to be indispensable to the 'full enjoyment of personal security, personal liberty and private property'; that they are to be regarded as of the very...