State v. Murray
| Decision Date | 07 November 1974 |
| Docket Number | No. 42897,42897 |
| Citation | 84 Wn.2d 527,527 P.2d 1303 |
| Parties | The STATE of Washington, Petitioner, v. John MURRAY, also known as John Terry, and Linda Simpson, also known as Linda Taylor, Respondents. |
| Court | Washington Supreme Court |
Donald C. Brockett, Pros. Atty., Fred J. Caruso, Deputy Pros. Atty., Spokane, for petitioner.
R. Max Etter, Sr., Spokane, for respondents.
The defendants (respondents), John Murray and Linda Simpson, were convicted of grand larceny by knowingly possessing a stolen Sony television set, following a jury verdict of guilty. The Court of Appeals, Division Three, reversed the judgment of the trial court, and dismissed the information on the grounds of an illegal search and seizure. The petitioner, State of Washington, filed a petition for review with this court, which we granted.
The facts, as shown by the record, are as follows. On August 11, 1971, mumbers of the Spokane police department arrived at an apartment house in Spokane, Washington, to assist an informant in obtaining clothing which she had left in apartment No. 1. While in the apartment the officers observed video television equipment and learned from the informant that these items were stolen. The police later discovered that the items in apartment No. 1 were stolen from the Liberty High School. The informant also indicated that she thought there was some more equipment in apartment No. 11 of the same building.
Pursuant to a search warrant, the items in apartment No. 1 were seized. During the course of this search Sergeant McGougan noticed a letter from the informant addressed to a known prostitute, stating that Linda Simpson was living with the defendant Murray in apartment No. 11. Thinking that the defendant Simpson would know the whereabouts of one Robert Stigall, who the police wanted for burglary of the items seized in apartment No. 1, he and another officer set out in a patrol car to see if they could locate her.
Shortly thereafter, the police observed a vehicle in which the defendant Simpson was riding and stopped it. According to the testimony of the police officers, the defendant Simpson was requested to get into the back seat of the car, but was not ordered to do so. The officers further stated that the conversation was not intimidating or coercive; rather, the officers stated that they were merely counseling her, and admitted asking questions about the defendant's child and explained that they had a genuine concern about the child's wellbeing.
Later in the evening, about 9:30 p.m., the officers returned to the apartment building and found the defendant Simpson sitting on the front porch. They asked her to come to the car and sit in the back seat. Sergeant McGougan then requested to search her apartment, but she refused. After more conversation, Sergeant McGougan informed the defendant Simpson that they could obtain a search warrant even if she didn't consent, and that they would leave an officer there to make certain none of the property was taken from the premises during the time they were away acquiring the search warrant. The defendant Simpson stated that the policeman told her that she should be willing to let them search the apartment if she had nothing to hide, but she said that, although she was unfamiliar with the law, she didn't believe they could search the apartment without a warrant. The police advised her that this was true but that they could easily obtain a warrant.
It was about this time that John Weimerskirch, a friend of the defendant Simpson, arrived on the scene, and he was also questioned by the police. Thereafter, the officers again asked for permission to search apartment No. 11, and the defendant Simpson asked what they were looking for. They told her that they were looking for office and video equipment, such as typewriters, calculators, etc. Thereafter, the defendant Simpson told them that they could search the premises and look for the items mentioned.
In searching the apartment the officers made an extensive search of the premises, opening closets, examining equipment which the defendant owned and, although disputed by the officers, Simpson stated that they looked in the refrigerator. On the way out of the premises, Sergeant McGougan asked Detective Tiegan to get the serial number off the portable television set which was resting on a chair. He tipped it and wrote down the serial number. The officers then left. Shortly thereafter, the officers checked the serial number on the television set, and determined that it had been stolen, not from Liberty High School but from the Sunset Pharmacy in Spokane, Washington. A search warrant was later procured around midnight, and the police officers returned to apartment No. 11 approximately 2 hours later and seized the television set pursuant to the search warrant.
As a result of the seizure of the Sony television set, the defendants were charged with grand larceny by information filed on September 30, 1971. A pre-trial suppression hearing was held, and the evidence was thereafter held admissible at trial where the defendants were convicted after a jury verdict of guilty. The defendants appealed.
The Court of Appeals, Division Three, reversed the judgment and sentence by the trial court, and affirmed the trial court's finding that the defendant's consent to the search of the apartment was voluntary, but ruled that the Sony television set was inadmissible for the reason that the 'plain view' exception to searches conducted without a warrant did not apply to the facts of this case. The petitioner thereafter filed a petition for review with this court, which we granted.
As a background for determining the key issue in the petition for review, we must first consider the testimony of the police officers in this case. The record shows some inconsistent statements by Detective Tiegan as to what the police officers were looking for when they searched apartment No. 11, but there is no dispute in the record as to what items the officers told Linda Simpson they were looking for, I.e., office and video equipment, such as typewriters, calculators, etc., and that the consent for the search was granted upon that representation. It is admitted that the officers did not find the equipment they were looking for and the court so found. This is implicitly demonstrated by the following colloquy at the pre-trial suppression hearing during Detective Tiegan's testimony on direct examination:
Q. Did you know what you were looking for when you entered the apartment? Did you have a definite idea of what might be in there? A. I had an idea of some of the items, but not all of them. Q. What items did you think might be in there? A. Calculators. THE COURT: As I understand it, he didn't find any items in there he was looking for. MR. ETTER: That is right. THE COURT: The question before me is solely this, first was there consent, second assuming there was consent may they subsequently seize the Sony. MR. ETTER: That is it. THE COURT: So I don't care about this other stuff.
The court, in its memorandum decision in the suppression hearing, also implicitly found that the officers were looking only for adding machines, calculators and video equipment, and expressly determined that none of these items was found. The court stated:
Finally, she asked them what they were looking for, to which they said they were looking for adding machines, calculators and video equipment. . . .
* * *
* * *
In any event, the officers in the apartment did not find any fruits of the burglary of Liberty High School . . .
The admission of the officers that they were not looking for the Sony television set is as follows. Sergeant McGougan, at the suppression hearing, stated:
Q. You said something about office equipment and typewriter. A. And video, yes. Q. And video--A. Equipment. Q. And at that time when you came in, you weren't looking for any stolen Sony TV, were you? A. No way.
Detective Tiegan, at the suppression hearing, testified as follows:
Q. The things that you told Mrs. Simpson that you wanted to search for, there were none of them in the apartment, isn't that true? A. It's true. I didn't ask her.
Detective Tiegan, at the trial on the merits, further testified:
Q. When you first went to Apartment 11, did you know what you were looking for? A. We had an idea, yes. Q. Did that include a Sony TV set? A. No. Q. What did you have in mind when you got the consent? A. Sgt. McGougan told me other items had been taken in the high school burglary which had not been recovered; assuming I had seen some of the items in Apartment 1 which consisted of a camera and a little Sony TV set and several tapes, there was supposed to be some calculators and typewriters. (Italics ours.)
The judge at the suppression hearing, however, held that the plain view doctrine applied to the following facts:
(T)hey did see a television set reposing on a chair in the bedroom. To one officer this seemed somewhat incongruous. Knowing that some such sets are stolen, the officer went to the chair Without permission or objection of the defendant, titled the set in order to get the number therefrom and then left the apartment without the set. (Italics ours.)
The suppression hearing judge, in his memorandum opinion, further stated:
After several questionings as to what the officers were looking for, she gave them consent to enter her apartment. The court must find that this was voluntarily done, without coercion and duress, She believing at that time that they were looking only for the machines from the Liberty High School burglary, and the court is of the opinion that she knew such equipment was not in her apartment and that is the key to the reason why she gave consent. That is the explanation for her actions. . . .
A critical question is whether or not the television set, Which was found not as a result of the search for which consent was...
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