State v. Palmer

• Decision Date: 19 July 1971
• Docket Number: No. 550--I,550--I
• Citation: 5 Wn.App. 405,487 P.2d 627
• Parties: STATE of Washington, Respondent, v. Francis Clayton PALMER, Appellant.
• Court: Washington Court of Appeals

Page 405

5 Wn.App. 405

487 P.2d 627

STATE of Washington, Respondent, v. Francis Clayton PALMER, Appellant.

No. 550--I.

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

July 19, 1971.

Rehearing Denied Sept. 20, 1971.

Review Denied Nov. 9, 1971.

Thomas A. Prediletto, Richard W. Hart, Seattle, Court-appointed, for appellant.

Christopher T. Bayley, King County Pros. Atty., Stewart P. Riley, Deputy Pros. Atty., Seattle, for respondent.

HOROWITZ, Chief Judge.

Defendant was convicted after jury trial of the crime of unlawful possession of firearms and of the crime of grand larceny. He appeals, making two assignments of error.

The first assignment of error involves the consideration of the evidence introduced at the CrR 101.20W hearing. From that evidence, the court could find the following facts.

On the night of November 23, 1969, at approximately 2:30 a.m., Seattle Police Officers D. L. Hansen and A. E. Smalley were in their prowler car patrolling Rainier Avenue South in Seattle, heading north, traveling at approximately 15 miles per hour. As they passed the Rainier Pharmacy at 5415 Rainier Avenue South, Officer Hansen noticed a man standing at the northerly side of the doorway. The man appeared to be doing something with his hands at the approximate position of the alarm box lock which controls the burglar alarm system of the pharmacy. Upon seeing the man, the driver, Officer Hansen, after a U-turn, stopped in front of the drug store. He jumped out of his car with his revolver out, and headed toward the defendant. By that time, defendant was moving toward a Cadillac car in the parking lot south of the drug store. Officer Hansen ordered the defendant to stop and told him he was under arrest and hancuffed him. At that time, defendant was approximately 10 feet from the parked Cadillac car. Its lights were on, the driver's seat was unoccupied, and a woman was seated on the right hand side of the front seat of the car. There was no other car in the parking lot.

While Officer Hansen was proceeding with the defendant's arrest, Officer Smalley, with his gun out, had proceeded to the Cadillac car, where he ordered the woman out. She leaned over to her left and appeared to fumble with a paper bag located either on the floor of the car or on the front seat to the right of the driver's seat. The officer repeated his command and she then came out of the car. Officer Smalley then escorted the woman to where Officer Hansen was standing with the defendant in custody. There Officer Smalley either saw Officer Hansen find the lock pick on the person of the defendant or he helped Officer Hansen with the search of defendant and found it. The woman was likewise placed under arrest and handcuffed, and both the defendant and the woman were placed in the back seat of the officers' car.

Officer Smalley, after placing the woman in the officers' car, then went back to the Cadillac, opened its door and looked into the paper bag. He found it to contain four revolvers. He closed the car door, returned to Officer Hansen and informed him of what he had found. Thereupon, Officer Hansen walked to the Cadillac car, peered through the window of the car, and there he saw the bag full of pistols. Officer Hansen then called for the police sergeant and another car to stand by the Cadillac while awaiting an impound. The Cadillac was impounded later that night, apparently as incident to a lawful arrest. The next morning, upon a search warrant being obtained, the car was searched and there was taken therefrom certain items, including the pistols contained in the paper bag, another lock pick found under the driver's seat, and a billfold. These items were later discovered to have been stolen. They were introduced in evidence to convict the defendant of the crime of grant larceny. Defendant, after receiving Miranda warnings in the presence of his attorney, stated that he had bought the guns found in the car for $125.

The defendant moved below that the evidence objected to be suppressed because he asserts that, under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), in effect at the date of arrest (Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971)), once the arrestees were placed in the officers' car, the right to search incident to the arrest terminated since the arrestees could not then obtain any weapon from nor destroy any evidence from within the Cadillac car. He contends that under the fruit of the poisonous tree doctrine, the later search of the car and the seizure therefrom of the articles introduced in evidence, albeit pursuant to a search warrant, were illegal. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Traub v. Connecticut, 374 U.S. 493, 83 S.Ct. 1899, 10 L.Ed.2d 1048 (1963); State v. Woods, 3 Wash.App. 420, 475 P.2d 573 (1970). See also, State v. Melrose, 2 Wash.App. 824, 470 P.2d 552 (1970). The trial court denied defendant's motion to suppress the evidence, his action in so doing being assigned as error. Whether the Chimel limitations may be properly invoked here, we need not determine. The plain view doctrine later discussed provides adequate ground to uphold the trial court's action. Nevertheless, we believe that it would not be inappropriate to point out why we leave open the question presented by defendant's contention.

Chimel held illegal, as violative of the Fourth and Fifth Amendments, a routine warrantless search of rooms in a house other than the room in which the suspect was arrested, even though the search and seizure was incident to an arrest and contemporaneous with it. In so doing, however, Chimel continued to recognize, as an exception to the general rule requiring a search warrant, the right of an arresting police officer incident to an arrest and substantially contemporaneous with it to conduct a warrantless search of the arrestee and the area within his immediate control, I.e., 'the area from within which he might have obtained either a weapon or something that could have been used as evidence agianst him. * * *' 395 U.S. at 768, 89 S.Ct. at 2043.

In determining whether defendant's contention is one that must now be determined, we should remember the uncertainties that still remain for resolution notwithstanding Chimel. The acceptance of defendant's contention would first require re-examination of the Washington case law on the right to search incident to an arrest in view of the immediate control rule, both with respect to the nearby automobile of the arrestee (E.g., State v. McClung, 66 Wash.2d 654, 404 P.2d 460 (1965); State v. Cyr, 40 Wash.2d 840, 246 P.2d 480 (1952)), and with respect to the continued viability of the right to search incident to an arrest after the arrestee has been removed by the police officers from the scene of the arrest to secure against the arrestee's escape. State v. Wilson, 70 Wash.2d 638, 424 P.2d 650 (1967); State v. Schwartzenberger, 70 Wash.2d 103, 422 P.2d 323 (1966); Annot., 19 A.L.R.3d 727, §§ 10, 11, 14 & 15 (1968). Cf. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Furthermore, it should be remembered that still to be assessed in applying the search incident right is the impact of Chimel and now Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), which reaffirms Chimel, upon the range of permissible temporal and spatial limitations. Thus, in defining the permissible limitations there is the question of the significance now to be given to the area of the arrestee's control immediately prior to the arrest; and the answer to be given to the question of whether the search incident right otherwise existing with respect to a room or car is lost if the police officers, pursuant to their duty, temporarily remove the arrestee to another area (such as the police officers' car) to prevent his escape.

There is some decisional support since Chimel for the broad reading given that case by the defendant (See State v. Jones, 2 Wash.App. 627, 633, 472 P.2d 402 (1970))--a reading at least arguably consistent with Coolidge. However, caution dictates approval of the view expressed by Mr. Justice Harlan's statement in Coolidge concerning a question left open by the Supreme Court for future decision. He there stated:

This matter should not be decided in a state case not squarely presenting the issue and where it is not fully briefed and argued.

39 U.S.L.W. at 4810. Furthermore, the wisdom of moving cautiously in passing upon defendant's contention--as was done in State v. Jones, Supra--is additionally justified by the just announced decision in Bivens v. Six Unknown Named Agents of...