State v. Parker, 41255

• Citation: 79 Wn.2d 326,485 P.2d 60
• Decision Date: 20 May 1971
• Docket Number: No. 41255,41255
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Willie Carroll PARKER, alias Robert Louis, Appellant.

Page 326

79 Wn.2d 326

485 P.2d 60

The STATE of Washington, Respondent, v. Willie Carroll PARKER, alias Robert Louis, Appellant.

No. 41255.

Supreme Court of Washington, En Banc.

May 20, 1971.

Newsum & Herman, J. Hartly Newsum, Bellevue, for appellant.

Christopher Bayley, Pros. Atty., Michael P. Ruark, Deputy Pros. Atty., Seattle, for respondent.

HALE, Associate Justice.

Officers Tando and Eggers were on routine patrol in West Seattle, April 3, 1969, when, at about 7 p.m., they received a police radio broadcast of a robbery at the Wigwam Store at 23rd and East Madison in Seattle. Because Spokane Street, a main thoroughfare, would be a ready route from the scene of the robbery to West Seattle, the officers drove at once to 12th Avenue Southwest and Spokane Street. Later radio messages amplified the initial information and descriptions and informed them to look for a Negro male, age 25 to 35, of average size--5 feet 8 inches to 6 feet in height--carrying a black, small caliber pistol with pearl or light-colored grips, and wearing a gold or yellow light-colored jacket or sweater and a checkered bill-type cap, and riding in or driving a 1953 to 1955 red-over-white Dodge car.

About 14 minutes after the first message, they saw a red and white 1955 model car which they thought to be a Dodge--but which turned out to be a Chrysler--moving west in the stream of traffic on Spokane Street. Defendant was driving; alongside him crouched slightly was James E. Drew, a Negro who appeared to be within the 25--35 year age group and wearing what appeared to be a gold-colored sweater or jacket. The officers followed the car for a few blocks and then signaled it to pull over and stop. Believing this to be the vehicle involved in the holdup, they searched the two occupants and the vehicle.

In the glove compartment, the officers found a black, .22 caliber revolver with pearlized plastic grip which the defendant said was his. On the floor of the back seat they found a brown canvas bag referred to as an 'AWOL' type bag which neither the defendant nor his passenger, Drew, would admit to owning. Inside this bag was a bill-type checkered wool cap, a yellow zipper jacket, a toy pistol and a quantity--10 to 15 rounds--of .22 caliber ammunition. Some of these bullets and all of those in the revolver had the ends snipped off, a procedure which the defendant, in acknowledging their ownership, said that he had done because they were .22 'longs' and the revolver would take only 'shorts.' The officers found about $430 in bills in one of Drew's boots and a pair of yellowish-tinted sunglasses in defendant's inside coat pocket. The store cashier who had been robbed testified that the man who robbed her had been wearing sunglasses with yellowish-tinted lenses.

Charged jointly with armed robbery, Drew pleaded guilty; the defendant went to trial, was convicted and now appeals. He directs his first assignment of error to the court's refusal to suppress the evidence obtained in the search of his vehicle. Throughout the arrest and trial, the defendant asserted his innocence. He said that Drew had met him at the Wigwam Store parking area and requested a ride, that he had no knowledge whatever that Drew intended to or had committed a robbery at the Wigwam Store, and that the officers had no probable cause to stop his vehicle, search it and him and place him under arrest.

Probable cause derives from a composite of facts, circumstances and judgment. Probable cause for an arrest without a warrant arises from a belief based upon facts and circumstances within the knowledge of the arresting officer that would persuade a cautious but disinterested person to believe the arrested person has committed a crime. State v. Darst, 65 Wash.2d 808, 399 P.2d 618 (1965); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). The officer need not have knowledge or evidence sufficient to establish guilt beyond a reasonable doubt, for in this area the law is concerned with probabilities arising from the facts and considerations of everyday life on which prudent men, not legal technicians, act. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Ellison, 77 Wash.Dec.2d 888, 467 P.2d 839 (1970). Expressed another way, 'Proper cause for arrest has often been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.' State v. Todd, 78 Wash.Dec.2d 361, 364, 474 P.2d 542, 544 (1970).

The combination of facts and circumstances arising from the time and location of the robbery at the Wigwam Store at about 7 p.m., the description of a 1953 to 1955 red-over-white Dodge as a getaway car, the description of the robber and the appearance of a passenger in the described automobile, all answering some of the described characteristics at a place where ordinary speed would take the car in the elapsed time, combine, we think, to give the officers in the exercise of prudent judgment good reason and probable cause to stop the car and search its occupants. The search of an automobile pursuant to a lawful arrest is constitutional and the evidence seized in the search is and in this case was admissible. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

Defendant next challenges the Fifth Amendment claim of immunity from compulsory self-incrimination asserted when defendant's counsel called James Drew as a witness for the defense. Drew, who had pleaded guilty to and had been sentenced for the robbery for which the defendant was being tried, had at defendant's request been ordered transferred by the trial judge from the Shelton Correctional Institution so as to be available as a witness. On arrival at the King County jail, Drew was allowed first to interview his own attorney, Mr. Murray Guterson, who appeared in court with him and agreed to remain in the courtroom in event the defendant called Drew as a witness. In the absence of the jury, obviously referring to the Fifth Amendment, Mr. Guterson told the court that he had advised the witness he should 'not be a witness either for the defendant or against the defendant or for the State or against the State' if within his constitutional rights to remain silent. Defendant's counsel then urged, as he now does, that, since the witness had already pleaded guilty to and was under sentence for the charge upon which he was to be examined, he was no longer in jeopardy and he could not properly claim immunity under the Fifth Amendment. After interviewing Drew, counsel for the defendant stated to the court:

I am somewhat in a difficult position here. The defendant says he does not want to call Drew as a witness and my judgment is that Drew should be called as a witness for the defendant, if he is not called by anybody else.

Counsel then added he felt 'justified in calling Drew as a witness for him against the defendant's wishes on the grounds I am in charge of this trial' and would proceed on that basis. When the court asked the defendant if he wished Drew to testify, he replied, 'I explained to the attorney that I didn't. I explained to him the reasons why.' Defendant's attorney, nevertheless, feeling it his duty as defendant's counsel to do so, called James Drew to the witness stand as a witness on behalf of the defendant in the latter's case in chief.

Drew answered more than 25 questions put to him by defendant's counsel, all preliminary in character. After this preliminary questioning, and next following Drew's first claim of immunity under the Fifth Amendment, Mr. Guterson, representing the witness, said that he had advised Drew to decline to testify on the grounds of self-incrimination; that such testimony could subject the witness to a charge of some form of conspiracy; and that physical evidence had been obtained in the search of the canvas bag found by the officers in the car at the time of the arrest which could lead to a prosecution of the witness on another and different crime entirely.

Thereupon the witness claimed the Fifth Amendment, as follows:

Q. Where did you first meet Robert Louis on the 3rd of April of this year? The day this Wigwam robbery was pulled? A. I plead my Fifth Amendment. Q. What? Q. Did you see Robert Louis at the Wigwam store on the 3rd of April of this year? A. I plead my amendment. Q. Did you rob the Wigwam store at 23rd and Union on the 3rd of April of this year? A. Yes. Q. Did you use any gun to rob it? A. I plead my amendment. Q. Did Robert Louis take any part in this robbery? A. I pleads the Fifth Amendment. Q. Did you let Robert Louis know you were going to rob the Wigwam? A. I plead the Fifth Amendment. Q. Whose pistol was it? A. I plead on the Fifth Amendment. Q. What kind of a pistol was it? A. I plead on the Fifth Amendment. Q. Have you seen anything that appeared like State's Exhibit 7 or State's Exhibit 5 before? A. I plead on the Fifth Amendment. Q. So far as you know when did Louis first find out about the robbery? A. I plead on the Fifth Amendment. Q. Do you know if there were any bullets in the overnight bag? A. I plead on the Fifth Amendment. Q. At the time of the robbery did you have sun glasses with you? A. I plead on the Fifth Amendment.

Defendant's claim of error is directed to the court's refusal to compel the witness Drew to answer the questions, citing State v. Nelson, 65 Wash.2d 189, 396 P.2d 540 (1964) and 72 Wash.2d 269, 432 P.2d 857 (1967). The court, we think, acted within its discretionary powers in sustaining the witness's Fifth Amendment claim against self-incrimination.

Every person within the jurisdiction of a court of competent jurisdiction--with a few exceptions related to the office of the Chief Executive--owes a duty when summoned by the court to come forward and speak the truth. It is a duty which may be enforced by imprisonment, fine and the imposition of other judicial...