State v. Peele

• Decision Date: 03 December 1973
• Docket Number: No. 1680--I,1680--I
• Citation: 10 Wn.App. 58,516 P.2d 788
• Parties: STATE of Washington, Respondent, v. Willie PEELE, Appellant.
• Court: Washington Court of Appeals

Page 58

10 Wn.App. 58

516 P.2d 788

STATE of Washington, Respondent, v. Willie PEELE, Appellant.

No. 1680--I.

Court of Appeals of Washington, Division 1.

Dec. 3, 1973.

Rehearing Denied Feb. 19, 1974.

Bruce A. Butcher (Court-appointed) Cartano, Botzer & Chapman, Frank W. Birkholz, Seattle, for appellant.

Christopher T. Bayley, King County Pros. Atty., Christopher J. Bell, Deputy Pros. Atty., Seattle, for respondent.

CALLOW, Judge.

A jury found the defendant guilty of first degree murder. An important witness for the state was one Richard Boespflug, who was involved in the homicide and who had pleaded guilty to a charge of murder in the second degree arising out of the transaction. Boespflug was awaiting sentencing at the time of the trial of the defendant.

We answer two of the issues raised on the appeal: (1) Whether a gun and holster admitted into evidence had been obtained as a result of an unlawful search and seizure and (2) whether it was error to allow the witness, Boespflug, to testify at the trial when he had declined to submit to a deposition by the defense.

The defendant Willie Peele and Richard Boespflug had been acquainted for a number of years and both knew Louis Brodek. Brodek was known as a bookmaker and lived in the Capitol Hill area of Seattle. At the time of his death, he was awaiting trial on a charge of bookmaking. Boespflug was a barber whose shop was located on Broadway also in the Capitol Hill district; and the defendant, Peele, lived not far from the barber shop.

Late in the afternoon of Saturday, December 4, 1971, the defendant and Boespflug, after spending much of the day together during which each placed a bet with Brodek on a professional football game, decided to pick up, at Boespflug's barber shop, a vacuum cleaner which was used both at the barber shop and at the apartment of Boespflug's girlfriend. Boespflug testified that at this time the two of them discussed robbing Brodek and considered it unlikely that Brodek would report such a crime in view of the charge then pending against him.

It was dark at 6 p.m. on that day when a witness heard the noise of a shot coming from in front of the barber shop and saw Brodek stagger and fall to the sidewalk beside the shop. A person was seen running away from the scene. Late that evening, a girlfriend of Boespflug called the police to tell them that Boespflug was implicated in the shooting. The police interviewed her, and at 3:30 in the morning of Sunday, December 5, went to the apartment of defendant Peele's girlfriend where Peele was living. The police arrested the defendant when he answered their knock on the door. Certain officers took Peele from the apartment, searched him, and placed him in a squad car. When other officers did not leave the premises, Peele's girlfriend told them that she rented the apartment. She demanded that the officers leave unless they could produce a search warrant. The officers ignored her, searched the apartment and found nothing. They remained longer and again searched a dresser near which Peele's girlfriend was standing, found a holster at the bottom of the lower dresser drawer and the gun admitted into evidence on the floor below this drawer. Ballistic tests indicated that the fatal bullet came from this gun.

At the trial, the defendant admitted that he had shot Brodek. He stated that they met in front of the barber shop, got into an argument over gambling debts and claimed that when Brodek pulled a gun from his pocket, a scuffle ensued during which Brodek was shot.

The first issue raised is whether the search of the apartment and the seizure of the gun and holster found therein was unlawful. The search was made without a search warrant or permission to search the premises following the arrest of the defendant and after he had been taken away. A motion for suppression of the evidence was made and denied; and the gun, holster and results of the ballistic tests were admitted into evidence over objection.

The dwelling of each citizen is afforded great protection under the Fourth Amendment from unreasonable searches and seizures. The safeguarding of the privacy of residences from unlawful police intrusion is a cornerstone of an individual's freedom long recognized by the courts of this state. Tacoma v. Houston, 27 Wash.2d 215, 177 P.2d 886 (1947); State v. McCollum, 17 Wash.2d 85, 136 P.2d 165, 141 P.2d 613 (1943); State v. Buckley, 145 Wash. 87, 258 P. 1030 (1927); State v. Coleman, 2 Wash.App. 982, 471 P.2d 689 (1970).

State courts are guided by the precepts set forth in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). See State v. Sanders, 8 Wash.App. 306, 309, 506 P.2d 892 (1973). The Chimel case involved the arrest of a suspect at his home under a warrant authorizing his arrest for the burglary of a coin shop. The officers were admitted to the suspect's home by his wife. They waited until he arrived home from work, whereupon he was handed the arrest warrant and was asked for permission to 'look around.' He objected; but the officers, nonetheless, conducted a search 'on the basis of the lawful arrest.' They went through the entire house, attic, garage and a small workshop for nearly an hour. The California court had held that since there was a lawful arrest the search of the home was justified without a search warrant as incident to it. The opinion in Chimel overturned the California ruling and quoted from McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948), as follows on page 761 of 395 U.S., on page 2039 of 89 S.Ct.:

'We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. . . . And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.'

Continuing, the opinion of the court in Chimel said at page 763, 89 S.Ct. at page 2040:

In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control'--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs--or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The 'adherence to judicial processes' mandated by the Fourth Amendment requires no less.

(Footnote omitted.)

When a search extends beyond the limited area in the home of the suspect from which he might obtain weapons or evidentiary items, the Fourth Amendment protection against unreasonable searches and seizures requires that a search warrant be secured from an objective magistrate who must evaluate the 'probable cause' affidavits of law enforcement in the light of the necessity that citizens be free from unreasonable searches and the privacy of the individual be safe from unwarranted invasion. Vale v Louisiana,399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), and Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732 (1969) have followed the philosophy of the Chimel case as has Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The facts in this case do not present any exception to Fourth Amendment requirements under which a search of the entire residence can be maintained. See Vale v. Louisiana, Supra, 399 U.S. at 35, 90 S.Ct. 1969; State v. Singleton, 9 Wash.App. 327, 511 P.2d 1396 (1973). The prosecution in its brief states that the search is not being justified as incident to an arrest. The grounds upon which the search of the entire premises appears to be defended by the prosecution is that exigent circumstances existed, and the immediate search of the apartment was a 'lesser intrusion' than detaining the occupants while a search warrant was obtained. No argument or citation is presented to support such a detention.

An invasion of the constitutional rights of a citizen cannot be legitimatized on the basis that a search warrant could not be obtained with ease because it was on the weekend. There cannot be a higher level of constitutional protection of the rights of a citizen during the week than on the weekend. If it is inconvenient to secure a search warrant when the courts are not in session, then inconvenience must be suffered or remedied rather than the rights of the citizen violated because law enforcement would be annoyed by being required to secure the approval of the search by the uninvolved, objective judge or magistrate.

We have previously noted the difficulty of securing the...