State v. Raum, 24374.

• Decision Date: 21 April 1933
• Docket Number: 24374.
• Citation: 21 P.2d 291,172 Wash. 680
• Parties: STATE v. RAUM.
• Court: Washington Supreme Court

21 P.2d 291

172 Wash. 680

STATE v. RAUM.

No. 24374.

Supreme Court of Washington

April 21, 1933

Department 1.

Appeal from Superior Court, Spokane County; William A. Huneke Judge.

W. L Raum was convicted of manufacturing intoxicating liquor with intent to sell, and he appeals.

Reversed with instructions.

Edward M. Connelly, of Spokane, for appellant.

Chas W. Greenough and Ralph E. Foley, both of Spokane, for the State.

BEALS, Chief Justice.

Defendant William L. Raum, was charged by information with the crime of manufacturing intoxicating liquor with intent to sell. From a judgment entered by the court upon a verdict of guilty and from the sentence imposed pursuant thereto, defendant appeals.

Appellant assigns error upon the admission in evidence of an exhibit offered by the state, consisting of a key ring and the keys attached thereto, upon the refusal of the trial court to hold that the evidence introduced by the prosecution was insufficient to support the charge of which appellant was found guilty and upon the denial of his motion for a new trial.

The facts disclosed by the evidence introduced by the state are briefly as follows: December 5, 1931, Deputy Sheriffs Burnett, Duggan, and Brady, having provided themselves with a search warrant, accompanied by two federal agents and two police officers, went to the premises known as 3417 North Lee street, Spokane, for the purpose of conducting a search for contraband liquor. A few moments prior to the starting of the expedition, one of the federal officers called the house on the telephone and discussed with a man who answered to the name of 'Bill' the matter of the purchase of a keg of moonshine. Upon arriving at the premises, some of the officers stopped in front thereof while the two federal officers drove their car along the alley back of the house. Just as they arrived, they met appellant, who was driving his Ford coupé out of the garage on the rear of the lot.

The federal officers stopped appellant, told him that they were federal agents and that they had a search warrant for the premises.

They testified that appellant told them they could search his car, which they did, with the result that they discovered no contraband of any sort. The officers testified that they then informed appellant that he was under arrest and took him up towards the rear of the dwelling, where they met the other officers.

Practically all of the witnesses for the prosecution who were present at the time of the arrest testified to the following facts as having occurred subsequent to the arrest of appellant as narrated by the federal officers: The house was locked, and appellant was asked if he had the keys, which he denied, stating that he did not live in the house, but that he had driven there to see a man named William Clark from whom he was endeavoring to collect a bill for a tire which had been sold to Clark by appellant's employer. Appellant put his hand in his pocket, and the officers, believing that he had in his possession a key to the house, endeavored to procure possession thereof. In the course of this proceeding, Deputy Sheriff Barnett admits that he struck appellant in the face, although it is not contended that appellant was even attempting to do more than resist the forcible opening of the hand in which he was endeavoring to conceal certain keys which were taken from him by the officers. One of the keys thus foreibly taken from appellant unlocked a door to the house, in which was found a still in operation and a quantity of liquor in the course of distillation into moonshine. No person save appellant was found on or about the premises.

There is no question but that the house had been used as a place for the unlawful manufacture of intoxicating liquor; the only question presented on this appeal being whether or not the trial court erred in receiving in evidence the keys violently taken from appellant upon a search of his person. When these keys together with the other exhibits on the part of the state were offered in evidence, appellant objected to their admission, and, upon this objection being overruled, the state having thereupon rested, appellant immediately challenged the sufficiency of the evidence to sustain a conviction and moved for a directed verdict of not guilty. The record shows that after argument the court asked counsel for the state: 'Have you any authority to show that the officers had the right to search the defendant himself Before they found anything else?' After further argument, the court denied appellant's motions, and the trial proceeded.

The search warrant procured by the deputy sheriffs was of the 'John Doe' variety, and it does not appear that the officers had connected appellant with the unlawful operations which they believed were being carried on in the house prior to the time they found him leaving the premises in his automobile as above narrated. Assuming that the officers had the right to detain appellant when they met him driving his car out of the garage, and assuming that their search of his car was lawful, as under their testimony it undoubtedly was, they stating that appellant gave them permission to make the search, it is clear that, no articles of contraband having been discovered in the car and there being none on appellant's person, the officers, prior to the time they searched the house, had no lawful ground for believing that appellant had committed any offense. Appellant was then entitled to the protection of the law against unlawful searches and seizures which is the constitutional right of every citizen (Const. art. 1, § 7) State v. Gibbons, 118 Wash. 171, 203 P. 390; State v. Buckley, 145 Wash. 87, 258 P. 1030; State v. Knudsen, 154 Wash. 87, 280 P. 922; State v. Kinnear, 162 Wash. 214, 298 P. 449, 74 A. L. R. 1400.

In support of its contention that the officers were justified in placing appellant under arrest and forcibly searching his person, respondent cites the opinion of this court in the case of City of Olympia v. Culp, 136 Wash. 374, 240 P. 360, 361. In the case cited, it appeared that the sheriff, having procured a 'John Doe' search warrant directing the...