State v. Sabbot, 1949--II

• Decision Date: 16 February 1977
• Docket Number: No. 1949--II,1949--II
• Citation: 561 P.2d 212,16 Wn.App. 929
• Parties: The STATE of Washington, Respondent, v. Ronald SABBOT, Appellant.
• Court: Washington Court of Appeals

Page 929

16 Wn.App. 929

561 P.2d 212

The STATE of Washington, Respondent, v. Ronald SABBOT, Appellant.

No. 1949--II.

Court of Appeals of Washington, Division 2.

Feb. 16, 1977.

Charles B. Welsh, South Bend (appointed), for appellant.

Guy Glenn, Pros. Atty., South Bend, for respondent.

HALE, Judge.*

It is bad business to sell contraband drugs and a foolish one as well, to make delivery inside one's dwelling house. The point at issue, however, is not whether the buyer who took delivery in the seller's house was a business invitee, licensee, social guest, or trespasser. Rather, it is whether the illegal delivery of drugs to a police agent who followed the seller into his house without either an invitation or a refusal of admittance made an unlawful seizure when the drugs were handed him.

Defendant Ronald Sabbot lived in Raymond, Pacific County. He had a friend named Ralph Strumski. On November 18, 1974, Strumski called Sabbot and asked to come to the latter's house; Sabbot agreed, but told him to come alone. Strumski arrived by automobile with two investigators for the Washington State Patrol, assigned to the investigation of illegal narcotic activities. Neither Sabbot nor Strumski knew who they were nor of their connection with police authorities.

The three men drove up to Sabbot's house and parked their car in his driveway. One of the investigators handed Strumski $500 for the purchase of drugs and Strumski, taking the money, went into Sabbot's house alone. Sabbot and Strumski talked for several minutes inside the house and then both walked outside. While Strumski and Sabbot were in the house, the two police investigators waited outside, one in the car and the other in close proximity. When Sabbot and Strumski emerged from the house the police investigator outside the car met them in the middle of the yard where Strumski handed him $20 in change from the $500 earlier given him. After pocketing the $20, the investigator asked Strumski where the speed (amphetamine) was that he had purchased and Strumski said he had forgotten it and that it was still in the house.

At that point, Sabbot said, 'Wait a minute' to all those present, turned around and started across the yard to go into the house. The police investigator followed him. The two entered the house, walked through the living room and at a point near the entry to the kitchen, Sabbot picked up a brown paper bag and handed it to the investigator. The bag was found to contain four little sacks, each proving to hold a quantity of speed or amphetamines. After Sabbot handed the brown paper bag to the investigator, the two stayed in the living room for about 15 minutes where they discussed a possible sale from Sabbot of 15 pounds of marijuana. Sabbot said that it would take three days for delivery of the marijuana and eventually he walked outside and into the yard with the police investigator where he was placed under arrest.

In brief, Strumski was given $500 by two police agents for the purchase of four jars of speed, or amphetamines, fro Ronald Sabbot at $120 a jar. He went into the house alone and came out with Sabbot and $20 in change and said he had left the speed inside. Sabbot said to wait a moment and turned to go into his house, saying nothing more, and a police investigator, likewise remaining silent, followed him into the house and throught the living room. Near the kitchen the defendant picked up and handed the police agent a brown paper bag containing four sacks of amphetamines. After that they had a 15-minute conversation in the living room concerning a prospective sale of 15 pounds of marijuana by Sabbot.

Charged by information in the Superior Court for Pacific County in court 1 with possession of a controlled substance and court 2 with its delivery (RCW 69.50.401), Sabbot moved to suppress the evidence on the grounds of illegal search and seizure. Found guilty of both counts by a jury, he urges denial of his motion to suppress the evidence as the sole basis for this appeal.

The purpose of a trial is to find the truth, and the verdict of a jury represents the truth as the jury finds it from the evidence or lack of it. To that end all evidence having reasonable connection with the issues as well as all evidence tending to establish or disestablish a material fact in a case should be admitted for a jury's consideration. And the courts must be most circumspect and motivated by the most compelling of reasons before depriving a jury of material and relevant evidence having a bearing on the truth. Rules of evidence, whether arising from language of the constitution, the common law, statute, law, or constitutional theory, ought not to operate to conceal or suppress the truth.

Here the ultimate truth to be found was whether the accused on a certain day, knowingly and intentionally possessed certain amphetamines, and on a certain day knowingly and intentionally delivered them to another. In trying to establish these facts the prosecution managed to get a police agent inside the accused's house. Was his presence there so tainted with illegality as to warrant the court in suppressing the most cogent evidence in the case from which the jury could reach the truth? Without going into the ramifications of the possibly enlarged authority of the police agents stemming from a crime being committed in their presence, we will consider the case as it was largely presented to the trial court--a case of claimed unlawful search and seizure under the Fourth Amendment.

Cases on unlawful search and seizure must be taken in context with the statute law which--except in emergencies to protect life and property--prohibits police officers from entering and searching a private residence without a search warrant under RCW 10.79.040; and makes it a misdemeanor for them to do so under RCW 10.79.045. When defendant Sabbot, while in his yard and engaged in a conversation concerning the sale of amphetamines, told his listeners no more than to wait a minute--and then turned to walk toward and into his house, he was not standing upon his constitutional right to refuse entry. And when the police investigator, without further comment one way or another from the accused, followed him across the yard, into the house and through the living room in such a way that the defendant could not help but know he was being accompanied there, these actions provided persuasive evidence from which the trial court could conclude that the intended purchaser of the amphetamines had not been refused entry to defendant's house.

Of particular significance, in any case involving the taking of evidence in a dwelling house without a warrant, is the language of the constitutions which on the one hand provides that one's home shall not be invaded without authority of law, article 1, section 7 of the state constitution, and on the other that one shall be secure in his house against Unreasonable searches and seizures, under the fourth amendment to the United States Constitution.

The Constitution of the United States forbids not all, but unreasonable searches and seizures. And whether the search and seizure is unreasonable depends on the circumstances. Law officers, for example, without a warrant, have a right as incident to a lawful arrest, to search the person arrested and the area where the arrest is made. State v. Jackovick, 56 Wash.2d 915, 355 P.2d 976 (1960). And where an arrest was made without a warrant, but upon probable cause, a search of the defendant's automobile in the vicinity of the arrest has been held incidental to a lawful arrest and therefore valid. State v. Hoffman, 64 Wash.2d 445, 449, 392 P.2d 237 (1964), citing State v. Jackovick, supra. Evidence of other crimes found incident to a lawful arrest may be used in prosecution for crimes other than the one for which the arrest was made. State v. Green, 43 Wash.2d 102, 260 P.2d 343 (1953). Similarly, in State v. Dearinger, 73 Wash.2d 563, 439 P.2d 971 (1968), articles found in an adjoining neighbor's yard, where the officers' physical senses told them they had probably been thrown as they were searching the defendant's house under authority of a search warrant, were held to be taken in a lawful seizure under the search warrant even though th warrant did not describe the adjoining yard nor mention its occupants.

It is thus seen to be the policy of the law where a police officer is lawfully on the premises, either pursuant to a search warrant, or otherwise, or is effecting a warrantless arrest upon probable cause, he is not only authorized but encouraged to keep his wits about him, to see what is to be seen, and hear what is to be heard, and otherwise by employing all of his senses, to be alert to the attendant circumstances. See State v. LaPierre,71 Wash.2d 385, 428 P.2d 579 (1967).

And when the circumstances call for an express refusal or denial of entry in order to make it reasonably clear that the accused intends to deny entry to his house, a police officer needs no warrant if he is in the house with the express or implied invitation of the accused, or with his acquiescence, tacit or express.

The police investigator to whom defendant handed the brown paper bag containing the amphetamines, was a stranger to defendant and unknown as a police agent to Strumski, defendant's confidant. The voluntary delivery of contraband inside the house by a householder to a stranger removed the house and personal effects from the protection of the Fourth Amendment against unreasonable searches and seizures because under such circumstances the acceptance was not unreasonable. That the stranger turned out to be a police investigator would not convert a voluntary...