State v. Simms, 975--II

• Decision Date: 05 December 1973
• Docket Number: No. 975--II,975--II
• Citation: 10 Wn.App. 75,516 P.2d 1088
• Parties: The STATE of Washington, Respondent, v. Luther SIMMS, Appellant.
• Court: Washington Court of Appeals

Page 75

10 Wn.App. 75

516 P.2d 1088

The STATE of Washington, Respondent, v. Luther SIMMS, Appellant.

No. 975--II.

Court of Appeals of Washington, Division 2.

Dec. 5, 1973.

Review Denied Feb. 15, 1974.

Edwin J. Wheeler of Hutchins, Plumb & Wheeler, Tacoma, for appellant.

Joseph D. Mladinov, Special Counsel to Prosecuting Atty., Pierce County, Tacoma (Ronald L. Hendry, Pros. Atty., Tacoma, with him on the brief), for respondent.

ARMSTRONG, Associate Justice.

This is an appeal from a judgment upon jury verdicts finding defendant guilty of two counts of possession of heroin, a controlled substance, and finding defendant to be an habitual criminal.

The defendant first contends that the trial court erred by admitting into evidence controlled substances obtained as the product of an unreasonable search and seizure. We hold that the evidence should have been excluded, and for that reason reverse the conviction.

The defendant also assigns as error the trial court's refusal to dismiss a supplemental information filed against him subsequent to the conviction for prossession of the controlled substances which we hold were erroneously admitted into evidence. The supplemental information charged the defendant with being an habitual criminal pursuant to RCW 9.92.090. ¹ The felony convictions attributed to the defendant were a 1959 carnal knowledge conviction, a 1969 grand larceny conviction, and the conviction for possession of controlled substances which is reversed in this appeal. Because of our disposition of this latest conviction, it is unnecessary for us to discuss the defendant's assignments of error regarding the habitual criminal charge.

We may begin our discussion regarding the admissibility of the evidence involved here by noting that when conducting a hearing on a motion to suppress evidence, the trial court may hear the matter entirely on affidavits, or has discretion to consider oral testimony in addition to, or in lieu of, affidavits. State v. McLaughlin, 74 Wash.2d 301, 303, 444 P.2d 699 (1968); State v. Green, 43 Wash.2d 102, 105, 260 P.2d 343 (1953). Of course the purpose of such a hearing is to give the trial court an opportunity to rule on the disputed question of whether the evidence was obtained in an unlawful manner. The hearing is conducted prior to the time the case is called for trial in order to allow the trial, once begun, to proceed in an orderly fashion to its conclusion without the necessary of stopping it to try collateral issues. State v. Baxter, 68 Wash.2d 416, 422, 413 P.2d 638 (1966); State v. Robbins, 37 Wash.2d 431, 224 P.2d 345 (1950).

In this case, the record discloses that the only evidence before the trial court on the motion to suppress was an affidavit of the defendant, which the state accepted as being substantially true. The state elected to proceed solely on the affidavit of the defendant, and did not submit any affidavits or testimony in opposition. However, during argument on the motion, counsel for both the defendant and the state agreed or stipulated to additional facts not contained in the defendant's affidavit, which facts we believe were properly considered by the trial court in attempting to determine whether the evidence was lawfully obtained. See Baird v. Baird, 6 Wash.App. 587, 589, 494 P.2d 1387 (1972).

The unchallenged affidavit of the defendant, and the facts clearly stipulated to between counsel, thus unfortunately constitute the entire record from which we must determine the legality of the method by which this evidence was obtained.

The following then, is a statement of the facts surrounding the seizure of the challenged evidence. On September 24, 1972, the defendant was present as a guest in the home of Edwina Cook, located at 1052 South 27th Street in Tacoma, Washington. Both the defendant and Edwina Cook were parolees. The defendant was in bed in a bedroom of the apartment with another woman when the front door of the premises was broken and forced open by several officers of the Tacoma Police Department, and Edwina Cook's parole officer, James Boyle. The officers searched throughout the house, and discovered items in the bedroom occupied by the defendant which were the basis of the prosecution against him.

At no time was a search warrant or warrant of arrest read or exhibited. Counsel for both parties clearly agreed that the officers were acting upon information supplied by an anonymous informant who related that the defendant was present at the Cook residence and was putting narcotics into balloons. Counsel did not agree as to whether the informant came to the police station and gave this information to the narcotics people, who, in order to circumvent the requirement of obtaining a search warrant, called Officer Boyle; or whether the parole officer and the narcotics squad were notified of the tip at the same time by uniformed field officers.

That the defendant has standing to challenge the admissibility of the evidence used against him in this case is not disputed. Although the apartment searched was not his own, the defendant was legitimately present as a guest on the premises when the search occurred, and thus has standing to claim the constitutional protection from unreasonable searches and seizures. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 1568, 36 L.Ed.2d 208, 213 (1973); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); State v. Michaels, 60 Wash.2d 638, 374 P.2d 989 (1962).

In assessing the admissibility of the challenged evidence obtained as a result of the search discussed above, we note that at issue here is the admissibility of evidence in a new criminal proceeding against the defendant, rather than merely a proceeding to revoke his parole. This is significant since this court has previously held that the Fourth Amendment prohibition against the admission of illegally seized evidence is not applicable in a revocation of probation hearing. State v. Kuhn, 7 Wash.App. 190, 194, 499 P.2d 49 (1972). ² In that case it was unnecessary for us to decide whether a warrantless search of a probationer's apartment was lawful or not, for we held that the Fourth Amendment exclusionary rule is not applicable in a probation revocation hearing, and thus, even if the entry was unlawful, the evidence was admissible.

We point out that Kuhn involved a probationer rather than a parolee. However, like the United States Supreme Court, we do not perceive any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, and we conclude that revocation of probation where sentence has been imposed previously is constitutionally indistinguishable from the revocation of parole. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

In either case, a holding that the exclusionary rule does not apply in revocation hearings is compelled by a consideration that although extension of the exclusionary rule to parole and probation revocation hearings might have a desirable deterrent effect upon illegal official conduct, any such incremental deterrence is more than outweighed by the social consequences that would result from imposing such an impediment to blind the court or agency from relevant facts when it must make the delicate decision as to when a convicted person can be allowed to return to and remain in society. State v. Kuhn, Supra; United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970); In re Martinez, 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734 (1970).

The state has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if, in fact, the parolee has failed to abide by the conditions of his parole. For this reason the full panoply of rights due a defendant in a criminal proceeding does not apply to parole revocations. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

It is therefore clear that if this case involved only the question of whether the evidence obtained in the Cook residence was admissible in a parole revocation hearing, the issue would be resolved in favor of admissibility.

However, the United States Supreme Court has pointed out that there are critical differences between criminal trials and probation or parole revocation hearings, which differences both society and the parolee or probationer have a stake in preserving:

In a criminal trial, the State is represented by a prosecutor; formal rules of evidence are in force; a defendant enjoys a number of procedural rights which may be lost if not timely raised; and, in a jury trial, a defendant must make a presentation understandable to untrained jurors. In short, a criminal trial under our system is an adversary proceeding with its own unique characteristics. In a revocation hearing, on the other hand, the State is represented not by a prosecutor but by a parole officer with the orientation described above; formal procedures and rules of evidence are not employed; and the members of the hearing body are familiar with the problems and practice of probation or parole.

Gagnon v. Scarpelli, Supra, 93 S.Ct. at 1763.

Whereas the inapplicability of the exclusionary rule made it unnecessary for us to determine whether the warrantless search in State v. Kuhn, Supra, was lawful, because this case involves new criminal proceedings against defendant, we are squarely confronted with the question of whether the warrantless search by Parole Officer Boyle and the Tacoma police officers was a 'lawful' search, and not afoul of the Fourth Amendment prohibition against unreasonable search and seizure. The law is well established in this state, consistent with the decisions of the United States Supreme Court, that in a Criminal prosecution, evidence Unlawfully seized will be excluded. State v. Biloche, 66 Wash.2d 325, 327, 402 P.2d 491 (1965).

Analyzing the...