State v. Smith

• Citation: 314 P.2d 1024,50 Wn.2d 408
• Decision Date: 13 June 1957
• Docket Number: No. 33744,33744
• Parties: The STATE of Washington, Respondent, v. Thomas SMITH, Appellant.
• Court: Washington Supreme Court

Page 408

50 Wn.2d 408

314 P.2d 1024

The STATE of Washington, Respondent, v. Thomas SMITH, Appellant.

No. 33744.

Supreme Court of Washington, Department 1.

June 13, 1957.

Robert W. Winsor, Seattle, for appellant.

Charles O. Carroll, Charles R. Lonergan, Jr., Seattle, for respondent.

FINLEY, Justice.

This is an appeal from a conviction of grand larceny. The sole assignment of error is that the trial court erred in denying appellant's timely motion for the suppression or exclusion of certain physical evidence and certain testimony of police officers. Appellant contends that the evidence and the testimony resulted from an entry, search, and seizure, which violated RCW 10.79.040, as well as state and Federal constitutional guarantees. He relies upon the 'so-called' exclusionary doctrine of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, as the doctrine has been applied in our state as instanced in State v. Buckley, 145 Wash. 87, 258 P. 1030; and State v. Rousseau, 40 Wash.2d 92, 241 P.2d 447.

The writer of the instant opinion, in a concurring opinion in the Rousseau case, attempted a critical evaluation of the exclusionary doctrine of the Weeks case, pointing out that in State v. Buckley, supra, our own court said [145 Wash. 87, 258 P. 1031]:

'It is the rule of the English courts, and is the rule of the courts in a majority of the American states, that the admissibility of evidence is not affected by the manner in which, the means by which, or the source from which, it is obtained. It is held that, if the evidence is otherwise pertinent to the issue, it is no valid objection to its admissibility to show that it was unlawfully or illegally obtained * * *."

The decision of the majority in the Rousseau case leaves no doubt that the exclusionary doctrine of the Weeks case is the law of this jurisdiction, unless and until changed by this court. Thus, at the present time, the question in the instant appeal is a factual one: namely, whether the doctrine is applicable on the basis of the facts and circumstances in the instant case. There was a hearing in the superior court for King county on the motion to suppress the evidence. The appellant and two police officers took the stand and testified as to the facts and circumstances surrounding the alleged unlawful entry, search, and seizure.

The appellant testified that he first noticed two police officers as they were standing in the hallway in the proximity of the door of his own room while he was relaxing in a parlor or day room located down the hall from his own room at his hotel; that the officers thereupon accosted him in the parlor or day room; and that one officer then preceded him and the other officer followed him into his room, whereupon the two officers, without the appellant's permission, unceremoniously and not too tidily made a search and, also without permission, took possession of two new woolen sport shirts for men. Appellant testified that the two shirts had been left with him two weeks theretofore by a man he knew as 'Gastin,' and the shirts had been left as a pledge for a two-dollar loan. Parenthetically, it may be stated that the shirts were subsequently identified positively as stolen property.

The appellant signed a written statement, which conflicts with the foregoing testimony. In the statement he admitted that the shirts were voluntarily surrendered to the police officers, to be checked out by them against information at headquarters relative to stolen property. In the statement the appellant declared that it was given to the police officers under no threats, duress, or promises.

The police officers had no search warrant. They testified that they went to appellant's hotel room pursuant to a tip that appellant had some stolen property in his possession, but without any knowledge of the theft that had occurred that afternoon involving the two sport shirts. Officer Swanton testified:

'* * * I knocked on the door. The defendant answered from inside, and he said, 'Who is it?' I said 'Police. We want to talk to you.' So the defendant opened the door and we both identified ourselves, showed our badges to the defendant and I told him again we would like to come in. So he says, 'Come on in.' * * * Well, when we got inside, I told the defendant, 'Tom,' I said, 'I understand you have some stolen merchandise in this room.' And the defendant denied he had any stolen merchandise. And there were two shirts lying on a table, and were apparently new shirts, and there was a black fiber suitcase, looked like a salesman's sample suitcase, setting in the corner. The suitcase, it was open and empty. It seemed like it was brand new. Anyway, I asked the defendant, 'Where did you get those two new shirts?' And the defendant said, 'Oh, I got them about two weeks ago. Someone left them here as security for a two dollar loan, if he doesn't return and pick them up I am going to keep them or else be out two dollars.' So I told him, 'I have an idea those shirts were stolen.' And i asked him about how it would be if we took those two to Police Department headquarters and checked them against the stolen property list up there. And he agreed that was all right. And we asked him if we could look around the room, and he said,...