State v. Smith

• Decision Date: 07 January 1977
• Docket Number: No. 43721,43721
• Citation: 88 Wn.2d 127,559 P.2d 970
• Parties: The STATE of Washington, Respondent, v. Harold Bernard SMITH, Appellant.
• Court: Washington Supreme Court

Page 127

88 Wn.2d 127

559 P.2d 970

The STATE of Washington, Respondent, v. Harold Bernard SMITH, Appellant.

No. 43721.

Supreme Court of Washington, En Banc.

Jan. 7, 1977.

Clark County Legal Defender, J. Dean Morgan, Michael H. Hicks, Jackson H. Welch, Vancouver, for petitioner.

James E. Carty, Pros. Atty., George O. Darkenwald, Vancouver, Chief Crim. Deputy pros. Atty., Dennis M. Hunter, Sharon Howard, Deputy Pros. Attys., Vancouver, for respondent.

WRIGHT, Associate Justice.

Appellant Harold Bernard Smith was convicted of first-degree murder in the Superior Court for Clark County. The Court of Appeals determined that only three issues raised on appeal warranted any detailed consideration and discussion: (1) whether the seizure of Smith's clothes without a warrant when he was a patient in a hospital security room, plus admitting the clothes into the trial evidence against him, violated state (Const. art. 1, § 7) and federal (U.S.Const. Amend. 4) constitutional prohibition against Unreasonable searches and seizures; (2) whether the state established a prima facie case of the corpus delicti; and (3) whether the verdict was supported by substantial evidence. The Court of Appeals found no merit in appellant's contentions and affirmed his conviction of first-degree murder. State v. Smith, 12 Wash.App. 720, 531 P.2d 843 (1975).

We granted a petition for review essentially to consider only the first of the three issues referred to above. We hold that the seizure of the clothes was reasonable and constitutional and that they were properly admissible in evidence. We agree entirely with the decision of the Court of Appeals that the two other issues raised by appellant are without merit. Thus, we affirm the Court of Appeals and the trial court.

To put the issue regarding the seizure and the evidentiary use of appellant's clothes in proper perspective, a detailed and even somewhat lengthy statement of facts seems appropriate and should be helpful at this point.

Around midnight on July 30, 1972, appellant Harold Bernard Smith left his home with his 2 1/2-year-old son, purportedly to go for a walk. The child had been dressed for bed by his mother and was wearing only his pajama tops and training pants, but apparently had a small blanket around him. The Smiths lived in a somewhat secluded area on the outskirts of Vancouver on some bottomland traversed by a small creek located roughly a distance of some 75 to 100 yards from the Smith home. Kathleen Smith, appellant's wife and the mother of the small boy, went to sleep shortly after the father left the home with the child. She awakened at 6:15 a.m. and was unable to find her husband or their son in or immediately around the residence. Appellant Smith returned to the home at approximately 7:15 a.m. without his son. The mother asked where the boy was. Appellant told her, 'He is, he is up on the hill in someone's car.' When questioned further, he told the mother that the boy was 'In a friend's car,' and should not worry.

Shortly thereafter, appellant for some unknown reason left the house again and walked toward a bridge that, at a point near the house, spanned the small creek. Kathleen Smith became concerned about her husband's strange conduct and the missing child. The Smiths had no telephone, so Kathleen went to the neighbors where she telephoned her husband's parents and told them about the missing boy and their son's unusual conduct. She then returned to the house and told her husband she had tried to call his parents but could not reach them. She was afraid appellant would leave if he was told the parents had been called and were coming to the house. When Kathleen asked again as to their son's whereabouts, appellant was evasive. Shortly thereafter, his parents arrived. The father asked where the boy was, and appellant responded, 'I think he fell in the creek.' The father then asked appellant if he tried to get him out. Appellant responded that, 'He tried, but he couldn't.' The parents then took their son to the hospital. He was checked in at the emergency room; ¹ the emergency room contacted a doctor who ordered appellant confined in one of the security rooms of the hospital.

The parents of appellant contacted the Vancouver City Police Department which in turn contacted the county sheriff's office. The parents then returned to the home where the mother, Kathleen Smith, had been left. When several city police and sheriff's deputies arrived, they found Kathleen Smith walking back and forth in front of the home, hysterical and screaming. In talking with Deputy Sherif Lentz, Kathleen Smith told him that her husband, earlier in the morning, was hysterical and distraught and, when questioned about their son, had said, 'He's in the creek. I put him in the creek.' Kathleen Smith and appellant's parents also told Deputy Sheriff Lentz that the appellant's pants, earlier that morning, 'were wet from the knees down and had sand and mud on them.' Appellant's parents took over the care of the younger child in the Smith home while several police and sheriff's deputies, as well as the mother, Kathleen, began a search outside the house for the missing child. Apparently the searchers fanned out in several directions, with the mother proceeding towards the creek. Shortly thereafter, Deputy Lentz and others heard the mother screaming. They found her in an open field about 50 feet from the creek sitting on the ground crying and screaming with the little boy in her arms. She had found him in the creek. Deputy Lentz immediately determined that the youngster was dead, apparently from drowning in the creek.

Deputy Sheriff Lentz observed that access to the creek was extremely difficult because at the place where the mother had found the child it was surrounded by heavy underbrush, stickers and brambles. He also observed that there were no scratches on the victim's legs, and from this concluded that the child had not gone to the creek voluntarily and under his own power but had been taken there by someone else. The creek at that point was about 5 feet in width, its depth at the center varied from about 8 to 12 inches, and at the edges or banks was approximately zero. Appellant's belt was found on one bank of the creek adjacent to the place where the child's body was found in the creek. Also at this locale on the bank near the edge of the creek, there was an indentation where someone had sat down. The indentation had marks approximating those that could have been made by the corduroy pants worn by appellant. An ambulance was called, the child was taken to the hospital and was pronounced dead upon arrival. The subsequent autopsy indicated death by drowning and strangulation from water and sand. The autopsy revealed recent scratch marks on the boy's neck, bruises on the side of his head, a cut on his lips and apparently older bruises on the buttocks.

When he realized the child had drowned under such singularly suspicious circumstances, Deputy Lentz wasted no time. He proceeded, actually in hot pursuit of appellant as the most likely suspect, going directly to the hospital in an effort to see, examine and possibly take possession of appellant's wet, sandy, and muddy clothing for use as evidence. At the emergency room, he was directed to the third floor where he talked with Mrs. Walker who was employed by the hospital as a ward clerk. Deputy Lentz questioned her about the whereabouts of appellant and his clothes and the two went to the location of a 'security' room on the third floor where the appellant had been placed in hospital security pursuant to the orders of his doctor. Mrs. Walker had put appellant's clothes in a closet in an anteroom or entryway which led from a public hallway of the hospital to the security room occupied by appellant. The security room was separated from the anteroom or entryway by a door equipped with a lock. The door had a glass window for viewing the inside of the security room. The anteroom or entryway to the security room was semipublic. It was equipped with a sink or washbasin and was open and accessible to doctors and nurses who frequently used the sink to wash their hands.

The ward clerk made a list of appellant's clothes. This was signed as a receipt by Deputy Lentz who then took the clothes to the sheriff's office where they were put in plastic bags for safekeeping as evidence. Subsequently, samples of sand taken from appellant's clothes, from the young victim's clothes, and from the center of the creek were analyzed by the Federal Bureau of Investigation's laboratory and found to be comparable.

In the trial court, defense counsel argued that the state and federal constitutional prohibitions against 'unreasonable searches and seizures' were applicable to the seizure of the clothes and moved to suppress and exclude appellant's clothes as evidence. The motion was denied by the trial court. Claims of error regarding denial of the motion will now be considered.

It is apparent that the fourth amendment to the United States Constitution and article 1, section 7 of the Washington State Constitution are comparable and are to be given comparable constitutional interpretation and effect. Accordingly, in this opinion, reference will be made only to the Fourth Amendment.

It is well settled and no authority is required for the proposition that the Fourth Amendment prohibits Only 'unreasonable searches and seizures.' The prohibition is cast in unquestionably general rather than in explicit and clearly definitive language. It reads:

The right of the people to be secure in their persons, houses, papers, and effects, against Unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

(Italics ours.)

To the practiced eye of a legal draftsman, it should be apparent that the...