State v. Smith

• Decision Date: 23 November 1976
• Docket Number: No. 1950--II,1950--II
• Citation: 558 P.2d 265,16 Wn.App. 425
• Parties: The STATE of Washington, Respondent, v. Don R. SMITH, Appellant.
• Court: Washington Court of Appeals

Page 425

16 Wn.App. 425

558 P.2d 265

The STATE of Washington, Respondent, v. Don R. SMITH, Appellant.

No. 1950--II.

Court of Appeals of Washington, Division 2.

Nov. 23, 1976.

Edmund E. Lozier, appointed, Tacoma, for appellant.

Joseph D. Mladinov, Tacoma, for respondent.

PEARSON, Judge.

Defendant, Don R. Smith, a former attorney, appeals his conviction by a Pierce County jury on two counts of grand larceny by misappropriation of funds. (RCW 9.54.010) The amended information charged defendant in count 1 with misappropriating over $1,000 of funds entrusted to him as attorney and guardian for Edward W. Flannery, and in count 2 with misappropriating over $10,000 of funds entrusted to him as attorney and guardian for David L. Butler.

Defendant's major assignments of error concern a ruling by the trial court refusing to suppress evidence obtained as a result of execution of two search warrants. The warrants were issued by Superior Court Judge Allan R. Billett, one authorizing the search of defendant's office, and the other the search of defendant's home. ¹ The claim is that Judge Billett was not a 'neutral and detached' magistrate because the affidavit for the warrants contained allegations that fraudulent court orders were used to misappropriate funds from the guardianship accounts. One of the orders attached to the affidavit contained the typewritten name of Judge Billett. ² The affidavit also stated that a search of the Superior Court Clerk's files did not disclose origianl signed orders authorizing withdrawal of the funds from the accounts in question. Judge Billett later testified at trial as a witness for the State concerning the bogus court orders.

The issue is whether the exclusionary rule should be invoked because the issuing judicial officer is aware from the affidavit for search warrant that he may be a witness against the defendant whose premises are sought to be searched. We affirm the ruling denying the motion to suppress.

Historically, the Fourth Amendment was a reaction to the evils of the use of the general warrant in England and the writs of assistance in the Colonies. Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886). The thrust of the Fourth Amendment's requirement for a neutral and detached magistrate as the issuing agency for search warrants was authoritatively addressed in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). There a government enforcement agent who was the chief investigator and prosecutor in the case, acting as a justice of the peace, issued the warrant to search defendant's automobile. In striking down the search warrant, the court noted, 403 U.S. at page 450, 91 S.Ct. at page 2029, 29 L.Ed.2d at page 573, '(T)hat prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations--the 'competitive enterprise' that must rightly engage their single-minded attention.' (Footnote omitted.)

The rationale underlying the requirement that search warrants be issued by neutral and detached magistrates is stated to be the protection of the right of privacy from overzealous police officers. The judicial officer will more objectively balance the interests of privacy against the interests of criminal investigations than will the investigating police officer, who might distort the independent judgment of probable cause required by the Fourth Amendment. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Shadwick v. Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). The solution compelled by the Fourth Amendment, as interpreted by the United States Supreme Court, is to interpose a judicial officer's determination of probable cause between the right of privacy and the unbridled discretion of the police to search.

The exclusionary rule which defendant seeks to invoke was designed as an administrative procedure to deter police conduct that violates the Fourth Amendment. 'Thus, in situations where there is no police deterrent effect to be served by exclusion of particular evidence, the United States Supreme Court has steadfastly rejected application of the exclusionary rule.' State v. McFarland, 84 Wash.2d 391, 393, 526 P.2d 361, 362 (1974).

In the instant case, Judge Billett's function was totally divorced from the investigative or police function. The information submitted to him by affidavit was sufficient to meet the constitutional requirement of probable cause. Any judicial officer would have been justified in issuing the warrants. Police deterrence is simply not involved and the underlying purposes of the Fourth Amendment would not be advanced by invoking the exclusionary rule. State v. McFarland, supra; see Stone v. Powell, --- U.S. ---, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).

Defendant also challenges the contents of the affidavits in support of the warrants as insufficient to establish probable cause. Our review of the affidavits with the attachments demonstrates that this challenge is frivolous. ³ Likewise, the contention that the scope of the warrants was constitutionally overbroad is without merit. The warrants both sanctioned a search for documents, canceled checks, bank statements and correspondence pertaining to the guardianship accounts in question. When the files were not located at defendant's law office, and the second affidavit established that defendant infrequently visited that office and had no other business office in the county, the affidavits established probable cause to authorize search of defendant's home for the missing guardianship records.

Defendant's second assignment of error relates to an order of the court requiring him to furnish handwriting exemplars in the form of the checks written on the guardianship accounts. A handwriting expert used these exemplars to compare with canceled checks drawn on the guardianship bank accounts. The expert concluded that defendant had in fact written the checks in question.

Defendant contends that the court's order compelling him to furnish handwriting exemplars in the form of the unauthorized checks was a form of testimonial compulsion in violation of his Fifth Amendment privilege against self-incrimination. Boyd v. United States, supra; Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

The United States Supreme Court has accepted with some reservations not applicable here the distinction between compelling an accused to produce evidence of a testimonial or communicative nature on the one hand, and compelling him to produce 'physical' evidence on the other. The former is condemned as violative of the accused's privilege against self-incrimination, while the latter is generally not. Schmerber v. California, supra; State v. West, 70 Wash.2d 751, 424 P.2d 1014 (1967).

The overwhelming weight of authority is that providing handwriting exemplars is not testimonial or communicative in nature, and the Washington Supreme Court has adopted the same view with respect to voluntary exemplars of an accused's signature. State v. Craig, 67 Wash.2d 77, 406 P.2d 599 (1965); Schmerber v. California, supra; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

Defendant relies upon dictum in State v. McCormack, 3 Wash.App. 997, 999, 478 P.2d 756 (1970) to the effect that a defendant 'cannot be compelled' to provide a sample of his handwriting. But that case cites no authority for the dictum and the specific issue was not before the court. State v. Craig, supra, and the other cases cited above establish the nature of handwriting exemplars as nontestimonial.

However, even assuming that simple signature exemplars may not be testimonial in nature, defendant contends that compulsion to produce an exemplar in the form of the subject matter of the criminal offense takes the exemplar out of the realm of physical or real evidence and casts it with an aura of self-incriminating testimonial evidence. United States v. Green, 282 F.Supp. 373 (S.D.Ind.1968).

There appears to be little logic to this position. In State v. West, supra, 70 Wash.2d at page 753, 424 P.2d at page 1015, the Supreme Court stated:

Schmerber concludes that although the idea has been expressed in many different ways, most federal and state courts agree that the privilege against self-incrimination offers no protection against compulsion to submit to 'fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to Stand, to assume a stance, to walk, or to make a particular gesture.'

These compulsions may all be incriminating or they may provide evidence of innocence. Handwriting, like fingerprinting, has scientifically established distinctive characteristics which can provide real as distinguished from testimonial proof of guilt or innocence. To contend that the expert who makes comparisons of handwriting may have the signature but no more is akin to arguing that one fingerprint is permissible, but not more, or that an accused may be compelled to exhibit a part but not all of his body in a lineup. If the scientific evidence can be made more reliable by a detailed handwriting exemplar, the interests of ascertaining the truth are enhanced; similarly, if the fingerprint expert is allowed a full set of prints with which to make his scientific comparison, the evidence will be more reliable.

It is a non sequitur to allow the jury to consider a less reliable expert opinion simply because the more reliable evidence may prove to be more incriminating.

It is our conclusion that a handwriting exemplar does not become testimonial where the form required approximates that of the offending instrument. United States v. Doe, 405 F.2d 436 (2d Cir. 1968).

Defendant also challenges the use of his handwriting exemplars, citing State v. Myers, 47 Wash.2d 840, 290 P.2d 253 (1955) and its dictum to the effect that a writing specimen is not reliable...