State v. Teuber

• Decision Date: 03 April 1978
• Docket Number: No. 5313-I,5313-I
• Citation: 19 Wn.App. 651,577 P.2d 147
• Parties: STATE of Washington, Respondent, v. Scott A. TEUBER, Appellant.
• Court: Washington Court of Appeals

Page 651

19 Wn.App. 651

577 P.2d 147

STATE of Washington, Respondent, v. Scott A. TEUBER, Appellant.

No. 5313-I.

Court of Appeals of Washington, Division 1.

April 3, 1978.

Public Defender William S. Bailey, John H. Browne, Seattle (court-appointed), for appellant.

Christopher T. Bayley, King County Pros. Atty., Dennis R. Nollette, Deputy Pros. Atty., for respondent.

WILLIAMS, Judge.

Scott A. Teuber was charged with malicious destruction of property (RCW 9.61.070, since repealed), resisting a public officer (RCW 9.69.040, since repealed), and failing to provide information at the scene of an accident with an attended vehicle (RCW 46.52.020). He was convicted of the latter two crimes, but was acquitted of malicious destruction. His assignments of error concern the legality of the arrest, the applicability of RCW 46.52.020, which is commonly known as the hit-and-run statute, the alleged destruction of evidence, and certain instructions to the jury.

The facts are these. At about 9:30 p. m. on February 16, 1976, in Seattle, Jeffrey Evans and Patricia Wahl were sitting in Evans' car, which was parked in front of a duplex. Teuber and his family lived in one unit of the duplex, and Wahl and her parents lived in the other. While attempting to park his car, Teuber, whose driving was impaired by a toe-to-hip cast on his right leg, slowly backed up and "lightly tapped" the Evans vehicle, doing little or no damage. Evans then backed his car up about 10 feet, got out and walked ahead to talk to Teuber about the impact. After a brief conversation, the content of which is disputed, Evans got back into his car, intending that he and Wahl would go into her parents' house and phone the police. Suddenly, the Teuber vehicle came roaring backwards, "as fast as you could get going in 10 feet," and slammed into the Evans vehicle, this time causing considerable damage. Wahl and Evans, deciding against further conversation with Teuber, entered the Wahl residence and phoned the police. Officer Stockham arrived about 5 minutes thereafter. Finding Teuber gone and being unable to contact him either by phoning or knocking on his door, the officer impounded the Teuber vehicle.

A few hours later, when Teuber's wife came home and inquired as to the whereabouts of the car, Teuber phoned the police and reported that it had been stolen. At about 1 a. m., two officers, Homiston and Russell, were dispatched by radio to investigate the stolen car report. Officer Stockham, who by that time had resumed his normal patrol, heard the dispatch and arranged a meeting with the other two officers. At the meeting, the three discussed the recent events concerning Teuber and the possible charges that could be brought against him. Homiston and Russell decided to take advantage of Teuber's stolen car report and use that opportunity to arrest him. They went to Teuber's home and were invited in. When they informed Teuber that he was under arrest for second-degree assault, malicious destruction of property, and hit-and-run, a melee ensued involving Teuber, his wife, their 13-year-old son, and the two officers. Teuber was forcibly taken to jail.

At trial, Teuber testified that the collision was an accident; that he apologized to Evans, told him that he had insurance, and tried to talk about the accident, but that Evans wouldn't listen and retreated into the Wahl residence; that he didn't report the accident to the police because he knew that Evans and Wahl knew who he was; that he honestly thought his car had been stolen; and that he didn't forcibly resist his arrest.

The first question is whether Teuber was lawfully arrested. He argues that he was not, and that the charge of resisting a public officer cannot stand. State v. Rousseau, 40 Wash.2d 92, 241 P.2d 447 (1952); City of Kennewick v. Keller, 11 Wash.App. 777, 525 P.2d 267 (1974). Specifically, Teuber contends (1) that an arrest of this nature was not warranted for a mere traffic violation; (2) that an arrest for a misdemeanor is allowed only when the crime is committed in the officer's presence; (3) that charging the felony of second-degree assault, which was later changed to third-degree assault, a misdemeanor, was a "pretext" the officers used to avoid rule (2), above; and (4) that absent exigent circumstances, the constitution requires police officers to obtain an arrest warrant before intruding into the privacy of a home in the middle of the night. See Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970).

The State relies on RCW 46.64.017, which authorizes a police officer at the scene of a motor vehicle accident to make a brief arrest while he issues a notice and citation to the offending motorist, and RCW 10.31.100, which provides:

Any police officer having information to support a reasonable belief that a person has committed or is committing a misdemeanor or gross misdemeanor, involving physical harm or threats of harm to any person or property or the unlawful taking of property or involving the use or possession of cannabis shall have the authority to arrest said person: Provided, That nothing herein shall extend or otherwise affect the powers of arrest prescribed in chapter 46 RCW.

RCW 46.64.017, by its terms, does not apply to a situation such as this, where the arrest is made away from the scene of the accident, some 4 hours later, by officers different from the ones who originally investigated the accident. See State ex rel. McDonald v. Whatcom County Dist. Court, 575 P.2d 1094 (Colo.App.1978).

However, the arrest was lawful under RCW 10.31.100 because Officers Homiston and Russell had information to support their reasonable belief that Teuber had committed a misdemeanor (malicious destruction, RCW 9.61.070) involving physical harm to property. In State v. Huckaby, 15 Wash.App. 280, 549 P.2d 35 (1976), Division II of this court held that an arrest for possession of marijuana was lawful under RCW 10.31.100, where the officers used deception to gain entry to the defendant's home, in the nighttime, without a warrant or the presence of exigent circumstances.

This is not to say that RCW 10.31.100 permits arrests for the specified crimes under all circumstances. We question, for example, whether in the present case the statute would have authorized a nonconsensual entry of the Teuber home. However, Teuber waived his right of privacy by making what the jury could have found to be a false stolen car report, and by inviting into his home the officers who responded to the report. The officers' presence in the Teuber home continued to be lawful after they announced the nature of their visit and placed Teuber under arrest. People v. Ramey, 16 Cal.3d 263, 275, 127 Cal.Rptr. 629, 636, 545 P.2d 1333, 1340 (1976), one of the cases Teuber relies upon, notes the crucial difference between consensual and nonconsensual entry:

Where genuine exigencies exist, broad constitutional mandates often give way to the necessity for immediate action, and an arrest is no exception to this rule. But in the absence of a bona fide emergency, or consent to enter, police action in seizing the individual in the home must be preceded by...