State v. Toliver

• Decision Date: 12 July 1971
• Docket Number: No. 594--I,594--I
• Citation: 487 P.2d 264,5 Wn.App. 321
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Gary Wayne TOLIVER, Appellant.

Page 321

5 Wn.App. 321

487 P.2d 264

STATE of Washington, Respondent, v. Gary Wayne TOLIVER, Appellant.

No. 594--I.

Court of Appeals of Washington, Division 1, Panel One.

July 12, 1971.

Robert A. Castrodale, court appointed, Seattle, for appellant.

Christopher T. Bayley, King County Pros. Atty., Patricia G. Harber, Deputy Pros. Atty., Seattle, for respondent.

HOROWITZ, Chief Judge.

Defendant was convicted on two counts of burglary in the second degree and one count of grand larceny by possession. He appeals.

The facts as the jury might have found them are these. ¹ That on August 19, 1969, Federal Officer Donald E. Madsen of the Alcohol and Tax Division of the United States Treasury Department received word from a reliable informant that one Gerald Speaks, who was wanted on a federal warrant for sale of a machine gun, could be found at 13444 N.E. 100th, Kirkland, the house where Speaks was living. Officer Madsen was further told that the people in the house with Gerald Speaks would have guns and would resist any attempt to arrest him. Officer Madsen requested Detective Vincent Pellegrini and other members of the King County Department of Public Safety to assist him in making the arrest. Detective Pellegrini had also been given information by a reliable informant on the same day that Gerald Speaks could be located at the same house in Kirkland, and that there would be others in the house with guns who would try to prevent Speaks' arrest.

At 8 p.m. on August 19, 1969, Federal Officers Madsen and Vissard and Detectives Pellegrini and Warwick, together with uniformed officers of the King County Department of Public Safety went to 13444 N.E. 100th, Kirkland, and arrested Speaks in his car, which was directly off the porch of the house. At this time, one Stephanie Vasiliou, who was standing outside the car with Speaks, began screaming. The open front door of the house was slammed shut and sounds of running could be heard from inside the house. Officer Pellegrini yelled that they were police officers and to come out. About that time the defendant Toliver jumped out of an upstairs window and began running around the roof of the house. He was told to come down off the roof, which he did. The officers were informed there was one more man in the house. They believed it was necessary for their safety and protection that the house be cleared of people who were in a position to fire at them as they left with their prisoner. At this time Detective Pellegrini again yelled for the person in the house to come out, and obtaining no response, entered the house through the front door in order to secure the downstairs.

While in the house on the downstairs floor, Detective Pellegrini found a .38 caliber revolver lying on a chair in the living room. He then checked the bedroom for the person still in the house and then the kitchen. In the kitchen he observed a typewriter and check protector fitting the description of the one Detective Kringen had told him about earlier in the afternoon as having been stolen from Maddy's Automotive Service the night before. Detective Pellegrini then left the house. Meanwhile, Officer Madsen had crawled in an upstairs window and found another man, one Baldur Odin Svararsson, lying underneath a bed. Svararsson was brought outside the house where the officers waited while Detective Kringen was summoned to the scene. After he arrived it was decided that the check protector had been stolen and that, consequently, a search warrant should be obtained. No search was made of the house until after Detective Pellegrini obtained a search warrant for stolen property in the Kirkland house and had returned to the scene at approximately 11:40 p.m. that night. By use of the search warrant the items of property described in burglary count 2 and other items were seized. The items, together with the suspects Toliver and Svararsson, were transported to the King County Courthouse and jail. In due course, the evidence concerning the circumstances of the seizure and the items taken pursuant to the search warrant were introduced in evidence. An additional statement to the extent material will be hereinafter made.

Defendant made a motion to suppress the evidence seized pursuant to the search warrant on the ground that the officers had no right to enter the Kirkland house following the arrest of Speaks before obtaining a search warrant. It is contended that what the officers did constituted a general search for the purpose of obtaining evidence, contrary to law. They cite cases such as Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925). More recently the Supreme Court of the United States has placed certain spatial and temporal limitations upon warrantless searches and seizures on and after June 23, 1969. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Williams v. United States, 401 U.S. 606, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). See, Note, 19 Am.U.L.Rev. 575 (1970). See also, Note, 78 Yale L.J. 433 (1969), for a discussion of the Pre-Chimel law. Under Chimel, warrantless searches and seizures incident to an arrest are limited to the arrestee's person to discover and remove weapons and to seize evidence to prevent its concealment or destruction from the area 'within the immediate control' of the person arrested, that is, the area from which he might gain possession of weapons or destroy evidence. ² Chimel did not involve the problem of the dwelling area, not necessarily within the arrested person's control, but in which armed persons were hiding whom the officers had reasonable cause to believe might fire upon them when they left with the arrested person.

The rules set forth in Chimel govern only search and seizure of property incident to a lawful arrest; they are not applicable to entry and search of a dwelling for the purpose of finding and detaining a person thought to pose a threat to the safety of officers lawfully performing their duties. However, the fundamental principle underlying Chimel--that officers have a right to assure their safety--is of general applicability, and, for example, underlies the court's approval of 'stop and frisk' in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As was stated by the court in Terry:

(T)here is 'no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails.' * * * And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.

(Footnote omitted) 392 U.S. at 21, 88 S.Ct. at 1879. That it is reasonable for officers to take necessary steps to protect themselves was made clear by the court:

When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a wespon and to neutralize the threat of physical harm.

392 U.S. at 24, 88 S.Ct. at 1881.

Consequently, we conclude that, although the self-protective action in the instant case went beyond the limited stop and frisk permitted by Terry, the above quoted principles, upon which the holding in Terry was based, are properly extended to cover the situation where officers lawfully executing an arrest warrant have a reasonable fear that friends or confederates, who are beyond the area within immediate control of the arrestee and within a constitutionally protected dwelling, might begin shooting, or take action which otherwise endangers the safety of the officer. See People v. Block, 16 Cal.App.3d 140, 93 Cal.Rptr. 779 (1971); People v. Machel, 234 Cal.App.2d 37, 44 Cal.Rptr. 126, cert. denied, 382 U.S. 839, 86 S.Ct. 88, 15 L.Ed.2d 81 (1965). If the arresting officer, although having reasonable cause to apprehend being shot at by nearby friends or confederates beyond the immediate control of the arrestee, is not permitted to search out such persons to protect himself in the performance of his duty to arrest the arrestee, we would quickly impair and even destroy the possibility of an arrest at all.

The principle that officers are entitled to take action to protect themselves must necessarily be tempered, however, by a respect for the personal security and privacy of individuals which is secured by the Fourth and Fourteenth Amendments. If a confederate or friend of an arrestee is to be detained, or a search made of his house to effect his detention, the Fourth Amendment, at the minimum, requires that the officers have reasonable cause to believe that, in carrying out their duty to arrest, their safety would be endangered, I.e., the question is 'whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.' Terry v. Ohio, Supra, 392 U.S. at 27, 88 S.Ct. at 1883. It is not necessary that the police have probable cause to arrest the friend or confederate for a crime; such a requirement would unduly burden police in taking action to assure their safety. However, such self-protective action requiring the warrantless entry into a dwelling, absent exigent circumstances excusing compliance with the requirement, can be undertaken only after the person or persons within fail to comply with the demand, by an officer who identifies himself as such, that such persons come out. Moreover, both the intrusion made by the officers and the subsequent detention of the person thought to be dangerous must be no greater than that which is required to secure the officers' safety. Consequently, any search of a dwelling undertaken to find and detain a person thought to be therein, must be strictly...