State v. Turner

• Citation: 29 Wn.App. 282,627 P.2d 1324
• Decision Date: 20 April 1981
• Docket Number: No. 4071-II,4071-II
• Parties: The STATE of Washington, Respondent, v. Dennis TURNER, Appellant.
• Court: Court of Appeals of Washington

Page 282

29 Wn.App. 282

627 P.2d 1324

The STATE of Washington, Respondent, v. Dennis TURNER, Appellant.

No. 4071-II.

Court of Appeals of Washington, Division 2.

April 20, 1981.

As Changed May 12, 1981.

William G. Knudsen, Port Orchard, for appellant.

C. Dan Clem, Pros. Atty., Port Orchard, for respondent.

PETRICH, Judge.

Dennis Turner appeals from his conviction of three counts of second degree assault and one count of reckless endangerment, arising out of a series of Halloween shooting incidents. We affirm.

On October 31, 1978, the Kitsap County Sheriff's office received reports of a sniper. Two vehicles passing a duplex complex on Rose Road, Port Orchard, where Turner resided with his wife and children, had been struck by what officers believed to be small caliber bullets. The first vehicle fired on was driven by a stranger to the neighborhood, who was looking for the house of a friend. He continued around the block to Cedar Road where, at 9:44 p. m., he called the Sheriff's Department to report the shooting. Officers were dispatched to Cedar Road immediately and arrived at 10:07 p. m. A few minutes later, the officers heard a volley of shots being fired from the vicinity of Rose Road. When they proceeded to Rose Road to investigate, they found a 1964 El Camino stopped in the middle of the street, with two bullet holes in the body and one through the rear window. The vehicle had been occupied by three teenagers including Kenneth Straight, who was the driver and a former resident of the neighborhood. While inspecting the damage done to the Straight vehicle, the officers received a call regarding a house also on Rose Road having been fired upon. One bullet had passed through a window of that house located across the street from the duplex complex, and narrowly missed an occupant before it struck a wall. That bullet was retrieved and determined to be a .22 caliber in size.

While inspecting the duplex complex premises on Rose Road with several other officers who had been called in following the second volley of shots, the investigating officers found a number of .22 caliber shell casings a few feet from the middle of three duplexes. The Turner family resided in the most westerly of the duplexes, and were the only occupants of the complex.

Turner approached the officers as they examined the shell casings and demanded to know what they were doing. Appearing very excited, he admitted that he owned a .22 caliber rifle and initially volunteered to let the officers examine it. He changed his mind, however, when an officer told him that a .22 caliber had probably been used in the shooting incidents. ¹ He told them to get a warrant, and then ordered them to leave.

During his initial encounter with the officers outside the duplexes, at which time he had not yet been named as a suspect, defendant revealed that his house had been "egged." In reference to the egg throwing incident, he specifically mentioned Kenneth Straight. ²

On November 2, at approximately 10:30 a. m., two officers with a search warrant, but no arrest warrant, visited the Turner residence. The search warrant affiant, who was the primary investigating officer on the night of the shooting incidents, told at least one of the arresting officers of the sequence of events which had occurred on the night in question, described the bullet trajectories, and also told the officer of Turner's previous problems involving Straight.

After identifying themselves and informing Turner they were investigating the shooting incidents, the officers were invited into the living room. They did not immediately tell Turner they had a search warrant because they hoped to obtain his "cooperation." They ended up arresting Turner, and executing the search warrant after he had been placed in the squad car. The arresting officer testified that defendant would have been arrested eventually, but that his "excited" behavior contributed to the arrest at that particular time. Turner had also spontaneously begun to tell the officers that he had recently test-fired his rifle because he knew that a police ballistics test would enable them to determine whether his rifle had been involved in the Halloween shooting incidents. Thinking that Turner was beginning to get into an area where advisement of his Miranda rights might be prudent, the officer decided to take him into custody for questioning. At the sheriff's office, after he had been read his rights, Turner gave an oral statement which was admitted at trial. In an attempt to exculpate himself, he repeated his earlier explanation that he had test-fired his rifle after the shooting incidents, because he thought the police would want to test the shell casings and seize the rifle. He also stated that he had altered the firing pin, but gave inconsistent responses as to when the alteration occurred. ³

Testimony established that during a separate incident instigated by Straight in May, 1978, Turner had pointed his rifle at Straight; and threatened to shoot him if he did not leave the premises. There was also testimony that Turner had asked an officer in February, 1978, a hypothetical question regarding the use of firearms in defense of his property. Defendant's custodial statement that he had bought a .22 rather than a shotgun because it would not "hurt as bad," was also admitted into evidence.

The jury found Turner guilty of three counts of second degree assault involving Straight and his two companions, and not guilty of the fourth count involving the other vehicle. It also found him guilty of reckless endangerment regarding the bullet which entered the home of his neighbor. In addition, the jury returned special verdicts finding that defendant had been in possession of a firearm and a deadly weapon, pursuant to the respective penalty enhancement provisions of RCW 9.41.025 and RCW 9.95.040. Defendant appeals from the verdict and sentence.

On appeal, the first issue we address is whether defendant's inculpatory statements regarding the test-firing of his weapon and alteration of the firing pin should have been suppressed as the poisoned fruit of an unlawful arrest.

In the usual case a warrantless arrest is legal if the arresting officer has probable cause to believe defendant has committed a felony. RCW 10.31.100. See also State v. Todd, 78 Wash.2d 362, 365, 474 P.2d 542 (1970); State v. Turpin, 25 Wash.App. 493, 497-98, 607 P.2d 885 (1980). Probable cause exists where the facts and circumstances within the arresting officer's knowledge, and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in a belief that an offense has been committed. State v. Fricks, 91 Wash.2d 391, 398, 588 P.2d 1328 (1979).

The arresting officer knew that Turner possessed a .22 caliber weapon. From the proximity of the shell casings to the Turner residence, diagrams of probable bullet trajectories, and other information, the arresting officer had reason to believe that the shots had been fired from nearby defendant's home. Defendant and his family were the only persons residing in that particular location. The arresting office knew that moments after the second volley had been fired Turner had been encountered outside by the search warrant affiant, and was assertedly waiting for a halloween prankster to "get him." He also knew of defendant's past neighborhood quarrels, including the prior rifle-pointing incident involving Kenneth Straight. His curiosity was also aroused by defendant's statement that he had test-fired his rifle the day after the shooting incidents. Accordingly, we hold that there was ample probable cause for the warrantless arrest of defendant.

Defendant contends, however, that absent exigent circumstances, ⁴ a warrantless arrest within a dwelling is per se unlawful. We do not agree. Where officers are lawfully in a private home pursuant to a search warrant, they may make a warrantless probable cause arrest even though there are no exigent circumstances. State v. Williams, 17 Wash.App. 186, 192, 562 P.2d 651 (1977), aff'd in 90 Wash.2d 245, 580 P.2d 635 (1978) (without reaching warrantless arrest issue.) ⁵ Here, although defendant may properly assert that entry was not made pursuant to the search warrant, for the warrant was not served until after his arrest,

when an officer has sought and obtained a magistrate's disinterested determination that a suspect's right of privacy must reasonably yield to a law officer's need to search in a private home, it would be unreasonable to require either an arrest warrant or a showing of exigent circumstances to justify a warrantless arrest upon probable cause.

(Italics ours.) 17 Wash.App. at 192-93, 562 P.2d 651. Since a neutral and detached magistrate had already determined that there was probable cause to conduct a search of defendant's dwelling, the arrest of Turner in his home did not constitute a significantly greater intrusion upon his privacy merely because an arrest warrant had not first been obtained. The fact that Turner invited the officers into his home further negates any assertion that the warrantless arrest in his home constituted an invasion of privacy. ⁶ See State v. Teuber, 19 Wash.App. 651, 654-55, 577 P.2d 147 (1978) (defendant in misdemeanor case waived right to privacy by inviting arresting officers into home).

Because (1) there was probable cause for the arrest, (2) a warrant had already issued for the search of defendant's dwelling, and (3) defendant invited the officers into his home, we hold that Turner's warrantless at-home arrest was lawful and consequently, that his voluntary in-custody statements were properly admitted at trial.

We next address the question of whether the trial court abused its discretion in admitting evidence of defendant's prior rifle-pointing incident involving Kenneth Straight, and of his previous hypothetical question to a police officer regarding the lawfulness of...