State v. Ward

• Decision Date: 04 December 1979
• Docket Number: No. 3655-II,3655-II
• Parties: The STATE of Washington, Respondent, v. Calvin R. WARD, Appellant.
• Court: Washington Court of Appeals

Page 761

24 Wn.App. 761

603 P.2d 857

The STATE of Washington, Respondent, v. Calvin R. WARD, Appellant.

No. 3655-II.

Court of Appeals of Washington, Division 2.

Dec. 4, 1979.

Mary Ellen Goodwin, Tacoma, for appellant.

Donald F. Herron, Pros. Atty., Michael R. Johnson, Deputy Pros. Atty., Tacoma, for respondent.

PETRIE, Judge.

On February 21, 1978, an armed robbery occurred at the Rodeway Inn in Tacoma. Defendant, Calvin Ward, was arrested, tried, and convicted for his participation in that incident. He appeals from the conviction of robbery in the first degree and the subsequent imposition of a life sentence pursuant to the habitual criminal statute. RCW 9A.56.200; RCW 9.92.090. We affirm the conviction and the entry of the habitual criminal finding, but remand for possible resentencing as required by State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978) and State v. Wheeler, 22 Wash.App. 792, 593 P.2d 550 (1979).

Shortly before 1:30 p. m. on February 21, a police radio transmission alerted officers of a report from a Mr. Orphey, the proprietor of a grocery store in Tacoma, that he was then observing, in a car parked outside his store, three men who had previously robbed him. Officer Donald Moore and three other Tacoma police officers responded to the broadcast. Two of the suspects were found in the parked car; and, after it was indicated that the third individual, a black male, was in the grocery store, several of the officers went into the store to continue the investigation.

When the officers entered the store, they encountered five individuals 3 black males, including defendant and Mr. Orphey, a black female, and a white female. All 3 men were contacted by an officer in order to ascertain their identity. Defendant was approached by Officer Moore. According to the officer, defendant unintelligibly mumbled some name when asked to identify himself and stated that he had come into the store in the company of the black woman who was also on the premises. The officer then asked the woman if she had entered the store with defendant. When the woman denied knowing defendant, Officer Moore resumed questioning him. He told Officer Moore that he had no identification on him and that he did not have a wallet. Because Officer Moore observed a bulge in the pocket of defendant's jumpsuit that appeared to be the size and shape of a wallet, his suspicions were further aroused by defendant's comment. He also feared that the "bulge" might, in reality, be caused by a weapon. Officer Moore finally decided to "frisk" defendant. He removed a wallet from defendant's pocket, opened it, and found a payroll check made out to "Don R. Colli--s" (part of the payee's name had been obliterated). Defendant was transported to the police station along with the other suspects and Mr. Orphey for questioning about the previously reported robbery of the grocery store. He was released later that afternoon.

Sometime later, Officer Moore became aware that a payroll check issued to Don R. Collings was one of the items taken during a robbery at the Rodeway Inn in the early hours of February 21. Officer Moore informed Officer Guy Bowen, the police investigator in charge of that robbery, about the check which he had observed in defendant's wallet. Officer Bowen then went to the home of the two victims of the Rodeway Inn incident and showed them a photo array which included a picture of defendant. Both men identified defendant as the robber. Defendant was arrested on February 23 and advised of his Miranda rights. Defendant waived his rights and confessed to the Rodeway Inn robbery.

A pretrial hearing was conducted to determine whether defendant made a voluntary and knowledgeable waiver of his Fifth Amendment protections, but no questions of any search and seizure issues under the Fourth Amendment were raised at that hearing or any time prior to trial. At trial, defendant objected to Officer Moore's testimony that he had observed the Colli--s check in defendant's wallet. The trial court considered that objection to be a motion to suppress evidence obtained from the officer's "frisk" of the defendant in the grocery store and conducted a brief hearing out of the presence of the jury. Following the hearing and argument on the question, the court ruled that the evidence was admissible.

Defendant was convicted by jury verdict of first-degree robbery. The jury also determined that he was armed "with a deadly weapon, which was a firearm" during the commission of the offense. The prosecutor then filed a supplemental information alleging that defendant had achieved the status of a habitual criminal. After the jury returned a verdict finding that he was a habitual criminal, defendant was sentenced to life imprisonment. Defendant appeals to this court, challenging both the underlying conviction and the habitual criminal finding.

In his first two assignments of error, defendant argues that his Fourth Amendment right to be free of unreasonable searches and seizures was violated when the officer opened his wallet in the grocery store. Accordingly, he contends that evidence concerning that incident, and the fruit thereof, must be excluded. ¹ Both parties to this appeal framed the issue substantially as follows: Did Officer Moore exceed his authority under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) in opening defendant's wallet during a frisk for weapons? Compare Commonwealth v. Silva,366 Mass. 402, 318 N.E.2d 895 (1974); People v. Collins, 1 Cal.3d 658, 83 Cal.Rptr. 179, 463 P.2d 403 (1970); United States v. Riggs, 474 F.2d 699 (2nd Cir. 1973) With Taylor v. Superior Court, 275 Cal.App.2d 146, 79 Cal.Rptr. 677 (1969). This phrasing of the issue indicates that the prosecution contends that no "arrest" occurred on February 21, but that the warrantless examination of the contents of defendant's wallet can be justified as a natural result of the officer's frisk for weapons. We do not reach that issue, however, because our reading of the record leaves us with no doubt that defendant was arrested by Officer Moore some time after his first conversation with the officer in the grocery store and before he was transported to the police station for questioning concerning the grocery store robbery. Dunaway v. New York, --- U.S. ----, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

Despite Officer Moore's subjective belief that no arrest occurred and that defendant was merely being "detained," an arrest did occur if defendant's "liberty of movement" was substantially restricted. Plazola v. United States, 291 F.2d 56, 60 (9th Cir. 1961). See also Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Defendant himself believed he had been arrested by Officer Moore by the time he was taken to the waiting police vehicle and driven to the station, and we are satisfied that such belief was manifestly reasonable under the circumstances. Dunaway v. New York, supra.

Although it is not the usual situation, a search incident to an arrest can occur prior to the arrest, so long as sufficient grounds for the arrest existed before the search and seizure was commenced. State v. Smith,88 Wash.2d 127, 559 P.2d 970 (1977); State v. Brooks, 57 Wash.2d 422, 357 P.2d 735 (1960). As stated by the court in Holt v. Simpson, 340 F.2d 853, 856 (7th Cir. 1965) When probable cause for an arrest exists independently of what the search produces, the fact that the search precedes the formal arrest is immaterial when the search and arrest are nearly simultaneous and constitute for all practical purposes but one transaction. To hold differently would be to allow a technical formality of time to control when there has been no real interference with the substantive rights of a defendant.

See State v. Hammond, 24 Wash.App. 596, 603 P.2d 377 (1979); See also 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 5.4(a) (1978); Annot. 89 A.L.R.2d 715 (1963). Therefore, the search of defendant's wallet can be upheld so long as Officer Moore had probable cause to arrest defendant for the robbery of the grocery store before the search occurred.

Probable cause for making a warrantless arrest exists when the facts and circumstances are such as to warrant a prudent or cautious man in believing that the suspect had committed or is committing an offense. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); State v. Massey, 68 Wash.2d 88, 411 P.2d 422 (1966); State v. Luellen, 17 Wash.App. 91, 562 P.2d 253 (1977). The officer need not have knowledge of evidence sufficient to establish the guilt of the accused beyond a reasonable doubt. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. Bellows, 72 Wash.2d 264, 432 P.2d 654 (1967). Finally, probable cause must be examined in light of the arresting officer's special expertise and training in identifying criminal behavior.

(T)he standard should be, not what might appear to be probable cause to a passerby, but what would be probable cause to a reasonable, cautious, and prudent officer.

State v. Todd, 78 Wash.2d 362, 367, 474 P.2d 542, 545-546 (1970).

We are satisfied that Officer Moore had probable cause to arrest defendant in connection with the grocery store robbery. The officer knew that the victim of the crime obviously an eyewitness had reported that the 3 men who robbed...