State v. Young

• Decision Date: 09 February 1981
• Docket Number: No. 4176-II,4176-II
• Citation: 28 Wn.App. 412,624 P.2d 725
• Parties: The STATE of Washington, Respondent, v. John W. YOUNG, Jr., Appellant.
• Court: Washington Court of Appeals

Page 412

28 Wn.App. 412

624 P.2d 725

The STATE of Washington, Respondent, v. John W. YOUNG, Jr., Appellant.

No. 4176-II.

Court of Appeals of Washington, Division 2.

Feb. 9, 1981.

Frank E. Morris, Olympia, for appellant.

James Buckley, Olympia, for respondent.

PETRIE, Judge.

John W. Young, Jr., appeals his conviction of second degree burglary. His contentions on appeal are that the warrantless seizure of incriminating evidence from an automobile and his warrantless arrest violated the federal and state constitutional prohibitions against unreasonable searches and seizures. We find that the police officers' actions were reasonable under the circumstances. Accordingly, we affirm the conviction.

The evidence presented at the suppression hearing established the following sequence of events. Shortly before 2 a. m. on March 11, 1979, Dennis Niles, a Lacey police officer on routine patrol, noticed an older model vehicle in a shopping center parking lot parked in an area not near other cars or any businesses which were then open. Because it was unusual to see a car in that location at that time of the morning, Officer Niles noted its license number. He then continued his patrol. As he approached Mark It Foods, a supermarket and pharmacy located 150 feet from the car, he heard a fire alarm and saw a fire door standing open. Other police officers assisted in securing the building and learned that a rear door to the store had been forced open.

With the building secure, Officer Niles returned to the lone automobile he had observed earlier. He saw that the driver's door was standing open approximately two feet, a condition he had not noticed when he first saw the car. Using his flashlight, Niles observed a screwdriver and a Stillson wrench on the front seat, torn pieces of yellow pages from several telephone directories on the floorboard in front of the driver's seat, and a claw hammer on the rear floorboard. He seized the hammer and the yellow pages. At trial, but not at the suppression hearing, Niles testified that the head of the hammer had bits of yellow paint on it. At trial, but not at the suppression hearing, Niles testified that one of the yellow pages advertised the Mark It Pharmacy, and it was sitting on top of the others. The other yellow pages listed and advertised pharmacies in Tacoma.

By this time, the officers at the scene had learned from the radio dispatcher that the car was registered to a person with a Tacoma address. Because Tacoma is approximately 25 miles north of Lacey on Interstate 5, Officer Edward Sorger left the shopping center to check the northbound on-ramp of the freeway less than a mile away. At 3:25 a. m., Officer Sorger saw defendant standing next to the northbound on-ramp. He approached defendant and asked for identification. Mr. Young could produce no identification but gave his name as Michael Green and related a Tacoma address. Checking with the officers still at the shopping center by radio, Sorger learned the Tacoma address given by defendant matched the registered address which the other officers had obtained from a license check of the suspect car. Sorger then arrested defendant on suspicion of burglary. Enroute to the police station, defendant told Sorger his correct name. At the police station he also told police that another person had been with him in the car. While defendant was in custody, police also seized the hat and jogging suit he had been wearing when arrested. Some time after the arrest, defendant acknowledged he had been in the suspect car, but he denied the burglary. The police asked defendant for authorization to search the car. He refused.

Defendant moved to suppress the items taken from the car and his person. After a hearing, the court found the police acted reasonably and denied the motion. At trial, presided over by a different superior court judge, a special agent from the Federal Bureau of Investigation laboratory testified that the paint chips taken from the hammer and defendant's hat matched samples taken from the forced supermarket door hinges. The seized items thus are the heart of the State's case against defendant.

Turning to defendant's arguments on appeal, we begin with the central issue of all Fourth Amendment analyses whether the actions of the police officers were reasonable under the circumstances. See United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538 (1977); Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973).

The threshold question is whether the person invoking the protection of the Fourth Amendment

can claim a "justifiable," a "reasonable," or a "legitimate expectation of privacy" that has been invaded by government action.

Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). In Smith, the United States Supreme Court thus indicated the determination of the applicability of the Fourth Amendment involves two separate inquiries:

(1) Has the individual, by his actions, shown that he actually (subjectively) has an expectation of privacy in the place searched or things seized; and

(2) Is society prepared to recognize this subjective expectation of privacy as legitimate?

Smith v. Maryland, supra at 740, 99 S.Ct. at 2577.

In our analysis of the seizures here, we must be mindful that a person has a diminished expectation of privacy in the visible contents of an automobile parked in a public place. United States v. Chadwick, supra, 433 U.S. at 12-13, 97 S.Ct. at 2484; South Dakota v. Opperman, 428 U.S. 364, 367-68, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976). "What a person knowingly exposes to the public, ... is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). It has been held that a policeman who looks into a car parked in a public place and observes what is exposed to open view is not even conducting a "search" in the constitutional sense. Cook v. Commonwealth, 216 Va. 71, 216 S.E.2d 48, 50 (1975). In Cook, the Supreme Court of Virginia noted at page 73, 216 S.E.2d 48:

There can be little, if any, expectation of privacy when one parks his automobile on a public street and leaves therein, openly exposed to view, items of contraband or other evidence of crime.

Accord, e. g., State v. Gedric, 374 So.2d 1192, 1194 (La.1979); Scales v. State, 13 Md.App. 474, 284 A.2d 45, 47 (1971); Cf., State v. Manly, 85 Wash.2d 120, 124, 530 P.2d 306 (1975) (no reasonable expectation of privacy in what could be seen through house window from street). See generally, 1 W. LaFave, Search and Seizure, § 2.2 (1978).

Nevertheless, defendant contends that because Officer Niles used a flashlight to view the interior of the car, he conducted a search unreasonable under the Fourth Amendment. He relies on an opinion of this court, State v. Howard, 7 Wash.App. 668, 502 P.2d 1043 (1972). His reliance is misplaced. In Howard, we felt bound by the unchallenged finding of the trial court that the use of a flashlight to view the interior of the car was a search. We vacated the trial court's suppression order, however, because we viewed the "search" as reasonable in view of the officer's knowledge that generally Howard carried a weapon. Howard thus should not be read to hold that using a flashlight to observe what could be seen in a car parked in a public place constitutes a search in the constitutional sense. We hold, and thus align ourselves with the almost universal view, that such use of a flashlight is not a search at all.

When the circumstances of a particular case are such that the police officer's observation would not have constituted a search had it occurred in daylight, then the fact that the officer used a flashlight to pierce the nighttime darkness does not transform his observation into a search.

Marshall v. United States, 422 F.2d 185, 189 (5th Cir. 1970); accord, United States v. Johnson, 506 F.2d 674, 676 (8th Cir. 1974); see also United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202 (1927) (Coast Guard use of searchlight to reveal contraband liquor on boat not search); see generally, 1 W. LaFave, Search and Seizure, 248 et seq. (1978).

Thus, the Fourth Amendment simply has no bearing on the manner in which the presence of the several tools and the yellow pages became police knowledge. Officer Niles did not testify either at trial or at the suppression hearing, that he could read the print on the yellow pages from outside the vehicle or that he could see the bits of yellow paint on the head of the hammer without having picked it up. Accordingly, the more serious question is whether his entry into the vehicle and his seizure of the hammer and the yellow pages violated the Fourth Amendment. The defendant's expectation of privacy of the observable contents of the car was diminished, but we cannot hold that he had no judicially cognizable expectation of privacy as to those contents. To justify the warrantless seizure, the police must have had probable cause to believe the tools observed from outside the vehicle were instrumentalities of the crime and be faced with "emergent or exigent circumstances regarding the security and acquisition of incriminating evidence" which make it impracticable to obtain a warrant. State v. Smith, 88 Wash.2d 127, 137-38, 559 P.2d 970 (1977). Defendant does not dispute that there was probable cause to believe the visible items were evidence of a crime. He does contend, however, that the hammer, at least, was not visible. Nevertheless, he did not assign error to the trial court's finding that

the tools located inside of the ... vehicle were in plain view, and that Officer Niles observed these tools while looking into the interior of the defendant's vehicle.

Although the Washington Supreme Court has not yet ruled on the effect of the failure to assign error to findings in a suppression hearing, see State v. Agee, 89 Wash.2d 416,...