State v. Fowler

rеcord, past criminal accept and refused to defendant-appellant’s that he argument of the offense. intoxicated at the time We find no abuse of discretion conviction and sentences are affirmed. Idaho, Plaintiff-Respondent, STATE of FOWLER, Defendant-Appellant. William No. 12971. Supreme Court of Idaho. Oct. Ysursa, Boise,

Nicolas R. for defendant-

appellant. Gen., Leroy, Atty. Lynn

David H. E.

Thomas, Carsman, Deputy W. At- Howard Gen., Boise,

tys. plaintiff-respondent. for

PER CURIAM. appeal imposition

This is an from the robbery following

sentence convictions of deadly weapon.

and assault with a We

affirm.

Appellant’s sole assertion of error is that his discretion in judge district abused twelve for rob-

imposing years sentences of assault, the sen-

bery years and five

tences to run concurrently. Appellant was robbery

found of an armed of a guilty utilized a during

convenience store which he as a attempting person to hold a sentence, the trial

hostage. imposing matters, considered, among other

judge offense, appellant’s

circumstances of the McCrea, d’Alene,

Stephen B. Coeur for defendant-appellant. Gen.,

David H. Lerоy, Atty. Lynn E. Thomas, Ritti, Eugene Deputy Attys. A. Gen., Boise, plaintiff-respondent. SHEPARD, Justice. appeal

This from conviction of with a which was deadly assault following jury entered and a verdict trial guilty. We affirm. long-standing Defendant had a Fowler Shortly after feud with one Mileck. Gene June, someone fired midnight during Mileck home and series of shots into the belonging fire vans set to two automobile they pull him over. lights, Mileck which were outside ‍‌‌‌​​​​‌​​​‌‌​​​​‌​​‌‌​​‌‌‌​‌‌‌​​​​‌​​‌‌‌‌​‌​‌​​‍his home. nor did Since thereafter, Shortly phone Mileck received a were informed was armed that Fowler call, expressed dismаy dangerous, stop in which caller intended to him highway that Mileck was still alive and threatened to where more further down the kill next time. Mileck identified troopers waiting. Mileck the the voice of the caller as that of defendant reaching interception planned Before Fragments Fowler. of bullets were found however, point, pulled Fowler his automo- home, which later ballistic in the Mileck shoulder, stopped, got bile over onto the out fired from a .45 caliber tests indicated were of the car and walked toward one of the possession in the of defend- revolver found troopers. shotgun, He was covered with a ant Fowler. frisked, handcuffed, placed in the and 31, 1977, August trooper Trooper approached marital difficul- car. Wunseh

Prior weapons defendant Fowler had arisen between the Fowler car and noted two ties wife, children plain the three Fowler view on the back seat of the car. He and his and Erk, door, weap- Karen Mrs. those two opened with one the car took staying were unloaded, Erk believed that and found a third Mrs. ons which were Fowler’s sister. restraining or- underneath the obtained loaded .25 caliber automatic Fowler had Mrs. from in- guns Fowler front seat of the car. Those defendant preventing der the children. of the Fowler vehicle. custody placed her on the hood terfering with not issued and restraining order was That time, officer Black At about that September 1. served on Fowler until scene, Fowler, arrived at the as did Mrs. per- accompanied by unidentified one Tuefel. Tuefel indi- August an On County guns Sheriff’s cated the two unloaded from phoned son the Kootenai belonged Fowler was back seat report Office to that defendant to Tuefel and had been Trooper Erk residence stolen. Mrs. Fowler driving Spokane from to. the informed An officer girl. Kentworthy gun in Idaho to that another still remained young abduct the Erk house. in the dispatched Black was car. Further examination time, During that who vehicle defendant revealed an unloaded .45 caliber re- highly agitated, vehicle, was had ar- described as volver under the front seat of rived at the Erk residence and demanded a which used “in Mrs. Fowler then stated was gun, give Washington which Erk refused to him. state the Mileck deal.” The Fowler then left with one of the children. .25 caliber au- troopers retained the loaded Erk talked with the proceedings Mrs. Sheriff’s Office tomatic for further Washington about the incident because she was con- handed over the other and over of the child. While safety cerned three firearms to Idaho officer Black. house, driving to the Erk officer Black was principal It is defendant Fowler’s conten- matching descriptiоn he a car saw tion on .45 appeal that the caliber revolver moving in the direction the Fowler vehicle search, product illegal was the of an Spokane. illegally sup- seized and should have been pressed. Black radioed the Office Because of the above recited com- Officer Sheriff’s facts, Washington plex in turn the Patrol to note what may and State be useful were notified that defendant Fowler was this case does not vol- involve. Fowler had driving Idaho-Washington toward the state untarily pulled highway, stopped off the his line, kidnapping, vehicle, therefrom, and was approached involved exited Hence, dangerous. to be armed and On involve police. believed the case does not line, Washington legality involuntary stop. side of the state two of an Our Wunseh, troopers, Kentworthy saw narrow focus is on the of whether began Washington troopers lawfully fol- defendant in his automobile state ille- caliber re- lowing Although him. the defendant searched for and seized the .45 changed speeding, lanes and was front seat of the gally volver hidden beneath the Washington officers did not use their sirens issue must be ad- Fowler vehicle. That particular kidnapping, attention was accused found in a dressed to Wash- ington state law. gun. child with a and a loaded belief leading to this stemmed information distinguishable The case at bar is from eyewitness an part from a statement of Lesnick, 84 Wash.2d 530 P.2d (Erk), safety she feared for the denied, cert. two guns child. The other found the car Lesnick, 46 L.Ed.2d being were identified as stolen. Fowler’s Washington Court held that gun, which may wife indicated that another right no to rely anonymous tipster loaded, not have been was still in stop Lesnick’s stop and because that the car. When the are told that a warranted, right was not had no is still in a car on the position to be in a to observe gambling heavily side of a used paraphernalia highway back seat of defend Here, however, explosive ant’s vehicle. as potentially situation is as this Fowler voluntarily pulled was, high his vehicle off one it would be unreasonable for way, stopped Hence, gun. and exited his car. to not searсh for the Once the Washington trooper cause, state probable they may Wunsch had a search right to be where he was when he observed public highway car on a without a the two weapons in view plain on the back exception. warrant under the automobile of the seat car since presence Wunsch’s Lewis, 583, See Cardwell v. 417 U.S. 94 the not the result of an illegal stop. 2464, (1974); S.Ct. 41 L.Ed.2d 325 Cady v. Dombrowski, 433, 2523, 413 93 U.S. S.Ct. 37 We hold that the officer proba had (1973); L.Ed.2d 706 v. Maroney, Chambers ble cause to initially enter the car. He had 42, 399 1975, 90 26 U.S. L.Ed.2d 419 informed, through been a рolice agency, (1970); States, Carroll v. United driving that Fowler was a vehicle the into (1925); 69 L.Ed. 543 State of Washington, State was armed ‍‌‌‌​​​​‌​​​‌‌​​​​‌​​‌‌​​‌‌‌​‌‌‌​​​​‌​​‌‌‌‌​‌​‌​​‍dan and Pate, v. Wash.App. 12 529 P.2d 875 gerous, and was in course committing the of (1974); Wash.App. v. State felony. approached When he the he (1979). P.2d 872 saw two weapons plain in view on the back A Washington seat. statute prohibits the argued It also the delivery that carrying pistol of a loaded in a vehicle.1 gun the by Washington trooper state trooper’s investigation of the status Idaho officer Black invalid. was somehow weapons subsequent and his finding of requirement pro for search warrants third weapon loaded certainly tects an individual from unreasonable offi warranted and no than more would ex be Here, cial intrusions. the search was valid pected of a competent reasonable and and once the weapon lawfully been had officer. by Washington trooper, seized state Further, noted, as above en that privacy intrusion into ceased. Officer try was weapons terminated and those Black, by accepting delivery placed upon the hood of the Fowler vehicle. Washington from the trooper, state was not weapons None those “seized” were rele intruding into Black privacy. Fowler’s vant to the case instant nor were assault, familiar with the Mileck knew that offered or admitted in evidence. It was Fowler was a suspect knowledge, and after only the arrival on scene of Fowl Fowler, through weapon Mrs. that the er’s wife and Tuefel that an additional been in the Mileck used assault. We hold search ensued which produced argument to be merit. without controversy here. The facts as noted support finding above of probable cause turn now to admissibility We gun. search for the fourth who testimony of Fowler’s wife. At the * ** applicable statute, Washington 1. The R.C.W.A. is unloaded a license there- without 9.41.050, provides pertinent per- part: provided.” “No for as hereinafter carry pistol any shall son vehicle unless trial, appellant’s remaining time of Fowler and his We wife had have examined been asserts, nevertheless, divorced. Fowler assertions of error and to be find them testimony judgment of his ex-wife have without merit. The is affirmed. should been privilege excluded under the marital 9-203(1) doctrine. I.C. encompasses two § McFADDEN, J., concurs.

privileges: (1) spouse neither may testify J., BAKES, J., DONALDSON, against for or the other without the other C. and concur the result. spouse’s consent, (2) spouse may neither testify as to any communication made Justice, BISTLINE, concurring in the af- one to the during marriage. other A di- firmance. prior vorce to trial terminates incompe- I only majority’s write because tency testify of оne spouse against Wash failure to deal cases in both Anspaugh, other. See State v. 97 Idaho ington ap their face Divorce, how- pear opinion with the to be irreconcilable ever, does the privilege not terminate af- today. Court announces v. State forded marital communications made dur- (1978); 98 Idaho 573 P.2d v. State ing marriage. the existence of the 396, 545 (1976); 97 Idaho P.2d Anspaugh, privilege That en- supra. Orcutt, Wash.App. 591 P.2d compass non-verbal acts which are commu- appear would to mandate nature, e., nicative in i. the shaking or nod- persuaded I Although we reverse. am not ding like. head or the reverse, join in I we should decline only four opinion by an follows Miles trial, At Fowler’s for the time that distinguish years, but which fails to mer wife that Fowler possessed testified to I endeavor Accordingly, case from this.1 a .45 caliber the the revolver at time of of these my set and discuss view forth assault, in gun kept Mileck that the was cases, that, although from which I conclude nightstand, Fowler’s and that moved she close, distin very Miles is the is a gun the to location in the sum different degree slight.2 the guishable, albeit 1977. argues mer of Fowler that knowl edge spousal of the was a confidential by people police In were told Miles the agree. not Knowl communication. We do marijuana purchased from had whom one edge possessions spouse arriving with be that would the defendants not generally spousal their location is a the When in 45 minutes. marijuana more Bol communication. United States v. two driveway See into pulled the defendants zer, 1977). (9th F.2d Her testi lie later, 556 948 Cir. them to police hours ordered the сar, a mony as to her own actions also not the on and then searched ground the v. of mari- large marital communication. See a quantity State where found Hermes, Court, 56, holding that the juana. 71 426 P.2d 494 first Wash.2d This to Hence, justified we in as incident find no merit Fowler’s asser search not be could v. arrest, United tion that the of his wife stated that Carroll testimony former then 280, 132, L.Ed. States, 69 was 45 inadmissible. 267 U.S. car; happen parked Post, police inadvertently upon a participated, predicated in which I entirely holding rather, simply rath- on a Fowler the еarlier case where this pull participate. picked police place which 1 did over. not to er the than justified in police would have been Since the see, premise anyway, v. validity g., stopping 2. 1 doubt Adam Fowler e. 1921, opinion stopped Williams, 32 Court’s that because Fowler “voluntarily,” Hobson, (1972); his car is no there need to con- 95 Idaho State v. 612 L.Ed.2d stop proper. police (1974); sider whether The v. also State P.2d 523 see 523 every stopping (1971), intention of Deschamps, Idaho 94 being stopped signaled fact that he do before to accept was —a what it should this for Court automatically legitimatize so not does police. stop legitimate This situation search. is not where the 551 requirement on basis.” (1925),3 requires 543 that State show that 98 Idaho at impractical it is to obtain a search P.2d at 157. 573 justify order to a warrantless warrant Landers, 97 Idaho 556 See also search of an automobile. Court con- (1976) (Attorney P.2d General confessed not shown that it cluded that State had marijuana police, smelling error on where to a impractical obtain search warrant: car, step to parked requested occupants notice of the fact “Taking judicial car). out then searched magistrates there four in Coeur d’Al- are v. Wash.App. In State warrants, search issuing ene available (1979), suspi- P.2d became unduly it would not seem burdensome cious of defendant’s conduct followed to of four officers station one parked him where he and left his car, while with the others car. looking In for vehicle identification made the short drive into town to secure car, open рack observed an Here, simply warrant. there search Zig Zag cigarette papers ap- and what exigent were no circumstances making peared be some mari- brownish flakes of impractical gain search a warrant.” juana. subsequently located de- 400-01, at 545 P.2d 488-89. nearby fendant and arrested him for driv- 98 Idaho 573 P.2d ing a suspended license. The officers marijua- Officer Richard smelled then would told defendant his car na on the defendant and observed smoke moved, have to be and defendant consented and two cigаrettes hand-rolled in the de- moving their the car back to the store car, fendant’s which was in a park- lot parking belongings so that his would be ing lot adjacent to a street. Richard then point secure. At this the officers made a searched the defendant’s pockets, finding second search of the interior of the vehicle. small marijuana, amount of and the defend- The court held this was not case ant’s where he found ounces of mari- practicable where it was not to secure a juana. Court This held first that the search wаrrant, and found insufficient evidence of pockets defendant’s was unlawful as exigent to justify circumstances the search there had been no lawful arrest and second- without warrant: ly that the search had exceeded that which danger “The vehicle was in here no of permissible as incident to an investiga- departure. It was secure. There was tive stop. As the of search the the more than one officer available to effect Court held as follows: a defendant’s and arrest obtain the war- state, “The at argument, oral conceded rant while the vehicle other watched the that there was in nothing the of record and its exigent secured contents. Absent this case suggesting any exigent circum- circumstances, the search warrantless stances, other than presence the mere of probable even cause violated the the a car in parking lot near a public Fourth Amendment.” P.2d at 876.4 street, and acknowledged that under our Miles, decision in supra, language there has If exact these cases three not been a showing еxigent case, of present circum- were be followed in it stances sufficient to avoid the appear incriminating gun warrant would Carroll, although 3.In the Court stated that cause to believe that the car contained contra- securing cases where “[i]n of justification a warrant is band. Such was the for an imme- reasonably practicable, used,” it must be diate search of the vehicle. upheld U.S. at 45 S.Ct. at the Court a search of a vehicle. In warrantless that case Pate, Wash.App. 4.But see had no obtain chancе to a warrant panel judges P.2d 875 Nor, coming upon apparently, before the car. Orcutt; joined included two who later there they probable did custody have to take cause upheld drugs the court a search warrantless occupants prevent of the car to its further public parking of a car in a on lot movement until a search warrant be could Maroney, basis of Chambers v. probable obtained. All that had was 26 L.Ed.2d 419 now, suppressed. roll the case us should be The incident oc- before if an p. m. on Wednesdаy, curred about 6:00 a made any is to be at effective search and there were numerous officers time, must be made either the search present; under rationale of one without a warrant or immediately the car officer could have been left to secure the itself and held a must be seized without went war- car while another obtain a period warrant is necessary for whatever ‍‌‌‌​​​​‌​​​‌‌​​​​‌​​‌‌​​‌‌‌​‌‌‌​​​​‌​​‌‌‌‌​‌​‌​​‍however, doubt, I that such is rant.5 search. obtain a warrant for the harmony average lay with the view the person, whom I surmise would find that it preference “Arguably, because of the is not unreasonable for the to search for a magistrate’s judgment, only the im- good (proba- a car where reason permit- mobilization of the car should be cause) ble to believe contains a obtained; ted until a search warrant present in this Nor do circumstances case. arguably, only the ‘lesser’ intrusion per- I suppression believe that has to follow magistrate missible until the authorizes from Miles. ‘greater.’ ‘greater’ which is the But court, Prather, Judge very The trial itself, ‘lesser’ intrusion is which the a thorough opinion, and well reasoned noted may debatable answer arguable the court problem: this “it depend variety on circumstances. finding a difficult would have time For we purposes, constitutional see no case justified, search in the to be on the one hand difference between seiz- overruling of the decision in absent ing and holding presenting a car before Judge Miles." Prather went on to note probable magistrate issue to a cause though Miles recent be too “[e]ven carrying on the other hand out an overruled, important it is to realize to be without a warrant. immediate search totally Miles decision fails to ad- search, probable Given cause to either Maroney, dress the case of Chambers v. course is reasonable under the Fourth 26 L.Ed.2d supra U.S. [399 Amendment. (1970)].” us, before the blue sta- “On the facts Chambers, as the trial by discussed have been searched on wagon tion could court, Court Supreme the United States since spot stopped it was there when the warrantless search of an auto. upheld and it probable to search cause case, the occu- In that arrested proba- fleeting for a search. target pants shortly robbery the vehicle after a still obtained the sta- ble-cause factor description of a wit- given the basis mobility tion so did the house and upheld subsequent nesses. Court per- Fourth Amendment unless the search of the car as follows: seizure of the car and mits warrantless Carroll, supra, “Neither nor other cases anyone its use to until a the denial of require suggest in this Court In that event warrant secured. thеre is every conceivable circumstance practical in terms of is little to choose probable search of an auto even with consequences between immediate cause be made without the extra a warrant and the car’s search without privacy that warrant af- protection a warrant is immobilization until obtain- fur- fords. But the circumstances that 50-52, at 90 S.Ct. at 1980 ed.” 399 U.S. particular to probable nish cause search a omitted) (emphasis added). (footnotes articles particular auto for are most often Sanders, 753, 442 v. unforeseeable; moreover, also Arkansas U.S. See opportunity 14, 2586, n. 61 L.Ed.2d 235 99 2594 readily since S.Ct. fleeting to search is a car (in argument true, (1979) reply this is as in Car- to State’s movable. Where Christian, police Inc. to Church of Jesus Christ is made that were No contention authority to discuss whether Mrs. Thus there is no need without to detain this car. right released, appar- police to had the detain the would have to whom it was had no ownership registered it. car if the owner had demanded interest in it ent as it

553 police discussing that “if the gener- were seize the obtain a warrant? this entitled to suitcase car], from a then al one text has question, noted that [taken “[t]he it,” entitled to search the Court noted experienced lower courts have considerable requiring police to which is none difficulty question, seize and hold a vehicle with this rather than search it the fact that immediately surprising light “would too severe, have imposed impossible, even pos- bur- indicated what Supreme Court has not many police departments,” (if dens on while no showing exigent siblе circumstances likely such burdens were re- exist with justify a warrantless any) is needed to spect to the personal luggage). seizure of LaFave, 2 search.” W. Search and Seizure reason, 7.2(c) (1978).6 There is no at 526 § important It is to note at point this however, by. merely for this Court to sit Miles, Post, neither nor in discuss- The question squarely us and the before ing circumstances, exigent existence of way light is made clear of the ex- dealt with Chambers. The trial court in the question accorded the haustive treatment present case thus held that “[s]ince Judgе and handed us in Prather’s memo- Chambers doctrine has not expressly been randum decision. rejected by Court, Supreme it is herein,” applicable and on this basis held Court, however, majority de- this exception automobile to the war- cline the gauntlet, preferring thrown requirement applied, rant making the war- base their that this warrantless ve- holding permissible. rantless search solely hicle search on the permissible Court, police bald now before this assertion that “[o]nce cause, majority opinion probable which thе car disposes they may of rath- search a er perfunctorily, parked is whether the police public highway on a without a war- delayed should have the search until rant exception.”7 under the automobile warrant, e., could obtain a /. were the Apparently majority believes that a required to post guard one officer to the car search while parked parking the car is for the time it would street, take another officer to unacceptable, lot near a as in suggesting Frick, (5th 1973), 6. For cases that thе should 490 F.2d 666 Cir. cert. denied post guard over the (in vehicle while another (1974) justifying 419 831 search of car U.S. attempts warrant, ‍‌‌‌​​​​‌​​​‌‌​​​​‌​​‌‌​​‌‌‌​‌‌‌​​​​‌​​‌‌‌‌​‌​‌​​‍see, g., officer to secure a e. arrest); incident to lawful ans, United States v. Ev Massey, (La. 1975) (no State v. 310 So.2d 557 990, (9th 1973) (“stand 481 F.2d 994 Cir. exigent circumstances where at least ten ing guard represents still the same interference search, arrest, owners of car under property rights unnecessary as well as an locked, keys custody police); and State, personnel”); use of law enforcement United Freeman v. 909, 258 Ark. 527 S.W.2d Bozada, (8th Cir.), States v. 473 F.2d (1975) (no why reason exists some 969, 93 cert. denied 411 U.S. guard officers should not have maintained a (1973); (“[w]e impressed L.Ed.2d 691 are not prevent the removal of evidence while a war with the notion that a stakeout or limited sei obtained); White, People rant was 392 Mich. zure of the trailer should have been made while denied, 221 N.W.2d cert. being procured. a search warrant was That (1975) (“appellant’s 420 U.S. 912 automobile pose problems could well solve”); more than it would unoccupied when the Menke, United States v. 468 F.2d ample arrived with an number of officеrs to (3d 1972) (“[wjhere Cir. an automobile is the guarded allow the automobile to be while a search, subject possibility of its sought”); Navarro, warrant was disappearance movement and the concomitant (La.1975) (no exigent So.2d circum factor than contraband is more critical occupants stances where both of car were un agents present a count of number who jail); der arrest and were to be taken to United dispatched Bradshaw, warrant-issuing could be to a au States v. 490 F.2d 1103-04 denied, (4th Cir.), thority”). cert. 95 S.Ct. (1974) (no exigent 42 L.Ed.2d 139 circum Although majority agents 7. also discusses the fact stances “since two of the guarded could have police smelling the truck that the car, were told that a was in the of moonshine whis key parked heavily-used while the third obtained a warrant without that the car was aon significant evidence”). highway, “potential- risk of loss of and that the situation was cases, however, ly explosive,” go willing these factors Other unmentioned in not been require conclusionary post guard to sought while sentence. See, g., a warrant. e. United States v. Miles, Post, Orсutt, but a permissible search is if the car Chambers than in or parked public way. and, court, on a like the trial I believe that controlling it would Chambers is Although I accept reasoning, cannot police to impractical have been for the ob- nonetheless, I believe that this case is dis- tain The search was therefore a warrant. tinguishable “Impracticabili- from Miles. However, justified. for this en- remains ty” was given meaning Coolidge v. New Court', of this simply tire not one member 443, 462, Hampshire, 403 U.S. Court, today’s to delineate the effect (1971): L.Ed.2d Post, decision on Miles and and until that “And surely nothing there is in this case simply have to done the bench and bar will to invoke meaning purpose wait out some later decision. rule of Carroll v. United States —no flight,

alerted criminal bent on no fleet- judgment conviction should be ‍‌‌‌​​​​‌​​​‌‌​​​​‌​​‌‌​​‌‌‌​‌‌‌​​​​‌​​‌‌‌‌​‌​‌​​‍ing opportunity open highway on an after affirmed. chase,

a hazardous no contraband or sto- goods

len weapons, no confederates evidence,

waiting to move the not even special

the inconvenience of a police de-

tail guard the immobilized automobile. short,

In possible no stretch of the legal imagination can this be made into a case where ‘it practicable is not to secure BUREAU, INCORPORAT The CREDIT warrant,’ Carroll, supra, [267 U.S.] GEORGIA, Collections, ED of dba CBI 285], S.Ct. at and the ‘automobile [45 Plaintiff-Respondent, label, exception,’ despite simply its ir- (Footnote omitted.) relevant.”

In all those involved in the criminal HARRISON, aka Vera Verdie Mae enterprise restraint, were under the car was Harrison, Defendant-Appellant. parked private driveway, apparently No. 13485. around, with no one else and the had Idaho. Supreme Court of known for some time that the car would be Moreover, arriving, allegedly drugs. Oct. only the location of the search was a short distance from town. In issue problem

was not a as the conceded it

at oral also argument. complete

involved con- drugs, being put

trol of the which was store,

parking person only lot of a

around with an interest in the car

under arrest. case, however,

In the there were people

several in the area of the car who arrest;

were not under were not

yet sure to be taken with what action was car; guns, including or the three loaded, already

one that was been car;

found in the the search was for anoth- gun, drugs;

er not and the car was roadway,

on a at some heavily traveled city.

distance from the nearest The facts

of this case are thus more similar to those

Case Details

Case Name: State v. Fowler

Court Name: Idaho Supreme Court

Date Published: Oct 7, 1980

Citation: 617 P.2d 850

Docket Number: 12971

Court Abbreviation: Idaho