119 Wash. 306 | Wash. | 1922
— The appellant, Llewellyn, was convicted in a justice court of Grays Harbor county of the crime of unlawfully having in his possession intoxicating liquor, and from the judgment of conviction appealed to the superior court of that county. Prior to the time the cause was set for trial in the superior court, he filed a petition in that court, entitled a petition for the exclusion and return of evidence, in which he alleged that certain police officers of the city of Aberdeen had, without a search warrant or other authority, broken into and entered his place of business, after the same had been closed for the day, and had illegally and unlawfully taken therefrom a pitcher,
The state, answering the petition, admitted the seizure of the pitcher, glasses and liquid, averring the liquid to be intoxicating liquor, commonly known as moonshine whiskey, but denied that the- officers seizing the same broke into the building, or that they otherwise unlawfully entered, averring that they entered as of right.
At the time the cause was called for trial, the question arose whether the issue made by the petition should be first tried, and the court, after hearing the statements of counsel and finding a disagreement between them as to the facts, announced that it would proceed with the trial and reserve the question for determination after the evidence thereon had been introduced.
At the hearing it developed that the appellant, Llewellyn, conducted a place where cigars, candies and soft drinks were sold. The officers testified that they were attracted to the place, after it had been closed for the day, by a light burning therein; that they walked over to the place and discovered a number of men apparently much interested in something that was taking place on the bar over which the soft drinks were usually served; that at about that time a person
At the trial the pitcher, glasses and bottle with its contents were permitted to be introduced in evidence by the state, over the objection of the appellant, and the court refused the appellant’s motion to suppress or withdraw from the consideration of the jury the evidence given by the police officers.
The appellant first contends that the entry of the officers into his place of business was an unlawful entry, and that in consequence the seizure of the articles named was an unlawful seizure, and should have been for these reasons excluded from the consideration of the jury. He cites and relies upon the case of State v. Gibbons, 118 Wash. 171, 203 Pac. 390. But we think the rule of the case without application. There the defendant was arrested while in an automobile on the public streets of a city, without a warrant of arrest, and for a cause having no better foundation than the mere suspicion of the officer that the person arrested was violating the law. After the arrest, a search was made of the automobile and certain intoxicating liquor found therein was seized. This was held to be an unlawful search and seizure, and, following certain recent cases of the supreme court of the United States, it was held that the liquor seized could not be introduced as evidence against the person arrested.
Here the facts are widely different. The entry of the officers into the place of business of the defendant was not unlawful. They did not break and enter. The door was opened on the direction of the defendant and they walked in through the opened doorway. It
• The second contention, namely, that the court erred in permitting the officers to testify is answered by what we have said in answer to the first. It is not to be understood, however, that were we to hold that the officers entered the building unlawfully, and the seizure wrongful, we would hold that the officers would be precluded from testifying to the things they observed while in the building; this question we leave until it properly arises.
The judgment is affirmed.
Parker, C. J., Mitchell, Tolman, and Bridges, JJ., concur.