*1 December 1962.] 36253. En Banc. [No. Washington, Respondent, v. William The State of Maxie, Appellant.* Marshall Rosellini, JJ., Weaver and dissent. C. Paul and
Irving Opendack, appellant. Charles O. Carroll Guterson, and Lewis for respondent. J. — This isan of conviction Hill, appeal on a charge issue is whether burglary. only trial court evidence, erred refusing was secured the defendant at the time of his by searching arrest, and in over the admitting the trial of the defendant. This on whether objection depends that, lawful; arrest, search, preceded turn, on whether depends reasonable and cause to believe that defendant a felony. had committеd
*Reported in 377 P. 435. may an officer to when law, No elaboration see State required; make an arrest without In 357 P. (1960), Brooks 57 Wn. from State following quotation that case we used 841, 843: 366, 368, 214 Pac. 124 Wash. Hughlett (1923), *2 “ defined often been for arrest has ‘. . . cause Proper cir- supported suspicion, to be a reasonable of grоund to warrant in themselves sufficiently strong cumstances a guilty. to be man in the accused believing cautious in lawful was The determination of whether but conflicting case, this does not depend upon officer, arresting the filed by whether affidavit1 upon out reasonable motion to spells to the suppress, oppоsition cause. probable the motion to suppress, At time of the on hearing mate- nothing added testified but in the affidavit. rial to his statement offi are: stated, the circumstances Briefly cafe m., at a. that a learned, cer in a small town 1:45 Department; that Police, Bend Police of North 1“That he is Chief m., morning February аpproximately 1:45 a. 1961 at of on the the Little Chalet Cafe Riste that a call from Officer Clifford received investigation morning in the course of into. Later that had been broken Cafe, open cafe is all to Ken’s the affiant and Officer Riste went including patrons night, that there were five and observed any been in the cafe if one had defendant. Affiant asked waitress coins, spending any in affiant had been amount of Canadian since quantity Cafe that a of the Little Chalet formed the owner register. the cash She stated that Canadian coins been taken from had exchange mostly Canadian, coins, her to the defendant had asked giving bills, possession did, to dollar which she him that he had in his questioned then and asked three one dollar bills. The defendant was placed identification, taken under arrest and was then to show some was empty pockets. to a of the restaurant and asked booth at back large quantity pockets coins, сontained a It was found that his including partly partly American, Canadian and a roll of dimes quarters reported cafe, had taken from the as well roll as two mutilated dimes which cafe owner indicated had been register. the cash “The arrest of the defendant the time without was burglary based affiant’s that had committеd the belief question in view statement of the waitress and the fact that affiant never seen him in town before.” had the loot community just that into and been broken had quantity and, then, a short coins; included a all-night in an a waitress he learned from time later when just pointed re- stranger, out, whom she cafe that (mostly give coins quеsted him dollar bills her to stranger questioned Canadian), done; he which she burglary, arrested he had committed and, reasona- constitute circumstances hold that these him. We belief; hence, reasonable for his cause ble and for the arrest. made judge, Gaines, Honorable Donald The trial analysis admirably of the hear- at the conclusion succinct an suppress, ing in which said: the motion to problem again, to the we are down Now, showing reasona- made constituted that is Defendant. arrest the ble cause to proof convict sufficient to is not reasonable -cause “Now, things. officer would Otherwise the nature signed *3 a helpless he was handed to make an arrest unless be problem something the the like that. The confession or under reasonable cause does constitute is, law what peace He is to make an arrest. for a officer circumstances quickly, and upon make it decision, to to make that called job officer think we hand I sometimes making making notice, an an instant’s arrest on the decision or debating spend that the courts v/ill hours peace problem officer a not. That is the cause existed or along badge. time, all the with his carries with him cause as set facts constitute reasonable “Now, do these by Maxie’s Mr. affidavit, as controverted forth in Mr. Clark’s explained by affidavit, testi- Mr. or Clark’s affidavit and morning. mony in court this make this cause to I find there was u... guilty inquiry. prove him Now, that doesn’t arrest and question a trial for. The offense, that is what we have felony, right to make an arrest for a is, he have a did recently just is, as our Court has of course the test again he have in view of the reiterated, does him time detain confront at the circumstances in done this case.” an individual as was made of the fact that the officer Much fun was because, affidavit, in he as stated his made the mirth When never seen the defendant in town before. judg- found to be sound subsides, over sallies pointed person, Had ment in officer’s statement. changing the Canadian coins for out the waitress as patrons cafe of the who bills, dollar been one the other Bend, have known that lived North officer would investigation complete had time for a more and to ask suspect stranger warrant; a issuance of but when the grounds guilty him officer has reasonable believe felony, ar- of a an officer in a town like North Bend either suspect rests or the chance that within the next takes large city if he minutes will be somewhere south, travels west or or on the other side of the moun- judge pointed tains if travels east. As trial out opinion, days an make his oral these mobile has to arrests fast or not all. suspicion. This was not an arrest on mere What we said Young (1932), (2d) 910, 918, P. Wn. applicable 858, is here: suspicion mere lack or evi- denotes of fact grounds, dence. Here the arrest was based
supported to warrant a cautious man in sufficiently strong circumstances in themselves the accused to be guilty reported felony. ...” majority opinion Indeed, of this court are of the had the officer failed make circum- an arrest under the duty. stances, he would have been derelict in his gained There was no reason to evidencе, following the search a lawful arrest. That evidence satisfied jury guilty that the defendant had been of .two bur- glaries. The conviction is affirmed.
Finley, C. J., Donworth, and Ott, Hunter, Hamilton, JJ., concur. (dissenting) appeal and JJ. this Weaver Rosellini, —On burglary, of conviction for there legality per- appellant’s
for decision the of the search of the depends upon validity son, which, in turn, of his arrest. Early morning, police department of North
130 burglary
Bend was notified of the of a cafe that com- munity, quantity and that a coins had been morning, thereafter, stolen. Soon on the same inquired anyone chief of a in another cafe if waitress spent had Canadian coins. She identified the defendant exchanged Canadian, as one who of them coins, had Whereupon, appellant for three one-dollar bills. was thereafter, arrested and without a searched police. large quantity partly coins, The search revealed partly coins, rolls of Canadian and domestic and two coins and at the trial offered and admitted were seized objection, notwithstanding evidence over pretrial motion to such evidence. showing depends upon validity arrest police, is set forth in note the chief of the affidavit of repeated. opinion; majority it will not be 1 оf the beyond dispute, burglary committed is had been That a depends validity arrest but the the chief the time of or not at committed cause to believe the offense. (2d) 1081, 81 Mapp 6 L. Ed. Ohio, 367 U. S. v.
Since validity is claimed to an arrest which 1684,2 Ct. longer matter of law.3 Weeks justify state a search no 341 652, 34 S. Ct. 383, L. Ed. States, 232 U. S. United v. of an (1914), as the result seizеd that evidence decided prosecution for a not admissible unlawful search (1922), years Eight court, this later offense. federal although 203 Pac. Gibbons, 118 Wash. v. has 81 S. Ct. Ohio, 2Mapp 6 L. Ed. U. S. v. extensively very analyzed in the law effects and its been reviewed Bell, Law —Arrest—Search journals. Criminal John See: George (1960); Albany Cause, L. Rev. Seizure —Probable grounds, Jour. 85 46 A.B.A. Rossman, Search seizure — (1960). opinions Ohio, supra) Mapp (Mapp post 3Compare v. People Zeigler, Michigan, 358 Mich. 100 N.W. Court of People Loria, Appeals, 10 N. Y. (2d) 456, Court of York and the New 179 N.E.
131 exclusionary adopted law, a matter of state rule of the notwithstanding Royce, v. 38 case, Wеeks that State Wash. contrary. exclusionary 111, 268, 80 Pac. held to consistently rule has followed since 1922.4 supra,5 Washington years Mapp Ohio, Three v. before law (2d) Greco, 265,266, was summarized in State v. 52 Wn. 324 (2d) 1086, P. as follows: Colorado, 25, amendment 1782, v. 338 U. 93 L. Ed. 69 Ct. S. S. “Wolf
1359,
decided that
fourth
to the Federal
applied
action,
constitution
to state
that the Federal
exclusionary
originated
rule,
Weeks v. United
States,
383,
652,
341,
232 U.
L.
34
58 Ed.
S. Ct.
as a means
enforcing
guaranty against
of
able
the constitutional
unreason-
supra,
v.
seizures,
Colorado,
searches and
did not. Wolf
thirty-one
reject
exclusionary
discloses that
doctrine of the
states now
including
case,
Weeks
while sixtеen states —
Washington,
Gibbons,
State v.
118
171,
Wash.
203Pac. 390—
exclusionary
follow the Federal
rule.”
Mapp
supra (June, 1961),
Ohio,
v.
overruled
v.Wolf
(June,
Colorado,
25,
338 U. S.
1782,
93 Ed.
tion the evidence nied. depend upon point not does
The determination of this *6 sufficiency conflicting upon the of of resolution police. the Before his visit to chief of the of the affidavit knowledge question, of either he without cafe in possible any suspicion appellant connection with of his or thing brings only he to forward The the crime. legality of the arrest is sustain exchanged Canadian, were three of which coins, some nothing unlawful. All this there was In one-dollar bills. money possess right perfect Canadian and to have returning any person currency as change it for domestic knows. visit U. L. Ed. States, 361 United depended The search that case decisive. Ct. 80 S. validity The circumstances were the arrest. following paragraph: by in the court stated shipment whisky an interstate theft from “There was day agents Chicаgo. FBI The next two a terminal investigating They peti- neighborhood it. saw were tioner. a street from a walk across tavern Pierotti one and given, agents get The an automobile. into and of an undisclosed employer Pierotti, information ‘concerning implication the defendant Pierotti nature shipments.’ shows, so far as the record But, interstate with agents suspected tell the far so as went never agents any The followed car thefts. Pierotti got stop. alley Petitioner out and enter an and saw it premises leading gangway and to residential entered a car, placed cartons. He with some minutes in a few returned agеnts The Pierotti drove off. he and and them in the car they it But later found the car. to follow unable were Shortly they place the tavern. parked near at the same get tavern, into petitioner Pierotti leave saw alley stopped in the same car The and drive off. car, gangway returned petitionеr the same entered before; agents observed this transaction The more cartons. with from a distance feet and could not determine some 300 the car of the cartons. As size, or contents number finally, agents it and when met drove off the followed got petitioner stop. car, As out of it, waved it to a say, it; it is thе G’s.’ This was followed was heard to by, ‘Hold up.’ agents [you] just picked me ‘Tell him he (which placed the name car, searched the the cartons bore company) ‘Admiral’ and were addressed to an out-of-state petitioner and Pier- car, in their took the merchandise and otti their held them for about two hours whеn office and agents learned that the cartons contained stolen radios. They placed then the men under formal arrest.”
The court held the arrest unlawful and the federally guaranteed violation of the constitu- right against tional unreasonable searches and seizures. The language court’s is as follоws: packages . The stolen fact have been does every package subject not make man who carries a to arrest package subject nor the to seizure. The must have grounds package particular to believe that the design shape carried might the citizen is contraband. Its adеquate. weight *7 at times be The of it man- and the might enough. ner in which it is carried at times be But nothing there was to indicate cartons here in issue
probably liquor. contained The fact that contained appeared only other contraband some hours after the arrest. transpired stopped What at or after the time the car was by is, the officers we said, have irrelevant to the narrow repeat, justified by issue before us. To an arrest is not what subsequent system search discloses. Under our sus- picion enough lay is not for an officer to on a citizen. hands It is better, so the Fourth Amendment teaches, that guilty go subject sometimes frеe than that citizens be easy Henry supra. arrest.” v. United States, Carroll v. United States, 267 543, U. S. 69 L. Ed. S. Ct. plain probable 39 A.L.R. makes it that the necessary cause to render an arrest valid “a belief, is reason- ably arising out of circumstances” that the defendant is guilty; supra, v. United States, teaches that simple good police еnough. belief faith of the are not language In the of Chief Justice Taft in Director General v. Kastenbaum, 263 U. L. Ed. S. Ct. “ grounded . . . That faith must be [his] facts within
knowledge the court . suspicion insuf Mere reasonable.” would make his faith (Mallory States, 449, 1 U. Ed. ficient v. United 354 S. knowledge 1356); im must have 1479, 77 S. Ct. plicating party arrested. any-
Possessing nor innocent; coins is coinage. wrong changing thing have When by person anything knowledge innocent acts no probable not exist. Either circum- cause does arrested, nothing men of reasonable raise in the minds stance could suspicion connec- than a more robbery. Suspicion alone is not the cafe tion with indispensable must element cause. may held one. That be a lawful be found before lacking. unlawful, and the The arrest was element is in violation rights against federally guaranteed un- constitutional his violated. and seizures searches denying motion court erred The trial should be new trial the articles seized. ordered. Judge prior Foster was written dissent
This undersigned. adopted It is death. rehearing
February denied. Petition for