THE STATE OF WASHINGTON, Respondent, v. RONALD MARTIN REID, Appellant.
No. 12710-1-I
Division One
July 23, 1984
203
Norm Maleng, Prosecuting Attorney, and Ruth A. Robinson, Deputy, for respondent.
SWANSON, J.—Ronald Reid, a/k/a Roybal, was convicted by a jury of first degree murder while armed with a deadly weapon and a firearm. He appeals seeking a reversal of his conviction on the sole basis that the trial court erroneously denied his motion to suppress certain physical evidence obtained during a search of his residence. We affirm.
On the evening of September 1, 1978, a man was shot to death in a parking lot of a south end Seattle tavern. Two eyewitnesses told the police that from across the street they observed a green car with black racing stripes down the side parked next to the tavern. It was facing them and it was in their lane. Its engine was idling and its lights were off. As they drove across the street to suggest that the driver, a “Mexican-looking” man with dark hair and a mustache, turn on his lights, they saw a “Mexican-looking” woman
That evening, the police also learned that the “Mexican-looking” couple had lived and worked at the Lin Villa Motel. The police went to the motel and were given the suspects’ names, Harold and Crucita Roybal (Reid), and their home address.
Just before 10 a.m. the next morning, the police arrived at the Reids’ address and saw a green car closely matching the description of the getaway vehicle parked in front of a large, apartment type building.1 Because the police were uncertain which door led to the Reids’ residence, they staked out the car. A short time later, the defendant emerged from the building and got into the green car, but before he could drive away, the police stopped, arrested, handcuffed, and placed him in the patrol car.2 The police were still uncertain as to which apartment the defendant had exited and uncertain as to whether the several apartment units had a common entry. After the defendant refused to dispel these uncertainties and refused to tell the
The police testified that at that time they fully expected the defendant‘s wife to be within the apartment. They thought she had probably witnessed her husband‘s arrest and may have had the shotgun. They knew she had been involved in a shooting, and they, therefore, believed they were in physical danger. Additionally, the police stated that the building was difficult to secure without placing police officers in further peril.
The police then went to one of the doors of the residence which several neighbors had identified as the door from which the defendant had exited and tried one of the keys. As the door opened, the police identified themselves, entered, and demanded that anyone within come out. After entering, the police were still uncertain as to whether they had entered a single residence or a common hallway. They continued to announce their presence as they entered, but no one responded. While looking for the defendant‘s wife, whom they found hiding behind a door, they noticed, but did not seize, a box of ammunition on the table. The police arrested the defendant‘s wife and charged both the defendant and his wife with first degree murder.
The police then secured the apartment and impounded the car.3 Later, while searching the residence under authority of a warrant, the police found two Polaroid photographs (one depicting the defendant‘s wife holding a sawed-off shotgun), a pillowcase, and two 20-gauge shotgun shells.
On the morning after the shooting, a man named Murphy, while jogging in Seward Park, discovered a pillowcase containing a shotgun which experts later testified had been
At trial the defense moved to suppress the physical evidence obtained during the execution of the search warrant arguing that the evidence was the fruit of the illegal seizure of the car keys and that the police violated the “knock and announce” rule. The trial court denied the motion, but subsequently, at a hearing on a motion in limine, reversed that decision with respect to the two photographs. Nevertheless, at the trial the State offered into evidence the photograph of the defendant‘s wife holding a sawed-off shotgun. The defense only objected to its admission on the basis of insufficient foundation. Having found a sufficient foundation, the trial court admitted the photograph.
Reid now appeals, contending that (1) the seizure of the physical evidence was the fruit of an unconstitutional warrantless seizure of his keys; (2) the warrantless arrest of his wife in their home amounted to a violation of his constitutional rights; (3) the police violated the “knock and announce” rule; (4) the search was conducted pursuant to a “general” warrant violative of the
The State contends that the warrantless entry into Reid‘s car and the warrantless seizure of the keys were justified as incident to a lawful arrest, by exigent circumstances, by hot pursuit, and because the keys were in plain view. Only two of these exceptions to the warrant requirement, incident to a lawful arrest and exigent circumstances, arguably apply under the facts of this case.4
The
We find the seizure of the keys not to have been barred by our state constitution. First, the seizure of the keys, innocuous in themselves, unlike the seizure of illicit drugs in Ringer, was a reasonable intrusion limited in scope to the extent necessary to secure the automobile. Second, although there existed probable cause to obtain a warrant to search the car, one could not have been obtained with the celerity demanded by the circumstances, notwithstanding the telephonic warrant provisions of
Even if we assume that the seizure of the keys was unconstitutional, we conclude that the causal link between the seizure of the keys and the seizure of the photographs and shotgun shells was so attenuated that the taint of the seizure of the keys had dissipated. The record clearly
Reid next contends that the police, by entering his residence without a warrant to arrest his wife, violated both the state and federal constitutions. First, he attempts to assert the rights afforded an arrestee by Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980); second, he asserts that the police violated the “knock and announce” rule, as codified in
Initially, we find Reid lacks standing to assert any rights his wife may have had under Payton v. New York, supra. On the other hand, we believe he does have a basis upon which to assert that the warrantless arrest of his wife, while in their temporary residence, amounted to a warrantless search. We find, however, that this warrantless search was not violative of either the state or federal constitutions.
If the exigencies permit, the police may, without a warrant, enter a home to arrest a person, Payton v. New York, supra, or to seize evidence which may be destroyed before a warrant could be obtained. Ringer. The particular facts of this case are laden with exigencies that would have supported a warrantless entry. First, there was a genuine concern for police and public safety based upon their belief that Mrs. Reid had witnessed her husband‘s arrest from the apartment and that the shotgun had not been recovered, and their knowledge that she had been involved in a shotgun murder. Second, as discussed above, these circumstances did not permit the delay necessary to obtain a warrant. Consequently, the lack of a warrant was no constitutional barrier to the police entry into the residence.
The second analytical step requires inquiry into whether the police properly announced their presence and purpose before entering the apartment.7 Ker v. California, 374 U.S. 23, 37, 10 L. Ed. 2d 726, 83 S. Ct. 1623 (1963); State v. Coyle, 95 Wn.2d 1, 621 P.2d 1256 (1980). This rule has been codified in
To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other inclosure, if, after notice of his office and purpose, he be refused admittance.
Strict and rigid compliance is not required to the point where these conditions become an empty formality. These conditions are “part of a criteria of reasonableness and subject to certain exceptions . . .“, State v. Young, 76 Wn.2d 212, 215, 455 P.2d 595 (1969), including circumstances that justify the police officer‘s “belief that an escape or the destruction of evidence is being attempted.” Ker, at 47.
First, we find that the police entry was reasonable and, therefore, in substantial compliance with the constitutional and statutory requirements of the “knock and announce”
Moreover, even if the present facts suggest less than a strict compliance with the “knock and announce” rule, we find the exigent circumstances excused any noncompliance. As discussed above, the police had a genuine concern for their safety, they had a reasonable belief that Mrs. Reid was in the apartment, the apartment was difficult to secure, and, therefore, there was a legitimate risk that Mrs. Reid would escape or attempt to destroy evidence. Hence, the entry in no way violated Mr. Reid‘s constitutional rights.
Because the police had a right to enter the residence to arrest (or search for) Mrs. Reid, and did so after complying with constitutional and statutory mandates, the police could have seized any incriminating evidence which they inadvertently discovered under the “plain view” doctrine. Washington v. Chrisman, 455 U.S. 1, 70 L. Ed. 2d 778, 102 S. Ct. 812 (1982). Having this right, they were also authorized to list in their affidavit in support of a search warrant any items observed in plain view.
We now discuss whether the warrant and execution thereof were proper. The warrant authorized the police to search Reids’ house and automobile for
a shotgun, ammunition for the shotgun, a dark leather or vinyl jacket, a pillowcase or other bedlinen with a pattern of daisies, leaves, and strawberries on it, nitrates, and any other evidence of the homicide . . .
A search warrant must describe the items to be seized with such particularity as is reasonable and practical under the circumstances. A warrant is not constitutionally defective when it limits the officers’ discretion on what is to be seized. State v. Lingo, 32 Wn. App. 638, 641, 649 P.2d 130 (1982). The warrant here sufficiently limited the searching officers’ discretion. The phrase “any other evidence of the homicide” specifically limited the warrant to the crime under investigation. The specific items listed, such as a shotgun and shotgun shells, also provided guidelines for the officers conducting the search. Therefore, these limitations were adequate to prevent a general exploratory search. Lingo, at 642.
While executing the warrant, the police seized two Polaroid photographs. Reid asserts that the seizure of the photographs was not authorized by the scope of the warrant because they were neither specifically described nor “evidence of the homicide.”
First, we note that this question was not properly preserved for appeal. As discussed above, the trial court initially granted Reid‘s motion in limine to suppress both photographs. Nevertheless, at trial the State offered one of them into evidence. The only objection raised to this offer of evidence was one challenging the lack of foundation and not the propriety of its seizure. Consequently, our analysis is limited to whether there was sufficient foundation for its introduction. We conclude that there was.
Even if the scope of our review was not so limited, we would affirm the admission of the photograph.
Evidence not described in a warrant, and not constituting contraband or instrumentalities of crime, may be seized if it will aid in a particular apprehension or conviction, or it has a sufficient nexus with the crime under investigation.
State v. Turner, 18 Wn. App. 727, 729, 571 P.2d 955 (1977).
Finally, even if the admission of the photograph and shotgun shells was erroneous, that error was harmless beyond a reasonable doubt under both the “contribution test” and the “overwhelming evidence test” discussed in State v. Jones, 101 Wn.2d 113, 125, 677 P.2d 131 (1984). Two eyewitnesses gave detailed descriptions of the shooting, the getaway car, and the perpetrators. The bartender testified that the victim was drinking with the female suspect prior to the murder; that at one point the female suspect told the defendant in Spanish, “Give me the car keys so I can get the shotgun ready“; that the two suspects left about one-half hour later; that the woman returned; and that immediately after luring the victim outside he heard a gunshot. The bartender also identified both the defendant and his wife at a lineup and at trial. Finally, Reid‘s neighbor testified that several weeks preceding the murder Reid had offered to sell him a shotgun similar to the sawed-off shotgun recovered the day after the murder. Consequently, the effect, if any, that the introduction of the shotgun shells and photograph had was so insignificant when illuminated by the overriding effect of other evidence tying Reid to the murder that, even if the admission of the evidence was error, the error was harmless beyond a reasonable doubt.
Accordingly, the judgment is affirmed.
ANDERSEN, J., concurs.
RINGOLD, J. (dissenting)—In my view, neither the warrantless seizure of Reid‘s keys nor the warrantless search of Reid‘s residence were permissible under
First, contrary to the majority‘s suggestion, the fact that the keys were not contraband or evidence of a crime does not justify their seizure. See Ringer, at 699. Moreover, the majority distorts the facts in stating that police seized the keys in order to secure the automobile. The car was parked and surrounded by police cars. Reid had been arrested, handcuffed and placed in the patrol car. There is no suggestion in the record, and the State has never claimed, that the keys were seized for any other purpose than to identify and/or to gain access to the Reid residence.
The majority also concludes that the seizure of the keys was justified by exigent circumstances. The parameters of this exception to the warrant requirement were set forth in Ringer as follows:
[W]here police have probable cause to conduct a search, they may do so without a warrant when “they are confronted by emergencies and exigencies which do not permit reasonable time and delay for a judicial officer to evaluate and act upon probable cause applications for warrants by police officers.” . . . Under the doctrine of exigent circumstances, the totality of circumstances said to justify a warrantless search will be closely scrutinized. . . . The burden is on those seeking the exemption to show that the exigencies of the situation made that course imperative.
. . . [T]he availability of a telephone warrant must be considered in determining whether exigent circumstances exist.
(Citations omitted.) Ringer, at 701-02.
The State has not met its burden of showing that the warrantless seizure of the keys was imperative. Reid was in custody and the car was parked and secured. Police had probable cause to search the car from the time it was placed under surveillance. The State makes no showing that a telephone warrant could not have been obtained during that time or immediately following Reid‘s arrest. The warrantless seizure of the keys violated
Alternatively, the majority holds that if the seizure of the keys was unconstitutional, the illegality did not lead to the seizure of the photograph and shotgun shells because the police did not use the keys to identify Reid‘s residence. This may be a legitimate and reasonable inference from the facts,8 but, if true, it totally undercuts the majority‘s reasoning that the warrantless search of Reid‘s residence was permissible under
If exigencies permit, police may make a warrantless search of a private residence to make an arrest or seize evidence which may be destroyed before a warrant can be obtained. Again, however, the State has failed to show that the exigencies of the situation mandated a warrantless search of Reid‘s residence. If, as the majority suggests, police knew from questioning neighbors which duplex unit belonged to Reid, there is nothing supporting the failure to seek a search warrant. Probable cause to obtain a search warrant existed from the time the duplex was placed under surveillance. The State makes no showing that a telephone
The question then presented is whether the evidence seized under the subsequently obtained search warrant must be suppressed as fruits of the poisonous tree. The police affidavit for the search warrant included the information that the female suspect was arrested inside the duplex and that ammunition was seen on the premises. Police cannot use illegally obtained information to obtain a search warrant. State v. Moore, 29 Wn. App. 354, 628 P.2d 522 (1981). Although probable cause existed without this information, “the existence of probable cause to search prior to an unlawful search is insufficient to sustain a subsequent search pursuant to a warrant where the affiant participated in or knew of the illegal search.” Moore, at 360. The evidence seized under the search warrant should have been suppressed; its admission at trial was constitutional error.10
Harmless error is the majority‘s final refuge. Though constitutional error does not require reversal if the reviewing court determines it is harmless beyond a reasonable
Under the first approach, the appellate court looks only at the tainted evidence and asks if it might have played a part in (i.e., “contributed to“) the fact finder‘s determination of guilt. The amount and persuasiveness of the untainted evidence is not considered. If the tainted evidence could plausibly have played a part in the conviction, reversal is required.
(Citations omitted.) Evans, at 6-7. Under the second approach,
[t]he appellate court examines the untainted evidence alone and finds the error harmless if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt. If the untainted evidence is merely sufficient to support the conviction, reversal is required. In effect, a conviction will be allowed to stand, although a constitutional error did, or could have, played a part in it, if there was other untainted overwhelming evidence which necessarily supported the conviction.
(Citations omitted.) Evans, at 7.
We have yet to choose between these approaches because resolution of the harmless error question has been the same in the cases considered by our Supreme Court, regardless of which test was used. See State v. Johnson, 100 Wn.2d 607, 674 P.2d 145 (1983) (harmless under either test); State v. Belmarez, 101 Wn.2d 212, 676 P.2d 492 (1984) (not harmless under either test). In the case sub judice, however, the choice of methodology determines the outcome. I agree with the majority that, under the overwhelming evidence test, the error in admitting the shotgun shells and photograph was harmless beyond a reasonable doubt. On the other hand, because the evidence tied Reid to the murder weapon, it “could plausibly have played a part in the con-
Although the case law can be read to support either approach, I believe it would be preferable to eliminate the overwhelming evidence test and assess harmlessness beyond a reasonable doubt by evaluating the impact of the erroneously admitted evidence. There are two important reasons why the “contribution test” is preferable:
- An appellate court using the overwhelming evidence test usurps the jury‘s function far more significantly than an appellate court limiting its inquiry to an examination of the error.
- The overwhelming evidence test disparages the notion that constitutional protection is due all citizens, the guilty as well as the innocent.
Field, Assessing the Harmlessness of Federal Constitutional Error—A Process in Need of a Rationale, 125 U. Pa. L. Rev. 15, 33 (1976).
The first of these reasons is by far the most significant. Any determination of harmless error requires weighing the evidence to some degree and thus, usurping the jury‘s function. However, the appellate court‘s intrusion into the fact-finding process is more limited under the contribution test.
The crucial difference between the appellate reviews under the tests is that a court that makes a finding of harmlessness under the overwhelming evidence test is not finding that the erroneously admitted evidence did not in fact affect the verdict. It may have been the erroneously admitted evidence and not the untainted evidence that persuaded the jury of the defendant‘s guilt, and yet the conviction may be allowed to stand. The court‘s affirmance simply indicates its opinion that the untainted evidence is so overwhelming that if the jury had been compelled to rely on it alone, it would have convicted. In so holding, the court is not passing upon what the jury did; it is not determining the propriety of the evidence on which the jury relied. Because it is ruling instead upon what the jury would do if forced to rely on different evidence, it is substituting itself for the jury as fact-finder. Such a practice is difficult to reconcile with the accepted rule that a trial judge may not direct a ver-
The [contribution test] is significantly less vulnerable in this respect. Under th[is] approach, the court rules that the nature of the erroneously admitted evidence is such that it could not have affected the jury, so the jury must have relied on other (sufficient if not overwhelming) evidence in the first instance, the same evidence it would rely on again were there a retrial. It rules that a remand would result in a conviction of defendant on the same evidence on which he has already been convicted. This is unlike the overwhelming evidence test, under which the court denies that the error affected the verdict, but only because of its view of what the jury would do in an essentially different situation than the one that was presented to it.
(Footnote omitted.) Field, at 34-35.
The overwhelming evidence test is also inconsistent with the principle that every accused individual is constitutionally entitled to a fair trial. In effect, damaging constitutional errors are acceptable under the overwhelming evidence test, when the reviewing court determines the defendant is guilty. Under the contribution test, the reviewing court must determine whether the trial was essentially fair and that the conviction was not based on constitutional error. The contribution test also limits the possibility of recalcitrant courts evading full compliance with constitutional requirements by calling infractions harmless. See Field, at 35-36.
Justice Brachtenbach‘s scholarly and thorough analysis of the differing harmless error tests in Evans suggests another reason why the contribution test should be adopted as our sole test. He points out that cases in numerous jurisdictions are marked by confusing inconsistency. Evans, at 10. This inconsistency is due to the greater subjectivity of the overwhelming evidence test. The contribution test is more objective; we can readily apply a standard of analysis by looking only at the “tainted evidence and ask[ing] if it might have played a part in (i.e., “contributed to“) the fact finder‘s determination of guilt.” Evans, at 6-7. “Over-
For the foregoing reasons, I would reverse and remand for a new trial.
Review denied by Supreme Court November 2, 1984.