State v. Smith

Stafford, C.J., Rosellini, Hunter, Hamilton, Wright, Utter, Brachtenbach, Dolliver, JJ., concur. for rehearing April 6,

Petition denied 1977. January En 43721. Banc.

[No. 1977.] Respondent, Washington, State of v. Harold Petitioner. Smith, Bernard H. Hicks, and Jackson H. Morgan, J. Dean Michael County Legal Defender, Clark petitioner. for Welch O. George Attorney, Prosecuting Carty, James E. Dennis M. Deputy, Darkenwald, Criminal and Chief Howard, Deputies, Sharon respondent. for Hunter was con- Smith Harold Bernard Appellant J. Wright, Court Superior in the murder first-degree victed that determined Appeals The Court of County. Clark con- any detailed appeal raised on warranted three issues (1) the seizure of discussion: whether sideration patient when he was a Smith's clothes without a warrant room, the clothes into the hospital security plus admitting a 7) (Const, him, state art. against trial evidence violated § Const, (U.S. 4) prohibi- constitutional and federal amend. seizures; unreasonable searches tion against (2) facie case of the prima whether the State established (3) delicti; supported the verdict was corpus whether Appeals found no by substantial evidence. The Court and affirmed his conviction appellant's merit contentions Smith, State v. 12 Wn. App. murder. first-degree 531 P.2d 843 consider petition essentially

We for review granted We hold only the first of the three issues referred to above. the seizure of the clothes was reasonable and constitu- properly tional and that were admissible evidence. agree entirely Appeals We with the decision of the Court of issues are without appellant two other raised Thus, trial Appeals merit. we affirm the Court of and the court. the eviden- put regarding

To the issue the seizure and tiary in appellant's proper perspective, use clothes of facts lengthy detailed and even somewhat statement appropriate helpful point. seems and should be at this 30, 1972, Harold midnight July appellant Around on son, 1/2-year-old Bernard Smith left with his 2 his home dressed purportedly go to for a walk. The child had been wearing only pajama for bed his mother and was his and had a small blanket tops training pants, apparently but area around him. The Smiths lived a somewhat secluded tra- on the outskirts of Vancouver on some bottomland of some roughly versed a small creek located a distance Smith, Kathleen yards 75 to 100 from the Smith home. appellant's boy, wife and the of the small went mother the child. sleep shortly after the father left the home with hus- to find her She awakened at 6:15 a.m. and was unable the residence. immediately band or their son around Appellant approximately Smith returned to the home at boy his The mother asked where the 7:15 a.m. without son. hill her, is, "He he is on the Appellant up was. told further, he told the questioned someone's car.” When car," "In a friend's and she should boy mother that worry. not thereafter, for some unknown reason

Shortly appellant that, bridge walked at a again left the house toward house, the small creek. Kathleen point spanned near the strange her husband's con- Smith became concerned about telephone, no missing duct and the child. The Smiths had telephoned where she neighbors so Kathleen went missing boy her and told them about the parents husband's and their son's unusual conduct. She then returned to the his par- house and told her husband she had tried to call them. was afraid appellant ents but could reach She if would leave he was told the had been called and parents asked as coming again were to the house. When Kathleen whereabouts, Shortly was evasive. appellant to their son's thereafter, asked where the parents his arrived. The father was, "I think he fell boy appellant responded, get if he tried to appellant then asked creek." father that, tried, he "He but Appellant responded him out. hospital. son to the couldn't." The then took their parents room;1 emergency emergency He was checked at the confined appellant who ordered room contacted a doctor security hospital. rooms of the one of the The parents appellant the Vancouver City contacted Department county Police which in turn contacted parents sheriffs office. The then returned to the home mother, Smith, where the Kathleen had been left. When arrived, city police deputies several found sheriffs Kathleen in front of walking Smith back and forth home, with hysterical screaming. talking Deputy 1During Odegard, procedure, appellant requested the admission Mrs. a nurse's assistant, give her, cup appellant "'I I him a think drowned coffee and told son, my I own but don't remember.'” husband, him her Lentz, Kathleen told that Sheriff Smith and, morning, hysterical distraught earlier in the was in son, said, "He's the when about their had questioned in appel- creek. I him creek." Kathleen Smith and put the Sheriff Lentz that the parents Deputy lant's also told from appellant's morning, "were wet the pants, earlier that Appellant's knees and had mud on them." down sand and the child parents younger took over the care of deputies, Smith while and sheriff's as home several mother, Kathleen, began well a search outside the as the Apparently house child. the searchers missing for the directions, proceed- out several with the mother fanned ing Shortly thereafter, Deputy the creek. Lentz towards screaming. They heard the found her in others mother open sitting field about from the on 50 feet creek ground crying screaming boy with the little her Deputy arms. She had him in the creek. Lentz found dead, was immediately youngster determined creek. apparently from drowning Sheriff that access to the Deputy Lentz observed creek wás extremely place difficult because at where the was by heavy mother had found the child it surrounded stickers, underbrush, and brambles. also observed that He there no the victim's and from this legs, were scratches on the creek volun- gone concluded child had tarily power and under his own but had been taken there by point* someone else. The creek at that was about 5 feet 8 to 12 width, depth its at the center varied from about inches, edges was approximately and at the or banks zero. one bank creek Appellant's adja- belt was found on cent found place body to the where the child's edge creek. at this on the bank near the Also locale had sat creek, there was an indentation where someone marks those approximating down. The indentation had by worn corduroy pants that could have been made called, appellant. An child was taken to ambulance was and was dead arrival. hospital pronounced drowning autopsy death subsequent indicated strangulation autopsy from water and sand. The revealed boy's recent scratch neck, marks on the bruises on the side lips apparently head, of his a cut on his and older bruises on the buttocks.

When he realized the child had drowned under such sin- gularly suspicious Deputy circumstances, Lentz wasted no proceeded, actually, pursuit appellant time. He in hot as likely suspect, going directly hospital the most to the in an possibly possession see, examine, effort to and take appellant's sándy, muddy clothing wet, and for use as evi- emergency room, dence. At the he was directed to the third employed floor where he talked with Mrs. Walker who was hospital Deputy questioned as a ward clerk. Lentz appellant her about the whereabouts of and his clothes and "security" the two went to the location of a room on the appellant placed hospital third floor where the had been security pursuant to the orders of his doctor. Mrs. Walker put appellant's had clothes in a closet in an anteroom or entryway public hallway hospital from which led of the to security occupied by appellant. security room The room separated entryway by was equipped from the anteroom or a door glass

with a lock. The door had a window for viewing security the inside room. The anteroom or entryway security semipublic. to the room was It was equipped open with a sink or washbasin and was and frequently accessible and to doctors nurses who used the sink to wash their hands. appellant's made a ward clerk list of clothes. This signed receipt by Deputy as Lentz who then took the put plastic

clothes to the office sheriff's where were bags safekeeping Subsequently, samples for as evidence. appellant's young clothes, sand taken from from the vic- clothes, tim's from the and center of the creek were ana- lyzed by Investigation's laboratory Bureau of Federal comparable. and found to be argued court, the trial defense counsel that the state prohibitions against

and federal constitutional "unreason- applicable able were searches and seizures" to the seizure of appellant's suppress exclude clothes and moved by the trial was denied evidence. motion -clothes as regarding will of the motion denial of error court. Claims now be considered. apparent the fourth amendment

It is 7 of the section Constitution and article United States comparable Washington are are State Constitution interpretation comparable given constitutional opinion, Accordingly, be made will in this reference effect. only Amendment. to the Fourth authority required

It is well settled and no prohibits proposition Amendment the Fourth prohibition is seizuresThe "unreasonable searches and explicit unquestionably general rather then cast clearly language. It reads: definitive persons, people right be in their of the to secure against papers, effects, unreasonable

houses, and seizures, violated, and no war- searches and shall not be supported probable cause, issue, but rants shall oath or to be particularly describing place affirmation, and things persons searched, or to be seized. and (Italics ours.) eye practiced legal draftsman, it of a should

To apparent phrased general is con that the amendment language detailed, in the more rather than stitutional technique lengthy or definitive, more idiom com and often legislative drafting to and enactment. difference mon language technique drafting is, choice of in the of and the appropriate course, traditional the formulation of and probably provisions. writing is This and of constitutional way judicial interpretation saying just is another of meaning, necessary appropriate give content, and both very language legal general, constitutional and effect to the Thus, is Fourth Amendment. while it clear used only prohibits unreasonable the Fourth Amendment seizures, no or elaborative searches and there is definitive language are kind of searches and seizures either as to what

unreasonable or reasonable. and as Force effect to the con- prohibition stitutional must be or given withheld through of process judicial review interpretation, and which has been the name game of the least Marbury since (1 Cranch) Madison, 2 L. Ed. 60 The minimal and detail drafting definition Fourth generated problems Amendment has of interpreta- tion scope of significance. considerable and The task of fill- ing in the details and definitions is not or lessened resolved but is more understandable perhaps acceptable and more when the necessity (i.e., and the of propriety judicial review interpretation and application of the constitutional lan- guage) forthrightly realistically is and recognized and emphasized. In respect, may this it be said —somewhat tangentially it ais disservice to think of constitu- —that interpretation tional solely mystical as a discovery or law- finding process practiced known and only by judges. Cer- tainly absolute, process unerring, of right and perception of meaning constitutional available judges appellate Frequently, process courts. or of function of involving fact one trial and error a balanc- values, ing competing weighing making value often judgments. These concern the rights and secu- rity of the individual versus or rights vis-a-vis security society. The value judgments may have subjec- addition, tive as as In objective well facets or connotations. process is dependent upon and subject availabil- ity, interpretation recognition, the "so-called" facts perceived by circumstances each individual case as an appellate place. court at a majority given time and litigated present cases our order of an things, appellate court has the majority simply say Supreme last Court, course, say. has the final indicated, for the

Largely reasons the Fourth Amend- ment has produced great plethora a United States Supreme court appellate opinions. Court and other Some of consistent; inconsistent; opinions these have been others some have others. qualified and overruled

135 of the United A relevant decisions quick review several States, v. from Weeks United 232 Court Supreme States (1914) a 652, (involving 341 383, L. Ed. 34 S. Ct. U.S. 58 seizures) unlawful searches regarding dictum —includ States, 364 253, 4 United limited to Rios v. U.S. ing but not Katz v. United (1960); 1431 1688, 80 S. Ct. L. Ed. 2d (1967); 576, 88 Ct. States, 347, L. 2d S. 507 19 Ed. 389 U.S. 685, L. 89 S. 752, 23 Ed. 2d Chimel v. California, 395 U.S. 443, Hampshire, v. New Coolidge (1969); 403 U.S. Ct. 2034 and United States (1971); Ct. 29 L. 2d 91 S. 2022 Ed. Watson, v. L. 2d Ct. Ed. S. (1976), truly the rule as to these matters not indicates clear. entirely general principle that war- cases do establish the necessarily are not unconsti-

rantless searches and seizures tutional, It said are facie illegal, they prima or void. warrantless searches or, stated, suspect, it is sometimes as they fall within per and seizures are se unreasonable unless specifically exceptions established and well-delineated States, Coolidge v. v. New supra; the rule. Katz United Hampshire, supra. Decisions Supreme clearly Court rule, emphasize principle desirability— or overriding not necessity search police officers to obtain if warrants unless —for by emergencies are confronted exigencies permit delay do time and which reasonable upon probable for a officer to evaluate act judicial Trupiano cause for warrants officers. applications United 92 L. 68 S. Ct. Ed. It is and seizure without a war- well settled that search incidental valid may constitutionally rant be lawful if arrest, i.e., (1) warrant, a valid an arrest based on States (2) on probable cause. based Watson, supra. Apparently the search and seizure still can- ransacking exploratory, rummaging, wide-ranging, not be a one, place relation to in time and but must restricted supra. California, Chimel v. the arrestee and arrest. 136

With the focus of Watson on the of probable existence cause, Trupiano emphasis previous and in cases on whether there was a reasonable to opportunity obtain a search warrant from judicial may a officer now be diminishing. United States v. Supreme decision of the Court

Watson, supra, ah be interesting, signifi- seems to a cant, development or shift respecting the law inter- pretation, meaning, and effect to be given to the Fourth by Amendment the courts. On the basis of information very from a informant, reliable Watson was with- arrested a public out warrant in a restaurant. question faced by decided a of majority the court was whether such a a public restaurant warrantless arrest can be valid and when based Amendment, violation of the Fourth on cause probable any exigent without showing of circumstances. The majority opinion by Mr. Justice White question answers part, affirmative. states: The necessary inquiry, therefore, was not whether there was a warrant or get one, whether there was time to but whether was there cause probable . . . arrest. for Term, Just last while recognizing that maximum protec- tion of individual by requiring a rights could assured magistrate's review justification prior to factual arrest, we stated that "such a requirement would constitute an intolerable law handicap legitimate for and noted that the Court "has never inval- enforcement'' by supported probable idated an arrest solely cause because the officers failed to secure a warrant." Gerstein Pugh, 103, 54, v. 420 S. L. U. 113 Ed. 2d 95 Ct. S. [43 854]

. . Congress has plainly against decided . condition- ing warrantless arrest on power proof exigent circum- stances. Law enforcement may officers find it wise so, practicable seek arrest warrants where to do and their probable judgments may readily about cause be more accepted where backed a magis- warrant issued Ventresca, trate. See United States 102, 380 S.U. 106 (1965); Aguilar L. Ed. S. 2d 855 Ct. [13 741] Texas, 378 U. S. L. 2d Ed. S. Ct. [12 U. S. (1964); Wong Sun v. 1509] (1963). But we S. Ct. L. Ed. 2d 479-80 407] [9 a con- into judicial preference this decline to transform the Nation when the judgment rule stitutional warrantless to authorize long has so probable been Congress than to encum- cause rather arrests on public with litigation endless with prosecutions ber criminal circumstances, exigent the existence respect warrant, whether get practicable whether it and the like. flee, was about to suspect Watson, ours.) United States (Footnotes omitted. Italics 417-18, 423-24. supra the Watson decision involved that recognized

It must be i.e., arrest, not a war- person, a seizure of the a warrantless evidence, war- secondly, and that rantless seizure of in private in a arrest occurred a restaurant rantless home or residence. in Watson Mr. Justice White majority opinion by that support intriguing persuasive conjecture

would and validation adopted probable the formula there cause —for — apply in also would public place of warrantless arrests a respecting seizures and validate warrantless searches and in Based on the incriminating public place. evidence a seizure of a seems a more premise person that arrest or serious, direct, with his free- at least a more interference any personal effects as liberty dom and than the seizure support appli- would seem to criminality, logic evidence of of the Watson majority opinion cation of the rationale However, opinion majority the seizure of evidence. Watson is concurred only by comment Justices without Blackmun, Justices Rehnquist, Burger. and Chief Justice separate opinions. opin- Stewart and Powell concur difference between possible Powell suggests ion Justice (a) arrests and warrantless probable validating cause (b) and sei- warrantless searches probable validating cause relating zures to evidence. the existence tends to indicate analysis

Our or presence emergent probable coupled cause with exigent circumstances regarding security acquisi- evidence, tion of incriminating should be the controlling factors. if

Incidentally, a warrantless search and seizure is rea- sonably closely arrest, related in time place to a lawful incidental the search and seizure may be considered to the and, therefore, arrest valid constitutionally whether search and seizure occurs either the arrest. before after Brooks, State v. 57 Wn.2d 357 P.2d 735 We have found no decision of the United States Supreme Court with a pattern identical, fact or so closely compara- ble, the instant case to constitute controlling precedential Thus, case authority. we think the instant case generis sui perhaps novel and pattern as to both fact as to interpretation application what of the Fourth Amendment would appropriate under circumstances.2 clear,

Substantially precise, without a or even reasonably controlling precedent, we must to a large extent fashion our own evaluation and resolution of the Fourth Amendment problem the instant case.

Considering totality circumstances, we are convinced that Sheriff Deputy prudent, Lentz acted reasonable as well as an in obtaining effective manner the pants of the appellant complicity for use as evidence of his in the death young by strangulation of his son and drown- ing. What Lentz did his Deputy was consistent with role well-trained, in society properly- function our as a disciplined police officer. It was work and good as a reasonable and constitu- only should be characterized tionally incriminating valid seizure evidence. We think Commonwealth, 2We are well aware of the decision in Morris v. 331, 208 Va. (1967). Although 157 S.E.2d 191 this case invalidated a warrantless seizure of a hospital patient's grounds, factually clothes on Fourth Amendment it is distin guishable. Morris, emergent, exigent, words, "excep In no inor the court's own justify tional1' circumstances existed which could a warrantless seizure of the hospital patient's particular pattern, reasoning clothes. Due to its factual in Morris is not persuasive applicable unique and is not in to the facts found present case.

139 probable of the requirements case meets the the instant in sev- suggested formula circumstances plus exigent cause Hampshire, v. New Coolidge Court decisions. Supreme eral 409, Louisiana, L. 90 v. 26 Ed. 2d supra; Vale supra; Warden California, Chimel (1970); S. Ct. 1969 Ct. 1642 L. Ed. 2d 87 S. Hayden, U.S. States, L. Ed. (1967); McDonald v. United (1948). Ct. 191 69 S. evalu- Appeals, Court of Washington of the opinion case, in the instant states: ating problem hospital in turns over patient We hold that where a as a hospital, such representative his clothes to a staff a common placed and allows them to be member, assigned, he has the room to which he is area outside The hospital, control over them. relinquished exclusive control joint has at least consent to therefore, may case at bar and seizure. The record their search nurses, well as the ward as established that doctors clerk who clothes, had free access actually obtained the the anteroom variety Though for a of uses. to the area was the hallway, Smith's room and the connection between fact, part it was considered more a of the hall. it was used as a buffer between likely seems This evidence was not security room and the outside. did and there was no evidence that Smith controverted of his clothes freely acquiesce placing him the door locked between having common area and a anyone. from who hands over to a being his For all he knew were taken clothes. open his room and place hospital far from his clothes attempt made no to conceal Smith contrasted, instance, one public scrutiny, as Corngold sealed case as shipper (9th 1966). v. United Cir. 367 F.2d Smith, State v. (Italics ours.) 720, 725, 531 App. 12 Wn. P.2d 843 ward clerk— hospital and the agree

We can con joint at least Appeals as stated the Court —had Furthermore, seem trol it would appellant's clothes. control joint to conclude that plausible and reasonable ward to allow the hospital was sufficient the clothes clerk in performance regular of her duties turn them over to deputy sheriff.

We think an even stonger case could be made to bolster and support the reasoning Appeals. By of the Court of his orders, doctor's appellant placed in security a room of hospital. little, He had if any, stay choice but to there until otherwise, his doctor decided and the hospital, osten- sibly, would matter, see to this. As very practical it is highly unlikely that appellant under the circumstances would any have had access his clothes. Rather than joint control, hospital and the practically ward clerk had total control of the clothes. The clothes were not in the security room secluded, nor were other private, secure place. appellant nothing had done to secure or They secrete them. were in a semipub- closet an at least lic anteroom open which also was generally and used doctors, nurses, will by hospital and other employees. decisions of the United States Supreme Court continue to declare that the primary purpose of the Fourth Amend- protect ment is to privacy of an individual from arbi- trary intrusions by government officials. Katz v. United 576, L. (1967); 389 U.S. Ed. 2d 88 S. Ct. Dionisio, United States v. 35 L. Ed. 2d 93 S. (1973); Ct. 764 South Dakota v. Opperman, 428 U.S. (1976) (Powell, J., 49 L. Ed. 2d 96 S. Ct. 3092 con- facts, curring). Given these appellant had no reasonable expectation privacy physical condition of his clothes. we

While are substantial agreement with the reasoning of the Court of we think Appeals, there are other convinc- reasons to ing support Deputy the conclusion that Sheriff Lentz reasonably acted and not violation of the Fourth Amendment in obtaining appellant's hospital. clothes at the investigating report

While about a child with missing officers, several Deputy other Sheriff Lentz learned that Smith, appellant 1/2-year-old with his 2 son had left the family boy home around The small was dressed midnight. later, rather scanty nightclothes. Seven hours the next son, his 7:15, without morning appellant, around inquired the mother family home. When returned to questioned When boy, the was evasive. appellant about the hill further, is, he on the up the mother that "He he told the concerned about in car.” The mother became someone's She called strange and her husband's conduct. missing son appellant to the They took parents. her husband's security in room Hospital placed where he was a Vancouver mother, Smith, the to doctor's orders. Kathleen pursuant was and Deputy hysterical Lentz that her husband told her, son he distraught; that in about their told talking I him in the Smith put "He's the creek. creek." Kathleen told Sheriff Lentz that parents appellant Deputy and the on wet, had sand and mud them appellant's pants were small, drowned a the knees. The child was found below family a short distance from the home. rather shallow creek the creek Appellant's adja- belt was found on bank the place Deputy cent to where the child was found. Sheriff very the brush and brambles were Lentz observed the small creek at the location where the child along thick and would thought was found. He the brush brambles had legs gone cut child's he have scratched and if through deputy the brush but the saw no cuts by himself, on legs. on the little There were scratches boy's or scratches head, neck, of his and boy's recent bruises on the side on his Lentz concluded Deputy older bruises buttocks. boy been carried play there been foul and that had had put brush and in the creek someone. through the made incriminating were strongly The circumstances with Armed sub- prime suspect. the father of the victim constituting information foregoing all of the stantially exigent situa- factually emergent cause and a probable effectively, tion, reacted Deputy promptly, Sheriff Lentz He should. reasonably a well-trained officer as incriminating and the pursuit appellant went hot the time cause at probable clothes. There was fact lawfully appellant arrested Deputy Lentz have he He not do so but did hospital a warrant. —without obtained the from hospital clothes ward clerk whose function it was to look after the clothes of hospital patients. We think pants the wetness of the with sand and mud on them, ostensibly from the creek boy where the was drowned, presented Deputy Lentz with an or exi- emergent gent situation as to which he had to act promptly. Other- wise, the pants could have lost their significance as evidence by being washed, dried, and pressed very short time as a routine matter the hospital laundry at the instance of event, ward clerk or In any someone else. pants would have dried Obtaining pants out. promptly, observing wetness, sand, mud, their condition as to ostensibly drowned, from the creek where the child was good police work under these circumstances. Deputy Lentz was doing no more than preserving significant and incrimi- nating possible evidence from loss. It seems to us beyond debate that the testimony of Lentz Deputy and the labora- tory report from the Federal Bureau of Investigation regarding sand and mud on pants were significant evidence placing appellant in the same time frame at the scene of the crime in the small creek where his son was drowned. We think the totality of the circumstances con- probable stituted cause sufficiently and the facts were emergent or exigent justify to the warrantless seizure of appellant's pants by Deputy Lentz. above,

As mentioned we are convinced that the instant case is an appropriate one to apply probable plus cause exigent circumstance formula supra. mentioned At the time Deputy when Sheriff clothes, Lentz seized the arrest without a warrant —but based on probable cause —would have been a lawful one. We think this is very significant a factor making the seizure of the clothes a reasonable rather than an unreasonable one. In this in State v. regard, Brooks, 422, (1960), 57 Wn.2d 357 P.2d 735 we held that a and, search and seizure was incidental to a lawful arrest therefore, a proper although and constitutional one occurred in to point prior time the occurrence of arrest. We question whether the actual formality or lawful

143 a and seizure to search prior an actual arrest technicality of either probable cause officer had requisite where addition, and, in to seize evidence suspect arrest or to as to existed emergent exigent circumstances reasonably security of the evidence. safety judgment and the Appeals The of the Court decision It is so ordered. be affirmed. of the trial court should JJ., Brachtenbach, Dolliver, Hamilton, Hunter, concur. C.J.,

Stafford, the result. concurs set the seizure would aside Horowitz, (dissenting) J. —I valid in the absence illegal as appellant's clothes search warrant. evidence suppress of defendant's motion denial application of questions concerning meaning

raises Amendment,3 importance of which great Fourth of the case bench. proper disposition not confined to opinion used majority Because I believe the rationale of the proper fails to effect dispose give of the issues involved Supreme Court of the United to the decisions of the clause, respect- I must binding supremacy us under the on for the reasons next discussed. fully dissent Supreme firmly principle Court adheres seizures, few all warrantless searches and to a subject se exceptions, per well-delineated are unreasonable Bustamonte, v. 412 constitutionally Schneckloth offensive. (1973); 218, 219, 2d 93 S. U.S. L. Ed. Ct. Court, United States United States Dist.

314-18, (1972); Coolidge L. Ed. 92 S. Ct. 2125 2d 454-55, New 29 L. Ed. 2d Hampshire, 403 U.S. 347, (1971); States, v. S. Ct. Katz United 389 U.S. 2022 houses, persons, papers, right people 3"The of the to be in their secure effects, against seizures, violated, shall and no unreasonable searches and issue, affirmation, cause, supported by upon probable warrants but oath or shall searched, things particularly describing place persons or to be and the Const, be seized." 4. U.S. amend. 144 576, Stoner v.

357, (1967); 19 L. Ed. 2d 88 S. Ct. 507 483, 486, California, 376 U.S. 856, L. 11 Ed. 2d S. Ct. 84 (1964). Dombrowski, in Cady v. 889 The rule is stated 413 433, 439, 706, U.S. L. Ed. (1973), 37 2d 93 Ct. S. 2523 Court, v. quoting Camara Municipal 523, 528-29, 387 U.S. 930, (1967). L. 18 Ed. 2d Ct. 87 S. 1727 The ultimate standard set forth the Fourth Amend- ment command, reasonableness. this construing there has general agreement "except been defined classes of that in certain carefully cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized a valid search warrant." rule, therefore, requires police must, "the whenever practicable, judicial obtain advance approval searches through procedure and seizures ..." warrant Ohio, v. Terry 1, 20, 889, 392 L. U.S. 20 Ed. 2d S. 88 Ct. (1968). States v. United States 1868 court Dist. Court 316, page "very holds that heart Fourth Amendment directive" is that "where practical, a governmental search and should represent seizure both the efforts of the officer to gather wrongful evidence of acts and magistrate judgment the collected evidence is sufficient justify private prem- invasion of a citizen's ises or conversation."

The exceptions requirement to the warrant sure "jealously drawn". Jones v. United 493, carefully (1958). 499, 1514, 2 L. Ed. 2d 78 S. Ct. 1253 The estab- exceptions lished are upon "subjective not founded view regarding acceptability of certain con- sorts duct" but only upon "considerations to Fourth relevsmt Amendment interests" "established Fourth Amend- Chimel California, principles." ment U.S. 764- (1969). 23 L. 2d S. Ed. Ct. 2034 The burden of proof government to establish the reasonable- search, ness of a preponderance warrantless at least Matlock, the evidence. United States 177- n.14, 39 L. Ed. 2d S. Ct. 988 which Fourth Amendment An of the interpretation warrant, by the two clauses deemphasize reading the would (the searches sei- of "unreasonable the amendment clause) has independently, zures" and the warrant clause adoption the its apparent been court after rejected Rabinowitz, L. Ed. States v. United (1950). In at page S. the court stated Ct. 430 Rabinowitz 66: pro- to test not whether is reasonable

The relevant was warrant, whether the search rea- cure a search but depends the facts upon That criterion turn sonable. and circumstances —the total atmosphere case. of the specifically was overruled in Chimel Cal- Rabinowitz ifornia, at 768. In course of the court supra opinion, the its importance Chimel out the of the warrant pointed Amendment. requirement in the the Fourth scheme of wisely pointed Mr. Justice Frankfurter out his proscription Rabinowitz dissent that the Amendment's of and seizures" must be read in "unreasonable searches history rise to light gave of "the that the words" —a his- "abuses so felt the as to be one tory deeply of Colonies S., potent of at the ..." 339 U. causes of Revolution. to large part 69. The Amendment was a reaction general warrants and warrantless searches that had so helped had speed alienated ment colonists and move- independence. for the scheme of the Amend- therefore, ment, that Warrants shall requirement "no cause," issue, probable plays part. crucial As but a U. put Court it McDonald v. United S. 451: The presence

"We are not with formalities. dealing high a function. Absent of a search warrant serves the Fourth Amendment has grave emergency, some between the citizen and the interposed magistrate a nor was to shield criminals to police. This done It activities. illegal make the home safe haven weigh mind the need might done so that an objective law. The privacy that in order enforce the to invade precious too to entrust right the discretion privacy was deemed job whose is the detection of those . so of criminals. . . And crime and arrest on the requires magistrate pass Constitution privacy violate the before desires constitutional to that cannot be true the home. We a search war- the absence of and excuse requirement exemption those who seek showing by rant without a from the constitutional exigencies mandate Id., at 455- imperative." made that course the situation 456. - a search requirement . Clearly, general . . with, dispensed to be lightly is not warrant be obtained exemption seeking those is on and "the burden [an] ..." it. the need for to show requirement] [from 48, 51. Jeffers, 342 U. S. States v. 760-62. omitted.) supra at (Footnote California, Chimel the again rejected was of Rabinowitz reasoning Court, supra. States Dist. States v. United court United at 315-16: pages The court states broadly of speaks Amendment the Fourth Though seizures," the definition "unreasonable searches spe- the more turns, part, at least on "reasonableness" argued Some have warrant clause. of the cific commands " reasonable to whether it is test is not that procure reasonable," relevant [t]he was warrant, the search but whether a search Rabinowitz, S. 339 U. States v. United however, the second (1950). view, overlooks This 66 clause of clause of The warrant the Amendment. Rather, it has language. not dead Amendment Fourth been decades, for law of our constitutional part "a valued in scores and scores the result has determined

and it incon- It is not an country. this in courts all over cases claims of 'weighed' against venience to be somehow police be, important is, or should efficiency. It opera- machinery of course government, our working part of 'well- to check matter as a ting offi- executive mistakenly over-zealous intentioned but cers' who are of law enforcement." any system part S., 481. 403 U. at Hampshire, New Coolidge v. omitted.) (Footnote finding for

Nevertheless, majority's argument under proper instant case and seizure search part large to be based appears Amendment Fourth a warrantless of Rabinowitz —that logic the discredited within an estab does not come and seizure which search is nevertheless requirement exception to the warrant lished "rea represents good, responsible, if it constitutional reasoning, majority justify work. To this sonable" Watson, States heavily upon relies L. 96 S. Ct. 820 Ed. 2d There reasoning. support majority's not Watson does of defend- arrest upheld Court a warrantless Supreme in a restaurant for while he was inspectors ant by postal without mail, probable on cause but of stolen possession holding rested its squarely The court exigent circumstances. peace rule that a officer upon "the ancient common-law for a misdemeanor or to arrest without a warrant permitted felony as for a presence in his as well felony committed if was reasonable presence ground in his there committed Watson, supra States v. the arrest." United making Powell, concurring opinion, emphasizes his 418. Justice accept- of the decision is the historical the rationale Amend- ance, adoption and after of the Fourth both before ment, of the warrantless arrest. be subject . . . would seem to dictate that arrests

Logic to the same extent as requirement at least to the warrant searches. history experi- must defer to logic

But sometimes sanc- opinion emphasizes historical ence. The Court's . no felony arrests . . There is tion accorded warrantless proponents the Framers or historical evidence that Fourth mous Amendment, the infa- opposed to outspokenly assistance, were at all warrants and writs of general by arrests local constables concerned about warrantless notes, today ... Court peace officers. As the and other Act such authorizing of an Congress' passage the Second the Fourth Amend- adoption soon after the of arrests so ment itself the constitu- probability underscores the entirely different intended to restrict provision tional was practices. Watson,

(Footnote omitted.) supra States v. United its even suggesting in Watson nothing 429-30. There is presently governing the law any way affects holding Watson, States v. also evidence. See United seizure of 148 n.6, (Powell, J., (Stewart, at 418 832

supra concurring), 425 J., concurring).

Thus, above, rule as first stated that warrantless and unless shown searches seizures are unreasonable is still within one of the exceptions, established Amendment, Court's Fourth Supreme interpretation upon by binding supremacy and is this court force of the (1 Wheat.) Lessee, 304, v. clause. Martin Hunter's Aaron, 340-41, (1816); 1, 4 L. Ed. 97 v. Cooper 358 17- 5, (1958); Scruggs Rhay, L. Ed. 2d v. 70 S. Ct. (1967). Wn.2d 425 P.2d 364 warrant, a Since Officer did not have search there- Lentz fore, per the search se and seizure unreasonable within terms of unconstitutional unless it came exception requirement. to the warrant established this, additionally seeks to majority appears recognize uphold the search and on the basis of warrantless seizure exceptions. majority's one or all of three established (1) probable these are: cause for the search and sei- order (2) circumstances; by plus exigent zure valid consent (3) seizure; incident to a ward clerk to search and arrest. lawful clear, course, a

It that Officer Lentz did conduct the Fourth meaning search and seizure within This majority Amendment. fact is assumed both the heavily Appeals, rely the Court of both which to validate exceptions requirement warrant of Officer Lentz. The Fourth Amendment's warrant actions play do come into requirement, exceptions, and its that a did fact take unless it is first established search addition, did place. In clear a search and seizure occur. Whalen, People 390 Mich. test is stated The current N.W.2d 507; 347; 88 S Ct Katz 389 US From (1967) test, applied has 19 L Ed 2d 576 there evolved search, courts, not a to determine whether or by the standards, place. taken has indeed Fourth Amendment expectation if an individual has reasonable Simply put, seized, searched, the materials in the area or privacy of search been conducted. has in the expectation privacy a reasonable of

Appellant had anteroom) (the expecta- reasonable searched" and a "area (his clothes). Thus, in "the materials seized" privacy tion of seizure, officer for the there was a search and appellant "justifiably on which privacy intruded 353, 347, 19 L. Ed. 389 U.S. relied." Katz third was on the Ct. 507 The anteroom 2d 88 S. link only appel- was the between hospital, floor of the private was a area hallway. lant's room and the It view, waiting such as a open public not one hospital and storage appel- for the only room. It contained the closet lant's clothes. appellant did not have exclusive use of

The fact that expectation privacy closet did not make his anteroom DeForte, For Mancusi example, less reasonable. (1968), L. Ed. 2d 88 S. Ct. 2120 state 392 U.S. seized, warrant, union records from officials without and other union officials. office shared defendant no claim the records were taken from a Defendant made use. The court part of the office reserved for his exclusive was a search. The court first noted defendant found there ownership or required legal possession to show not stated that had the searched The court then premises. headquar- in the union private office occupied defendant ters, clearly expectation had a reasonable he would have he shared the office records seized. The fact privacy fundamentally change with other officials did not situation. reasonably expected have

DeForte still could those guests business would personal and their persons office, not touched that records would be enter the except of union higher-ups. their or that permission with may DeForte, clothes Appellant's Mancusi v. at 369. supra Mancusi, and the with the union records equated with the union office. shared anteroom equally acting It is clear that the ward clerk was at the taking direction clothes, of Officer Lentz as a private acting Coolidge individual on her own initiative. Cf. Hampshire, 486-90, v. New L. 29 Ed. 2d (1971). Therefore, 91 S. Ct. 2022 the actions of an interme- diary taking prevent in the of the clothes did not this from being governmental search seizure. Officer Lentz hospital solely purpose retrieving went to the for the appellant's "[t]o clothes. He testified he went there see if clothing any hospital Mr. Smith's see if the had of Mr. —to clothing." morning, testified, Smith's That the clerk ward personally Smith," she had "never talked to Mr. and that "nothing" she had in to do with the room which he was placed. Contrary majority's to the statement in made the opinion, place she did not Mr. Smith's clothes in the ante- requested room, she retrieved them from there when by Officer Lentz. She stated on cross-examination: prior say, prior Deputy But, to, well, Q. to the arrival of you activity Lentz, in had seen connection with the brought Smith room? A. I him in. A. Q. seen And? And orderly charge our and the nurse who in room was day working there, was in other I but than that had

nothing, connection with it. hospital When if she asked Officer Lentz had appellant's clothes, him "I she told would check." She went patient's hang to the closet "which we clothes they were there." hospital

Was the warrantless search and seizure argument majority's constitutional under the first —the presence probable "exigent" of both cause and circum- Although opinion, stances? not made clear majority apparently probable finds cause circumstances pointed appellant's guilt which and which would have justified by appel- his Officer arrest —that Lentz was told parents appellant's lant's wife and clothes were wet muddy put and that he had told his wife he had his prob- agree son in the creek. I would that this constituted his of a warrant able cause either for arrest or issuance of the and a seizure anteroom hospital's' of the for a search circumstances, however, not are The "exigent" clothes. cir- "exigent" clearly present. and were established wet, sandy, are upon by majority relied cumstances which "could pants, muddy appellant's condition of washed, by being as evidence significance their have lost matter as a routine cleaned, very in a short time and dried ward clerk or of the laundry at the instance hospital someone else." facing circumstances of the actual

A closer examination and the hospital, he arrived at the Officer Lentz at the time exception, reveals circumstances scope "exigent" application clearly inapplicable. original exception is was in the warrant- exception "exigent" circumstances practi- "where it is not highway, less a car on the search of quickly the vehicle can a warrant because cable to secure war- which the locality or jurisdiction moved out of the- v. United Carroll sought." rant must be (1925); 39 A.L.R. 790 132, 153, L. Ed. 45 S. Ct. (automo- at 458-64 Hampshire, supra v. New Coolidge see in his defendant arrested where exception inapplicable bile In later driveway). in his house, was outside and car seized setting specific forth has without suggested, cases the court destruction, removal, or the threatened guidelines, contraband, accompanied when evidence or concealment of such evidence cause to believe probable the existence of threatened, may is so place present particular rendering permissible circumstances exigent constitute cir- exceptional are "There warrantless search or seizure. effective which, the need for balancing on cumstances may be right privacy, of against law enforcement may be search warrant magistrate's that a contended . . . No evi- a case. But this is not such dispensed with. removal with was threatened dence or contraband 10, States, U.S. v. United 333 ..." Johnson destruction (1948); see United 436, Ct. 367 14-15, 92 L. Ed. 68 S. 59, S. Ct. 93 L. Ed. 72 U.S. Jeffers, States (1951); McDonald United

L. Ed. 69 S. Ct. 191 One case which has articu- guidelines developed lated the courts have for determining the lawfulness of warrantless of seizures contraband under is United States v. "exigent" exception circumstances Rubin, 474 F.2d 262 (3d 1973). Cir. The court states at page 268: however,

When Government agents, probable have and, addition, cause to believe present contraband is based on surrounding circumstances or the informa- hand, they reasonably tion at will conclude evidence destroyed or removed before can secure a warrant, search a warrantless search is justified. (Italics mine.) Circumstances courts have found relevant exigent determine the existence of circumstances are: (1) degree urgency of involved and the amount of [T]he (2) necessary ... time belief that (3) to obtain a warrant reasonable .

the contraband is about to be removed . . possibility police danger guarding officers the site of the contraband while a search warrant (4) ... sought indicating possessors information the contraband are aware that are on their (5) ready destructibility trail ... of the contraband and the efforts to narcotics knowledge dispose "that persons and to are characteristic behavior of escape traffic," in the narcotics United States v. Man- engaged ning, (2d 1971) 448 F.2d 998-999 Cir. . . . Rubin, supra States v. at 268-69. of the circumstances the instant case Examination clearly shows that not one of the five circumstances above time of of the anteroom and present at the the search clothes. appellant's the seizure urgency first and second circumstances —the warrant, involved, necessary amount of time to obtain a is about to be belief evidence reasonable. present. "urgency" hypothesized removed —are evidence) (the clothes were "about majority is that They "could have lost their by washing. to be removed" cleaned, washed, by significance being as evidence hospi- in the very dried a short time as a routine matter the ward clerk or someone laundry tal at the instance of

153 However, else." at time Lentz Officer asked the clothes, any no support circumstances existed to "reason- able belief" that the clothes were about to be washed or hospital appellant any taken home or member of his family. None of the several who testified hospital employees at anything the trial mentioned the clothes suggesting might day any be washed that or at time in the future. say Lentz did Officer he had such a "reasonable fact, belief" —in he did not ask the clerk any ward or other hospital employee spoke with whom he if such the case. was any danger Nor was of appellant there his "secu- leaving rity" secreting room clothes from the anteroom. As majority "As opinion very practical matter, states: is highly unlikely appellant under circumstances would have his had access to clothes." All Officer Lentz needed to do was to or supervisor tell ward nurse her be sure the clothes were not washing removed for until he returned with a Very simply, warrant. no facts present were in the instant case’from reasonably which the officer could have concluded there an due urgency to imminent removal washing of the clothes. Supreme Court cases with "threatened dealing

destruction" of as exigent evidence circumstance have required ultimately government goods show "the Vale v. process seized were ... destruction." Louisiana, 30, 35, U.S. 26 L. Ed. 90 S. Ct. 2d (1970). The court support require- cited three cases to this v. California, ment. Schmerber L. 2d U.S. Ed. v. Jeffers, supra; (1966); United States 86 S. Ct. 1826 States, Schmerber, McDonald v. supra. United nonvehicle where has upheld case the court the reasonable- ness of a in part warrantless search at least on the basis the destruction, evidence was in the process of the search was approved "delay warrant, necessary because to obtain actually under the dissolving circumstances [alcohol blood], threatened 'the destruction evidence.'" States, Schmerber v. United Preston v. supra citing 364, 367, 11 L. Ed. 84 S. 2d (1964). page 52, In the court refers at Ct. 881 Jeffers In McDonald of "imminent" destruction evidence. "property supra the court mentions at process of destruction." the majority opinion the has shown State nor the Neither the (the clothes) pro- "in was the instant case evidence danger of "imminent" destruc- cess of destruction" or by unsupported speculation, There no than a tion. is more might single future time fact, clothes at some a that the by hospital some or taken home have been washed person. unnamed any why could Officer Lentz is shown

Nor there reason and seizure not warrant when the search have obtained a Monday approximately a 10:30 a.m. on occurred at excep- morning.4 to show The burden was on the State impracticable to obtain was situation existed and it tional supra Louisiana, at 34-35. warrant. Vale v. search danger police possibility of The third factor —"the guarding of a search site the contraband while officers sought" obviously present. that not It clear warrant is —is supervisorial easily requested a Lentz could have Officer employee hospital not be of to insure the clothes would washing warrant. until he returned with a removed possibilities that and fifth factors—the fourth pursuit possessor the contraband is aware obviously again might destroy are the evidence— pointed majority present out, case. As instant very practical already matter, noted, "[a]s a and as we have unlikely appellant highly circumstances it is under the addition, his access to clothes." would have had appellant suggestion was record that is no there hospital. presence in the of Officer Lentz aware parents, Appellant hospital was his taken to the was hospital. was He of a in the on the orders doctor admitted may 2.3(c), provides obtained based be which that a search warrant 4CrR judge telephonic ..." was not effective to the "an officer's sworn statement 1,1973. July in 1972. in the case occurred until The search and seizure instant the time taking shower at Officer Lentz arrived hospital, and there is no he was ever aware of suggestion There no Lentz officer's visit. evidence Officer seizure, arrested before or after the or even saw appellant him thereafter. facts, then,

What are there in this can record which held to to the rise of a constitutional Can dignity exigency? it fairly be said that there were here circumstances "exigent in which police action 'now never' literally must be ."? Roaden v. Ken- preserve the . . evidence the crime tucky, 496, 505, 37 L. Ed. 2d 93 S. Ct. 2796 most, At what is shown is more conve- nient for immediately Officer Lentz to take the clothes than to get a warrant and have the clothes watched until he returned. effect, majority* attempts uphold next to the war-

rantless search and seizure exception. under the "consent" This is also the by rationale relied on Appeals, the Court of which reasoned the the anteroom where clothes were kept was a common area over which hospital, pre- the sumably patients certain including appellant, had "at least control", joint hospital so that the to could consent the Smith, and seizure. State v. search 12 Wn. App.

531 P.2d 843 with majority agrees analysis, this and even attempts to bolster it in fact arguing that the hospital had "total" just rather than over "joint" control the anteroom clothes because been appellant had placed hospital room, security and it was "highly unlikely" any he would have had access to the anteroom and his clothes at all.

Again, however, of a careful examination the deal- cases ing with this exception the warrant for con- requirement sensual searches it is clearly reveals unavailable to validate the problems search and seizure Lentz. The with Officer are, majority's Appeals' analysis first, the and the Court of assuming that it was fact which "hospital" the consented seizure, to the search and when clerk" acting "ward consented; her approval on own without management presence ignoring appellant's second, fact the the of vicinity immediate of the search —of which both the ward were clerk and Officer Lentz aware. point

It is at the useful this to examine rationale scope third-party consent to a search and seizure. Some noting exceptions general courts, the war- rule that to the requirement necessity, justified rant are on the basis of finding supra 14-15, Johnson v. United but no exception, "necessity" justify third-party the consent narrowly have held it should therefore be construed. recognizes which It validity applied guardedly fundamental that the doctrine party's must of a third consent to a search protection prevent erosion of requirement Amendment, no since it makes Fourth probable and does existence of cause for the search necessity. exception on based constitute Cabey Mazurkiewicz, ex F.2d United States rel. (3d 1970). requisite Some courts have found the Cir. placed police "necessity" in if the burden on the were ownership prem- required article or to ascertain person giving when to the search ises searched consent apparently premises control of the article. The (as disappears, "necessity" however, when case) ample rights of someone instant have notice that the consenting party might be involved. other than 1969). (E.D. Supp. Poole, F. La. States v. third-party relationship cases, between consent party consenting falls into one of and the defendant presumably categories. first, one the two The "joint majority case, existed in the instant maintains relationship authority" relation- "common control" or —a copossession. ship co-ownership Thus, if defend- of or persons together same or more uses the with one ant receptacle, premises such as a suitcase or duffel or the same persons bag, cir- one of under certain the consent of these may of those sufficient to authorize a search cumstances be par- receptacle. theory premises The each of the that or right relationship independent use, to the to has an ties and, whole, ownership accordingly, or possession, defendant, who may each consent to its search. The give seizure, is has consent to the search and expressly given not (on "assumption of risk" deemed to have authorized basis) parties relationship the other to the to consent has, posses- him. of use or by sharing The defendant virtue premise receptacle, sion of a or waived his constitutional of an area right police to be free from a warrantless search or receptacle expectation which he has a reasonable privacy. Supreme recently Court has delineated rules third-party copossession consent based on or

governing Matlock, common use United States v. There, L.

S. Ct. Ed. 2d received consent to search defendant's bedroom and closet defendant, from paramour occupied, his who with jointly upheld area searched. The court the search and stated: to prosecution justify seeks a warrantless [W]hen consent, by proof voluntary search proof show that it is not limited to defendant, may that consent was but given permission to search was obtained from a third common over or other authority party who possessed relationship sought to the premises sufficient effect be inspected. (Italics mine.) Matlock, United States v. supra at 171. Jus- tice White clarified what the court meant "common authority" above-quoted a footnote to the sentence. is, course, Common from authority implied property prop- the mere interest a third has in the party erty. sent does not rest rather on mutual use of the ally authority third-party which con- justifies . property the law of . . but rests

property by persons gener- for most so having joint purposes, access or control is reasonable to of the co- recognize inspection his right permit inhabitants has own risk that and that the others have assumed the right the common area to be might permit one searched. their number rationale of copossession authority Under the or common Matlock, nonsupervisorial employee a nonmanagement, police premises validly search of the

cannot consent to the employer. employee of his Such an does not have "mutual employer employer's premises, use" with his of the nor pur- "joint premises] [of access or control for most poses." recognize" It is not "reasonable to that such an employee right” search "in his own can authorize the employer that the the risk" of such a search. has "assumed employee employer's premises charge An has not of the only authority premises, over the and not limited authority" required by Matlock. "common purpose right [O]ne limited with a to enter for a —such pos repairman janitor, maid, as a or the like—does equal right occupancy required for con sess the to use or sent to a search.

People Taylor, App. N.E.2d v. 31 Ill. 3d example, People App. Litwin, 44 Div. 2d For (1974), of an 492, 355 consent to search N.Y.S.2d police by baby-sitter. apartment given the defendant's noting held, Matlock: The court nothing the of the in the record to indicate There is Troopers baby-sitter entry permission rely on had basis to ... hold that ... to the search. To presented under the circumstances here was lawful nullity Amendment to a would reduce leave Fourth only in the unfettered discretion of homes secure baby-sitter. People supra Litwin, at 494-95. duties, are

The ward clerk testified as to her quite limited. you being Now, then, on the Q. mentioned at the Station your floor, on the third

third what would be duties there help nurse A. are to the head floor? Ward clerk duties patients I the floor and record and we admit all new onto R.N.'s have all onto the cardex so the the doctor's orders through going . . charts. . to them without access you charge No, Richards floor? A. Diane Q. Are was head nurse at that time. from the clothes are taken

She also testified that when family hospital by patient's cleaners, "it sent to the clothing off so no they are checked my duty to see lost." (the nor hospital) employer is clear that neither her

It the ward clerk the risk" that appellant "have assumed Appellant's the anteroom to be searched. might permit authority than the that someone with no more expectation search of the clerk will not consent to a ward his police seizure of area for his clothes and to storage reasonable, be said to certainly and he cannot clothes this risk. have assumed the search of her could the ward clerk authorize

Nor or implied of actual on the basis employer's premises There is nothing authority employer appellant. from her or In authority. of actual presence in record suggesting addition, no actual suggests of bailments she had the law to an authority. goods Since a bailee who delivers the bailed (such a valid as a officer without person police authorized warrant) in or dam- goods is liable for a conversion of (R. Brown, The Law Personal for breach of contract ages (3d 1975)), unlikely hospital Property 282 Ed. authorized a ward clerk to redeliver expressly would have patient family. or his patient's anyone except clothes to addition, Only implied authority. In the ward clerk had no have employer's premises left in of their employees charge authority. requisite implied been found to have the been of the view that Generally, average employee, the courts have clerk, driver, or other janitor, such as a may give consent. person temporarily charge, . . LeFave, Course True Law . Search and Seizure: "The 255, In Smooth", Ill. L.F. 320. Has Not . . . Run 1966 U. Weaver, 616, 620-21, 797 v. 241 Mich. 217 N.W. People (1928), stated: the court may be waived

If constitutional of the citizen rights Tom, Dick, employs he and tem- Harry, whom they hang by a property, of his porarily puts charge very slender thread indeed. (1927), a State, P. 232 v. 38 Okla. Crim. Hays employer's grocery of his temporarily charge

clerk left The court authority premises. to search the gave invalid, held: found the consent act for the "In this instance we think the clerk could absence, him as to such matters owner his and bind of, in, usually part arise and be a things and duties of the as would employment. is an goods search of the for stolen premises

"The expected to and not such as would be procedure, the course of the business unusual keeping grocery arise store, and, proof the owner the absence privilege waive his duly store had of search of ity fact of such authorized his clerk to and unlawful immunity an unreasonable against store, of such author- presumption his said from the merely would not arise privilege to waive the employment. v. State, Accord, States at 335. United

Hays supra (D. 1931); State Ruffner, F.2d 579-80 Md. (1972); Liquor 201 N.W.2d 236 Finn's Cundy, 86 S.D. Div. 2d Authority, App. Inc. v. State Shop, Liquor Block, 202 F. (1968); States v. 294 N.Y.S.2d 592 1962) (S.D.N.Y. responsi- experience, Supp. (age, into con- bilities, must be taken employee and activities of absent). employer sideration when employee to hold that an Courts have also been reluctant when the search authority police had to consent In the at the time. premises was elsewhere on the employer Lentz could case, why is no Officer showing instant there in authority, someone requested permission not have from administrator, to search for such as the hospital's the information Officer Lentz testified he "went to clothes. appellant, hospital to learn the whereabouts desk" authority to consent but never asked who had Ruffner, supra the court In States v. search. stated: the owner Ruffner was agents apparently

The knew that gave permission and Switzer search] [who have readily or could also knew employee; was no such learned, by. was near There the owner

]_0]_ required making preclude haste the search as to con- sulting person permission. govern- the owner in prove ment did not undertake to Switzer had fact authority permit And, from Ruffner to the search. in the proof, justify absence of such the circumstances did not application apparent authority the seemingly of the doctrine of upon by government. relied Maryland Baking Accord, United States v. Co., F. (N.D. Supp. 1948). 560, 562 Ga. The above cases are con- Supreme premise sistent with the refusal of the Court to third-party applications consent to search "strained agency 'apparent the law of or unrealistic doctrines of authority.'" Stoner v. California, 483, 488, 11 L. (1964). Ed. 2d 84 S. Ct. 889 specific hospi- case, even a authorization from the

tal to the ward clerk would not have validated the search authority" and seizure under the "common test of Matlock. persons equal rights This is not a case where two have property property. or are co-users Rather, of certain this is hospital a case where the was bailee of the clothes for defendant in a bailment benefit, for mutual which arises when "the bailment is an incident of the business in which profit the bailee makes a ..." Global Tank Trailer Sales v. Textilana-Nease, Inc., Kans. 496 P.2d 1292 hospital's duty ordinary pru- was to exercise protecting dence under the circumstances the clothes. mutually Where the bailment transaction is beneficial parties, to both it is well settled that the bailee is required ordinary diligence protecting to use the sub- ject damage matter of the bailment from Ordi- loss. nary diligence type in this of bailment has been defined ordinary prudence customarily as that care which men of goods take of their own of a similar kind and under simi- lar circumstances. (Footnote omitted.) Prop- Brown, R. The Law Personal (3d

erty 1975); §11.2, accord, at 258 ed. Goodwin v. Georgian Co., Hotel 173, 181, Wash. P.2d

162 (1938)(bailee neg- A.L.R. ligence). must show loss not due to his hopital When a enters a bailment for the safe- keeping patient's possessions, hospital of a "[a]s bailee, the agrees property keeping to exercise due care in and to patient it, deliver notice, reasonable to the or on his Hayt, Hayt, order, and to no one else." E. L. & A. Groe- (3d Hospital, Physician schel, Law and Patient 448 ed. 1972). Thus, in benefit, a bailment for mutual the bailee has no authority property to allow the bailor's to be taken police "ordinary prudence" warrant, without for a man of property (especially would not allow his own if incriminat- ing) to be taken from him under these circumstances. property custody When in the of a bailee for hire is persons, process, third demanded becomes his under color of duty process ascertain whether the is such requires property, him to not, as if surrender the it is right duty his then it is to refuse and to offer such taking, adopt resistance to the such measures for

reclaiming prudent intelligent it, taken, if as a man would, if been it had demanded and taken under a claim right property by legal process. to the another without Stuyvesant Safe-Deposit Co., Roberts v. 123 N.Y. 65- (1890), approval 66, 25 N.E. 294 cited with National Deposit Stead, v.Co. 58, 69, 58 L. Ed. Safe S. Ct. 209 (1914); see Commonwealth, Morris v. 208 Va. (1967) (nurse 331, 157 S.E.2d did not have the clothes). right patient's to consent to seizure of majority's analysis in the other error consent is the assumption party's a third consent can bind a defend- present premises on ant when he is at the time of the police are search and the aware of this fact. In the instant appellant present case, Officer Lentz knew on the third hospital, made, floor where the search was but made get As trial, no effort to his consent. he testified at after nursing reaching the floor if third station he "asked Mr. They gave 'Yes', said, Smith was in. me a room num- just nursing station, I ber and it was south and asked pick up clothing." if I Nevertheless, could Mr. Smith's he consent, though even appellant's no effort to seek made of the nurs- "just in his south appellant present was room floor. station" on the same ing Matlock, to Supreme purport in Court did not

Even the the authority" "joint control" of "common or hold in to a person to consent search premises permitted a third the third- the The court states presence the defendant. absent, the noncon- will "valid as against consent party Matlock, v. 415 ..." United States senting person In Lawton (1974). 242 170, 988, L. 2d 164, 94 S. Ct. 39 Ed. State, (Fla. 1975), v. 463, court App. So. 465 the 320 2d noted: Court, Vandenberg Superior exception With the has Cal.Rptr. 8 no case Cal.App.3d 87 upon predicated

come our attention which search joint occupant the the of a has been sustained when consent affirmatively physically present defendant was Vandenberg the search of objecting a upheld search. upon room his consent objection minor's over based However, specifically his father. the court given by right its of a father to exer grounded cise his holding authority his son's behavior. parental over Ruffner, supra in United States v. par- Language case, ticularly appropriate to the instant where the knew officer the clothes belonged appellant knew his no to ask nearby, but made effort appellant consent. was the owner agents apparently

The and Switzer could knew that Ruffner also knew only employee; learned, by. was near readily the owner have the search required making There was no such haste person owner preclude consulting as to permission. authority" inapplicable The reason "common rule is People presence of the defendant stated Mortimer, 275, 277, App. Div. 2d 361 N.Y.S.2d (1974): may rights "Constitutional be defeated successively until expedient soliciting persons several is obtained." sought-after consent justified Nor can the warrantless search and seizure be majority's exception under the third to arrest. —incident hospital, appel- Lentz, Officer while at the did not arrest seizing lant. clothes, After he returned to the sheriff's cross-examination, office. On he testified that he did not at place appellant appellant time under arrest. When charge was in fact arrested on the of murder is nowhere revealed the record. seizure, therefore, was not incident to a lawful exception requirement applies

arrest. This to the warrant substantially contemporaneous when the search "is vicinity with the arrest and is confined to the immediate Stoner 483, 486, arrest." v. California, 376 U.S. 84 S. 889, 891, Ct. 11 L. Ed. 2d 856 Chimel v. California, 752, 763, L. Ed. 2d 89 S. Ct. (1969), scope of the search incident to arrest was person immediately limited to the arrestee's and the area weapon might accessible himto from which he obtain a or incriminating Clearly, destructible, seize evidence. neither spatial temporal requirements the nor of a search incident to arrest were met the instant case. majority, bring

The nevertheless, seeks to the seizure of appellant's exception, apparently argu- clothes within this ing formality technicality that "the actual of an actual necessary prior arrest" was not in this case to the seizure probable where there was cause to arrest the defendant and danger. the evidence was reasoning, completely ignores however,

This the clear Supreme rules set out in Stoner Court and Chimel. "grab First, the anteroom was not within the area" of appellant, scope and would have been outside the of a valid although search Second, incident to arrest. it is true that may certain a search circumstances be "incident to arrest" although preceded only require- arrest, this if is contemporaneity ment substantial of the seizure and rejected is met. A arrest contention similar was made and Layland (Alas. 1975). State, In 535 P.2d 1043 Layland, sample was taken blood from the defendant Although there without a warrant. his consent and without negligent probable homicide him for to arrest existed cause months later. time, arrested until 3 he was not sought inci- under search to validate the seizure state argued exception. "'the rec- formal arrest state dent to meaningless, practically "you itation of are under arrest" probable cause to and should excused"' where there defendant was arrest, no arrest was made because but The court stated: need of medical assistance. following reject for the rea state's contention We (9th Cipres F.2d Cir.

sons. 1965), prevailing as Circuit stated the rule the Ninth follows: prior may as incident to a substan- [A] search be valid tially contemporaneous if arrest without a warrant probable arresting the time of the gested serve material for the arrest at had cause officers sug- search, the circumstances necessary pre- immediate search was that subject to seizure. . is our belief the rule as . . and enunciated It Ciprés comports standards, under with constitutional Fourth Amendment to the United States Constitution requirement contempora- . . if . of substantial neity trary holding searches" strictly A of search and arrest is construed. con- essentially "exploratory validate would by police and emasculate the search warrant requirement. incident to arrest" to permitting For reason for a "search precede the arrest indepen- probable [w]hen cause an arrest exists dently produces, that the what the search fact precedes when the formal arrest is immaterial search nearly the search and arrest are stitute for all To hold simultaneous con- practical purposes one transaction. but differently to allow a technical for- would be mality no of there has been real time control when rights of a defendant. interference with the substantive (Footnotes omitted.) Layland supra 1048-49, State, v. at 1965). (7th Simpson, quoting Cir. Holt v. 340 F.2d (1960), Brooks, State v. 57 Wn.2d 357 P.2d cited contrary majority not announce a rule does Stoner, Chimel, Brooks, Layland. ques- the search in tion was immediately prior conducted to the arrest of the defendant.

It kept must be in mind that the decision of this court will affect not only the Fourth rights Amendment defendant, but of every those citizen of this right state. The privacy protected by of the Fourth Amendment one of the outstanding features society, of American and the courts duty have the to insure against its dilution. As the Little, District Columbia court stated 178 F.2d of (D.C. 1949): 16-17 Cir. government

Democratic has features. distinguishing One of another privacy of speech individual; them is freedom for the religion. freedom of right Another is the of from government

of home intrusion officials. These They characteristics are mere hallmarks. are the and pillars beams and about which the structure was built

upon depends. which it If private homes are opened officials, to the government intrusion of enforcement officials, the wish of those without mind intervening of a magistrate, hand one prop the structure of our system is . . . gone another form of will government have been substituted.

. . . The Amendment right Fourth did not confer a upon people. It precautionary was a statement of a lack of governmental power, coupled federal with rig- idly permission right. restricted to invade the existing The right guaranteed right already was a belonging to for people. reason the search warrant clause was that public required personal privacy interest crime, invadable for the detection of and the Amendment provided the permissible process by the sole and only which

right privacy could be invaded. To view the Amendment as a limitation an otherwise unlimited right of search completely posture is to invert the true rights and the limitations thereon.

The Supreme Boyd Court stated (1886): 616, 635, 29 L. Ed. 6 S. Ct. 524 provisions security person onstitutional [C] A property should be construed. close and literal liberally efficacy, and of half their deprives them construction if con- as depreciation right, gradual leads to duty of It is the more in sound than substance. sisted rights for the constitutional to be watchful courts citizen, thereon. stealthy encroachments against warrant, without valid and seizure were Since the search the motion exception, recognized come within a and do not Ohio, Mapp granted. have been suppress should S. Ct. 84 A.L.R.2d 643, 6 L. Ed. 2d Ed. v. United (1961); 58 L. Weeks Ct. 341 34 S. new trial should be reversed and a judgment granted. Horowitz, Utter, JJ., with J.

Rosellini concur January 7, 1977.] En 43846. Banc. [No.

Bradley Petitioner, Bresolin, Lave v. Charles

Morris, as Secretary Department Services, Social Health

Respondent.

Case Details

Case Name: State v. Smith

Court Name: Washington Supreme Court

Date Published: Jan 7, 1977

Citation: 559 P.2d 970

Docket Number: 43721

Court Abbreviation: Wash.