State v. Glasper , 84 Wash. 2d 17 ( 1974 )

Hunter, J.

— The defendants (petitioners), Andrew D. Glasper, Jr., and Julius Eugene January, were convicted by a jury on charges of grand larceny by possession. Following a decision by the Court of Appeals affirming the judgment and sentence of the trial court, we granted the defendants’ petition for review which raises questions regarding the justification for stopping and investigating a motor vehicle and the propriety of impounding a motor vehicle in this case.

The facts, as adapted from the decision by the Court of Appeals, are as follows. At approximately 12:30 p.m. on October 15, 1971, the Seattle police department received a citizens’ report of four Black males “going up and down in the neighborhood” in the Rainier Valley area of southeast Seattle, together with the report of the license number of the car in which they were traveling. At about 1:30 p.m. a car with the reported license number was observed by the police a few blocks from where the “suspicious” car had been reported earlier. The license number was checked, and the registered owner, the defendant January, was found to have an outstanding traffic warrant. As the car pulled to the curb in front of a residence, the officers in the patrol car pulled in behind. The officers then approached the car on foot. They noticed, as they passed, a console television set face down in the partially open trunk of the car. The set was not padded nor was the trunk lid secured. There were four men in the car; the defendant January was in the driver’s seat, the defendant Glasper was on the passenger side in front, and two additional passengers were in the rear.

After the questioning of the occupants of the car by the police concerning the ownership of the television set in the trunk, the defendant Glasper claimed that he was the owner of the television set. After questioning, however, the defendant Glasper was -unable to correctly identify the brand of the set. Under these circumstances, the police officers radioed headquarters to check the NCIC (National Crime Information Center) stolen items checklist to see if the television set serial numbers were listed. It was reported back to them that the set was not so listed. At that point the officers then inquired of the occupants of the car and ran a police records check of all the individuals therein, but found that all of them had a clear record.

The defendant January was then arrested at the scene on the traffic warrant, although the officers decided not to arrest anyone for larceny or burglary. The officers made no search of the vehicle, but rather released the other three men, took the defendant January into custody, and arranged for the impoundment of the vehicle with the television set left inside the trunk. The vehicle and its contents were later taken to a nearby towing company and a few hours later it was discovered that the television set had in fact been stolen during the morning hours of October 15. The television set was subsequently removed from the towing facility and placed in the police property room as evidence. The defendants were charged with the crime of grand larceny by possession and thereafter found guilty at a trial by jury. The defendants appealed.

The Court of Appeals, Division One, in State v. Glasper, 9 Wn. App. 1011 (1973), affirmed the judgment and sentence by the trial court. The defendants thereafter filed a petition for review with this court, which we granted.

The defendants’ first contention in their petition for review is that the Court of Appeals erred in failing to hold under State v. Michaels, 60 Wn.2d 638, 374 P.2d 989 (1962), that the initial stop of the vehicle by the officers was a “pretext arrest” to legitimate an otherwise unconstitutional stop and search. We find this contention to be without merit. In the instant case the police had information that the driver of the suspect vehicle was in fact in violation of a traffic citation, and under such circumstances the officers had reasonable justification for stopping the vehicle and making inquiries of its occupants. State v. Gluck, 83 Wn.2d 424, 518 P.2d 703 (1974).

Furthermore, we agree with the Court of Appeals that State v. Michaels, supra, is not controlling on these facts to condemn the search incident to the pretext arrest since in the present case the officers conducted no search of the defendant’s vehicle incident to his arrest. Under the rule in this jurisdiction, the mere observation of that which is in plain view does not constitute a search, State v. Martin, 73 Wn.2d 616, 440 P.2d 429 (1968); State v. Raff, 70 Wn.2d 606, 424 P.2d 643 (1967); 68 Am. Jur. 2d Searches and Seizures § 23 (1973). Moreover, the officers in this case were in a lawful position to observe what was in their plain view after stopping the defendant’s vehicle to investigate the outstanding traffic warrant.

The defendants’ second argument before this court is that the television set should be suppressed as evidence since the police officers were not justified in impounding the vehicle with the television set in the trunk under the circumstances of this case. We disagree.

A police officer is not required to ignore items of possible evidentiary value which are in plain sight. State v. Helms, 77 Wn.2d 89, 459 P.2d 392 (1969); State v. Regan, 76 Wn.2d 331, 457 P.2d 1016 (1969); Harris v. United States, 390 U.S. 234, 19 L. Ed. 2d 1067, 88 S. Ct. 992 (1968). Under certain circumstances, where a police officer is lawfully within an area he may seize without a warrant an object that is within his plain view if he has reasonable cause to believe that it is contraband. State v. Day, 7 Wn. App. 965, 503 P.2d 1098 (1972). This basic rule was articulated by the Supreme Court of the United States in Coolidge v. New Hampshire, 403 U.S. 443, 468, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971), where the court stated the following:

[PJlain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent “exigent circumstances.” Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. Taylor v. United States, 286 U. S. 1; Johnson v. United States, 333 U. S. 10; McDonald v. United States, 335 U. S. 451; Jones v. United States, 357 U. S. 493, 497-498; Chapman v. United States, 365 U. S. 610; Trupiano v. United States, 334 U. S. 699.

(Footnote omitted.)

In the instant case we feel that under the total circumstances the incriminating nature of the evidence was sufficiently discernible to the police officers, and that the officers had reasonable cause to believe that the unpadded and unsecured television set was stolen property. The Court of Appeals stated as follows:

The television set was of possible evidentiary value: it was in the trunk of a car, the license number of which had been reported an hour earlier to police; the car had been driven in a manner unusual enough to impel someone in the neighborhood to report its activities to the police; the set was face down in the trunk, unpadded and unsecured; the claimed owner was unable to identify the brand of the set; and there were others present who could have disappeared with the set had it been left there by police.

Under these facts where the vehicle would have otherwise been moved with the vital evidence in the trunk, we believe the officers would have been justified in seizing the television set since the discovery of the incriminating evidence was inadvertent and the exigent circumstances of a “fleeting” vehicle existed which prevented the officers from procuring a warrant. Coolidge v. New Hampshire, supra. The United States Supreme Court, in Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280, 39 A.L.R. 790 (1924), addressed the dilemma of obtaining a warrant where law enforcement officers have probable cause to believe that an automobile contains contraband goods. In that case the court held that the warrantless search of an automobile and seizure therein of contraband liquor was lawful under certain “exigent circumstances,” reasoning that there is

a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

(Italics ours.) Carroll v. United States, supra at 153.

In the present case, however, rather than seize the television set in plain view in the trunk of the car, the police officers took the more cautious route of impounding the vehicle and waiting to confirm that the television set had in fact been stolen. Under the exigent circumstances of the case where the officers had probable cause to believe that the television set was stolen property, and that the car was being used in the commission of a felony, we hold that the impoundment of the vehicle was justified.

We, therefore, affirm the judgment by the trial court and the decision by the Court of Appeals as clarified by this opinion. It is so ordered.

Hale, C.J., and Rosellini, Hamilton, Stafford, Wright, and Brachtenbach, JJ., concur.