State v. Smith , 88 Wash. 2d 127 ( 1977 )

Wright, J.

Appellant Harold Bernard Smith was convicted of first-degree murder in the Superior Court for Clark County. The Court of Appeals determined that only three issues raised on appeal warranted any detailed consideration and discussion: (1) whether the seizure of Smith's clothes without a warrant when he was a patient in a hospital security room, plus admitting the clothes into the trial evidence against him, violated state (Const, art. 1, § 7) and federal (U.S. Const, amend. 4) constitutional prohibition against unreasonable searches and seizures; (2) whether the State established a prima facie case of the corpus delicti; and (3) whether the verdict was supported by substantial evidence. The Court of Appeals found no merit in appellant's contentions and affirmed his conviction of first-degree murder. State v. Smith, 12 Wn. App. 720, 531 P.2d 843 (1975).

We granted a petition for review essentially to consider only the first of the three issues referred to above. We hold that the seizure of the clothes was reasonable and constitutional and that they were properly admissible in evidence. We agree entirely with the decision of the Court of Appeals that the two other issues raised by appellant are without merit. Thus, we affirm the Court of Appeals and the trial court.

To put the issue regarding the seizure and the eviden-tiary use of appellant's clothes in proper perspective, a detailed and even somewhat lengthy statement of facts seems appropriate and should be helpful at this point.

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

Shortly thereafter, appellant for some unknown reason left the house again and walked toward a bridge that, at a point near the house, spanned the small creek. Kathleen Smith became concerned about her husband's strange conduct and the missing child. The Smiths had no telephone, so Kathleen went to the neighbors where she telephoned her husband's parents and told them about the missing boy and their son's unusual conduct. She then returned to the house and told her husband she had tried to call his parents but could not reach them. She was afraid appellant would leave if he was told the parents had been called and were coming to the house. When Kathleen asked again as to their son's whereabouts, appellant was evasive. Shortly thereafter, his parents arrived. The father asked where the boy was, and appellant responded, "I think he fell in the creek." The father then asked appellant if he tried to get him out. Appellant responded that, "He tried, but he couldn't." The parents then took their son to the hospital. He was checked in at the emergency room;¹ the emergency room contacted a doctor who ordered appellant confined in one of the security rooms of the hospital.

The parents of appellant contacted the Vancouver City Police Department which in turn contacted the county sheriffs office. The parents then returned to the home where the mother, Kathleen Smith, had been left. When several city police and sheriffs deputies arrived, they found Kathleen Smith walking back and forth in front of the home, hysterical and screaming. In talking with Deputy Sheriff Lentz, Kathleen Smith told him that her husband, earlier in the morning, was hysterical and distraught and, when questioned about their son, had said, "He's in the creek. I put him in the creek." Kathleen Smith and appellant's parents also told Deputy Sheriff Lentz that the appellant's pants, earlier that morning, "were wet from the knees down and had sand and mud on them." Appellant's parents took over the care of the younger child in the Smith home while several police and sheriff's deputies, as well as the mother, Kathleen, began a search outside the house for the missing child. Apparently the searchers fanned out in several directions, with the mother proceeding towards the creek. Shortly thereafter, Deputy Lentz and others heard the mother screaming. They found her in an open field about 50 feet from the creek sitting on the ground crying and screaming with the little boy in her arms. She had found him in the creek. Deputy Lentz immediately determined that the youngster was dead, apparently from drowning in the creek.

Deputy Sheriff Lentz observed that access to the creek wás extremely difficult because at the place where the mother had found the child it was surrounded by heavy underbrush, stickers, and brambles. He also observed that there were no scratches on the victim's legs, and from this concluded that the child had not gone to the creek voluntarily and under his own power but had been taken there by someone else. The creek at that point* was about 5 feet in width, its depth at the center varied from about 8 to 12 inches, and at the edges or banks was approximately zero. Appellant's belt was found on one bank of the creek adjacent to the place where the child's body was found in the creek. Also at this locale on the bank near the edge of the creek, there was an indentation where someone had sat down. The indentation had marks approximating those that could have been made by the corduroy pants worn by appellant. An ambulance was called, the child was taken to the hospital and was pronounced dead upon arrival. The subsequent autopsy indicated death by drowning and strangulation from water and sand. The autopsy revealed recent scratch marks on the boy's neck, bruises on the side of his head, a cut on his lips and apparently older bruises on the buttocks.

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

The ward clerk made a list of appellant's clothes. This was signed as a receipt by Deputy Lentz who then took the clothes to the sheriff's office where they were put in plastic bags for safekeeping as evidence. Subsequently, samples of sand taken from appellant's clothes, from the young victim's clothes, and from the center of the creek were analyzed by the Federal Bureau of Investigation's laboratory and found to be comparable.

In the trial court, defense counsel argued that the state and federal constitutional prohibitions against "unreasonable searches and seizures" were applicable to the seizure of the clothes and moved to suppress and exclude appellant's -clothes as evidence. The motion was denied by the trial court. Claims of error regarding denial of the motion will now be considered.

It is apparent that the fourth amendment to the United States Constitution and article 1, section 7 of the Washington State Constitution are comparable and are to be given comparable constitutional interpretation and effect. Accordingly, in this opinion, reference will be made only to the Fourth Amendment.

It is well settled and no authority is required for the proposition that the Fourth Amendment prohibits only "unreasonable searches and seizuresThe prohibition is cast in unquestionably general rather then in explicit and clearly definitive language. It reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

(Italics ours.)

To the practiced eye of a legal draftsman, it should be apparent that the amendment is phrased in general constitutional language rather than in the more detailed, definitive, and often more lengthy idiom or technique common to legislative drafting and enactment. The difference in the technique of drafting and the choice of language is, of course, appropriate and traditional in the formulation and writing of constitutional provisions. This probably is just another way of saying that judicial interpretation is both necessary and appropriate to give meaning, content, and legal effect to the very general, constitutional language used in the Fourth Amendment. Thus, while it is clear that the Fourth Amendment prohibits only unreasonable searches and seizures, there is no definitive or elaborative language as to what kind of searches and seizures are either unreasonable or reasonable. Force and effect as to the constitutional prohibition must be given or withheld through the process of judicial review and interpretation, which has been the name of the game at least since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803).

The minimal detail and definition in the drafting of the Fourth Amendment has generated problems of interpretation of considerable scope and significance. The task of filling in the details and definitions is not lessened or resolved but is more understandable and perhaps more acceptable when the necessity and the propriety of judicial review (i.e., interpretation and application of the constitutional language) is forthrightly and realistically recognized and emphasized. In this respect, it may be said — somewhat tangentially — that it is a disservice to think of constitutional interpretation solely as a mystical discovery or law-finding process known and practiced only by judges. Certainly it is not a process of unerring, absolute, and right perception of constitutional meaning available only to judges of appellate courts. Frequently, the process or function is in fact one of trial and error involving a balancing or weighing of competing values, and the making of value judgments. These often concern the rights and security of the individual versus or vis-a-vis the rights and security of society. The value judgments may have subjective as well as objective facets or connotations. In addition, the process is dependent upon and subject to the availability, recognition, and interpretation of the "so-called" facts and circumstances in each individual case as perceived by an appellate court majority at a given time and place. In litigated cases in our present order of things, an appellate court majority simply has the last say and the Supreme Court, of course, has the final say.

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

A quick review of several relevant decisions of the United States Supreme Court from Weeks v. United States, 232 U.S. 383, 58 L. Ed. 652, 34 S. Ct. 341 (1914) (involving a dictum regarding unlawful searches and seizures) — including but not limited to Rios v. United States, 364 U.S. 253, 4 L. Ed. 2d 1688, 80 S. Ct. 1431 (1960); Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967); Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969); Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971); and United States v. Watson, 423 U.S. 411, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976), truly indicates the rule as to these matters is not entirely clear.

The cases do establish the general principle that war-rantless searches and seizures are not necessarily unconstitutional, illegal, or void. It is said that they are prima facie suspect, or, as it is sometimes stated, warrantless searches and seizures are per se unreasonable unless they fall within specifically established and well-delineated exceptions to the rule. Katz v. United States, supra; Coolidge v. New Hampshire, supra. Decisions of the Supreme Court clearly emphasize an overriding principle or rule, the desirability— if not the necessity — for police officers to obtain search warrants unless 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. Trupiano v. United States, 334 U.S. 699, 92 L. Ed. 1663, 68 S. Ct. 1229 (1948).

It is well settled that a search and seizure without a warrant may be constitutionally valid if incidental to a lawful arrest, i.e., an arrest (1) based on a valid warrant, or (2) based only on probable cause. United States v. Watson, supra. Apparently the search and seizure still cannot be a wide-ranging, exploratory, rummaging, ransacking one, but must be restricted in time and place in relation to the arrestee and the arrest. Chimel v. California, supra.

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

The decision of the Supreme Court in United States v. Watson, supra, is ah interesting, and seems to be a significant, development or shift in the law respecting the interpretation, meaning, and effect to be given to the Fourth Amendment by the courts. On the basis of information from a very reliable informant, Watson was arrested without a warrant in a public restaurant. The question faced and decided by a majority of the court was whether such a warrantless arrest in a public restaurant can be valid and not in violation of the Fourth Amendment, when based only on probable cause without any showing of exigent circumstances. The majority opinion by Mr. Justice White answers the question in the affirmative. In part, it states:

The necessary inquiry, therefore, was not whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest. . . . Just last Term, while recognizing that maximum protection of individual rights could be assured by requiring a magistrate's review of the factual justification prior to any arrest, we stated that "such a requirement would constitute an intolerable handicap for legitimate law enforcement'' and noted that the Court "has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant." Gerstein v. Pugh, 420 U. S. 103, 113 [43 L. Ed. 2d 54, 95 S. Ct. 854] (1975).

. . . Congress has plainly decided against conditioning warrantless arrest power on proof of exigent circumstances. Law enforcement officers may find it wise to seek arrest warrants where practicable to do so, and their judgments about probable cause may be more readily accepted where backed by a warrant issued by a magistrate. See United States v. Ventresca, 380 U. S. 102, 106 [13 L. Ed. 2d 684, 855 S. Ct. 741] (1965); Aguilar v. Texas, 378 U. S. 108, 111 [12 L. Ed. 2d 723, 84 S. Ct. 1509] (1964); Wong Sun v. United States, 371 U. S. 471, 479-80 [9 L. Ed. 2d 441, 83 S. Ct. 407] (1963). But we decline to transform this judicial preference into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like.

(Footnotes omitted. Italics ours.) United States v. Watson, supra at 417-18, 423-24.

It must be recognized that the Watson decision involved a warrantless arrest, i.e., a seizure of the person, not a war-rantless seizure of evidence, and secondly, that the war-rantless arrest occurred in a restaurant not in a private home or residence.

The majority opinion by Mr. Justice White in Watson would support an intriguing and persuasive conjecture that the formula there adopted — probable cause — for validation of warrantless arrests in a public place also would apply to and validate warrantless searches and seizures respecting incriminating evidence in a public place. Based on the premise that arrest or seizure of a person seems a more serious, at least a more direct, interference with his freedom and liberty than the seizure of any personal effects as evidence of criminality, logic would seem to support application of the rationale of the Watson majority opinion to the seizure of evidence. However, the majority opinion in Watson is concurred in without comment only by Justices Rehnquist, Blackmun, and Chief Justice Burger. Justices Stewart and Powell concur in separate opinions. The opinion by Justice Powell suggests a possible difference between (a) probable cause validating warrantless arrests and (b) probable cause validating warrantless searches and seizures relating to evidence.

Our analysis tends to indicate that the existence of probable cause coupled with the presence of emergent or exigent circumstances regarding the security and acquisition of incriminating evidence, should be the controlling factors.

Incidentally, if a warrantless search and seizure is reasonably closely related in time and place to a lawful arrest, the search and seizure may be considered incidental to the arrest and, therefore, valid constitutionally whether the search and seizure occurs either before or after the arrest. State v. Brooks, 57 Wn.2d 422, 357 P.2d 735 (1960).

We have found no decision of the United States Supreme Court with a fact pattern identical, or so closely comparable, to that in the instant case to constitute controlling precedential case authority. Thus, we think the instant case is novel and perhaps sui generis as to both fact pattern and as to what interpretation and application of the Fourth Amendment would be appropriate under the circumstances.²

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

Considering the totality of the circumstances, we are convinced that Deputy Sheriff Lentz acted in a prudent, reasonable as well as an effective manner in obtaining the pants of the appellant for use as evidence of his complicity in the death of his young son by strangulation and drowning. What Deputy Lentz did was consistent with his role and function in our society as a well-trained, properly-disciplined police officer. It was good police work and should be characterized only as a reasonable and constitutionally valid seizure of incriminating evidence. We think the instant case meets the requirements of the probable cause plus exigent circumstances formula suggested in several Supreme Court decisions. Coolidge v. New Hampshire, supra; Vale v. Louisiana, 399 U.S. 30, 26 L. Ed. 2d 409, 90 S. Ct. 1969 (1970); Chimel v. California, supra; Warden v. Hayden, 387 U.S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967); McDonald v. United States, 335 U.S. 451, 93 L. Ed. 153, 69 S. Ct. 191 (1948).

The opinion of the Washington Court of Appeals, evaluating the problem in the instant case, states:

We hold that where a patient in the hospital turns over his clothes to a representative of the hospital, such as a staff member, and allows them to be placed in a common area outside the room to which he is assigned, he has relinquished exclusive control over them. The hospital, therefore, has at least joint control and may consent to their search and seizure. The record in the case at bar established that doctors and nurses, as well as the ward clerk who actually obtained the clothes, had free access to the area for a variety of uses. Though the anteroom was the only connection between Smith's room and the hallway, it was considered more a part of the hall. In fact, it seems likely that it was used as a buffer between the security room and the outside. This evidence was not controverted and there was no evidence that Smith did not freely acquiesce in the placing of his clothes in a common area and having the door locked between him and his clothes. For all he knew they were being taken to a place in the hospital far from his room and open to anyone. Smith made no attempt to conceal his clothes from public scrutiny, as contrasted, for instance, to one who hands over to a shipper a sealed case as in Corngold v. United States, 367 F.2d 1 (9th Cir. 1966).

(Italics ours.) State v. Smith, 12 Wn. App. 720, 725, 531 P.2d 843 (1975).

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

We think an even stonger case could be made to bolster and support the reasoning of the Court of Appeals. By his doctor's orders, appellant was placed in a security room of the hospital. He had little, if any, choice but to stay there until his doctor decided otherwise, and the hospital, ostensibly, would see to this. As a very practical matter, it is highly unlikely that appellant under the circumstances would have had any access to his clothes. Rather than joint control, the hospital and the ward clerk practically had total control of the clothes. The clothes were not in the security room nor were they in any other private, secluded, secure place. The appellant had done nothing to secure or secrete them. They were in a closet in an at least semipub-lic anteroom which also was open to and used generally at will by doctors, nurses, and other hospital employees. The decisions of the United States Supreme Court continue to declare that the primary purpose of the Fourth Amendment is to protect the privacy of an individual from arbitrary intrusions by government officials. Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967); United States v. Dionisio, 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973); South Dakota v. Opperman, 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976) (Powell, J., concurring). Given these facts, appellant had no reasonable expectation of privacy in the physical condition of his clothes.

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

While investigating a report about a missing child with several other officers, Deputy Sheriff Lentz learned that appellant Smith, with his 2 1/2-year-old son had left the family home around midnight. The small boy was dressed in rather scanty nightclothes. Seven hours later, the next morning around 7:15, the appellant, without his son, returned to the family home. When the mother inquired about the boy, the appellant was evasive. When questioned further, he told the mother that "He is, he is up on the hill in someone's car.” The mother became concerned about the missing son and her husband's strange conduct. She called her husband's parents. They took appellant to the Vancouver Hospital where he was placed in a security room pursuant to doctor's orders. Kathleen Smith, the mother, told Deputy Lentz that her husband was hysterical and distraught; that in talking about their son he told her, "He's in the creek. I put him in the creek." Kathleen Smith and the parents of appellant told Deputy Sheriff Lentz that appellant's pants were wet, had sand and mud on them below the knees. The child was found drowned in a small, rather shallow creek a short distance from the family home. Appellant's belt was found on the bank of the creek adjacent to the place where the child was found. Deputy Sheriff Lentz observed that the brush and brambles were very thick along the small creek at the location where the child was found. He thought that the brush and brambles would have scratched and cut the child's legs if he had gone through the brush by himself, but the deputy saw no cuts or scratches on the little boy's legs. There were scratches on the boy's neck, recent bruises on the side of his head, and older bruises on his buttocks. Deputy Lentz concluded there had been foul play and that the boy had been carried through the brush and put in the creek by someone.

The circumstances were strongly incriminating and made the father of the victim a prime suspect. Armed with substantially all of the foregoing information constituting probable cause and a factually emergent and exigent situation, Deputy Sheriff Lentz reacted promptly, effectively, and reasonably as a well-trained police officer should. He went in hot pursuit of the appellant and the incriminating clothes. There was in fact probable cause at the time for Deputy Lentz to have arrested the appellant lawfully at the hospital — without a warrant. He did not do so but he obtained the clothes from the hospital ward clerk whose function it was to look after the clothes of hospital patients. We think the wetness of the pants with sand and mud on them, ostensibly from the creek where the boy was drowned, presented Deputy Lentz with an emergent or exigent situation as to which he had to act promptly. Otherwise, the pants could have lost their significance as evidence by being washed, dried, and pressed in a very short time as a routine matter in the hospital laundry at the instance of the ward clerk or someone else. In any event, the pants would have dried out. Obtaining the pants promptly, observing their condition as to wetness, sand, and mud, ostensibly from the creek where the child was drowned, was good police work under these circumstances. Deputy Lentz was doing no more than preserving significant and incriminating evidence from possible loss. It seems to us beyond debate that the testimony of Deputy Lentz and the laboratory report from the Federal Bureau of Investigation regarding the sand and mud on the 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 constituted probable cause and the facts were sufficiently emergent or exigent to justify the warrantless seizure of appellant's pants by Deputy Lentz.

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

The decision of the Court of Appeals and the judgment of the trial court should be affirmed. It is so ordered.

Hunter, Hamilton, Brachtenbach, and Dolliver, JJ., concur.

Stafford, C.J., concurs in the result.

1 During the admission procedure, appellant requested Mrs. Odegard, a nurse's assistant, to give him a cup of coffee and appellant told her, "'I think I drowned my own son, but I don't remember.'”

2 We are well aware of the decision in Morris v. Commonwealth, 208 Va. 331, 157 S.E.2d 191 (1967). Although this case invalidated a warrantless seizure of a hospital patient's clothes on Fourth Amendment grounds, it is factually distinguishable. In Morris, no emergent, exigent, or in the court's own words, "exceptional1' circumstances existed which could justify a warrantless seizure of the hospital patient's clothes. Due to its particular factual pattern, the reasoning in Morris is not persuasive and is not applicable to the unique facts found in the present case.