State v. Sullivan , 65 Wash. 2d 47 ( 1964 )

Finley, J.

This is an appeal from a judgment imposing a maximum term of 20 years on a charge of illegal possession of narcotics.

Preceding the trial of defendant-appellant Sullivan, a motion was made to suppress certain evidence on the grounds that it was the product of an unlawful search and seizure, and not incidental to a lawful arrest. The motion was denied. The questioned evidence was admitted by the trial judge, and, ostensibly, considered by the jury. Here on appeal, error is assigned respecting the failure of the trial judge to exclude the questioned evidence.

There is no substantial dispute as to the facts. Officers Joe Kneeland and Donald Cameron, of the Seattle Police Department, were on duty in a prowler car in the Garfield High School area on the evening of April 13, 1962. They paced an automobile which was going 34 miles per hour in a 25-mile-an-hour zone and, subsequently, stopped it. Officer Kneeland, the driver of the prowler car, stepped alongside the “stopped” car on the driver’s side. Officer Cameron took a position on the passenger side of the “stopped” automobile. Officer Kneeland interrogated the driver of the car (appellant-defendant Sullivan), and asked to see his driver’s license. Sullivan stated that he had none. Thereupon, Officer Kneeland, following routine procedure, requested the driver to step out of the car. As the driver complied, the opening of the car door turned on a light which illuminated the front seat, as well as the front floor area of the car. At this point, Officer Cameron saw a glass, pharmaceutical ampoule on the floor adjacent to the front seat on the passenger side of the car. He reached into the car and picked up the ampoule. His exclamation, “Methedrine!”, was overheard by Officer Kneeland.

Officer Cameron requested the occupant of the passenger side of the front seat to get out of the car, and then proceeded with a search of the front seat area. He found another one-cc. glass, pharmaceutical ampoule of Methedrine. Officer Kneeland, proceeding almost simultaneously, searched the sweater pockets of appellant Sullivan and found two marijuana cigarettes. Shortly thereafter, a search of appellant Sullivan’s apartment, with his consent, resulted in the discovery of a third, partially-smoked, marijuana cigarette.

In appellant’s behalf, it is argued that Officer Cameron, in reaching into the car and seizing the small one-cc. ampoule of Methedrine from the floor of the car, engaged in a search and seizure which was not incident to the traffic-speeding arrest and was, therefore, unlawful. It is argued further that the subsequent search of the person of Sullivan, which produced the marijuana cigarettes, was unlawful for the same reason. Basically, appellant reasons or argues that the ampoules of Methedrine and the marijuana cigarettes actually were secured in an unlawful search and seizure, and, consequently, were inadmissible as evidence under the so-called “fruit of the poison tree” doctrine. (See: Mapp v. Ohio (1961), 367 U. S. 643, 6 L. Ed. (2d) 1081; Weeks v. United States (1913), 232 U. S. 383, 58 L. Ed. 652; State v. Buckley (1927), 145 Wash. 87, 258 Pac. 1030.) Both pharmaceutical ampoules, bearing the label “Methedrine” and containing one cc., each, of the drug, and the two marijuana cigarettes and a third “half-smoked” one, were admitted into evidence and are before this court as part of the record on appeal.

Each of the arresting officers testified that, at the time of the arrest, he thought “Methedrine” was either a narcotic, or was used extensively by addicts and was closely associated with the illegal trade and use of narcotics.¹ We are convinced that the general circumstances following the routine technical apprehension for speeding (most particularly, the sighting on the floor of the car the glass pharmaceutical ampoule, unmistakably designed to permit its liquid contents to be administered hypodermically), suggested reasonably reliable and persuasive overtones of narcotic violations to the arresting officers. Officer Cameron, having sufficient probable cause to believe narcotic violations were being committed to make an arrest, was justified in reaching into the car and picking up the first ampoule. See State v. Brooks (1960), 57 Wn. (2d) 422, 357 P. (2d) 735, where the sighting of bags of uncuffed pants in the rear seat of an automobile was sufficient cause to believe a felony had been or was being committed, and to justify the arrest and the search incident thereto.

The conclusion seems inescapable that no unjustified search and seizure had occurred prior to the time that Officer Kneeland was informed that an ampoule of Methedrine (a drug known to be closely associated with narcotic addiction and illegal traffic in narcotics) had been found on the floor of the car. In this connection it was not unreasonable to infer that the ampoule had been thrown to the floor in accordance with a recognized, common tendency of law violators to rid their persons of illegal, contraband articles when about to be apprehended by the police. Reasonable cause existed to believe that narcotic violations had been committed, or were in progress, and thus the probable cause to make an arrest justified the search of the person of the suspect, appellant Sullivan.

There is another ground upon which this conviction should be affirmed. It involves the following combination of facts and legal conclusions. First, the defendant was under technical arrest when he was stopped for the traffic violation. At this point, perhaps the search and seizure activities of the officers were restricted in terms of purpose and scope in relation to (a) the traffic violation, and (b) the safety of the officers. But, Officer Cameron then by happenstance observed what appeared to him to be contraband on the floor of defendant’s car. This discovery gave rise to probable cause for the officers to believe that the defendant was committing a felony in their presence, and they then searched him, while he was still under arrest for the misdemeanor, to seize the narcotics that they strongly believed he possessed.

Perhaps it should be mentioned that as a general rule a person is placed under arrest when he is deprived of his liberty by an officer who intends to arrest him. It is not always necessary for an officer to make a formal declaration of arrest. See: 1 Varon, Searches, Seizures and Immunities 75 (1961); Henry v. United States (1959), 361 U. S. 98; United States v. Boston (1964), 330 F. (2d) 937, 939. Officer Kneeland testified that he had arrested the defendant when he turned on his red light and pulled the defendant over to the curb for the misdemeanor, i.e., speeding. This conclusion is supported by the record considered as a whole.

Thus, it was after the, defendant had been arrested for speeding that Officer Cameron, by happenstance, noticed the ampoule on the floor of the car and thought he recognized it as contraband. At the trial, defense counsel asked Officer Cameron why he had asked the passenger to step out of the car. Officer Cameron answered:

“I [have] only seen an ampoule like this twice before. Both times with Methadrine. I wanted to make sure it was Methadrine. Sitting would make it difficult to pick it up, crossing over him, not very polite.”

It is unlawful in the state of Washington for a person to possess Methedrine unless he has a valid prescription for it. RCW 69.40.061. Thus it seems that the doctrine or statement of Carroll v. United States (1925), 267 U. S. 132, 149, 39 A.L.R. 790, is pertinent, as follows:

“On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. ...”

Aside from the arrest for speeding, the officer had the right and the duty to seize what reasonably appeared to him to be contraband.

The fact that he was under arrest for speeding did not insulate and protect the defendant from seizure of contraband when it was observed by the officer standing outside the car in the street. We think it significant that it does not appear that the officers were looking for contraband; but when they did, by happenstance, come upon it, they were not prevented from seizing it by the fact that they had only arrested the defendant for speeding. Harris v. United States (1947), 331 U. S. 145, 155. Thereafter, as indicated above, upon discovering contraband, the police officers were justified in searching the defendant for other evidence of narcotic violations, as they then had probable cause to believe that a felony was being committed in their presence.

We are not convinced that the constitutional rights of the defendant and the protection he was entitled to thereunder required the officers to proceed in a different manner. In fact, if the officers had acted otherwise, this might well have been considered dereliction of duty on their part.

In State v. Michaels (1962), 60 Wn. (2d) 638, 374 P. (2d) 989, we held that an arrest for a traffic violation, made as a mere pretext for a search of an automobile for contraband, did not justify the search and necessitated judicial suppression of any evidence so obtained. The record before us in the present appeal indicates that the initial traffic arrest was nothing other than routine. The subsequent searches were instituted not according to preconceived design, but after the coincidental sighting of suspicious-looking drug ampoules within the car. The facts in the instant case do not bring it within the ambit of the decision in the Michaels case.

As we have concluded that the searches and the arrests were lawful, it follows that the action of the trial court was proper in denying the motion to suppress the seized evidence. The judgment of the trial court is affirmed.

Ott, C. J., Weaver and Hamilton, JJ., concur.

1 “ . . . The dangerous drugs that are most commonly used by ‘thrill seekers’ are in the amphetamine category. These popular drugs are commercially known by their brand names: Benzedrine, Desoxyn or Methedrine. For legitimate medical purposes, amphetamines are often used for weight control, to counteract depression, in the treatment of alcoholism, narcolepsy, or barbituate poisoning. Amphetamines in liquid form are infrequently used by psychiatrists, and by clinics and hospitals in certain preoperative and postoperative situations.

“Among the ‘thrill seekers’ these amphetamines are taken intravenously in extremely large doses and in this manner they maintain a state of euphoria. Many heroin addicts claim that amphetamines are as satisfactory to their sordid desires as any heavy narcotic. According to Federal and state narcotic agents, many known addicts of heavy narcotics in this area are maintaining their habit and not suffering any of the typical withdrawal symptoms, merely by substituting amphetamines for heroin, opium, morphine or other narcotics.

“It was discovered by the Committee that on the streets of Seattle massive quantities of these dangerous drugs, in both solid tablet and liquid form, are unlawfully available, and are being used and resold by many persons. The Seattle Police Narcotics Division estimated that there are at least 300 known users. An admitted peddler of dangerous drugs testified before your Committee that there were at least 400 known users of amphetamines among his customers. ...” Joint Committee on Governmental Cooperation, 1963 Washington State Legislature: Report and Recommendations—Narcotics and Dangerous Drugs in Washington, page 42.