State v. Fowler

SHEPARD, Justice.

This is an appeal from a conviction of assault with a deadly weapon which was entered following a trial and a jury verdict of guilty. We affirm.

Defendant Fowler had a long-standing feud with one Gene Mileck. Shortly after midnight during June, 1976, someone fired a series of shots into the Mileck home and set fire to two automobile vans belonging to Mileck which were parked outside his home. Shortly thereafter, Mileck received a phone call, in which the caller expressed dismay that Mileck was still alive and threatened to kill Mileck the next time. Mileck identified the voice of the caller as that of defendant Fowler. Fragments of bullets were found in the Mileck home, which later ballistic tests indicated were fired from a .45 caliber revolver found in the possession of defendant Fowler.

Prior to August 31, 1977, marital difficulties had arisen between defendant Fowler and his wife, and the three Fowler children were staying with one Karen Erk, Mrs. Fowler’s sister. Mrs. Erk believed that Mrs. Fowler had obtained a restraining order preventing defendant Fowler from interfering with her custody of the children. That restraining order was not issued and served on Fowler until September 1.

On August 31, 1977, an unidentified person phoned the Kootenai County Sheriff’s Office to report that defendant Fowler was driving from Spokane to. the Erk residence in Idaho to abduct a young girl. An officer Black was dispatched to the Erk house. During that time, defendant Fowler, who was described as highly agitated, had arrived at the Erk residence and demanded a gun, which Erk refused to give to him. Fowler then left with one of the children. Mrs. Erk talked with the Sheriff’s Office about the incident because she was concerned over the safety of the child. While officer Black was driving to the Erk house, he saw a car matching the description of the Fowler vehicle moving in the direction of Spokane.

Officer Black radioed the Sheriff’s Office and in turn the Washington State Patrol were notified that defendant Fowler was driving toward the Idaho-Washington state line, was involved in a kidnapping, and was believed to be armed and dangerous. On the Washington side of the state line, two troopers, Kentworthy and Wunseh, saw the defendant in his automobile and began following him. Although the defendant illegally changed lanes and was speeding, the Washington officers did not use their sirens or lights, nor did they pull him over. Since they were informed that Fowler was armed and dangerous, they intended to stop him further down the highway where more troopers were waiting.

Before reaching the planned interception point, however, Fowler pulled his automobile over onto the shoulder, stopped, got out of the car and walked toward one of the troopers. He was covered with a shotgun, frisked, handcuffed, and placed in the trooper car. Trooper Wunseh approached the Fowler car and noted two weapons in plain view on the back seat of the car. He opened the car door, took those two weapons which were unloaded, and found a third loaded .25 caliber automatic underneath the front seat of the car. Those guns were placed on the hood of the Fowler vehicle.

At about that time, Idaho officer Black arrived at the scene, as did Mrs. Fowler, accompanied by one Tuefel. Tuefel indicated that the two unloaded guns from the back seat belonged to Tuefel and had been stolen. Mrs. Fowler informed Trooper Kentworthy that another gun still remained in the car. Further examination of the vehicle revealed an unloaded .45 caliber revolver under the front seat of the vehicle, which Mrs. Fowler then stated was used “in the Mileck deal.” The Washington state troopers retained the loaded .25 caliber automatic weapon for further proceedings in Washington and handed over the other three firearms to Idaho officer Black.

It is defendant Fowler’s principal contention on appeal that the .45 caliber revolver was the product of an illegal search, was illegally seized and should have been suppressed. Because of the above recited complex facts, it may be useful to note what this case does not involve. Fowler had voluntarily pulled off the highway, stopped his vehicle, exited therefrom, and approached the police. Hence, the case does not involve the legality of an involuntary stop. Our narrow focus is on the question of whether the Washington state troopers lawfully searched for and seized the .45 caliber revolver hidden beneath the front seat of the Fowler vehicle. That issue must be addressed with particular attention to Washington state law.

The case at bar is distinguishable from State v. Lesnick, 84 Wash.2d 940, 530 P.2d 243, cert. denied, 423 U.S. 891, 96 S.Ct. 187, 46 L.Ed.2d 122 (1975). In Lesnick, the Washington Court held that the police had no right to rely on an anonymous tipster to stop Lesnick’s car, and because that stop was not warranted, the police had no right to be in a position to observe gambling paraphernalia in the back seat of defendant’s vehicle. Here, however, Fowler had voluntarily pulled his vehicle off the highway, stopped and exited his car. Hence, Washington state trooper Wunsch had a right to be where he was when he observed the two weapons in plain view on the back seat of the car since Wunsch’s presence at the car was not the result of an illegal stop.

We hold that the officer had probable cause to initially enter the car. He had been informed, through a police agency, that Fowler was driving a vehicle into the State of Washington, was armed and dangerous, and was in the course of committing a felony. When he approached the car, he saw two weapons in plain view on the back seat. A Washington statute prohibits the carrying of a loaded pistol in a vehicle.¹ The trooper’s investigation of the status of the weapons and his subsequent finding of the third loaded weapon were certainly warranted and no more than would be expected of a reasonable and competent police officer.

Further, as above noted, that entry was terminated and those weapons placed upon the hood of the Fowler vehicle. None of those “seized” weapons were relevant to the instant case nor were they offered or admitted in evidence. It was only after the arrival on the scene of Fowler’s wife and Tuefel that an additional search ensued which produced the weapon in controversy here. The facts as noted above support the finding of probable cause to search for the fourth gun. Fowler, who was accused of kidnapping, was found in a car with a child and a loaded gun. The information leading to this belief stemmed in part from a statement of an eyewitness (Erk), that she feared for the safety of the child. The two other guns found in the car were identified as being stolen. Fowler’s wife indicated that another gun, which may or may not have been loaded, was still in the car. When the police are told that a gun is still in a car that is parked on the side of a heavily used highway and the situation is as potentially explosive as this one was, it would be unreasonable for the police not to search for the gun. Once the police have probable cause, they may search a car parked on a public highway without a warrant under the automobile exception. See Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Pate, 12 Wash.App. 237, 529 P.2d 875 (1974); State v. Orcutt, 22 Wash.App. 730, 591 P.2d 872 (1979).

It is also argued that the delivery of the gun by the Washington state trooper to Idaho officer Black was somehow invalid. The requirement for search warrants protects an individual from unreasonable official intrusions. Here, the search was valid and once the weapon had been lawfully seized by the Washington state trooper, the intrusion into privacy ceased. Officer Black, by accepting the delivery of the gun from the Washington state trooper, was not intruding into Fowler’s privacy. Black was familiar with the Mileck assault, knew that Fowler was a suspect and had knowledge, through Mrs. Fowler, that the weapon had been used in the Mileck assault. We hold that argument to be without merit.

We turn now to the admissibility of the testimony of Fowler’s wife. At the time of trial, Fowler and his wife had been divorced. Fowler asserts, nevertheless, that the testimony of his ex-wife should have been excluded under the marital privilege doctrine. I.C. § 9-203(1) encompasses two privileges: (1) neither spouse may testify for or against the other without the other spouse’s consent, and (2) neither spouse may testify as to any communication made by one to the other during marriage. A divorce prior to trial terminates the incompetency of one spouse to testify against the other. See State v. Anspaugh, 97 Idaho 519, 547 P.2d 1124 (1976). Divorce, however, does not terminate the privilege afforded marital communications made during the existence of the marriage. State v. Anspaugh, supra. That privilege may encompass non-verbal acts which are communicative in nature, i. e., the shaking or nodding of the head or the like.

At the time of trial, Fowler’s former wife testified that Fowler possessed a .45 caliber revolver at the time of the Mileck assault, that the gun was kept in Fowler’s nightstand, and that she moved the gun to a different location in the summer of 1977. Fowler argues that knowledge of the gun was a confidential spousal communication. We do not agree. Knowledge of the possessions of one spouse and their location is generally not a spousal communication. See United States v. Bolzer, 556 F.2d 948 (9th Cir. 1977). Her testimony as to her own actions is also not a marital communication. See State v. Hermes, 71 Wash.2d 56, 426 P.2d 494 (1967). Hence, we find no merit in Fowler’s assertion that the testimony of his former wife was inadmissible.

We have examined appellant’s remaining assertions of error and find them to be without merit. The judgment is affirmed.

McFADDEN, J., concurs. DONALDSON, C. J., and BAKES, J., concur in the result.

1 . The applicable Washington statute, R.C.W.A. 9.41.050, provides in pertinent part: “No person shall carry a pistol in any vehicle unless it is unloaded * * * without a license therefor as hereinafter provided.”