State v. Maxie

Hill, J.

— This is an appeal from a judgment of conviction on a charge of burglary. The only issue is whether the trial court erred in refusing to suppress the evidence, which was secured by searching the defendant at the time of his arrest, and in admitting that evidence at the trial over the objection of the defendant. This depends on whether the arrest, which preceded the search, was lawful; and that, in turn, depends on whether the arresting officer had reasonable and probable cause to believe that the defendant had committed a felony.

No elaboration of the law, as to when an officer may make an arrest without a warrant, is required; see State v. Brooks (1960), 57 Wn. (2d) 422, 424, 357 P. (2d) 735. In that case we used the following quotation from State v. Hughlett (1923), 124 Wash. 366, 368, 214 Pac. 841, 843:

“ ‘. . . Proper cause for arrest has often been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.

The determination of whether the arrest was lawful in this case, does not depend upon conflicting evidence but upon whether the affidavit¹ filed by the arresting officer, in opposition to the motion to suppress, spells out reasonable and probable cause.

At the time of the hearing on the motion to suppress, the arresting officer testified in person but added nothing material to his statement in the affidavit.

Briefly stated, the circumstances are: A police officer in a small town learned, at 1:45 a. m., that a cafe in the community had just been broken into and that the loot included a quantity of Canadian coins; and, then, a short time later when he learned from a waitress in an all-night cafe that a stranger, whom she pointed out, had just requested her to give him dollar bills for coins (mostly Canadian), which she had done; he questioned the stranger and, believing that he had committed the burglary, arrested him. We hold that these circumstances constitute reasonable and probable cause for his belief; hence, reasonable and probable cause for the arrest.

The trial judge, the Honorable Donald L. Gaines, made an admirably succinct analysis at the conclusion of the hearing on the motion to suppress, in which he said:

“. . . Now, again, we are down to the problem of whether the showing that is made here constituted reasonable cause to arrest the Defendant.

“Now, reasonable -cause is not proof sufficient to convict in the nature of things. Otherwise the police officer would be helpless to make an arrest unless he was handed a signed confession or something like that. The problem and the law is, what does constitute reasonable cause under the circumstances for a peace officer to make an arrest. He is called upon to make that decision, to make it quickly, and I sometimes think we hand the police officer the job of making the decision or making an arrest on an instant’s notice, that the courts v/ill spend hours debating whether cause existed or not. That is the problem a peace officer carries with him all the time, along with his badge.

“Now, do these facts constitute reasonable cause as set forth in Mr. Clark’s affidavit, as controverted by Mr. Maxie’s affidavit and explained by Mr. Clark’s affidavit, or testimony in court this morning.

u... I find there was probable cause to make this arrest and inquiry. Now, that doesn’t prove him guilty of the offense, that is what we have a trial for. The question is, did he have a right to make an arrest for a felony, and of course the test is, as our Supreme Court has just recently again reiterated, does he have probable cause in view of the circumstances as they confront him at the time to detain an individual as was done in this case.”

Much fun was made of the fact that the arresting officer made the arrest because, as stated in his affidavit, he had never seen the defendant in town before. When the mirth over the sallies subsides, there is found to be sound judgment in the officer’s statement. Had the person, pointed out by the waitress as changing the Canadian coins for dollar bills, been one of the other patrons of the cafe who lived in North Bend, the officer would have known that he had time for a more complete investigation and to ask for the issuance of a warrant; but when the suspect is a stranger and the officer has reasonable grounds to believe him guilty of a felony, an officer in a town like North Bend either arrests such suspect or takes the chance that within the next 45 minutes he will be somewhere in a large city if he travels west or south, or on the other side of the mountains if he travels east. As the trial judge pointed out in his oral opinion, an officer in these mobile days has to make his arrests fast or not at all.

This was not an arrest on mere suspicion. What we said in State v. Young (1932), 39 Wn. (2d) 910, 918, 239 P. (2d) 858, is applicable here:

“. . . A mere suspicion denotes lack of fact or evidence. Here the arrest was based upon reasonable grounds, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty of the reported felony. ...”

Indeed, a majority of this court are of the opinion that had the officer failed to make an arrest under the circumstances, he would have been derelict in his duty.

There was no reason to suppress the evidence, gained on the search following a lawful arrest. That evidence satisfied the jury that the defendant had been guilty of .two burglaries. The conviction is affirmed.

Finley, C. J., Donworth, Ott, Hunter, and Hamilton, JJ., concur.

1 “That he is Chief of Police, North Bend Police Department; that on the morning of February 22, 1961 at approximately 1:45 a. m., he received a call from Officer Clifford Riste that the Little Chalet Cafe had been broken into. Later that morning in the course of investigation the affiant and Officer Riste went to Ken’s Cafe, which cafe is open all night, and observed that there were five patrons there including the defendant. Affiant asked the waitress if any one had been in the cafe spending any amount of Canadian coins, since affiant had been informed by the owner of the Little Chalet Cafe that a quantity of Canadian coins had been taken from the cash register. She stated that the defendant had asked her to exchange some coins, mostly Canadian, that he had in his possession to dollar bills, which she did, giving him three one dollar bills. The defendant was then questioned and asked to show some identification, was placed under arrest and was then taken to a booth at the back of the restaurant and asked to empty his pockets. It was found that his pockets contained a large quantity of coins, partly Canadian and partly American, including a roll of dimes and a roll of quarters which had been reported taken from the cafe, as well as two mutilated dimes which the cafe owner indicated had been in the cash register.

“The arrest of the defendant at the time was without a warrant, but was based upon affiant’s belief that he had committed the burglary in question in view of the statement of the waitress and the fact that affiant had never seen him in town before.”