City of Tacoma v. Horton

382 P.2d 245, 62 Wash. 2d 211, 1963 Wash. LEXIS 323

• Court: Washington Supreme Court
• Decided: May 29, 1963
• Docket: 36019
• Status: Published

Opinions

Per Curiam.

July 1, 1960, the residence of a Sergeant Mathis, at 1615 South L Street, was under surveillance by a Tacoma police officer. The sergeant was seen leaving the premises about 3:05 a.m. He was questioned, but not arrested, by the police officer (relative to a matter not in issue in this appeal), who took the sergeant to the police station for further interrogation.

At about 5 a.m., Sergeant Mathis took the police officer to his residence, unlocked the door, and invited him to enter. The police officer had a search warrant for the premises, but it was not served. Upon entering the premises, the police officer saw Alice Horton in bed and asleep with a Sergeant Edwards, who he knew was not her husband. When he questioned them, Sergeant Edwards admitted that, as a result of Alice Horton’s invitation to him at the Congo Bar, he had had intercourse with her for an agreed financial consideration. The statement was denied by Alice Horton. She further stated that she was a temporary guest of Sergeant Mathis. She was arrested and charged with disorderly conduct, in violation of the city ordinance, in that she had solicited and practiced prostitution in the city of Tacoma.

Alice Horton entered a plea of not guilty. She made a pretrial motion, supported by affidavit, to suppress the evidence, contending that the search of the premises was illegal. The motion was denied. She waived a jury, and the cause was tried to the court. The motion to suppress was renewed at the beginning of the trial. Defense counsel offered to read to the trial court the former motion and affidavits, which had been considered by the judge who heard the motion calendar. The trial court reserved its ruling on the motion.

The plaintiff called as witnesses the Tacoma police officer and Sergeant Edwards, who testified substantially as above indicated. When the police officer was asked whether he had a search warrant for the premises at the time in question, he answered: “Yes, we had a warrant, but we never made use of it. We didn’t have to.” The plaintiff rested. The motion to suppress was renewed, and denied as follows:

“ . . . I think the evidence shows that this man who let them in had evidence of possession. He had the key to the place. . . . Apparently they walked in with the person in possession and then saw this act being committed. The Court will deny the motion.”

The defendant did not offer herself as a witness; nor was any evidence offered to establish a defense.

The court found the defendant guilty of disorderly conduct, and sentenced her to 90 days in the county jail (30 days to be suspended upon good behavior). The defendant has appealed.

Appellant’s sole contention on appeal is that the search was illegal and that the court erred in refusing to suppress the evidence. We do not agree.

The pretrial motion to suppress the evidence was denied. The motion and the affidavits, together with the oral testimony, were again considered by the judge who tried the case, and the motion was again denied. Neither the written motion nor the affidavits are in the record on appeal. Without the benefit of the evidence upon which the trial court denied the motion to suppress, we must assume that the evidence which the court considered was sufficient to establish the legality of the entry. See Pierce Cy. v. King, 48 Wn. (2d) 43, 46, 290 P. (2d) 462 (1955); Whittaker v. Weller, 21 Wn. (2d) 716, 721, 152 P. (2d) 957 (1944); Alexiou v. Nockas, 175 Wash. 142, 143, 26 P. (2d) 619 (1933); Olson v. Hoar, 174 Wash. 696, 698, 26 P. (2d) 86 (1933); In re Jordan’s Estate, 171 Wash. 624, 630, 18 P. (2d) 855 (1933).

Under these circumstances, we do not reach the alleged merits of the appeal.

The judgment and sentence is affirmed.