State v. Doleshall

765 P.2d 344, 53 Wash. App. 69, 1988 Wash. App. LEXIS 648
CourtCourt of Appeals of Washington
DecidedDecember 27, 1988
DocketNo. 18386-9-I
StatusPublished
Cited by2 cases

This text of 765 P.2d 344 (State v. Doleshall) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Doleshall, 765 P.2d 344, 53 Wash. App. 69, 1988 Wash. App. LEXIS 648 (Wash. Ct. App. 1988).

Opinion

Coleman, A.C.J.

James Doleshall appeals his conviction for three counts of first degree robbery, claiming that his constitutional rights were violated when he was compelled to submit to a lineup for criminal offenses unrelated to the offense for which he was in lawful custody and that the lineup was impermissibly suggestive. Doleshall also challenges his sentence. We affirm.

On November 2, 1985, Doleshall robbed the Gus Cooper Shell Station at knife point. During the robbery, a hidden camera was activated and a color photograph was taken. With this photo, the police were able to identify Doleshall.

On November 5, 1985, Doleshall was arrested and advised of his rights, which he then waived. Once confronted with the photo, Doleshall admitted that he had robbed the Gus Cooper Shell Station. On November 6, 1985, Doleshall appeared in district court where bail was set at $50,000. Later that evening Doleshall appeared in a lineup.

Detective Fann testified that initially Doleshall refused to be taken to the lineup. Detective Fann grabbed Dole-shall's arm when Doleshall attempted to walk back to his cell. Doleshall resisted and was then put in handcuffs. Doleshall finally agreed to go to the lineup after Detective Walker explained that they were taking him to see an attorney and that this was the normal procedure.

The witnesses present at the lineup included Welker (the attendant from the Gus Cooper Shell Station) and several witnesses from a number of unrelated robbery incidents. At the lineup, Welker identified Doleshall as the man who [71]*71robbed him on November 2, 1985. Four of the other witnesses present at the lineup also positively identified Dole-shall as the man who robbed them.

On November 7, 1985, Doleshall was charged by information with robbery in the first degree of the Gus Cooper Shell Station. On November 18, 1985, an amended information was filed charging Doleshall with five additional counts of first degree robbery. At a pretrial hearing, the trial court granted Doleshall's motion to sever the Gus Cooper robbery from the other five counts.

Prior to trial Doleshall moved to suppress the identifications resulting from the lineup on the grounds that there was no probable cause to arrest him for the offenses alleged in counts 1 through 5, the lineup was impermissibly suggestive, and physical force should not have been used to transport him to the lineup.

The trial court denied the suppression motion, concluding that the arrest and lineup for the Gus Cooper Shell Station armed robbery was proper and that given the totality of the circumstances, there was probable cause for the additional counts of armed robberies. The court ruled that the lineup was not impermissibly suggestive and that the force used to take Doleshall to the lineup theater did not invalidate the lineup procedure.

On March 20,1986, Doleshall was convicted as charged of robbery in the first degree on counts 1, 2, and 4. The jury found Doleshall not guilty on counts 3 and 5.

On March 20, 1986, Doleshall waived his right to a jury trial on count 6, the Gus Cooper Shell Station armed robbery, and submitted the police reports and exhibits to the court. The court found Doleshall guilty. On April 23, 1986, the court sentenced Doleshall to 153 months for counts 1, 2, 4, and 6 to run concurrently. It is from this judgment and sentence that Doleshall appeals.

We first decide whether a person lawfully held in police custody for an armed robbery may be compelled to appear [72]*72in a lineup for unrelated crimes for which there may not be probable cause to arrest.1 For purposes of this portion of his argument, Doleshall concedes that he was lawfully in custody for the Gus Cooper Shell Station robbery. We note that appellant is not appealing his conviction for that robbery. Rather, appellant contends that the police did not have probable cause to arrest him for the crimes alleged in counts 1 through 5 and that, therefore, his constitutional rights under the fourth amendment to the United States Constitution and article 1, section 7 of the Washington Constitution were violated when he was forced to appear in the lineup. We disagree.

We agree that appellant's incarceration did not strip him of all his constitutional rights. State v. Hartzog, 96 Wn.2d 383, 391, 635 P.2d 694 (1981). However, once appellant was initially restrained by lawful incarceration for the Gus Cooper Shell Station armed robbery without infringement of any search and seizure rights, the forced participation in the lineup did not constitute an unreasonable search and seizure. See United States v. Dionisio, 410 U.S. 1, 11, 14-15, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973). Accord, People v. Hodge, 186 Colo. 189, 526 P.2d 309 (1974) (where defendant was in custody as a suspect in a robbery, court held that defendant could be placed in a lineup on another unrelated robbery); People v. Hall, 396 Mich. 650, 242 N.W.2d 377 (1976) (because defendant's initial incarceration was lawful, his forced participation in the lineup on an unrelated charge did not constitute an unreasonable search and seizure). Accordingly, Doleshall's Fourth Amendment rights were not violated.

We next address appellant's contention that his right to privacy under article 1, section 7 of this state's constitution was violated. The Fourth Amendment protects individual [73]*73citizens against unreasonable seizures.2 The state constitution protects individual citizens against being disturbed in their private affairs without authority of law.3 In this instance, appellant's right against being disturbed in his private affairs was not violated.

Appellant relies on In re Armed Robbery, 99 Wn.2d 106, 659 P.2d 1092 (1983), to support his position. However, Armed Robbery does not, as appellant contends, address this situation. In Armed Robbery, unlike the present case, the appellant, Mr. T, was not in lawful custody when a court order was sought requiring him to appear in a lineup. Mr. T had not been arrested; he was at liberty.

In Armed Robbery, a grocery store had been robbed. The detectives investigating the robbery determined that Mr. T resembled the man described by the two store employees. Armed Robbery, at 107. After looking at a group of photos, one of the store employees told the detectives that Mr. T's photo bore a striking resemblance to the man who robbed the store. The employee requested a lineup because he was not convinced, due to the quality of the photograph, that Mr. T was the man who had robbed them. Armed Robbery, at 107.

The trial court, relying on a case which authorized a lineup order on less than probable cause, ordered the lineup. Mr. T immediately appealed to the State Supreme Court. Armed Robbery, at 108.

The Supreme Court concluded that "an individual may not be ordered to participate in a lineup where no probable cause exists to believe that the individual has committed [74]*74the offense under investigation."

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Bluebook (online)
765 P.2d 344, 53 Wash. App. 69, 1988 Wash. App. LEXIS 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-doleshall-washctapp-1988.