State v. Proctor

529 P.2d 472, 12 Wash. App. 274, 1974 Wash. App. LEXIS 1122
CourtCourt of Appeals of Washington
DecidedDecember 16, 1974
Docket2330-1
StatusPublished
Cited by24 cases

This text of 529 P.2d 472 (State v. Proctor) 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. Proctor, 529 P.2d 472, 12 Wash. App. 274, 1974 Wash. App. LEXIS 1122 (Wash. Ct. App. 1974).

Opinions

Williams, J.

Norman Edward Proctor was charged with the crime of grand larceny by possession of stolen goods. Proctor moved to suppress certain evidence. The motion was considered at a pretrial hearing, and denied. Trial before the court, sitting with a jury, resulted in a verdict of guilty. Proctor appeals from the order deferring imposition of sentence entered upon the verdict.

The principal issue is raised by the court’s denial of the motion to suppress. The facts are that, late in the evening of December 13, 1972, in Seattle, a police officer responded to an alarm which was sounding in a real estate office owned by Proctor. When the officer arrived, he discovered that a basement door was open, and the alarm was still operating. The officer found no one inside, but he did observe a great deal of office equipment and other items, including an outboard motor, two movie projectors, and six radios. Previously, the officer had been told by an informant that Proctor engaged in selling and storing stolen property. He therefore copied the serial numbers of three calculators. A check of the police burglary records disclosed that the calculating machines had been stolen.

Based upon the foregoing information, a search warrant was issued by a district court, and the calculating machines were seized. Later, another warrant was issued and additional property taken. The trial court hearing the motion to suppress believed that the information about Proctor and the existence in the real estate office of a large quantity of office and other equipment was sufficient to justify either a seizure of the property without further investigation or the issuance of a search warrant. The listing of the serial numbers was, therefore, of no consequence.

[276]*276Proctor contends-that the listing of the serial numbers constituted an unlawful “seizure” of property in his office, and that without the information gained from the use of those numbers, there was not probable cause for either seizure of the property or the issuance of a search warrant. He relies upon United States v. Langley, 466 F.2d 27 (6th Cir. 1972), and State v. Murray, 8 Wn. App. 944, 509 P.2d 1003 (1973), aff’d, 84 Wn.2d 527, 527 P.2d 1303 (1974), in support of this proposition. Langley is distinguishable. There, the police went to the defendant’s house because of a report that it was being burglarized. One of the officers entered the back of a truck parked in the driveway and noted down markings on several large crates which were inside. The police had no information that there was anything unusual about either the truck or the crates. The court held that the officer’s entry into the truck and the copying down of the markings was “a step beyond that which was sanctioned by the circumstances.”

In Murray, the police were given permission to search the defendant’s premises for video and office equipment. The search was unsuccessful. On the way out, an officer noted the serial number of an ordinary television set located in the living room of the apartment, although he had no reason to believe that there was anything unusual or suspect about it. The court held that the serial number was taken outside the scope of the consent, and ordered it suppressed as fruit of an unlawful search. Murray is an illustration of what the United States Supreme Court meant in Coolidge v. New Hampshire, 403 U.S. 443, 466, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971), when it said:

Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the “plain view” doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.

In other words, police who are rightfully upon a citizen’s property for a limited purpose may not rummage about in [277]*277the hope or expectation that incriminating evidence or contraband will turn up. But that is not this case. The information which the police had about Proctor, coupled with the incongruity of the items seen in the business office, gave the officer probable cause to believe that he was looking at stolen property. It was reasonable for him to note the serial numbers. State v. Palmer, 5 Wn. App. 405, 487 P.2d 627 (1971). Moreover, in police work, circumstances sometimes develop in which an intermediate response is appropriate. If a police officer has a “well-founded suspicion not amounting to probable cause” that a person has, is, or is about to commit a crime, that person may be detained for investigatory purposes without an arrest. Adams v. Williams, 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972); State v. Gluck, 83 Wn.2d 424, 518 P.2d 703 (1974). The temporary detention may continue while the officer questions other persons present or radios police headquarters to check the information gained. State v. Sinclair, 11 Wn. App. 523, 523 P.2d 1209 (1974); State v. Kerens, 9 Wn. App. 449, 513 P.2d 63 (1973). See also United States v. Van Leeuwen, 397 U.S. 249, 25 L. Ed. 2d 282, 90 S. Ct. 1029 (1970); United States v. Soriano, 482 F.2d 469 (5th Cir. 1973); United States v. Garay, 477 F.2d 1306 (5th Cir. 1973); United States v. Catanzaro, 282 F. Supp. 68 (S.D.N.Y. 1968). A noting of the serial numbers on the calculators was such an intermediate response.

Proctor next contends that the trial court erred in instructing upon both circumstantial and direct evidence, because all of the evidence in the case was circumstantial only. This is not true; there was considerable direct evidence bearing upon the issues. State v. Douglas, 71 Wn.2d 303, 428 P.2d 535 (1967), relied upon by Proctor, requires that when inconsistent inferences of the defendant’s guilt or innocence may reasonably be drawn by circumstantial evidence, the jury must be instructed that

the circumstances proved by the state must not only be consistent with' each other and consistent with the hypothesis that the accused is guilty, but also must be in [278]*278consistent with any hypothesis or theory which would establish, or tend to establish, his innocence.

State v. Gillingham, 33 Wn.2d 847, 854, 207 P.2d 737 (1949).

Proctor’s proposed instruction incorporated this rule.

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State v. Proctor
529 P.2d 472 (Court of Appeals of Washington, 1974)

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Bluebook (online)
529 P.2d 472, 12 Wash. App. 274, 1974 Wash. App. LEXIS 1122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-proctor-washctapp-1974.