State v. Vaster

601 P.2d 1292, 24 Wash. App. 405, 1979 Wash. App. LEXIS 2752
CourtCourt of Appeals of Washington
DecidedOctober 8, 1979
Docket6201-1
StatusPublished
Cited by6 cases

This text of 601 P.2d 1292 (State v. Vaster) 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. Vaster, 601 P.2d 1292, 24 Wash. App. 405, 1979 Wash. App. LEXIS 2752 (Wash. Ct. App. 1979).

Opinions

Ringold, J.

Maurice Vaster appeals the judgment and sentence imposed upon his conviction of second-degree attempted burglary, two counts of first-degree burglary, and two counts of possessing stolen property.

Three questions are posited in this appeal, which we answer in the affirmative.

1. Was the search of defendant's residence for a suspect valid under the Fourth Amendment?

2. Was the seizure of the 16 mm. and 35 mm. cameras permissible within the "plain view" doctrine?

3. Was the search warrant for the second search valid?

During the early morning hours of May 31, 1977, police officers responded to a report of a possible burglary at the residence of Anita Dias, 5020 30th Avenue South in Seattle. This was the third time during the month of May that police had responded to burglary reports in the neighborhood. Upon arriving at the scene they ascertained that no one was at home, but a pane of glass from the front door had been broken and the door had been opened. There were wet footprints on the patio leading to the front door and away from it.

While inside Officer Baumgartner answered a telephone call from a neighbor who stated she had heard an alarm go off and seen a black male in a jogging suit leave the front door area of the Dias residence, run down the block approximately two doors and into a driveway. The officer proceeded down the block two doors to 5040 30th Avenue South. A K-9 police unit's tracking led them to the same location. At that address the officers noticed that the door to the enclosed front porch was ajar, and inside the door they observed muddy footprints matching those on the patio of the Dias residence. The officers concluded there was probable cause to search the residence for a suspect.

They knocked at the door and a Mrs. Wilson, also known as Mrs. Vaster, answered. They learned that she was the [407]*407owner and informed her that a suspect had been traced to her home, and asked permission to conduct a search. She assented. Upon entry, the officers noted muddy footprints on the kitchen floor similar to the ones on the patio. About this time the defendant Maurice Vaster and his sister confronted the officers and objected to the search. The defendant's sister specifically demanded that the officers secure a warrant. The officers ignored this demand and continued their search through the house for the suspect. Mrs. Wilson did not join in asking the officers to leave or to secure a search warrant.

In an upstairs bedroom Officer Jankauskas observed a 16 mm. movie camera with a luminous sticker reading "Environmental Protection Agency." He knew that upon the sale of government property, identifying stickers are removed. He inquired whether anyone living in the house worked for the Environmental Protection Agency (EPA) or whether anyone owned the camera. Vaster admitted that he did not work for the EPA or own the camera. The officer then seized the 16 mm. camera.

Officer Jankauskas also observed a 35 mm. camera on a nightstand similar to a 35 mm. camera that had been reported stolen in a car-prowl incident he had investigated at the Dias residence. He picked up the camera, examined it and memorized its serial number, but did not remove it from the residence.

A check of the serial numbers of both cameras confirmed that they were stolen. This information was included in the affidavit of probable cause used for securing a search warrant. A subsequent search of the Wilson residence authorized by the search warrant uncovered numerous other stolen items which were introduced over objection into evidence at defendant's trial.

Consent To Search

Whether consent is voluntary or coerced is a question of fact to be determined from all circumstances. State v. Johnson, 16 Wn. App. 899, 559 P.2d 1380 (1977). [408]*408The record indicates that the officers fully informed Mrs. Wilson, the owner of the home, of their intention to search for a suspect. The record reflects that Mrs. Wilson's consent was given voluntarily, although reluctantly. Consent reluctantly given does not amount to coercion. State v. Breckenridge, 4 Wn. App. 328, 481 P.2d 26 (1971). Mere persuasion does not constitute coercion. State v. Murray, 8 Wn. App. 944, 509 P.2d 1003 (1973). The defendant cites Tompkins v. Superior Court, 59 Cal. 2d 65, 378 P.2d 113, 27 Cal. Rptr. 889 (1963), for the proposition that a joint occupant who is away from the premises may not authorize police officers to enter and search the premises over the objection of another joint occupant who is present at the time. Tompkins v. Superior Court, supra, is distinguishable from the instant case: (1) the consenting occupant was not present at the time of the search, (2) the officer failed to disclose his purpose to the occupant who was present when attempting to search, and (3) the occupant who was present was not told that consent to enter had been granted by the absent occupant.

In the instant case (1) no contention is made that Mrs. Wilson as the owner of the house and a joint occupant lacked authority to admit the officers into the house and to consent to the search for the suspect, (2) the officers disclosed their desire to search in the presence of the defendant, (3) Vaster was aware that his mother had consented to the search, and (4) Mrs. Wilson did not revoke the consent to search. We conclude the Tompkins rule is inapplicable here. Vaster's reliance upon Duke v. Superior Court, 1 Cal. 3d 314, 461 P.2d 628, 82 Cal. Rptr. 348 (1969), and Lucero v. Donovan, 354 F.2d 16 (9th Cir. 1965) is misplaced; both cases depend upon Tompkins for their results.

In People v. Nunn, 55 Ill. 2d 344, 304 N.E.2d 81, cert. denied, 416 U.S. 904, 40 L. Ed. 2d 108, 94 S. Ct. 1608 (1974), the defendant had exclusive control of the area within his mother's house which was searched. Also, prior to the search the defendant locked the door to his room [409]*409and told his mother not to allow anyone to enter. In Nunn, the court stated:

[W]e find that the defendant had a reasonable expectation of privacy, and that this reasonable expectation was afforded the protection of the rights granted by the fourth amendment. No valid waiver of rights having been made, and a search by policemen having been performed, the defendant's fourth amendment rights were violated and the evidence seized during this search is inadmissible.

People v. Nunn, supra at 354.

In the present case there is no evidence that the defendant exercised exclusive control over any portion of the residence at 5040 30th Avenue South, as was shown in Nunn. On the contrary, Mrs. Wilson's bedroom door alone was equipped with a lock; this was the only evidence of any exclusive use and control of any area in the house.

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State v. Vaster
601 P.2d 1292 (Court of Appeals of Washington, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
601 P.2d 1292, 24 Wash. App. 405, 1979 Wash. App. LEXIS 2752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vaster-washctapp-1979.