‘A search of the automobile could reveal nothing useful in establishing the offense for which the defendant was arrested — failure to signal for a left turn — and there was no reason to suspect that he would attempt to flee with the aid of something that might be found in the trunk of his car.’
How later courts described this case
- ‘A search of the automobile could reveal nothing useful in establishing the offense for which the defendant was arrested — failure to signal for a left turn — and there was no reason to suspect that he would attempt to flee with the aid of something that might be found in the trunk of his car.’
- reversing conviction for illegal possession of gambling devices, and suppressing evidence obtained in auto search incident to pretextual arrest for failure to give turn signal
- “An arrest may not be used as a pretext to search for evidence.” (citing United States v. Lefkowitz, 285 U.S. 452, 52 S. Ct. 420, 76 L. Ed. 877 (1932); Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961))
- failure to signal for left turn; search produced gambling equipment
Written by the judges who cited it.
Later courts went against this
Abrogated in part, on other grounds by State v. Ringer, 100 Wash. 2d 686 (1983)
374 P.2d 989, 992 (Wash. 1962) (en banc) (“An arrest may not be used as a pretext to search for evidence.”), abrogated in part on other grounds by Ringer, 674 P.2d at 1248
The opinion
Ott, J.
(dissenting) — The appellant moved to suppress the evidence in his trial before the justice court. The motion was denied. His appeal to the superior court from the justice court conviction was a trial de novo. State v. Buckman, 51 Wn. (2d) 827, 829, 322 P. (2d) 881 (1958), and cases cited.
*648 For the following reasons, the record before us does not support the conclusions of the majority that the trial court erred in denying the motion to suppress the evidence:
(1) Prior to December 23, 1959, the appellant made a pretrial motion to suppress the evidence. The motion was denied by Judge Story Birdseye on December 24, 1959. The motion and the supporting affidavit are not a part of the record before us.
Again, on January 21, 1960, at the time the cause came on for trial before Judge Henry W. Cramer, and before the jury was impaneled, appellant’s motion to suppress the evidence was renewed. The court read the motion and the affidavits of appellant George A. Michaels and officers Carlo C. Macri and Harold Reese, and, after argument of counsel, denied the motion. The trial court’s determination of the motion to suppress the evidence was based solely upon the affidavits supporting and resisting it, which are not a part of the record on appeal.
This court cannot review and reverse a trial judge’s decision when the evidence upon which it was based is not before us.
In Westlake v. Westlake, 52 Wn. (2d) 77, 78, 323 P. (2d) 8 (1958), we said:
“ . . . this motion and the preceding motion were decided on affidavits, all of which are not brought to this court in the statement of facts and are not identified in the order denying the new trial. Therefore, they cannot be considered on appeal, and the order cannot be reviewed. [Citing case.]”
The majority state the rule to be that, “In the absence of a showing that the evidence before the court did not justify the ruling, the presumption of correctness must pre vail.” (Italics mine.) In total disregard of the rules which the majority announce to be here- applicable, it is further stated:
“In the case before us, the circumstances of the arrest and search were disclosed by the testimony of the arresting officers, which is found in the statement of facts.”
*649 The statement of facts established the elements of the crime. The testimony of the officers relative to the arrest was introduced only to establish the fact of arrest and the commission of the offense. The testimony at the trial was not the evidence upon which the trial court denied the motion to suppress. Whether the testimony in the statement of facts relative to the arrest is the same as that contained in the affidavits, upon which the trial court based its decision on the motion to suppress the evidence, is a matter of conjecture on the part of the majority, since the affidavits upon which the trial court based its decision are not a part of the record on appeal. Our rules on appeal require the appellant to present the record upon which the alleged error is predicated. This the appellant has not done. Upon sheer conjecture relative to material issues of fact, and in utter disregard of the applicable rules of law and appellate procedure, the majority reverse the trial judge.
(2) The appellant admits that the officers arrested him for making an illegal left turn. After the arrest, the automobile was searched. In State v. Olsen, 43 Wn. (2d) 726, 728, 263 P. (2d) 824 (1953), we said:
“The arrest was for traffic violations committed in the presence of the arresting officer. It was a lawful arrest. State v. Llewellyn, 119 Wash. 306 , 205 Pac. 394 (1922). The search of the car was legal as an incident of the lawful arrest, for under the circumstances, the officers are not confined to a search of the person but may search the automobile which the person arrested was driving. State v. Cyr, 40 Wn. (2d) 840, 246 P. (2d) 480 (1952); State v. Deitz, 136 Wash. 228 , 239 Pac. 386 (1925); State v. Hughlett, 124 Wash. 366 , 214 Pac. 841 (1923). The fact that the appellant was charged with a crime, other than the one for which he was originally arrested, does not invalidate the arrest or the search which took place incident to the arrest. State ex rel. Fong v. Superior Court, 29 Wn. (2d) 601, 188 P. (2d) 125 (1948).
“It was not error to refuse to suppress this evidence, nor was it error to admit the articles in evidence, if otherwise competent.”
*650 The appellant does not contest the validity of his arrest for a traffic violation. The search of the automobile he was driving, following his lawful arrest, was not violative of his constitutional rights. State v. Olsen, supra.
The majority state that “In the present case there is no pretense that the arrest was made with any idea in mind except to gain access to the automobile and search it.” This statement is likewise sheer conjecture on the part of the majority. The record discloses that, immediately upon contacting the appellant, a citation to appear in court was issued and served upon him.
After making an arrest, a police officer has a duty to search not only for evidence of the offense but for weapons or articles capable of being used in escape or in resisting incarceration. The probable cause for the search was established by the fact of the arrest. State v. Olsen, supra. The testimony of the arresting officers establishes the reasonableness of the search, both for the purpose of obtaining evidence relative to the offense and for impounding any weapons the appellant might have had on his person of in the vehicle. The appellant did not offer himself 'as a witness or introduce any testimony to rebut the testimony of the officers. The assumption on the part of the majority that the original search was without probable cause or was unreasonable is not based upon any evidence in this record.
(3) Assuming, arguendo, that the motion to suppress is properly before us for review, the record does not sustain the conclusion of the majority.
The evidence establishes that the automobile did not belong to appellant; that he was not in possession of it, nor did he claim to have any dominion over it at the time the automobile was searched by the officers, and, finally, that the alleged unlawful items taken from the vehicle did not belong to him. Assuming these facts to be true, appellant cannot raise the question of an illegal search, when he had neither ownership of nor dominion over the property *651 being searched. In State v. Vennir, 159 Wash. 58, 61 , 291 Pac. 1098 (1930), we said:
“. . . Appellant did not admit ownership of this liquor, but denied any knowledge thereof, or that the automobile in which the same was found was his, or under his control, or that he had any connection whatever with that car or the contents thereof. This being true, appellant cannot contend that his constitutional rights were violated by the action of the officers in searching the car, and if, on the part of the prosecution, evidence was introduced which rendered the intoxicating liquor found in the automobile competent evidence against appellant, the same was properly received in evidence and considered by the jury.”
See, also, State v. Funk, 170 Wash. 560 , 17 P. (2d) 11 (1932).
No constitutional right of the appellant was invaded by the alleged illegal search of the property of another. State v. Wooten, 44 Wn. (2d) 177, 180, 266 P. (2d) 342 (1954), The motion to suppress the evidence was properly denied.
For the reasons stated, the judgment and sentence should be affirmed.