# In RE McNEAR v. Rhay > Washington Supreme Court · January 28, 1965 · 65 Wash. 2d 530 URL: https://www.frixlaw.com/law-library/cases/9549117 ## Case - **Full name:** In the Matter of the Application for a Writ of Habeas Corpus of Charles A. McNear, Jr., Petitioner, v. B. J. Rhay, as Superintendent of the State Penitentiary, Respondent - **Court:** Washington Supreme Court - **Decided:** January 28, 1965 - **Citations:** 65 Wash. 2d 530; 398 P.2d 732; 1965 Wash. LEXIS 744 - **Precedential status:** Published - **Opinion:** Concurrence by Finley - **Judges:** Hamilton - **Cited by:** 67 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by State v. Hill, 123 Wash. 2d 641 (1994). - Negative treatments: 1 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9549117 ## Opinion text *542 Finley, J. (concurring in the result)—The decision of the United States Supreme Court in Mapp v. Ohio, 367 U. S. 643 , 6 L. Ed. (2d) 1081, 81 S. Ct. 1684 , 84 A.L.R. (2d) 933 (1961), and the trend in subsequent state decisions clearly indicate that the exclusionary “fruit of the poison tree doctrine” of the Weeks 3 case is now supported by the great weight of authority, in fact is the law of the land, unless and until revised by authoritative court decisions. Since our decision in State v. Rousseau 4 and my concurring opinion therein, I have been convinced of the soundness of the evaluation by the late John H. Wigmore that the Weeks case and its so-called exclusionary doctrine is a contagion of sentimentality 5 —nothing more, nothing less. Furthermore, I think the policy considerations involved are unsound and unworkable and should not be perpetuated. In other words, if the courts are to “police the police,” and I can agree that in some respects the courts probably should, other procedures or judicial mechanisms should be exercised, such as contempt of court, 6 to correct and control interference or obstruction of the administration of justice. This in my judgment would be much more effective in regulating questionable police methods and in establishing proper police practices than the present policy of the judiciary of relying upon the Weeks-Mapp doctrine. I question whether law enforcement officers read the advance sheets, or for that matter the opinions of appellate courts in the bound volumes. If they do, or if they hear of decisions of the Weeks and Mapp variety, I am very dubious *543 about such decisions preventing a police officer from making an unlawful arrest, or search and seizure, when he is on the firing line, so to speak, attempting to apprehend a suspect, or trying to impound stolen goods or contraband. Suspension from duty, and without pay, compelled by contempt of court order under appropriate police disciplinary procedure and authority, has a much more convincing ring, and should be more reasonably effective in correcting overreaching police tactics. The suggested alternative law enforcement supervisory procedure has a most important byproduct: relevant, competent evidence, having effective and proper probative value (except for the Weeks-Mapp exclusionary policy) will be available and usable for the prosecution of criminal charges. It seems far-fetched, bordering on the grotesque, to expect to train police officers, and to better supervise questionable police tactics, by weakening the prosecution of criminal cases and actually in some cases turning criminals loose because, as Cardozo once said, “the constable has blundered.” 7 In addition, the Weeks-Mapp police administration policy is certainly not conducive to effective law enforcement respecting criminal offenders. The interests of the public in this and their protection from the predatory proclivities of the criminal element require some re-thinking in this area of the law apropos of a sounder solution of the problems of unlawful arrest, search and seizure, than I can find in Weeks and Mapp . I am convinced that a better solution can be found, and believe that the contempt of court procedure mentioned herein has rational and constructive possibilities. But only one or a few voices in dissent cannot hope to stem the present tide. And, for the time being at least, I am bound by Mapp v. Ohio, supra, so at the present time I reluctantly concur. Weeks v. United States, 232 U. S. 383 (1913). State v. Rousseau, 40 Wn. (2d) 92, 241 P. (2d) 447 (1952). 8 Wigmore, Evidence § 2184 (3d ed. 1940). Blumrosen, Contempt of Court and Unlawful Police Action, 11 Rut-' gers L. Rev. 526, 532 (1957). Unlawful arrest, search and seizure without warrant or probable cause could be prohibited and contempt proceedings could be authorized by promulgation of rules of court or by legislation, or both. Police officers violating the prohibition would be cited to show cause, or be held in contempt of court. Trial courts could impose sanctions against offending officers, conditioned upon disciplinary action being taken against the officers by appropriate police authorities within a period of time specified by court order. People v. Defore, 242 N.Y. 13 , 150 N.E. 585 (1926). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9549117. Public record. Not legal advice.