Opinion

State v. Vaster

  • 24 Wash. App. 405
  • 601 P.2d 1292
  • 1979 Wash. App. LEXIS 2752
Court
Court of Appeals of Washington
Filed
Oct 8, 1979
Status
Published
Author
Dore
On the bench
Ringold, Dore, Andersen
Cited by
4 cases
Authority
More cited than 6.7%

holding where a guest does not maintain exclusive control over any portion of the residence, even if the guest has a legitimate expectation of privacy, a homeowner’s power to consent to a search of his own home overrides the objection of a guest to a search

How later courts described this case

  • holding where a guest does not maintain exclusive control over any portion of the residence, even if the guest has a legitimate expectation of privacy, a homeowner’s power to consent to a search of his own home overrides the objection of a guest to a search
  • defendant present and objecting

Written by the judges who cited it.

The opinion

Dore, J.

(concurring in part, dissenting in part) — I would affirm all counts of conviction, except count 4, which I would reverse.

I wholeheartedly agree with the majority's statement

We hold that Mrs. Wilson voluntarily consented to a search of her home for a suspect, which consent was never revoked. The police, however, were not authorized to make a general search of the house but only a limited one searching for a suspect. The seizures of the 16 mm. and 35 mm. cameras were outside the scope of the consent. Only an application of the "plain view" doctrine would permit constitutional seizure of the cameras.

I also concur in the majority's statement that State v. Murray, 84 Wn.2d 527 , 527 P.2d 1303 , cert. denied, 421 U.S. 1004 , 44 L. Ed. 2d 673 , 95 S. Ct. 2407 (1975), controls and sets forth the criteria for a valid and constitutional "plain view" seizure. These safeguard requirements needed *413 to justify a "plain view" seizure include (1) a prior justification for intrusion, (2) an inadvertent discovery of incriminating evidence, and (3) immediate knowledge by police that they have evidence before them.

In reference to the 16 mm. camera, which is the basis for the defendant's conviction under count 4, with the attached EPA (Environmental Protection Agency) sticker, the first two requirements of Murray are satisfied. However, when the officer made inquiries whether the defendant or anyone in the house owned the camera or worked for the EPA, this clearly evidenced that the officer did not have immediate knowledge the camera was stolen. From the record it is clear that without an exploratory question and answer as to whether any occupant worked at the Environmental Protection Agency, the officer was uncertain as to whether the 16 mm. camera was stolen. Thus, an essential requirement of the "plain view" doctrine was missing. I also hasten to point out that the officer never testified that he had reason to believe that the camera was stolen, independent of the information he received through his inquiry as to employment at the EPA.

The constitution does not permit an officer, although legally on the premises, to direct questions to the occupants to secure information to satisfy himself as to whether items he is viewing are stolen so he can make a seizure under the "plain view" doctrine. This is exactly what happened in the subject case. Consequently, I would have held that the seizure of the 16 mm. camera was illegal, as the third requirement of the "plain view" doctrine was not satisfied and therefore defendant's conviction on count 4, which was predicated on the theft of the 16 mm. camera, should be reversed.

Reconsideration denied December 19, 1979.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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