# State v. Daugherty > Washington Supreme Court · September 11, 1980 · 94 Wash. 2d 263 URL: https://www.frixlaw.com/law-library/cases/9623477 ## Case - **Full name:** The State of Washington, Petitioner, v. James Joseph Daugherty, Respondent - **Court:** Washington Supreme Court - **Decided:** September 11, 1980 - **Citations:** 94 Wash. 2d 263; 616 P.2d 649; 1980 Wash. LEXIS 1367 - **Precedential status:** Published - **Opinion:** Dissent by Utter - **Judges:** Williams, Utter - **Cited by:** 77 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9623477 ## Opinion text Utter, C.J. (dissenting) — I dissent. The majority's characterization of the issue is correct: if the officers' warrant-less seizure of the safe in Daugherty's garage was unlawful absent a lawful prior search and intrusion by the officers notwithstanding their clear view of the safe from outside of the garage, the evidence should be suppressed. Conversely, if the officers' seizure followed such a lawful prior intrusion upon an area protected under the Fourth Amendment, during which the safe was inadvertently discovered, then the seizure itself is lawful, since the safe had obvious evi-dentiary value. Whether the intrusion was in fact lawful depended upon whether there were exigent circumstances justifying the officers' flanking action around Daugherty to the right of the truck. If the officers' testimony is accepted, their subsequent discovery of the safe was inadvertent, satisfying the requirement in Coolidge v. New Hampshire, 403 U.S. 443 , 29 L. Ed. 2d 564 , 91 S. Ct. 2022 (1971), that the discovery of the evidence must be inadvertent. Coolidge , at 471. *273 The trial court heard two officers' testimony of their concern for an accomplice and their practice intended to protect themselves from attack. It found the officers' testimony to be credible. This finding is entitled to special weight inasmuch as the trial court typically has the opportunity to hear and observe the officers who carried out the challenged search and seizure and is in the best position to determine their credibility, as compared to the reasonableness of their conduct. We should not disregard the trial court's finding unless the record compels a contrary view that the officers' testimony is not credible. This record does not compel such a contrary view although there is testimony, which the trial court heard, that could justify a contrary conclusion. While an independent evaluation of the evidence may be justified by this court as asserted by the majority, it should not ignore the trial court's unique opportunity to determine whether the officers subjectively feared an accomplice was present and whether the belief was reasonable. Any other standard places us in the same indefensible position that existed prior to Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959). Although an appellate court in a search and seizure case must conduct its own independent evaluation of the evidence, the trial court's findings on the reasonableness of the officers' actions are entitled to great weight on appeal, because the trial court had an opportunity to observe the officers and gauge their credibility. A review of the record to determine what evidence exists to support the trial court's finding discloses evidence of Daugherty's presence at the oyster company, his recent employment by the company, and likelihood of his having a key to the outer door, though not the broken office door. This justified the officers' prompt investigation of his possible involvement. Reports of the size of the safe, and inferentially, its weight, as well as certain damage done to the office door, could have fairly suggested to the officers *274 the participation of an accomplice. While a different conclusion could be reached from that evidence, as the majority so concludes, the evidence does not compel a different conclusion, and the majority, in a case where it could not evaluate the candor of the witnesses, is simply substituting its view of the officers' subjective beliefs for that of the trial judge without the opportunity to hear their testimony and determine their credibility. This is not and should not be the function of an appellate court. Upon arriving at Daugherty's house to pursue their investigation in these circumstances, the officers were entitled to take minimal precautions to assure their safety. In State v. Toliver, 5 Wn. App. 321 , 487 P.2d 264 (1971), the court reasoned that the need of the police to assure their safety, recognized as justifying a "stop and frisk" in Terry v. Ohio, 392 U.S. 1 , 20 L. Ed. 2d 889 , 88 S. Ct. 1868 (1968), similarly may justify other intrusions otherwise barred by the Fourth Amendment. In that case the court held police officers' entrance into a house subsequent to an arrest was justified by reliable information that the arrested man's associates within the house were armed with guns and would use them to protect their friend, and the officers then hearing a commotion inside the house after the arrest. The police then entered after those inside had disregarded their warning to emerge. The circumstances of Toliver are different from those existing here in that the officers in that case had more specific and reliable evidence of a potential threat to their safety. However, the intrusion sought to be justified in that case was also more extreme than that at issue here. Different degrees of intrusiveness require different degrees of justification. Terry v. Ohio, supra at 18 n.15. A closer fact pattern is found in United States v. Blalock, 578 F.2d 245 (9th Cir. 1978). There, following arrest of the defendant in his shop for trafficking in narcotics, a police officer quickly checked behind the counter as part of an "eyeball search" of the front room of the shop for accomplices. The court approved this limited cursory check, *275 during which the heroin was discovered, as necessary for the safety of the arresting officers. United States v. Blalock, supra at 248. While I would not hold the type of evidence confronting the officers in this case would justify the type of invasion executed by the officers in Toliver , I do believe the evidence taken in light of reasonable police practice justifies the type of limited cursory check approved in Blalock . I would hold that where an officer approaches a felony suspect and has good reason to believe the suspect is accompanied by an accomplice, the officer may permissibly perform a limited and cursory search of the immediate area from which the officer may be the target of gunfire. This holding would comport with the essential reasoning of the court in Terry v. Ohio, supra, and its progeny, in that the permissible search must be limited in scope and only for the purposes of securing the safety of the investigating officers. Having found substantial evidence to support the trial court's finding that the officers' intrusion was permissibly made for their asserted reasons, I would find consistent with Coolidge that the safe was permissibly seized thereafter, and properly introduced into evidence at Daugherty's trial. I would reverse the judgment of the Court of Appeals and reinstate the trial court's judgment convicting the defendant on charges of second degree burglary and second degree theft. Wright and Horowitz, JJ., and Britt, J. Pro Tern., concur with Utter, C.J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9623477. Public record. Not legal advice.