Petition — Fowler v. Idaho

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80 - 9 03 MICHAEL RODAK, JR., CLERK

CASE NO.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF IDAHO

Respondent

WILLIAM V. FOWLER

Petitioner

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF IDAHO

STEPHEN B. McCREA

Attorney for Petitioner

Post Office Box 1501

Coeur d'Alene, ID 83814

(208) 667-1676

QUESTIONS PRESENTED FOR REVIEW

1. Where a citizen driving on the

highway is stopped and placed under

custodial arrest to investigate whether

he has committed a felony, as falsely

alleged by an anonymous informer, is a

search of the vehicle, pursuant to the

arrest, valid if the police also cite

the citizen for a traffic offense.

2. Can an item be seized without

probable cause, for investigatory pur-

poses, by an officer from another juris-

diction, on the scene as a result of

false information.

PARTIES

The parties to this action are

William V. Fowler, Petitioner, and the

State of Idaho, Respondent.

TABLE OF CONTENTS

Notice of Appearance. .....

Certificate of Filing by Mail .

Certificate of Service. ....

Questions Presented for Review.

Parties 335 eas : ee ee ey ene

Reference to Reports. .....

Jurisdictional Grounds. ....

Constitutional Provisions

ROLES UpGW.. 6a sk eee

Statement of the Case .....,

ArQumens. 4-3 se sf ee ee eee

rrovabie Cause. so Ss Lee

me arrest. «oe Lee

30e@ Seisure: sd GOS

APPENDIX:

Opinion of the Supreme

Court State of Idaho. ....

Pages

° i

; ii

‘ iv

° 1

2-3

° 3-4

~- 4-10

11-16

- 16-24

- 18-21

» 21-24

- la-36a

CITATIONS

Brown v. Illinois, 422 U.S. 590

hs | Pe a oo ae Oe

Mapp v. Ohio, tg U.S. 643

‘ay 22 Pare 7s me gee

State v. Hehman, 90 Wash.2d ithe

578, P.2d 527 (1978).

Whitely v. Warden, 401 U.S. 560

£39747. + 7 . . * « . . . . 7

wong Sun v. U.S., 371 U.S. 471

TUE «66 wear aoe i's

Pages

18,20

12,15

REFERENCE TO REPORTS

The opinion of the Supreme Court of

the State of Idaho has been reported, un-

officially, in 27 Idaho Capital Reports

1089.

JURISDICTIONAL GROUNDS

The decision of the Supreme Court of

the State of Idaho affirming the judg-

ment of the trial court was entered on

the 7th day of October, 1980. Jurisdic-

tion is sought on the grounds that the

Idaho Supreme Court, the court of last

resort in the State of Idaho, has de-

cided a federal question in a way which

is in conflict with applicable decisions

: Of this Court. The Statutory provision

relied upon for jurisdiction is 28 USC

§ 1257 (3) because Petitioner claims a

right to be free from unreasonable

searches and seizures, as guaranteed to

him by the 4th Amendment of the United

States Constitution and made applicable

to the states by the 14th Amendment of

the United States Constitution and by

various decisions of this Court. The

protection assured by the 4th Amendment

has been transgressed by the decision

of the Supreme Court of the State of

Idaho.

CONSTITUTIONAL PROVISIONS RELIED UPON

The right of the people to

be secure in their persons,

houses, papers and effects,

against unreasonable searches

and seizures, shall not be

violated, and no warrants

shall issue, but upon prob-

able cause, supported by

Oath or affirmation, and

particularly describing the

place to be searched, and

the persons or things to be

seized.

U.S. CONST. amend. IV

All persons born or natu-

ralized in the United States,

and subject to the juris-

diction thereof, are citi-

zens of the United States

and of the state wherein

they reside. No state

Shall make or enforce any

law which shall abridge

the privileges or immuni-

ties of citizens of the

United States; nor shall

any State deprive any per-

son of life, liberty, or

property, without due

process of law; nor deny

to any person within its

jurisdiction the equal

protection of the laws.

U.S. CONST. amend. XIV, § 1.

STATEMENT OF THE CASE

In this case the Petitioner had been

having marital difficulties and has

separated from his wife. His three

daughters were staying with his sister-

in-law. Unbeknownst to the Petitioner,

his wife sought a restraining order

granting temporary custody of the chil-

dren to her. The order was not served

upon Petitioner.

On August 31, 1977 the Petitioner

went to the residence of his sister-in-

law, Mrs. Erk, and asked for his gun.

Mrs. Erk refused. Petitioner then left

with one of his daughters.

Sometime prior to his arriving at the

Erk residence, an unidentified person

phoned the Kootenai County Sheriff's

Office to report that the Petitioner was

driving from Spokane, Washington, to

Coeur d'Alene, Idaho, to "forcibly take

a juvenile female from the residence."

(testimony of Officer Black at Motion

to Supress, p. 28, al. 21-22.)

On his way to the residence, the

officer observed the described auto-

mobile heading in a westerly direction

on Interstate 90 (toward Spokane,

Washington) and alerted other authori-

ties. Subsequently, the Washington

° State Patrol received a message that the

vehicle was enroute to Washington and

that the subject was involved in a kid-

napping, was armed and dangerous.

Eventually two Washington State

patrol cars pulled up behind the vehicle

driven by the Petitioner, Fowler, on

Interstate 90, east of Spokane, in the

State of Washington, and proceeded to

follow him. One of the officers testi-

fied that the vehicle then went partially

onto the shoulder of the road and back

again. The officers had radioed for

assistance and had two backup units

waiting to assist the troopers further

down the road when the Petitioner volun-

tarily pulled over, exited his car and

walked back towards them, with his hands

visible, and asked what the problem was.

One officer covered Petitioner with a

Shotgun while he was frisked, handcuffed

and placed in the rear of the Washington

State patrolman's vehicle. At the

Motion to Supress, one officer testified

"We were just acting on our radio's in-

formation and as far as we knew, we

might have had to release the subject

once the Idaho authorities arrived."

The other officer testified "Until the

Idaho authorities arrived, we weren't

Sure exactly what we had."

The officer then approached the

vehicie driven by Petitioner and observed

a rifle and shotgun laying in the back

seat. These were removed, examined, and

found to be unloaded. Another weapon, a

loaded .25 caliber pistol, was found

underneath the driver's seat.

Subsequently, the Petitioner's es-

tranged wife arrived at the scene, on

the shoulder of the freeway, and indi-

cated that there was another weapon in

the car, a 9mm automatic. The officer

examined the car again and found a .45

caliber revolver which was unloaded.

About that time, the Kootenai County,

Idaho, Sheriff's deputy arrived on the

scene and Mrs. Fowler stated to him,

pointing at the .45 revolver, "That was

the gun used in the Mileck deal."

Whereupon the Idaho officer seized all

the weapons, except for the .25 caliber

pistol. The reason for the seizure, as

Stated by the officer at the Motion to

Suppress, was "for further investigation,

for if nothing else, to ascertain owner-

Ship." (Motion to Supress transcript,

p. 33, 11. 16-18.)

Petitioner was cited by the Washington

State Police for a traffic violation and

on having a loaded weapon in the car.

Subsequently, he was charged in Idaho

with assault with a deadly weapon, a

felony.

At the trial, the ballistics test

Showed that the .45 caliber weapon

seized was the weapon used to fire shots

at the wall of a house, owned by one

Gene Mileck.

Petitioner's former wife identified

the weapon as being her husband's.

Petitioner was notified that she was

being called as a witness only two days

prior to the trial, even though she was

Subpoenaed two weeks prior to trial.

Petitioner was convicted and sen-

tenced to an indeterminate period, not

to exceed three years in the custody of

the State Board of Corrections.

Petitioner raised the issues p: e-

sented regarding the search and seizure

of the weapon at a motion to suppress

evidence based upon an unlawful, ille-

gal and unconstitutional search and

seizure, prior to trial. (Clerk's

Transcript on Appeal, p. 53, Court's

Decision, pp. 81, 85, 99.) The issue

was again raised on appeal, Appellant's

Brief, pp. 7, 8, 12.

The issue regarding the testimony of

Petitione’'s wife to testify was raised

at trial by objection (Trial Transcript,

p.- 127, 11. 5-7) for motion for a mis-

trial, Trial Transcript, pp. 208-209,

and in Appellant's Brief on appeal, pp.

Tt» doe

ARGUMENT

Bill Fowler was driving his automo-

bile with his daughter in the front seat.

He noticed two police cars following

closely behind him. He pulled over to

allow them to pass or to see if they were

after him. The officers pulled over as

well. Because Fowler had a weapon in the

car, he exited so that there would be no

misunderstanding. His arms and hands

were in plain view.

One police officer raised his weapon.

Fowler was handcuffed and placed in the

back seat of the patrol car. His free-

dom to travel had been brought to an

abrupt halt.

The officers then proceeded to rummage

through his automobile. His private

possessions were intruded upon by the

authority of the State, backed by weapons

and methanical restraints. How can this

happen? Someone -- identity unknown --

Said that Fowler was invovled in a kid-

napping.

An individual is protected from being

seized and his property searched by the

4th Amendment of the United States

Constitution, which has been made appli-

cable to the states through the 14th

Amendment. Mapp v. Ohio, 367 U.S. 643

(1961). If the officers had probable

Cause to stop and search the automobile,

the intrusion could have been justified.

But where the information which the offi-

cers relied upon was not based on prob-

able cause, the results of the search,

pursuant to the arrest, must be Suppres-

Sed. This court has so ruled in

Whitely v. Warden, 401 U.S. 560 (1971).

In that case, the petitioner challenged

the constitutionality of the search and

seizure of evidence from his automobile

by a federal writ of habeas corpus, after

exhausting applicable state remedies.

Whitely was accused of breaking and

entering into a business by a county

sheriff who signed the complaint charg-

ing the petitioner. A warrant for his

arrest was issued and a bulletin was

broadcast on the police radio describing

petitioner, the type of car he was prob-

ably driving, the amount of money which

was taken, and reciting the fact that a

warrant had issued for his arrest. The

petitioner was subsequently arrested by a

° a patrolman on the basis of the radio

7 bulletin. Pursuant to the arrest, a

search of petitioner's vehicle was made

and fruits of the crime found.

The Court held that because the in-

itial complaint lacked sufficient infor-

mation upon which a judicial officer

could make an independent finding that

probable cause existed to justify the

issuance of a warrant, the arrest was

invalid. Because the arrest was invalid,

the search pursuant to the arrest was

declared to be illegal and the evidence

Gbtained as a result thereof was suppres-

sed. The respondent argued that regard-

less of the insufficiency of the com-

plaint, the officer who made the arrest

possessed sufficient factual information

to support a finding of probable cause

for arrest without a warrant.

The Court held "the standards appli-

cable to the factual basis supporting

the officer's probable cause assessment

at the time of the challenged arrest and

search are at least as stringent as the

Standards applied with respect to the

. Magistrate's assessment." Whitely v.

Warden, 401 U.S. at 566. The Court

determined that the radio message in and

of itself did not provide sufficient

probable cause to arrest without a

warrant.

The Court held that the actual arrest-

ing officer is entitled to assume that

the officer requesting aid via radio

offered the Magistrate information

sufficient to support an independent

judicial assessment of probable cause

and act on the strength of the radio

bulletin. But the Court further stated

"Where . . . the contrary turns out to

be true an otherwise illegal arrest can-

not be insulated from chailenge by the

decision of the instigating officer to

rely on fellow officers to make the

arrest." 406 U.S. at 568.

PROBABLE CAUSE

There was no probable cause for the

troopers in Washington to arrest Peti-

tioner. They received information on

their radio which had been received from

Idaho. The information was that the

Sheriff's Department had information

from an unnamed source that Petitioner

was enroute from Spokane to remove a

juvenile female from the Erk residence.

The State of Idaho was unable to show

whether any inquiry had been made as to

the relationship between Petitioner and

the juvenile female, his daughter. Had

a Magistrate been involved, one or two

questions would have sufficed regarding

the relationship between Petitioner and

the juvenile, to demonstrate whether or

not probable cause existed. The facts

Show that Petitioner was not arrested

and could not have been arrested for

kidnapping his own daughter, and an

inquiry into the situation by a neutral

person would have prevented this intru-

sion into the private affairs of the

Petitioner.

The Idaho Court seemed to believe that

there was an eyewitness to support the

fact that there had been a kidnapping.

The testimony from this witness, however,

indicated that she was not the person who

provided the information to the sheriff's

deputy who relayed the information to the

Washington State authorities.

Other issues may be raised as to

whether the Washington State Police had

independent grounds to arrest and whether,

even if independent grounds existed to

—

search, there was probable cause to

seize the unloaded revolver.

The Arrest

> of

The first question is whether

Petitioner was actually arrested. The

holding of the Court in Brown v. Illinois,

422 U.S. 590 (1975), confirms that the

action of the police did constitute an

arrest. The Petitioner was placed in

the rear of a patrol car and handcuffed.

His freedom to leave was definitely

restrained. The Idaho Court commented

on the voluntariness of Petitioner stop-

ping his car. The stop was voluntary

Only because two patrol cars were behind

him. The officers testified that Fowler

came back to ask what the problem was.

It also seems clear that the arrest was

not for the traffic violation. Citizens

are not normally arrested at the point

Of a shotgun for traffic violations.

The statements of the arresting officers

confirm that the custodial arrest was not

for the traffic violation. Each State

trooper stated he didn't know what they

had and they were holding Petitioner

until the authorities from Idaho arrived.

In the present case, the traffic cita-

tion, it seems, was given to Petitioner

as an afterthought. Cf. State v. Hehman,

90 Wash.2d 45, 578 P.2d 527 (1978) (cus-

todial arrest for traffic violation

against public policy, prospective appli-

Cation only.)

The officers attention was drawn to

Petitioner because of the radio broad-

cast. Only after they began following

him did they observe him cross onto the

Shoulder of the road. At that point

they chose not to arrest him. To Say

that the custodial arrest was based upon

the traffic violation would be to allow

- police officers to construct, after the

fact, grounds for an arrest. The offi-

cers own testimony was that they did not

know if Petitioner would have to be re-

leased when the Idaho authorities arrived

On the scene. To determine whether the

citation for the traffic offense legiti-

mized the custodial arrest, an analogy

to the tests of Wong Sun v. U.S., 371

U.S. 471 (1963), and Brown v. Illinois,

422 U.S. 590 (1975), is appropriate. If

the traffic citation was sufficiently

attenuated from the custodial arrest

based upon the kidnapping, the seizure

of Petitioner's person was not tainted

by the illegality of the initial grounds

of the arrest and the subsequent acts

may be valid. But, the acts of the

officers had one purpose -- to detain

Petitioner until the Idaho authorities

arrived. The traffic citation was no

more than a pretext, used to justify the

initial unlawful seizure of Petitioner's

person. Similarly, the arrest for pos-

session of a loaded weapon arose only

after the initial detention and search

of the car. The evidence found after

the search cannot justify the arrest.

The arrest should be found to be illegal

and the evidence which was seized as a

result should be suppressed.

The Seizure

Assuming, arguendo, the search was

valid, the question remains whether

probable cause existed to seize the un-

loaded weapon from the vehicle. The

most important point is that there was

nothing inherently illegal about Peti-

tioner possessing the unloaded .45, nor

was there probable cause to believe the

weapon was an instrumentality or evidence

of the crime with which Petitioner was

subsequently charged twenty days after

the seizure. Once it had been determined

the gun was not loaded, there was no

reason to keep the weapon. Only after

the seizure did the State run a ballis-

tics test which showed that the weapon

was the one used in the assault with a

deadly weapon charge. It was the seizure

and subsequent testing of the weapon

which gave the State of Idaho probable

cause to charge Petitioner with thecrime.

The officer from Idaho who seized the

weapon stated he seized it "for further

investigation, for if nothing else to

ascertain ownership." No decision of

this Court permits seizure of evidence

without probable cause, whether evidence

is seized pursuant to a warrant or pur-

Suant to an exception to the warrant

requirement.

The seizure was made because an un-

identified person alerted the police that

Petitioner was involved in a kidnapping.

This statement was patently untrue.

This is what brought the deputy sheriff

to the scene. The Idaho Court seemed to

believe the information came from an eye-

witness. This is not borne out by the

record.

As a result of the false information,

the officer placed himself in a position

where he could seize the weapon without

obtaining permission from the Petitioner.

It cannot be said that because Petitioner

was in custody any of his property was

subject to examination and testing by

the police. This Situation is precisely

why the 4th Amendment was adopted.

Petitioner's wife stopped at the scene

and indicated to the officer that the

gun was used in the "Mileck deal." Even

though the officer had some knowledge of

this incident, the reason for the seizure

was testified to by the officer: "for

further investigation. . ." The Idaho

Supreme Court did not determine whether

probable cause existed for seizure of the

revolver.

The unlawful seizure of the property

of Petitioner warrants suppression of the

evidence. This Court should grant Peti-

tioner's request for certiorari to the

Supreme Court of Idaho to determine the

validity of the arrest and whether prob-

able cause existed to seize the revolver.

STEPHEN B. McCREA

Attorney at Law

105.N. 4th P.O. BOX 1501

COEUR d’ALENE, ID 83814

APPENDIX

Opinion of the Supreme Court

IN THE SUPREME COURT

OF THE STATE OF IDAHO

Case No. 12971

STATE OF IDAHO

Plaintiff-Respondent

Vv.

WILLIAM FOWLER

Defendant-Appellant

Coeur d'Alene, May 1980 Term

Filed: October 7, 1980

R. H. Young, Clerk

Appeal from the District Court of the

First Judicial District of the State of

Idaho, Kootenai County. Honorable

James G. Towles, District Judge.

Appeal from a jury conviction of

assault with a deadly weapon. Affirmed.

Stephen B. McCrea, Coeur d'Alene,

for appellant.

Honorable David H. Leroy, Attorney

General, State of Idaho; Lynn E. Thomas,

. Deputy Attorney General, State of Idaho;

and Eugene A. Ritti, Deputy Attorney

General, State of Idaho, Boise, for

respondent.

SHEPARD, J.

This is an appeal from a conviction

of assault with a deadly weapon which

was entered following a trial and a jury

verdict of guilty. We affirm.

Defendant Fowler had a léngemtianias

feud with one Gene Mileck. Shortly

after midnight during June, 1976, some-

one fired a series of shots into the

; Mileck home and set fire to two auto-

mobile vans belonging to Mileck which

were parked outside his home. Shortly

thereafter, Mileck received a phone call,

in which the caller expressed dismay that

Mileck was still alive and threatened to

kill Mileck the next time. Mileck iden-

tified the voice of the caller as that

of Defendant Fowler. Fragments of bullets

were found in the Mileck home, which

later ballistic tests indicated were

fired from a .45 caliber revolver found

in the possession of defendant Fowler.

Prior to August 31, 1977, marital

difficulties had arisen between defend-

ant Fowler and his wife, and the three

Fowler children were staying with one

Karen Erk, Mrs. Fowler's sister. Mrs.

Erk believed that Mrs. Fowler had ob-

tained a restraining order preventing

defendant Fowler from interferring with

her custody of the children. That re-

Straining order was not issued and

served on Fowler until September 1.

On August 31, 1977, an unidentified

person phoned the Kootenai County

Sheriff's Office to report that defend-

ant Fowler was driving from Spokane to

the Erk residence in Idaho to abduct a

young girl. An officer Black was dis-

patched to the Erk house. During that

time, defendant Fowler, who was described

aS highly agitated, had arrived at the

Erk residence and demanded a gun, which

Erk refused to give to him. Fowler then

left with one of the children. Mrs. Erk

talked with the Sheriff's Office about

the incident because she was concerned

Over the safety of the child. While

officer Black was driving to the Erk

house, he saw a car matching the descrip-

tion of the Fowler vehicle moving in the

direction of Spokane.

Officer Black radioed the Sheriff's

Office and in turn the Washington State

Patrol were notified that defendant

Fowler was driving toward the Idaho-

Washington state line, was involved in

a kidnapping, and was believed to be

armed and dangerous. On the Washington

Side of the state line, two troopers,

Kentworthy and Wunsch, saw the defendant

in his automobile and began following

him. Although the defendant illegally

Changed lanes and was Speeding, the

Washington officers did not use their

Sirens or lights, nor did they pull him

over. Since they were informed that

Fowler was armed and dangerous, they

intended to stop him further down the

highway where more troopers were waiting.

Before reaching the planned inter-

ception point, however, Fowler pulled

his automobile over onto the shoulder,

Stopped, got out of the car and walked

toward one of the troopers. He was

covered with a shotgun, frisked, hand-

cuffed, and placed in the trooper car.

Trooper Wunsch approached the Fowler

Car and noted two weapons in plain view

On the back seat of the car. He opened

the car door, took those two weapons

which were unloaded, and found a third

loaded .25 caliber automatic underneath

the front seat of the car. Those guns

were placed on the hood of the Fowler

vehicle.

At about that time, Idaho officer

Black arrived at the scene, as did Mrs.

Fowler, accompanied by one Tuefel.

Tuefel indicated that the two unloaded

guns from the back seat belonged to

Tuefel and had been stolen. Mrs. Fowler

informed Trooper Kentworthy that another

gun still remained in the car. Further

examination of the vehicle revealed an

unloaded .45 caliber revolver under the

front seat of the vehicle, which Mrs.

Fowler then stated was used "in the

Mileck deal." The Washington state

troopers retained the loaded .25 caliber

automatic weapon for further proceedings

in Washington and handed over the other

three firearms to Idaho officer Black.

It is defendant Fowler's principal

contention on appeal that the .45 caliber

revolver was the product of an illegal

search, was illegally seized and should

have been suppressed. Because of the

above recited complex facts, it may be

useful to note what this case does not

involve. Fowler had voluntarily pulled

off the highway, stopped his vehicle,

exited therefrom, and approached the

police. Hence, the case does not involve

the legality of an involuntary stop. Our

“narrow focus is on the question of whether

the Washington state troopers lawfully

searched for and seized the .45 caliber

revolver hidden beneath the front seat of

the Fowler vehicle. That issue must be

addressed with particular attention to

Washington state law.

The case at bar is distinguishable

from State v. Lesnick, 530 P.2d 243

(1975). In Lesnick, the Washington Court

held that the police had no right to

rely on an anonymous tipster to stop

Lesnick's car, and because that stop was

not warranted, the police had no right to

be in a position to observe gambling

paraphenalia in the back seat of defend-

ant's vehicle. Here, however, Fowler

had voluntarily pulled his vehicle off

the highway, stopped and exited his car.

Hence, Washington state trooper Wunsch

had a right to be where he was when he

observed the two weapons in plain view

On the back seat of the car since Wunsch's

presence at the car was not the result of

an illegal stop.

We hold that the officer had probable

cause to initially enter the car. He had

been informed, through a police agency,

that Fowler was driving a vehicle into

the State of Washington, was armed and

dangerous, and was in the course of com-

mitting a felony. When he approached the

car, he saw two weapons in plain view on

the back seat. A washington statute

prohibits the carrying of a loaded pistol

in a vehicle. | The trooper's investiga-

tion of the status of the weapons and his

10a

Subsequent finding of the third loaded

weapon were certainly warranted and no

more than would be expected of a reason-

able and competent police officer.

Further, as above noted, that entry

was terminated and those weapons placed

upon the hood of the Fowler vehicle.

None of those "seized" weapons were

relevant to the instant case nor were

they offered or admitted in evidence.

It was only after the arrival On the

scene of Fowler's wife and Tuefel that

an additional search ensued which pro-

duced the weapon in controversy here.

The facts as noted above Support the

finding of probable cause to search for

the fourth gun. Fowler, who was accused

of kidnapping, was found in a car with a

Child and a loaded gun. The information

leading to this belief stemmed in part

lla

from a statement of an eyewitness (Erk),

that she feared for the safety of the

child. The two other guns found in the

car were identified as being stolen.

Fowler's wife indicated that another gun,

which may or may not have been loaded,

was Still in the car. When the police

are told that a gun is still in acar

that is parked on the side of a heavily

used highway and the situation is as

potentially explosive as this one was, it

would be unreasonable for the police not

to search for the gun. Once the police

have probable cause, they may search a

car parked on a public highway without a

warrant under the automobile exception.

See Cardwell v. Lewis, 417 U.S. 583 (1974);

Cady v. Dombrowski, 413 U.S. 433 (1973);

Chambers v. Maroney, 399 U.S. 42 (1970);

Carrol v. United States, 267 U.S. 132

(1925); State v. Pate, 529 P.2d 875 (Wash.

12a

Ct. App. 1974); State v. Orcutt, 591

P.2d 872 (Wash. Ct. App. 1979).

It is also argued that the delivery

of the gun by the Washington State trooper

to Idaho officer Black was somehow in-

valid. The requirement for search

Warrants protects an individual from un-

reasonable official intrusions. Here,

the search was valid and once the weapon

had been lawfully seized by the Washing-

ton state trooper, the intrusion into

privacy ceased. Officer Black, by ac-

cepting the delivery of the gun from the

Washington state trooper, was not intrud-

ing into Fowler's privacy. Black was

familiar with the Mileck assault, knew

that Fowler was a Suspect and had knowl-

edge, through Mrs. Fowler, that the

weapon had been used in the Mileck

assault. We hold that argument to be

13a

without merit.

We turn now to the admissibility of

the testimony of Fowler's wife. At the

time of trial, Fowler and his wife had

been divorced. ‘Fowler asserts, never-

theless, that the testimony of his ex-

wife should have been excluded under the

marital privilege doctrine. I.C. § 9-203

(1) encompasses two privileges: (1)

neither spouse may testify for or against

the other without the other Spouse's con-

sent, and (2) neither spouse may testify

as to any communication made by one to

the other during marriage. A divorce

prior to trial terminates the incompe-

tency of one spouse to testify against

the other. See State v. Anspaugh, 97

Idaho 519, 547 P.2d 1124 (1976). Divorce,

however, does not terminate the privilege

afforded marital communications made

14a

during the existence of the marriage.

State v. Anspaugh, Supra. That privi-

lege may encompass non-verbal acts which

are communicative in nature, i.e., the

Shaking or nodding of the head or the

like.

At the time of trial, Fowler's former

wife testified that Fowler possessed a

-45 caliber revolver at the time of the

Mileck assault, that the gun was kept

in Fowler's nightstand, and that she

moved the gun to a different location

in the summer of 1977. Fowler argues

that knowledge of the gun was a confi-

dential spousal communication. We do

not agree. Knowledge of the possessions

of one spouse and their location is

generally not a spousal communication.

See United States v. Bolzer, 556 F.2d

948 (9th Cir. 1977). Her testimony as

15a

to her own actions is also not a marital

communication. See State v. Hermes, 426

P.2d 494 (Wash. 1967). Hence, we find

no merit in Fowler's assertion that the

testimony of his former wife was inad-

missible.

We have examined appellant's remain-

ing assertions of error and find them to

be without merit. The judgment is

affirmed.

McFADDEN, J., concurs. DONALDSON,

C. J., and BAKES, J., concur in theresult.

The applicable Washington Statute,

R.C.W.A. 9.41.050, provides in pertinent

part: "No person shall carry a pistol in

any vehicle unless it is unloaded * * *

without a license therefor as hereinafter

provided."

16a

BISTLINE, J., concurring in the affirm-

ance.

I write only because of the majority's

failure to deal with cases in both Wash-

ington and Idaho which on their face

appear to be irreconcilable with the

Opinion the Court announces today.

State v. Post, 98 Idaho 834, 573 P.2d

153 (1978); State v. Miles, 97 Idaho 396,

545 P.2d 484 (1976), and State v. Orcutt,

591 P.2d 872 (Wash.App. 1979), would

appear to mandate that we reverse. Al-

though I am not persuaded that we should

reverse, I decline to join in an opinion

which follows Miles by only four years,

but which fails to distinguish that case

from this. | Accordingly, I endeavor to

set forth and discuss my view of these

cases, from which I conclude that, al-

though the question is very Close, Miles

17a

is distinguishable, albeit the degree is

slight.

In Miles the police were told by

people from whom they had purchased mari-

juana that the defendants would be arriv-

ing with more marijuana in 45 minutes.

When the defendants pulled into the drive}

way two hours later, the police ordered

them to lie on the ground and then

searched the car, where they found a

large quantity of marijuana. This Court,

first holding that the search could not-

be justified as incident to an arrest,

then stated that Carroll v. United States,

267 U.S. 132 (1925), 3 requires that the

State show that it is impractical to ob-

tain a search warrant in order to justify

a warrantless search of an automobile.

The Court concluded that the State had

not shown that it was impractical to

18a

obtain a search warrant:

"Taking judicial notice of

the fact that there are

four magistrates in Coeur

d'Alene available for issu-

ing search warrants, it

would not seem unduly bur-

densome on the police to

Station one of four offi-

cers present with the car,

while the others made the

short drive into town to

secure the search warrant.

Here, there simply were no

exigent circumstances mak-

ing it impractical to gain

a search warrant." 97 Idaho

at 400-01, 545 P.2d at 488-

489.

In State v. Post, 98 Idaho 834, 573

P.2d 153 (1978), Officer Richard smelled

marijuana on the defendant and observed

smoke and two hand-rolled cigarettes in

the defendant's car, which was parked in

a parking lot adjacent to a street.

Richard then searched the defendant's

pockets, finding a small amount of mari-

juana, and the defendant's car, where he

found 7 ounces of marijuana. This Court

—_—

19a

held first that the search of defendant's

pockets was unlawful as there had been no

lawful arrest and secondly that the search

had exceeded that which was permissible

as incident to an investigative stop.

As to the search of the car, the Court

held as follows:

"The state, at oral argu-

ment, conceded that there

was nothing in the record

of this case Suggesting

any exigent circumstances,

other than the mere pres-

ence of the car ina

parking lot near a public

Street, and acknowledged

that under our decision

in State v. Miles, Supra,

there has not been a show-

ing of exigent circum-

Stances sufficient to avoid

the warrant requirement on

that basis." 98 Idaho at

838, 573 P.2d at 157.

See also State v. Landers, 97 Idaho 899,

956 P.2d 858 (1976) (Attorney General

confessed error where police, on smell-

marijuana in parked car, requested occu-

pants to step out and then searched car).

20a

In State v. Orcutt, 591 P.2d 872

(Wash.App. 1979), the police became sus-

Picious of defendant's conduct and fol-

lowed him to where he had parked and

left his car. In looking for vehicle

identification in the car, the police

observed an open pack of Zig Zag ciga-

rette papers and what appeared to be some

brownish flakes of marijuana. The police

Subsequently located defendant nearby

and arrested him for driving with a sus-

pended license. The officers then told

the defendant that his car would have to

be moved, and defendant consented to

their moving the car back to the store

parking lot so that his belongings would

be pakeves At this point the officers

made a second search of the interior of

the vehicle. The court held that this

was not a case where it was not practi-

cable to secure a warrant, and found

21a

insufficient evidence of exigent circum-

stances

warrant:

to justify the search without a

"The vehicle here was in

no danger of departure.

It was secure. There

was more than one officer

available to effect a

defendant's arrest and

obtain the warrant while

the other watched the

vehicle and secured its

contents. Absent exigent

circumstances, the warrant-

less search even with prob-

able cause violated the

Fourth Amendment." 591

P.2d at 876.

If the exact language in'these three

cases were to be followed in the present

case, it would appear that the incrimi-

nating gun should be suppressed. The

incident occurred about 6:00 p.m. On a

Wednesday, and there were numerous police

officers present; under the rationale of

Miles, one officer could have been left

to secure the car while another went to

22a

Obtain a warrant.

I doubt, however,

that such is in harmony with the view of

the average lay person, whom I surmise

would find that it is not unreasonable

for the police to search a car where

they have good reason (probable cause)

to believe it contains a gun in the cir-

cumstances present in this case. Nor do

I believe that suppression has to follow

from Miles.

The trial court, Judge Prather, in a

very thorough and well reasoned Opinion,

noted this problem: it is arguable that

the court would have a difficult time

finding the search in the present case

to be justified, absent an overruling of

the decision in Miles." Judge Prather

went on to note that "[e]ven though

Miles may be too recent to be overruled,

it is important to realize that the Miles

23a

decision totally fails to address the

case of Chambers v. Maroney, supra [399

U.S. 42 (1970)]."

In Chambers, as discussed by the trial

court, the United States Supreme Court

upheld the warrantless search of an auto.

In that case, the police arrested the

occupants of the vehicle shortly after a

robbery on the basis of a description

given by witnesses. The Court upheld the

Subsequent search of the car as follows:

"Neither Carroll, supra,

nor other cases in this

Court require or suggest

that in every conceivable

Circumstance the search

of an auto even with prob-

able cause may be made

without the extra protec-

tion for privacy that a

Warrant affords. But the

circumstances that furnish

probable cause to search

a particular auto for par-

ticular articles are most

often unforeseeable; more-

over, the opportunity to

search is fleeting since

24a

a car is readily mov-

able. Where this is

true, as in Carroll,

and the case before us

now, if an effective

search is to be made

at any time, either the

search must be made im-

mediately without a

Warrant or the car ite

self must be seized and

held without a warrant

for whatever period is

necessary to obtain a

warrant for the search.

"Arguably, because of.

the preference for a

magistrate's judgment,

only the immobilization

of the car should be

permitted until a search

Warrant is obtained;

arguably, only the

‘lesser' intrusion is

permissible until the

magistrate authorizes

the 'greater.' But

which is the ‘greater'

and which the ‘lesser'

intrusion is itself a

debatable question and

the answer may depend

On a variety of circum-

Stances. For constitu-

tional purposes, we see

no difference between on

the one nand seizing and

25a

holding a car before

presenting the prob-

able cause issue to a

magistrate and on the

Other hand carrying

Out an immediate search

without a warrant.

Given probable cause

to search, either course

is reasonable under the

Fourth Amendment.

"On the facts before us,

the blue station wagon

could have been searched

on the spot when it was

Stopped since there was

probable cause to search

and it was a fleeting

target for a search. The

probable-cause factor

Still obtained at the

Station house and so did

the mobility of the car

unless the Fourth Amend- -:

ment permits a warrant-

less seizure of the car

and the denial of its

use to anyone until a

warrant is secured. In

that event there is little

to choose in terms of

practical consequences

between an immediate

search without a warrant

and the car's immobili-

zation until a warrant is

obtained." 399 U.S. at

90-52 (footnotes omitted)

(emphasis added).

26a