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State v. Richman

April 7, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
ALLEN RICHMAN, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-1-01137-0. Date filed: 09/05/95. Judge signing: Hon. Joan E. Dubuque.

Authored by Ann L. Ellington. Concurring: Walter E. Webster, Ronald E. Cox.

The opinion of the court was delivered by: Ellington

ELLINGTON, J. -- This shoplifting case requires us to decide whether the inevitable discovery rule satisfies the requirements of our Washington State Constitution. We find that the rule contains adequate safeguards to protect the privacy interests of Washington citizens and is therefore constitutional, that the rule was properly applied here, and therefore affirm.

Suppression Hearing

Allen Richman was convicted of first degree theft for stealing clothing from Littler's clothing store. He contends that the court erred in admitting evidence that a belt and a pair of trousers were discovered in his briefcase. (This evidence was significant because the value of these items elevated Richman's crime to first degree theft.) The court held a suppression hearing to determine whether the evidence was obtained in conformity with the Fourth Amendment to the United States Constitution and Washington Constitution article 1, section 7. Zino Boudra, then Littler's store manager, and Seattle police officer Sage Farwell testified at this hearing.

Boudra testified he believed that Richman had stolen a suit because price tags and an empty suit hanger were found in a dressing room Richman had just vacated. Boudra followed Richman out of the store and, after a short chase, apprehended him in a parking garage. With the help of a parking attendant, Boudra marshaled Richman into an office in the garage and telephoned the police. Richman then told Boudra, "If you hang up, I will give you the merchandise back." Boudra refused.

About five minutes later, Officer Farwell and another officer arrived. As Farwell walked into the office, Boudra told him that Richman had stolen merchandise from Littler's. Meanwhile, Richman was removing his trench coat and an underlying sweater, thereby revealing a suit jacket that Boudra identified as belonging to Littler's. Underneath the jacket was a cashmere sweater and a sports shirt, both of which had Littler's price tags attached.

Approximately 10 minutes after Farwell arrived, a stolen belt and the stolen suit pants were discovered in Richman's briefcase. The record is unclear as to who opened the briefcase, but Boudra believed that a police officer did.

Officer Farwell testified that as he entered the office, Boudra informed him that Richman had stolen clothing from Littler's. Richman was not free to leave once Farwell heard this accusation. Boudra then handed Farwell the suit, which he inspected and handed back. Farwell also saw other pieces of clothing, including several shirts and a belt, but could not remember the location of these items. He could not recall whether he opened the briefcase or precisely when he arrested Richman. He testified that as a matter of practice and for safety reasons, he searches articles like bags or briefcases in the possession of an arrestee.

The Admissibility Ruling

The trial court found that Boudra's testimony regarding the sequence of events was "particularly credible." The court therefore found that Richman began disrobing and handing Boudra the suit jacket, the shirt, and the sweater either shortly before or just as Farwell arrived, and that Boudra immediately informed Farwell that Richman was a thief. The court ruled that at this point, Farwell had probable cause to arrest Richman. Because Farwell could not remember when he saw the items in the briefcase, or when he arrested Richman, the court could not determine whether the evidence had been seized during a search incident to Richman's arrest. Nevertheless, the court ruled that the evidence was admissible because it would have inevitably been discovered incident to Richman's arrest.

Inevitable Discovery

A warrantless search is impermissible under both the Fourth Amendment and Washington Constitution article 1, section 7 unless the State proves that the search was conducted under a recognized exception. See, e.g., State v. Johnson, 128 Wash. 2d 431, 447, 909 P.2d 293 (1996). When the State cannot prove that the search was valid, the evidence is generally excluded from admission at trial. See State v. Boland, 115 Wash. 2d 571, 582-83, 800 P.2d 1112 (1990). The doctrine of inevitable discovery is recognized as an exception to the exclusionary rule under the Fourth Amendment. The doctrine permits admission of illegally obtained evidence if the State can prove that the police did not act unreasonably or attempt to accelerate discovery, and would have inevitably discovered the evidence through proper and predictable investigatory procedures. Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984); see also State v. White, 76 Wash. App. 801, 808-09, 888 P.2d 169 (1995) (citing State v. Broadnax, 98 Wash. 2d 289, 304, 654 P.2d 96 (1982) ( Dolliver, J., Dissenting)), aff'd on other grounds, 129 Wash. 2d 105, 112, 915 P.2d 1099 (1996).

The question here is whether the inevitable discovery rule satisfies article 1, section 7 of the Washington Constitution. To resolve this issue, we must first determine whether our state constitution *fn1 provides broader protection than does the federal constitution. *fn2 Johnson, 128 Wash. 2d at 444-45. This determination is made by examining article 1, section 7 in light of the six factors originally set forth in State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808 (1986). *fn3

We need not conduct an exhaustive examination of the Gunwall factors, however, because article 1, section 7 has already been often interpreted as providing broader protection of privacy interests than that provided by the Fourth Amendment. Instead, we adopt the analysis of the Gunwall court as to the first, second, third and fifth factors. See State v. Hendrickson, 129 Wash. 2d 61, 70, 917 P.2d 563 (1996); Johnson, 128 Wash. 2d at 445; State v. Goucher, 124 Wash. 2d 778, 783, 881 P.2d 210 (1994); Boland, 115 Wash. 2d at 576. Thus, we focus here only on those factors unique to the factual context of the present issue: matters of particular state interest or local concern, and preexisting state law. Johnson, 128 Wash. 2d at 445; State v. Russell, 125 Wash. 2d 24, 58, 882 P.2d 747 (1994).

Certainly privacy interests are a matter of particular state interest and local concern. See, e.g., Johnson, 128 Wash. 2d at 446. The interest of a citizen in the privacy of the contents of his briefcase needs no analysis. And because the inevitable discovery rule can apply to a wide spectrum of privacy interests, the vitality of the rule is axiomatically a matter of state interest and local concern. As to preexisting state law, no relevant state statute has been identified, and existing Washington case law does not analyze the inevitable discovery rule under article 1, section 7. See, e.g., State v. Warner, 125 Wash. 2d 876, 889, 889 P.2d 479 (1995), *fn4 White, 76 Wash. App. at 808-09. We conclude independent state constitutional analysis is appropriate.

Richman maintains that the rule is defective under article 1, section 7, reasoning that the rule lacks articulable guidelines for the police, thus it is not and cannot be jealously guarded and carefully drawn. See, e.g., Hendrickson, 129 Wash. 2d at 70. Richman fears that the rule will eliminate incentives for the police to obtain evidence legally by authorizing admission of unlawfully obtained evidence and rewarding improper seizures. And regardless of why the evidence was ...


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