State v. Byers

*784Hamilton, J.

The defendants were charged with the crime of burglary in the second degree. A pretrial motion to suppress certain evidence upon the basis of an alleged illegal arrest was heard and granted in part. Trial to the court sitting without a jury ensued, and defendants were found guilty as charged. Defendants appealed to the Court of Appeals, Division One. The convictions were affirmed by unpublished opinion. Defendants petitioned for review before this court. The petition was granted. State v. Byers, 84 Wn.2d 1014 (1974). We affirm the convictions.

The facts are undisputed. On April 17, 1972, at approximately 2:54 a.m., a Mr. Ellis, who resides near the Portage on Lummi Shore Road in a somewhat remote area of What-com County, Washington, advised the sheriff’s office by telephone that he had just heard a rapping sound and the breaking of glass emanating from an unoccupied house in close proximity to his residence. He asked that the circumstances be investigated. The radio dispatcher in the sheriff’s office radioed two deputies then separately patrolling in that area of Whatcom County, advised them of the Ellis report, and dispatched them to the scene. Their respective routes to the scene placed them on Lummi Shore Road traveling south. While so en route and at approximately 3:07 a.m., they were advised that Mr. Ellis had reported that a car with a noisy exhaust had left the scene traveling north on Lummi Shore Road.

At 3:09 a.m., the deputies intercepted and stopped an automobile proceeding north on the roadway approximately 3 miles from the Ellis residence. They requested identification of the driver, defendant Byers, and inspected the automobile. Inspection revealed the car was occupied by the defendants and two young girls, all under the age of 21, except defendant Mauler; that there were in plain sight on the front and back seats several bottles of varying kinds of wine and some beer; and that the vehicle had a loud exhaust and a defective rear license plate light. Upon inquiry, the deputies were advised by defendants that the *785vehicle had shortly before run out of gas and that defendants had walked to the home of Byers’ parents in the Portage for a can of gas.

The officers requested that the occupants of the car accompany them to the area of the Ellis residence. The defendants acceded to the request and the group arrived at the premises at about 3:17 a.m. Mr. Ellis identified the noisy exhaust on defendants’ vehicle as the type of exhaust he had heard and recalled that the rear license plate light was not functioning. Inspection of the unoccupied residence revealed pry marks on a back door, a broken window upon which there was some blood, and an open kitchen cabinet. Visual observation indicated defendant Byers had a fresh cut on his hand. Defendants were then placed under arrest and advised of their constitutional rights, understanding of which they acknowledged.

At 4:22 a.m., a detective from the sheriff’s office arrived and was briefed on the situation. Further examination of the automobile revealed a small shank screwdriver on the dashboard which had some blood on it and matched the pry marks on the rear door of the unoccupied residence. Defendants’ vehicle was then impounded and the wine, beer, and screwdriver were secured as evidence. Thereafter, defendants were transported to the county jail and booked. They were again read their constitutional rights and signed a waiver of those rights. They each acknowledged a full understanding of their rights. Upon interrogation, each confessed to the burglary and signed a written version of their respective confessions.

Before trial, defendants moved to suppress the confessions and the physical evidence contending that all were the result of an illegal arrest. Upon conclusion of the motion to suppress hearing, the trial court determined that while the officers had probable cause to stop defendants’ vehicle on Lummi Shore Road, they did not then have probable cause to arrest and that the physical evidence thereafter acquired was the fruit of an unlawful arrest and *786inadmissible. The trial court further determined, however, that the confessions were freely and voluntarily given, and otherwise untainted by an illegal arrest, hence, admissible; On review, defendants contend the trial court erred with respect to the admissibility of the confessions asserting that they, too, were the fruit of the unlawful arrest.

The trial court characterized its determination that the officers had probable cause to stop defendants’ vehicle, but lacked probable cause to then arrest defendants as “a finding of fact.” Normally, on appellate review, great significance is attached to factual findings of a trial court; however, we find in this case two reasons for reviewing the so-called finding of fact. First, in those cases wherein fundamental constitutional rights are in issue, it is incumbent upon a reviewing court to make its own independent examination and evaluation of the facts. McNear v. Rhay, 65 Wn.2d 530, 398 P.2d 732 (1965). Second, in those instances where the facts are undisputed, a determination of the presence or absence of probable cause to stop or arrest becomes a question of law, the judicial determination of which becomes a conclusion of law reviewable on appeal. Eberhart v. Murphy, 113 Wash. 449, 194 P. 415 (1920); 5 Am. Jur. 2d Arrest § 49 (1962).

In the instant case, we agree with the trial court that there existed ample facts establishing probable cause for the officers to stop the defendants’ vehicle at the time and place it was stopped. Cf. State v. Gluck, 83 Wn.2d 424, 518 P.2d 703 (1974).

We cannot agree, however, with the trial court’s conclusion that, lacking probable cause, an illegal arrest occurred at the time and place the officers requested the defendants to accompany them back to the scene of the suspected burglary.

Although one officer testified that, subjectively, he considered the defendants to be under arrest at the site of the stop, the record does not indicate that the defendants were then so. advised. The officers, so. far as the record reveals, simply directed or requested the defendants to ac*787company them some 3 miles south on Lummi Shore Road to the scene of a suspected burglary, to which request defendants acceded. In this respect, there is nothing ipso facto unconstitutional in a brief detention of citizens under circumstances not otherwise warranting or justifying arrest for purposes of limited inquiry in the course of a routine police investigation. The test of the validity of such brief detention is whether from the totality of the circumstances it appears that the detention was based upon reasonable grounds and was not arbitrary or harassing. Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966), cert. denied, 388 U.S. 922, 18 L. Ed. 2d 1370, 87 S. Ct. 2123 (1967); United States v. Brown, 436 F.2d 702 (9th Cir. 1970); Gaines v. Craven, 448 F.2d 1236 (9th Cir. 1971; United States v. Richards, 500 F.2d 1025 (9th Cir. 1974).

The distinction between an arrest and an investigative field detention is one which admits of no simple definition. In Sibron v. New York, 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968), different members of the Supreme Court were unable to agree whether an arrest or a simple detention had taken place. (Compare, e.g., Mr. Chief Justice Warren’s majority opinion with Mr. Justice Harlan’s concurrence.) The question is not one of labels, but rather involves a balancing of the intrusion made on an individual’s freedom against society’s need to investigate crime. The more significant the intrusion, the more cause an officer must have in order for his actions to pass the test of reasonableness.

A determination of the reasonableness of an investigative detention must be made on a case-by-case basis, because facts of individual cases will differ in terms of the information available to officers and the scope of the actual detention. See Terry v. Ohio, 392 U.S. 1, 13, 20 L. Ed 2d 889, 88 S. Ct. 1868 (1968). This case is made more difficult by the fact that these officers, apparently alone in the area, felt it necessary both to detain the suspects and to immediately investigate the reported possible burglary. The transporting of the subjects to the scene was a precautionary measure, *788but such does not in itself automatically make the detention unreasonable. In United States v. Richards, supra, officers investigating a failure to pay for an airport rental car became suspicious of smuggling activities when they discovered a plastic bag and a border parking lot receipt in the automobile, and learned that the airplane flown by the suspect was owned by a man suspected of smuggling narcotics and stolen guns. When appellant again landed his airplane at the same airfield, the officers placed the aircraft under surveillance. Appellant and a companion drove up to the plane and unloaded luggage and a rifle scabbard; then, after glancing around, they loaded a package wrapped in Christmas paper into the airplane. After parking their car, they went back to the plane and started its engine. Officers approached the plane, and one raised his badge and ordered appellant to shut off the engine and get down. When appellant hesitated, another officer moved in front of the plane, drew and pointed his gun, and ordered them to get out of the plane. The two men complied, whereupon one officer identified himself, told appellant he was suspected of smuggling, and began to question the two men on the airfield. Because wind conditions made communication difficult, the group moved inside the airport terminal building. Neither appellant nor his companion objected to moving inside. Appellant’s answers were implausible and evasive, and the officers therefore further pursued their investigation, with a resulting delay of slightly over an hour.

Noting that “[pjrecisely when in each case an arrest has occurred is a question of fact which depends on an evaluation of all the surrounding circumstances” (United States v. Richards, supra at 1028), the Ninth Circuit rejected appellant’s argument that an arrest occurred at the time of the gunpoint confrontation, instead viewing the stop and interrogation as an investigative detention justified by the circumstances.

It is not contended here that the officers did not have sufficient reason to detain the occupants of the car. Here the officers were in the coruse of a routine investigation in *789the early morning hours. They had been advised that a probable burglary of an unoccupied house had been detected while in progress, and that an automobile with a noisy exhaust had left the scene traveling north on their route of travel. They first sighted the approaching vehicle when it was approximately % mile from the area of the suspected burglary. At the time it was the only car traveling north on Lummi Shore Road. When they stopped the vehicle some 3 miles from the Ellis residence, they noted that it had a noisy exhaust and a defective rear license plate light. Upon inspection, they observed an unusual quantity of liquor in the car, and learned from the defendants that the vehicle had shortly before been parked on Lummi Shore Road. They further learned from the defendants that at least three of the occupants of the vehicle were under 21 years of age and from this knew that these occupants, at least, were not lawfully in possession of intoxicating liquor (RCW 66.44.270).

Under these circumstances the officers had reasonable grounds upon which to briefly detain the defendants, short of arrest, for further inquiry into their possible connection with the reported burglary. Indeed, it would be a strained and unrealistic rule of law which would compel them to permit the defendants to proceed on their way with the possible fruits of a burglary unlawfully in their possession.

Certainly, after the officers arrived on the scene of the suspected burglary and ascertained that a burglary had in fact been committed, that blood had been deposited on a broken window, that defendant Byers had a fresh cut on his hand, and that Mr. Ellis recognized the noisy exhaust of the defendants’ vehicle, they had probable cause to arrest the defendants, which they then did. The later discovery of the screwdriver and its relationship to the pry marks on the rear door of the vacant house merely corroborated the probable cause for arrest.

The remaining question, then, is whether the scope of the detention was unreasonable. In Richards, the court felt that a detention for over an hour was reasonable under the *790circumstances. In Gray v. United States, 394 F.2d 96 (9th Cir. 1967), a 5%-hour period of questioning of five suspects was held not to be an arrest, and statements made during that period were held admissible. The author of one law review article concludes that a 25- to 30-minute detention would be reasonable. Pilcher, The Law and Practice of Field Interrogation, 58 J. Crim. L.C. & P.S. 465 (1967). The ALI Model Code of Pre-arraignment Procedure § 110.2 (Official Draft No. 1, 1972) would permit a 20-minute detention. Here, the pre-arrest detention period was apparently not longer than 30 to 40 minutes; the detention was clearly for the purpose of investigating the explanation given police by the car’s occupants. The fact that the officers found it necessary to ask these appellants to accompany them is not necessarily more of an intrusion under these facts than if the officers had merely detained them while other officers (assuming the availability of other officers in this remote location) investigated the purported burglary scene and then reported back. As in Richards, no objection was made to being moved.

The fact that an officer testified that defendants were not free to go does not convert the stop into an arrest. The subjective intent of the officers is irrelevant. See Cook, Subjective Attitudes of Arrestee and Arrestor as Affecting Occurrence of Arrest, 19 U. Kan. L. Rev. 173 (1971). An officer cannot testify that a citizen was not arrested, but merely detained, and thereby defeat the contrary reasoning of a reviewing court; similarly here, the statement of the officer does not conclusively characterize his action as an “arrest.” In most stop-and-frisk situations, the citizen is not “free to go.” Terry v. Ohio, supra. Had the officer in fact had the specific intention of charging these individuals with a crime, he would have behaved quite differently, transporting them to the station for booking rather than proceeding to investigate.

We conclude, therefore, that neither the preliminary investigatory detention nor the subsequent arrest was unlawful. From this, it follows that the confessions were not the *791fruit of an illegal arrest and were properly admitted into evidence. Likewise, the physical evidence, i.e., the liquor, screwdriver, and related evidence, should have been admitted. The exclusionary rule was not designed to preclude the products of legitimate police investigative work.

The convictions are affirmed.

Finley, Hunter, and Wright, JJ., concur. Revelle, J. Pro Tern., concurs in the result.