STATE v. GREENE

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Docket Number

No. 40288.

Attorney(S)

Jack A. Richey, for appellant (appointed counsel for appeal). Charles O. Carroll and James B. Gorham, for respondent.

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Smart Summary

Factual and Procedural Background

Phillip Edward Greene was convicted of unlawful possession of narcotics and subsequently found to be an habitual criminal under Washington law. The events leading to the arrest occurred on August 28, 1967, in a residential neighborhood of Seattle. Mr. and Mrs. E.R. Warrick and a friend, Mr. Jack Howard, observed Greene exhibiting suspicious behavior, including ducking, jumping fences, attempting to enter their car, making a threatening gesture, and fleeing the scene. After a police search lasting 15 to 20 minutes, an officer found Greene running and screaming, who then resisted arrest and assaulted the officer. Narcotics were discovered on Greene's person during a search incident to this arrest. Greene was sentenced to life imprisonment pursuant to the habitual criminal statute (RCW 9.92.090). He appealed the conviction and sentence, principally challenging the legality of his arrest and the admissibility of the narcotics evidence.

Legal Issues Presented

Whether the arrest of the defendant without a warrant was lawful given that the misdemeanor allegedly was not committed in the presence of the arresting officer.
Whether the search incident to the arrest and the seizure of narcotics were lawful and properly admitted as evidence.
Whether the habitual criminal statute (RCW 9.92.090) is constitutionally valid and applicable in this case.

Arguments of the Parties

Appellant's Arguments

The defendant contended that his arrest was illegal because it was made without a warrant and the misdemeanor was not committed in the presence of the arresting officer.
The defendant challenged the admissibility of the narcotics found during the search incident to the arrest on the basis that the arrest itself was unlawful.
In a pro se argument appended to appellate counsel's brief, the defendant attacked the habitual criminal statute, asserting it improperly increased punishment.

Respondent's Arguments

The State argued that the arrest was lawful because the officer observed conduct justifying a warrantless arrest for misdemeanors committed in the officer's presence.
The State maintained that the search incident to a lawful arrest and the seizure of narcotics were proper and admissible.
The State relied on precedent establishing the habitual criminal statute as a valid cumulative punishment provision, not creating a new crime.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Michaels, 60 Wn.2d 638, 374 P.2d 989 (1962)	Police may arrest without a warrant for misdemeanors committed in their presence and search the person and immediate surroundings.	Supported the lawfulness of the warrantless arrest and search of defendant incident to arrest.
State v. Wilson, 70 Wn.2d 638, 424 P.2d 650 (1967)	Same principle as in Michaels regarding warrantless arrest and search for misdemeanors committed in presence.	Reinforced the validity of the arrest and search in this case.
State v. Montague, 73 Wn.2d 381, 438 P.2d 571 (1968)	Reasonableness of search incident to arrest and use of seized property as evidence for crimes other than the one for which arrest was made.	Confirmed the search was reasonable and that evidence seized could be used for prosecution of unrelated crimes.
State ex rel. Fong v. Superior Court, 29 Wn.2d 601, 188 P.2d 125 (1948)	Property seized incident to lawful arrest may be used in prosecution for a different crime than the one for which arrest was made.	Supported admission of narcotics evidence even though arrest was for different offenses.
State v. Bryant, 73 Wn.2d 168, 437 P.2d 398 (1968)	The habitual criminal statute does not create a new crime but provides enhanced punishment for repeat offenders.	Dispositive of defendant's challenge to the habitual criminal statute; upheld its validity and application.

Court's Reasoning and Analysis

The court analyzed the legality of the arrest and search by focusing on the circumstances observed by the arresting officer. It found that defendant's conduct—such as fleeing, making threatening gestures, and resisting arrest—constituted misdemeanors committed in the officer's presence, justifying a warrantless arrest. The court emphasized that an officer may search the person and immediate surroundings incident to such an arrest for evidence or tools aiding escape, and found no indication the search was unreasonable.

The court further held that evidence seized incident to a lawful arrest may be used to prosecute crimes other than those forming the basis of the arrest. Regarding the habitual criminal statute, the court relied on precedent confirming that the statute does not create a new offense but imposes increased punishment on repeat offenders, and that the proceeding is cumulative and part of the original felony case.

Holding and Implications

The judgment of the Superior Court was affirmed.

The direct effect of this decision is the upholding of the defendant's conviction and life sentence under the habitual criminal statute. The court's ruling confirms the legality of warrantless arrests for misdemeanors committed in the officer's presence, the admissibility of evidence seized incident to such arrests, and the constitutionality of the habitual criminal statute as a cumulative punishment mechanism. No new precedent was established beyond the application of existing legal principles to the facts of this case.

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THE STATE OF WASHINGTON, Respondent, v. PHILLIP EDWARD GREENE, Appellant. Reported in 451 P.2d 926.

[1] Searches and Seizures — As Incident of Arrest — Misdemeanor. A police officer may arrest a person who commits a misdemeanor in his presence without a warrant and make a reasonable search of the arrested person and his immediate environs for evidence of the crime or tools which would aid the arrested person's escape.

Searches and Seizures — Evidence of Unrelated Crime.

[3] Criminal Law — Habitual Criminals — Statutory Provisions — Effect. The habitual criminal statute (RCW 9.92.090) does not create a crime, but merely prescribes an increased punishment for repetitious violators. The proceeding is cumulative and part of the original felony case.

See Ann. 89 A.L.R.2d 715; Am. Jur., Searches and Seizures (1st ed. § 19).

WEAVER, J.

Defendant appeals from a judgment and sentence entered after the trial court had found him guilty of violating the Uniform Narcotic Drug Act, and a subsequent trial by jury had determined that he was an habitual criminal. Defendant was sentenced to life imprisonment, pursuant to RCW 9.92.090.

The principal thrust of defendant's appeal is that the trial court erred when it failed to suppress and admitted into evidence the narcotics found upon the person of defendant when he was searched at the time of his arrest. Defendant contends that his arrest was illegal because he was taken into custody without a warrant and the alleged commission of the misdemeanor did not occur in the presence of the arresting officer.

August 28, 1967, at approximately 7 a.m., Mr. and Mrs. E.R. Warrick and a friend, Mr. Jack Howard, who lived in a residential neighborhood of Seattle, were preparing to leave for work in the Warrick automobile. Mr. Howard first saw defendant across the street inside the yard of a private home. Defendant "ducked down and up" three times, jumped a fence, approached Mr. Howard, and asked for a match. He then asked Mr. Warrick for a match and attempted to enter the car. When he was refused a ride, defendant made a gesture at the two men with his finger as though he were shooting a pistol. When Mr. Warrick started to leave the car, defendant ran between two houses, down an alley, vaulted a 6-foot fence, and was last seen running through a flower bed.

Defendant wore sunglasses, a short-sleeved shirt, and was dirty and barefoot.

A Seattle officer responded to Mrs. Warrick's telephone call to the police. After a 15-or-20 minute search of the neighborhood, the officer observed defendant appear from behind a large shrub and come into the street. He "ran like a deer," waving his arms and screaming continuously. He vaulted another fence, crossed private property, and collapsed when he reached an alley. As the officer approached, defendant said he had been shot three times in his right leg. When the officer started to handcuff him, defendant claimed his arm was broken. There was no evidence of gunshot wounds or of a broken arm. Defendant then hit the officer on the side of the head and made an unsuccessful attempt to grab his gun. Defendant was held at gunpoint until further assistance arrived. Narcotics were found on defendant's person when he was searched.

The officer testified that he took defendant into custody for disturbing the peace and resisting arrest. The trial judge found, and his finding is amply sustained by the evidence, that the search by the officer "was made incident to a lawful arrest for either disturbing the peace, trespass, or assault in the third degree."

[1] The evidence does not support defendant's contention that he was arrested for a misdemeanor committed out of the presence of the arresting officer. In view of defendant's bizarre conduct, the officer would have been remiss had he not taken defendant into custody before harm occurred in this residential neighborhood. It is elemental that an officer, without a warrant, may arrest "a person who commits a misdemeanor in his presence, and upon making the arrest, may search the person and his immediate environs for evidence of the crime or tools which would aid in the arrested person's escape." State v. Michaels, 60 Wn.2d 638, 642, 374 P.2d 989 (1962); State v. Wilson, 70 Wn.2d 638, 641, 424 P.2d 650 (1967). There is nothing to indicate that the officer's search of defendant was unreasonable. State v. Montague, 73 Wn.2d 381, 438 P.2d 571 (1968).

[2] Further, property seized incident to a lawful arrest may be used in the prosecution of a suspected person for a crime other than the one for which he was arrested. State ex rel. Fong v. Superior Court, 29 Wn.2d 601, 609, 188 P.2d 125 (1948), and cases cited; State v. Montague, supra. [3] Finally, we find no merit in defendant's attack upon the habitual criminal statute (RCW 9.92.090) set forth in his pro se argument attached to the brief of appellate counsel. State v. Bryant, 73 Wn.2d 168, 437 P.2d 398 (1968), is dispositive of the argument advanced. RCW 9.92.090 does not create a crime; it merely prescribes an increased punishment for repetitious violators. The proceeding is cumulative; it is still a part of the original felony case.

The judgment is affirmed.

HUNTER, C.J., HAMILTON and McGOVERN, JJ., and JOHNSEN, J. Pro Tem., concur.