CITE: 18 Wn. App. 727, 571 P.2d 955
STATE v. TURNER
CAUSE NUMBER: 5218-1
FILE DATE: November 21, 1977
CASE TITLE: The State of Washington, Respondent, v. Ralph
Anthony Turner, Appellant.
[1] Searches and Seizures - Warrant - Scope - Items Connected to Crime. Items which are not described in a search warrant and which are not instrumentalities of a crime may be seized when a reasonable person would recognize their connection with the crime and its perpetrator.
[2] Controlled Substances - Possession - Constructive Possession - In General. Constructive possession of controlled substances is shown by substantial evidence of a defendant's dominion and control over the contraband or over the premises on which it was found.
[3] Controlled Substances - Possession - Constructive Possession - Evidence - Keys to Locked Area. The possession of keys to a locked area is probative of constructive possession of items within that area.
NATURE OF ACTION: Prosecution for possession of a controlled substance with intent to manufacture or deliver. Heroin was found in a locked basement storage room after the key to the room was seized in a search of the defendant's apartment pursuant to a warrant and a new warrant was issued to search the storage area.
Superior Court: The Superior Court for King County, No. 77363, George H. Revelle, J., on November 22, 1976, entered a judgment of guilty against the defendant.
Court of Appeals: Holding that seizures pursuant to a search warrant did not violate Fourth Amendment protections, the court AFFIRMS the judgment.
COUNSEL: RICHARD A. HANSEN of SEATTLE-KING COUNTY PUBLIC DEFENDER, for appellant.
CHRISTOPHER T. BAYLEY, PROSECUTING ATTORNEY, and J. KATHLEEN LEARNED, DEPUTY, for respondent.
AUTHOR OF MAJORITY OPINION:Williams, J.-
MAJORITY OPINION:
Ralph Anthony Turner was convicted of possessing heroin with intent to manufacture or deliver it. We affirm. In his appeal, Turner argues that a set of keys was improperly seized in violation of the Fourth Amendment, that certain evidence was erroneously considered at trial and that the proof of his constructive possession of narcotics was insufficient.
On May 21, 1976, acting on a tip from a reliable informant, Seattle police officers went to Turner's apartment, in Seattle, where they executed a search warrant authorizing seizure of heroin, controlled substances, related narcotics paraphernalia, records and documents relating to narcotics sales and dominion and control of the premises.
During the search of the apartment, the officers found narcotics paraphernalia and a set of keys. Initially, the keys were considered significant because they could probably be used to identify Turner's automobile, parked outside, and could be helpful in establishing his residency in the apartment. The keys were left on a counter top while the search continued. When no heroin was found, an officer telephoned the informant, who said that he had recently seen Turner "go to an additional stash of heroin" in a basement storage room of the building. The informant further said that admission to the storage room could be gained by a key "which should be on a key ring" and that in the room there should be a locker with a padlock, which one of the keys on the ring would fit.
The police then stationed a guard at the storage area and returned to a magistrate, who issued a warrant for the search of the "locker in the locker room" of the building, "to which Ralph Anthony Turner had the key in his apartment." The keys were listed in the inventory of items seized pursuant to the first warrant and described in the affidavit for the second warrant, which was executed. The keys fit, heroin was found in one of the lockers and was seized.
[1] Turner first argues that the keys were illegally seized. Evidence not described in a warrant, and not constituting contraband or instrumentalities of crime, may be seized if it will aid in a particular apprehension or conviction, or it has a sufficient nexus with the crime under investigation. WARDEN v. HAYDEN, 387 U.S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967); COMMONWEALTH v. FIELDS, 319 N.E.2d 461 (Mass. App. 1974); SEE ALSO UNITED STATES v. JONES, 518 F.2d 384 (7th Cir. 1974), CERT. DENIED, 423 U.S. 997 (1975). The nexus in this case was twofold: the keys not only identified and opened the locker, but also circumstantially proved that their owner had dominion and control over the contents therein.
The crime under investigation was possession of heroin. As it was pursued, the trail led with increasing certainty to the cache of narcotics in the storage room locker. Officers investigating crime should not be required to obtain a warrant for each bit of evidence they uncover in the course of their work. The test is whether their actions are reasonable; U.S. Const. amend. 4; TERRY v. OHIO, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); STATE v. WILLIAMS, 17 Wn. App. 186, 562 P.2d 651 (1977); in this case they certainly were.
Next, Turner argues that the heroin and the following statement, initialed by Turner and appearing at the bottom of an "Explanation of Rights" form which he signed, are inadmissible:
" I have received 3 keys from the Seattle Police Department on 5-26-76. I acknowledge that these keys were taken from me during my arrest which occurred on May 21, 1976.
The keys are my front door key (marked C 312, "it is unlawful to duplicate this key"); a car key marked ("1W87, for General Motors cars"); and a mailbox key marked ("R67").
The keys were not on my person but were in my apartment located at 2201 So. Main Street, #304. I agree to testify that the keys were taken and released to me as is said above.
Turner's only argument is that the heroin and the statement were fruits of an illegal seizure. The trial court, at the suppression hearing, found that Turner was not coerced into signing the advisement of rights form, but voluntarily did so to obtain the release of his keys, which were lawfully in the possession of the police. The trial court did not err in admitting the heroin and Turner's written statement.
[2, 3] Finally, Turner asserts that there was insufficient evidence of his possession of the heroin found in the basement locker. The test for constructive possession is whether there is substantial evidence that the defendant had dominion and control over the drugs or over the premises on which the drugs were found. STATE v. MATHEWS, 4 Wn. App. 653, 484 P.2d 942 (1971). Turner admitted that he lived in the apartment and that one of the keys on the ring was his front door key. There was evidence that every tenant in the building had two different front door keys, one of which fit the door to the storage room. On the same key ring as the front door key was a key that was demonstrated in court to fit the padlock to the locker containing the heroin. Possession of keys to a locked area is probative of constructive possession of items within that area. STATE v. CALLAHAN, 77 Wn.2d 27, 459 P.2d 400 (1969); STATE v. MANTELL, 71 Wn.2d 768, 430 P.2d 980 (1967); STATE v. HARRIS, 14 Wn. App. 414, 542 P.2d 122 (1975). There was sufficient evidence to send the question of constructive possession to the jury.
Judgment affirmed.
CONCURRING JUDGES:
James and Callow, JJ., concur.
POST-OPINION INFORMATION:
Reconsideration denied May 11, 1978. Review by Supreme Court pending July 21, 1978.