City of Tacoma v. Houston ( 1947 )


Menu:
  • I quote from the majority opinion:

    "If the evidence adverted to above were admissible, we would have no difficulty in holding that the character of the premises here involved was that of a house of prostitution rather than that of a `home,' and, as such house of prostitution, the premises would lose the protection of the constitutional provision. The trouble here is, however, that the evidence to establish the unlawful character of the place was, for reasons hereinabove given, inadmissible."

    With this latter conclusion I do not agree. The hearing upon the motion to suppress is a proceeding distinct and apart from the trial of the case. The evidence adduced upon such a hearing in the absence of the jury is considered by the court to determine whether the evidence should be suppressed or admitted at the trial. If from a consideration of all of the evidence so adduced the court determines that the place in question is a house of prostitution, then it follows that it cannot be a home, for those entities are mutually exclusive of each other, and the evidence should not be suppressed. The donning of sheep's clothing does not convert a wolf into a sheep, and I know of no reason why a court is required to find legal conclusions that are inconsistent with the actual facts.

    I am apprehensive about the effects which may flow from this decision. If houses of prostitution are to enjoy the immunities intended only for homes, law enforcing procedures may be unable to reach them.

    This case itself illustrates the situation. If the results of the inspection by the officers were available as evidence, a conviction could be sustained, but, since they are held not to be available, the conviction cannot be sustained. Well-founded suspicions, conjecture and surmise do not meet the burden of proof imposed upon the state in criminal cases. Experience has amply demonstrated that customer *Page 229 experience as a source of testimonial knowledge to be used as evidence upon a trial is also never available in such cases. The customers refuse to testify, and certainly the state cannot expect its law enforcing officers to gain the necessary testimonial knowledge by customer experience in houses of prostitution. Law enforcement in such cases must be based upon inspections. A house of prostitution is a commercial enterprise and should be subject to inspection just as any other commercial enterprise concerning which police regulations have been promulgated. I cannot distinguish between the legal basis for a sanitary inspector's examination of a restaurant and a police inspection of a house of prostitution.

    I dissent.

Document Info

Docket Number: No. 29698.

Judges: Steinert, Mallery, Jeffers, Robinson, Simpson, Schwellenbach, Abel, Hill, Millard

Filed Date: 2/20/1947

Precedential Status: Precedential

Modified Date: 3/1/2024