Opinion
No. 55686-0-I.
Filed: April 24, 2006.
Appeal from Superior Court of King County. Docket No. 03-1-10357-4. Judgment or order under review. Date filed: 01/24/2005. Judge signing: Hon. Nicole K. MacInnes.
Counsel for Appellant(s), Dana M. Lind, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Scott Frederick Leist, King County Prosecutors Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.
UNPUBLISHED OPINION
While extinguishing a house fire in a West Seattle home, firefighters discovered a clandestine methamphetamine laboratory. For his participation in the enterprise, Robert Wayne Sasse was convicted of methamphetamine manufacture. He contends the section of the statute under which he was sentenced applies only to manufacture of methamphetamine base, not methamphetamine hydrochloride. We follow our opinion in State v. Cromwell, 127 Wn. App. 746, 112 P.3d 1273 (2005), review granted, 156 Wn.2d 1001 (2006), reject this argument, and affirm.
BACKGROUND
At approximately 10:30 on the night of December 15, 2003, firefighters responded to a house fire in the basement apartment of a West Seattle home. After controlling the fire, in an effort to ventilate the area, firefighter Eric Dyer broke down a padlocked door in the basement. Immediately visible inside the locked room were glass beakers, scales, and various buckets and containers with tubes coming out of them. Dyer confirmed with another firefighter that the room contained a methamphetamine lab with production in process. The firefighters retreated from the building while a hazardous materials crew arrived and contained the lab.
Defendant Robert Wayne Sasse was living in a basement apartment, providing household remodeling and maintenance in exchange for living space. He was not at home at the time of the fire, but returned shortly afterwards, at which time police arrested him and read him Miranda warnings. Sasse waived his Miranda rights and told police that he was a methamphetamine user, and had rented out the storage room for use as a lab as a source of income and to satisfy his need for drugs.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Sasse was charged under former RCW 69.50.401(a)(ii) with manufacturing methamphetamine. The jury convicted him as charged, and he received the minimum sentence within the standard range. He appeals.
DISCUSSION
Former RCW 69.50.401(a)(ii). Sasse was charged under former RCW 69.50.401(a)(1)(ii) (2003), which set the maximum sentence for manufacture of "methamphetamine" at 10 years. Former RCW 69.50.401(a)(1)(iii), on the other hand, provided a five year maximum penalty for manufacture of "any other controlled substance classified in Schedule I, II, or III." Schedule II includes "Methamphetamine, its salts, isomers, and salts of the isomers." RCW 69.50.206. Sasse therefore contends that the term "methamphetamine" as used in RCW 69.50.401(a)(1)(ii), includes only the drug in its liquid, or "base" form, but not in the salt form which is listed in Schedule II.
In State v. Cromwell, 127 Wn. App. 746, 752, 112 P.3d 1273 (2005), review granted, 156 Wn.2d 1001 (2006), we expressly rejected this argument, and construed the statute to mean that "the Legislature intended to penalize [offenses involving] amphetamine and methamphetamine in any form more harshly than [the same offenses involving] any other controlled substances listed in the Schedules." We rejected the analysis Sasse advances here as a strained reading not consistent with legislative intent because it applies the higher maximum penalty only to methamphetamine base, "a highly volatile oil that evaporates when exposed to air," a form so rare that a crime lab employee had not seen it in a single case in 23 years. Id. We noted that Division Two of this court had ruled otherwise, but we were constrained to disagree, and still do. We adhere to our analysis in Cromwell, and therefore hold that the verdict supports Sasse's sentence.
State v. Morris, 123 Wn. App. 467, 474, 98 P.3d 513 (2004).
Warrantless Search. Sasse argues pro se that the evidence discovered in the locked room was the fruit of an illegal search because firefighters did not have a warrant. But entry into the locked room was fully justified under the exigency exception to the warrant requirement. See State v. Bell, 43 Wn. App. 319, 322, 716 P.2d 973 (1986) (citing Michigan v. Clifford, 464 U.S. 287, 78 L. Ed. 2d 477, 104 S. Ct. 641 (1984) (burning building creates exigency justifying warrantless entry to fight the blaze and remain for a reasonable time after it has been extinguished to investigate the cause of the fire and/or ensure against threat fire will rekindle)). The evidence shows that the purposes of entry were to ventilate the premises and extinguish the fire, and to ensure that no one was in danger inside the room. Firefighter Dyer's actions fall squarely within the exigency exception, and he needed no warrant. Once in the room, Dyer immediately recognized the items in his plain view as components of an illegal operation. The plain view exception is satisfied where, as here, the official (1) has prior justification for the intrusion into the protected area; (2) discovered the incriminating evidence inadvertently; and (3) immediately recognizes that the discovered objects are evidence or contraband. Bell, 43 Wn. App. at 322.
Although a defendant waives the right to appeal an alleged error not preserved in the trial court, we will consider claims of error involving a manifest error affecting a constitutional right. RAP 2.5.
The evidence was not the result of an unreasonable search and was properly admitted.
Affirmed.
ELLINGTON, SCHINDLER and COX, JJ.