Opinion
No. 27308-3-III.
September 22, 2009.
Appeal from the Superior Court, Benton County, No. 08-1-00554-6, Robert G. Swisher, J., entered July 17, 2008.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Kulik, A.C.J., and Brown, J.
Michael John Barlow appeals his conviction for unlawful possession of a controlled substance, heroin. Police conducted a protective sweep of Mr. Barlow's house during a medical assist for a man who collapsed on Mr. Barlow's kitchen floor from a possible drug overdose. They saw drug paraphernalia in plain view, secured a warrant, and conducted a search of the house. They found heroin in Mr. Barlow's bedroom. Mr. Barlow maintains on appeal that the trial court should have suppressed the State's evidence because the police had no basis to search the house. We disagree and affirm.
FACTS
A highly agitated woman called 911 to request medical assistance for a man she described as lying unresponsive on the floor and potentially in need of resuscitation. Officer Barry Duty arrived at the Kennewick, Washington, house shortly after the paramedics. He saw the paramedics assisting a man lying face-up on the kitchen floor. The woman was crying and told Officer Duty that the man had come out of the bathroom and collapsed on the floor. She did not know whether anyone else was at the house. She told Officer Duty that the man on the floor sometimes used heroin. And Officer Duty overheard the man tell the paramedics that he had just taken heroin. Officer Roman Trujillo conducted a protective sweep of the house because of the frenetic environment, the ambiguity about whether other people were present in the house, and Officer Duty's past visits there to respond to problems. Officer Trujillo saw drug paraphernalia in plain view. The officers also learned that Michael Barlow owned the house and was the subject of three warrants for his arrest. He was not present that evening. The police then obtained a telephonic search warrant based on the collapsed man's possible heroin use and the drug paraphernalia Officer Trujillo saw during his sweep of the house. The police found a spoon with heroin on it in Mr. Barlow's bedroom.
The State charged Mr. Barlow with one count of unlawful possession of a controlled substance. Mr. Barlow moved to suppress the evidence discovered during the protective sweep and the subsequent search of the house pursuant to a search warrant. The court found that the protective sweep of the house was reasonable as a community caretaking function and as a response to potential threats to the officers' and paramedics' safety and denied the motion. The court also found that the scope of the sweep was reasonable. Mr. Barlow waived his right to a jury trial and proceeded to a trial on stipulated facts. The court convicted Mr. Barlow.
DISCUSSION
The federal and state constitutions generally prohibit warrantless searches. U.S. Const. amend. IV; Wash. Const. art. I, § 7. Police may, however, conduct a search without a warrant based on well-established exceptions. State v. Kinsy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000).
Mr. Barlow contends that Officer Trujillo's sweep of the house was not justified under any exception to the warrant requirement. He argues that the officers' search here was not consistent with their claimed motivation. See State v. Downey, 53 Wn. App. 543, 545, 768 P.2d 502 (1989). He argues that there was no need to search for the cause of the man's collapse because Officer Duty overheard the man admit to paramedics that he had taken heroin. And, moreover, nothing suggested a threat to the officers' safety. He notes that a protective sweep under either the emergency or community caretaking exception to the warrant rule cannot be justified absent a substantial risk to persons or property. State v. Ibarra-Raya, 145 Wn. App. 516, 522, 187 P.3d 301 (2008), review granted, 165 Wn.2d 1036 (2009). The State responds that danger to the officers or to the public here qualifies as an exigent circumstance permitting a warrantless search.
We review a trial court's conclusions of law at a suppression hearing de novo. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004). And we treat unchallenged findings as verities on appeal. State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005).
Two circumstances justify, constitutionally, a protective sweep incident to an arrest. Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). Officers can, as a precautionary matter and without either probable cause or reasonable suspicion, look in spaces immediately adjoining the place of arrest "from which an attack could be immediately launched." Id. at 334. A broader sweep is permissible "when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. at 337. But a protective sweep "may extend only to a cursory inspection of those spaces where a person may be found," and may last "no longer than is necessary to dispel the reasonable suspicion of danger." Id. at 335-36.
Courts have applied Buie to allow a protective sweep even in non-arrest situations under the second Buie prong requiring a showing of a reasonable suspicion of dangerous individuals in the house to be searched. See United States v. Gould, 364 F.3d 578, 584 (5th Cir. 2004) (en banc); United States v. Taylor, 248 F.3d 506, 513-14 (6th Cir. 2001); United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993); United States v. Patrick, 959 F.2d 991, 996-97 (D.C. Cir. 1992); United States v. Daoust, 916 F.2d 757, 758-59 (1st Cir. 1990). However, "[a] general desire to make sure that there are no other individuals present is not sufficient to justify an extended protective sweep." State v. Sadler, 147 Wn. App. 97, 126, 193 P.3d 1108 (2008).
Here, the officers acted on more than a general desire to ensure that there was no one else present in Mr. Barlow's house. They had information that the man collapsed on the kitchen floor had likely taken heroin. But they did not know whether he was on the floor because of an overdose or whether he had been assaulted or otherwise involved in a crime. The other person present was distraught and said she did not know whether anyone else was in the house. The officers learned that the house's owner and primary resident, Mr. Barlow, was wanted on three confirmed warrants. And Officer Trujillo confined his brief protective sweep to areas of the house in which a person could hide. The officers acted under a reasonable suspicion that people in the house might be a threat, and the scope of the search did not exceed that reasonably necessary to dispel those suspicions. Buie, 494 U.S. at 335-36. The trial court appropriately denied Mr. Barlow's motion to suppress.
We affirm Mr. Barlow's conviction for unlawful possession of a controlled substance.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, A.C.J. and BROWN, J., concur.