Opinion
No. 29689-6-II (consol. with 29692-6-II).
Filed: June 15, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No: 02-1-00147-2. Judgment or order under review. Date filed: 11/13/2002. Judge signing: Hon. Stephen M Warning.
Counsel for Appellant(s), Heiko Philipp Coppola, Attorney at Law, Cowlitz Co Pros Aty Offc, 312 SW 1st Ave, Kelso, WA 98626-1799.
Counsel for Respondent(s), Randolph Furman, Attorney at Law, PO Box 2998, Longview, WA 98632-8975.
The State appeals the trial court's order suppressing evidence and dismissing the State's cases against Roger Dean Blood and Wendy Gail Blood without prejudice. We hold that exigent circumstances justified the officers' entry into the Bloods' residence; thus, the trial court erred in granting the Bloods' suppression motion. Accordingly, we reverse and remand for further proceedings.
For clarity, we refer to the individual respondents by their first names.
FACTS
The State charged Roger and Wendy with the illegal manufacture of marijuana in violation of RCW 69.50.401(a)(1). The Bloods moved to suppress the evidence found in their residence.
At the suppression hearing, Officer John Johnston and Detectives Timothy Watson and Ronny Cruser testified for the State. Neither Roger nor Wendy presented any witnesses.
The officers testified that in late January 2002, the Cowlitz-Wahkiakum Narcotics Task Force received an anonymous tip that the Bloods were growing marijuana. Several days after receiving the tip, the officers went to the Bloods' residence to conduct a `knock-and-talk' to see if they could find out more information.
The Bloods' residence was located down a long private driveway that passed a group of duplexes. When the officers arrived, they parked in front of the residence, and Roger approached them from the direction of the duplexes.
Det. Watson informed Roger they were there to investigate an alleged marijuana grow operation, asked if they could search `the premises,' and advised him of his Ferrier rights. Specifically, Det. Watson informed Roger that he had the right to refuse to consent to the search, that he could limit the scope of any search, and that he could revoke his consent at any time.
State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
Roger did not appear confused about his rights, but he asked Det. Watson what he meant by `search,' and Det. Watson explained that they `wanted to look around the premises to see if the tip was true that he was growing marijuana plants.' Report of Proceedings (RP) (August 1, 2002) at 34. Det. Watson did not specify whether the `premises' included the residence.
Roger told Det. Watson that he was not growing marijuana but that he did have some marijuana for personal use. After making this statement, Roger said he did not want to say anything further about the marijuana. But he agreed to allow the officers to search and showed them around the property and the outbuildings.
As the officers walked past the north side of the residence, they observed that one of the windows was covered with aluminum foil. Aware that people growing marijuana often cover windows with reflective material, they suspected that this indicated there was a marijuana grow operation inside the residence. They did not smell any marijuana.
After Roger finished showing the officers around the property, Det. Watson asked for permission to enter the residence to `grab the personal-use marijuana.' RP (August 1, 2002) at 38. Roger became agitated, yelled and cursed at the officers, accused them of lying about wanting only to search the premises, and told them they could not enter the residence without a search warrant. Det. Watson handcuffed Roger and informed him that he would apply for a warrant and that he was not free to go. Det. Watson testified that at that point, he believed he had probable cause to obtain a search warrant for the residence based on Roger's statement to them about the personal use marijuana.
After detaining Roger, Dets. Watson and Cruser approached the residence and knocked on the front door in an attempt to contact Wendy. Det. Cruser testified that they wanted Wendy to come outside and remain outside while they applied for the search warrant to ensure that she did not destroy any evidence.
Wendy did not come to the front door when the officers knocked on it; instead, she exited the residence by a side door that led into the open attached garage. Roger shouted at Wendy, telling her to go back inside, lock the doors, and not open the door for anyone. Wendy complied. The officers continued to knock, but Wendy did not respond. Det. Watson then left to obtain the search warrant.
Officer Johnston and Det. Cruser remained behind to secure or `freeze' the scene and ensure that no one destroyed any evidence. After about five minutes, they noticed a large amount of smoke and some burning embers coming from the chimney. Although they did not smell burning marijuana or observe marijuana leaves in the smoke, they found the fire suspicious.
Det. Cruser walked around the north side of the residence onto the back deck and looked through a large, unobstructed window into the residence. He observed two grocery bags and a small pile of vegetable matter that he suspected was marijuana on the floor in front of the fireplace. At that time, Wendy was not in the room. A fan was blowing directly into the fireplace.
Det. Cruser returned to the northeast corner of the residence and called to Officer Johnston. The officers returned to the back window and watched as Wendy shoved the bags into the fire.
The officers banged on the window and yelled at Wendy. When she did not respond, Det. Cruser tried to enter the residence through a nearby sliding door, but the door was locked. The officers then returned to the garage, broke down the side door, and entered the residence. Det. Cruser testified that at the time they entered the house, he felt there were exigent circumstances that justified the entry.
Once inside, they restrained Wendy and pulled the burning bags out of the fire. The partially burned bags contained marijuana plants and melted pots. After Det. Cruser escorted Wendy outside, Officer Johnston did a security sweep of the residence to ensure that no one else was inside. He also reentered the residence three times to ensure that the materials he had removed from the fire did not reignite.
Det. Watson then returned with the search warrant. Inside the residence, the officers found 13 mature marijuana plants, 25 juvenile plants, 167 grams of processed marijuana, some fans and lights and other equipment, drug paraphernalia, some High Times magazines, and a triple beam scale.
In closing argument, defense counsel argued that the officers should have left once Roger revoked his consent to search and informed them they would need a search warrant to enter the residence. He argued that the officers were not justified in remaining on the property or in walking around to the back of the residence to look in the window and that they had gone to the back of the house to investigate and not in an attempt to contact Wendy. He further argued that the officers `create[d] their own exigency' by remaining on the property after Roger revoked his consent. RP (August 1, 2002) at 66.
The State argued that Roger's admission that he had marijuana on the premises, coupled with the officers' failure to find any marijuana during their tour of the property, justified them remaining on the property; that the officers were merely securing the residence while they obtained a search warrant; and that exigent circumstances justified their actions of looking through the back window and then entering the residence.
The trial court concluded that although exigent circumstances existed after the officers observed Wendy burning the bags in the fireplace, the officers violated the Bloods' legitimate privacy expectations when they walked around to the back of the house and looked in the back window. In its written findings, the trial court found that Det. Cruser intended to search for evidence of a crime when he walked to the back of the house.
The trial court also made the following conclusions of law:
5. Detective Cruser's observations through the Blood's [sic] rear window of [a] couple of bags, a new fire, vegetable matter and a fan blowing directly into the fire, would lead a reasonable person to conclude that someone was destroying evidence. The detectives were justified, by way of exigent circumstances in entering the house to prevent further destruction of evidence.
6. Simply because the detectives `froze' the scene/seized the residence while waiting for the search warrant to arrive, does not give them any additional rights to conduct a search that they could not do before.
7. The Blood's [sic] had a legitimate expectation of privacy in the rear area of their house pursuant to State v. Seagull.
8. Detective Cruser did not have the right, in spite of the scene being frozen, to be on the rear area of the Blood's [sic] home. Detective Cruser's observations were, therefore, not permissible under the plain view exception to warrantless searches.
Clerk's Papers (CP) at 9.
Accordingly, the trial court suppressed the evidence and dismissed the cases without prejudice. The State appeals.
ANALYSIS Standard of Review
In reviewing a trial court's ruling on a suppression motion, this court independently evaluates the evidence to determine whether substantial evidence supports the findings, and whether the findings support the conclusions. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). We review the trial court's conclusions of law de novo. Mendez, 137 Wn.2d at 214. Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Additionally, we consider any unchallenged findings of fact as verities on appeal. Hill, 123 Wn.2d at 644.
Finding of Fact 8
The State initially challenges a portion of the trial court's Finding of Fact 8. Specifically, the State argues that substantial evidence does not support the court's finding that Det. Cruser intended to search for evidence of a crime when he entered the area behind the Bloods' residence and looked through the back window. We agree.
The officers' uncontradicted testimony clearly established that Det. Cruser and Officer Johnston remained at the residence for the purpose of securing the scene and ensuring that no one destroyed potential evidence while Det. Watson obtained the search warrant. The testimony also clearly established that Det. Cruser walked to the back of the residence and looked through the back window for the sole purpose of determining whether Wendy was attempting to destroy evidence by burning it in the fireplace. Nothing in the record shows that Det. Cruser was searching for evidence at that time.
Because the record is devoid of any evidence suggesting that Det. Cruser intended to search for additional evidence, this portion of Finding of Fact 8 is not supported by substantial evidence and is therefore stricken.
Exigent Circumstances
The State next contends that the trial court's conclusion that Det. Cruser impermissibly entered the area behind the Bloods' residence is incorrect. The State's primary argument is that the trial court erred when it failed to find that exigent circumstances, namely the potential destruction of evidence, justified Det. Cruser's actions. We agree.
As a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution. State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984). There are, however, a few "`jealously and carefully drawn' exceptions' to the warrant requirement [that] `provide for those cases where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate." State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980) (quoting Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979)). Exigent circumstances constitute one of these exceptions. State v. Rife, 133 Wn.2d 140, 150-51, 943 P.2d 266 (1997).
At issue here is the exception permitting warrantless searches when exigent circumstances threaten the destruction of evidence. Under this exception, a warrantless search may be lawful if an officer has probable cause to suspect a crime has been committed and there are `emergent or exigent circumstances regarding the security and acquisition of incriminating evidence.' State v. Smith, 88 Wn.2d 127, 137-38, 559 P.2d 970, cert. denied, 434 U.S. 876 (1977).
In determining whether a true exigency existed, the court should consider the totality of the circumstances, including the alternatives available to the officers at the time of the search. State v. Welker, 37 Wn. App. 628, 633, 683 P.2d 1110, review denied, 102 Wn.2d 1006 (1984); see also Smith, 88 Wn.2d at 138. Those alternatives include guarding the premises or evidence while officers obtain a search warrant. See State v. Counts, 99 Wn.2d 54, 62, 659 P.2d 1087 (1983), Welker, 37 Wn. App. at 633.
To prove that exigent circumstances are present, the State must be able to `point to specific, articulable facts and the reasonable inferences therefrom which justify the intrusion.' State v. Diana, 24 Wn. App. 908, 911, 604 P.2d 1312 (1979), overruled on other grounds, Seeley v. State, 132 Wn.2d 776, 940 P.2d 604 (1997). The particularity requirement is satisfied if the officers are `confronted with some sort of contemporaneous sound or activity alerting them' to the possible presence of an exigent circumstance. State v. Mueller, 15 Wn. App. 667, 670, 552 P.2d 1089 (1976).
In the present case, the officers reasonably believed that destruction of evidence was not only imminent but occurring before they moved to the back of the residence. It was clear that Wendy was aware that the officers were present and that there was a chance they would obtain a warrant to search the residence; the officers observed smoke and embers coming from the chimney shortly after they detained Roger; and the type of evidence sought, here marijuana, was highly destructible. These facts would lead a reasonable person to believe that Wendy was attempting to destroy evidence. Furthermore, once it became apparent that Wendy was attempting to destroy evidence, detaining Wendy and securing the residence from the inside was the only method the officers had available to prevent the immediate destruction of the evidence. Thus, even presuming that the rear of the house was not impliedly open and that the Bloods had a reasonable expectation of privacy in that area, the officers' entry into that area under these circumstances was reasonable and constitutionally permissible.
Counter Arguments
The Bloods appear to argue that the exigent circumstances exception should not apply because the officers (1) lacked the authority to secure the residence while awaiting the search warrant; and (2) deliberately created the exigent circumstance by remaining on the property after Roger withdrew his consent or moving to the back of the residence.
Authority to Secure Residence
The Bloods contend that the officers were not authorized to remain on the property and seize or secure the residence after Roger withdrew his consent because they `lacked probable cause to believe that evidence could be located in the house, as opposed to so vague [a] hunch as to where on the extended premises.' Br. of Respondents at 8. We disagree.
If probable cause exists, officers may lawfully seize and secure premises in order to preserve the status quo while others, in good faith, are in the process of obtaining a search warrant. State v. Solberg, 66 Wn. App. 66, 77-78, 831 P.2d 754 (1992) (citing Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984); State v. Ng, 104 Wn.2d 763, 713 P.2d 63 (1985)), rev'd in part on other grounds, 122 Wn.2d 688 (1993). Probable cause exists where the facts and circumstances establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime may be found at a certain location. State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002); State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999).
Here, the officers could reasonably infer criminal activity because Roger told them that he had some amount of marijuana on the premises. Additionally, after failing to observe the marijuana elsewhere on the property and witnessing Roger's spirited response when they asked to enter the residence, the officers could reasonably infer that the marijuana was located inside the residence. Because the officers could reasonably infer a crime had been committed and that evidence of the crime could be found inside the residence, they had probable cause to secure the residence to ensure that the evidence was not destroyed while Det. Watson obtained a search warrant.
Creation of Exigent Circumstances
The Bloods next contend that the State cannot rely on exigent circumstances because the officers created the exigency by either remaining on the property after Roger withdrew consent or by moving to the back of the residence. We disagree.
Although it is true that officers cannot deliberately create exigent circumstances to justify a warrantless entry into a private dwelling (see United States v. Webster, 750 F.2d 307, 327 (5th Cir. 1984), cert. denied, 471 U.S. 1106 (1985); United States v. Thompson, 700 F.2d 944, 950 (5th Cir. 1983)), there is a distinction between cases `where exigent circumstances arise naturally during a delay in obtaining a warrant and those where officers have deliberately created the exigent circumstances' in order to obtain the warrant. Webster, 750 F.2d at 327; see also United States v. Socey, 846 F.2d 1439, 1448 (D.C. Cir.), cert. denied, 488 U.S. 858 (1988). Here, there was no evidence that the officers intentionally delayed obtaining a warrant in order to create the exigency, and simply contacting the Bloods about an anonymous tip, obtaining additional evidence during the investigation, and securing the scene pending the issuance of the warrant based on this additional evidence is not enough to establish that they created the exigency.
Failure to Obtain Wendy's Consent
Relying on State v. Leach, 113 Wn.2d 735, 782 P.2d 1035 (1989), Wendy further argues that the evidence should be suppressed as to her because the officers did not seek her consent for their initial search of the property. Again, we disagree.
Not only did Wendy fail to raise this issue at the suppression hearing, the probable cause to obtain the search warrant and secure the residence was not based on any information the officers obtained during the portion of the search that took place with Roger's consent. Instead, the probable cause was based solely on Roger's admission that he had marijuana on the property and his reaction to the officers' request to enter his residence.
Because the evidence establishes that the officers' warrantless entry into the residence was constitutionally permissible, we reverse the trial court and remand for further proceedings.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and HUNT, J., concur.