Opinion
No. 22802-9-III
Filed: March 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 03-1-01864-4. Judgment or order under review. Date filed: 02/17/2004. Judge signing: Hon. Salvatore F. Cozza.
Counsel for Appellant(s), Cece Lana Glenn, Attorney at Law, 1309 W Dean Ave Ste 100, Spokane, WA 99201-2018.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Randall Jay Delivuk was convicted for methamphetamine manufacture based on evidence obtained by a search warrant. He appeals his conviction, claiming the search warrant was tainted by illegality arising from his wrongful arrest and an unlawful `assessment' search by police. We disagree and affirm.
FACTS
On March 31, 2003, Detective Jeff Barrington of the Spokane Police Department received a series of telephone calls from Janet Curlott and Lori Port concerning a suspected methamphetamine lab. Ms. Curlott resided at 1644 East Wabash with Mr. Delivuk. Ms. Port lived across the street at 1643 East Wabash with Scott Ross. Ms. Curlott told the detective that, approximately one month prior, Mr. Delivuk had placed a lock on the door of a room in their basement. She had noticed chemical odors coming from the basement. On the morning of March 31, she found the door unlocked and looked inside. She reported what she had found to her neighbors, Ms. Port and Mr. Ross. Ms. Port and Mr. Ross went into the basement and saw what they believed were items used to manufacture methamphetamine. Ms. Port took photographs that she took to a one-hour photo development lab.
Ms. Curlott told the officer she saw miscellaneous items of glassware, some of which contained liquid, and some of which had tubing sticking out of the top. She also saw gallon containers of acetone and Coleman fuel in a cabinet. Ms. Port reported seeing miscellaneous glassware, tubing, and `mason type' jars. Clerk's Papers (CP) at 90. One jar had a brownish liquid in it. She saw a hot plate that had a glass bowl on the burner with white powder inside. She also saw rubber gloves, a can of Coleman fuel, a can of acetone, and a five-gallon bottle with tubing coming out of the top. She observed several jars with coffee filters and funnels; some of the glass jars contained either a clear liquid mixed with a `gooey liquid' or a dark substance. CP at 94.
Detective Barrington met with Ms. Curlott, along with Ms. Port and Mr. Ross, at the neighbors' residence. As they were meeting, they saw Mr. Delivuk arrive at his residence across the street. Detective Barrington saw Mr. Delivuk walk in and out of his house a few times and then approach the neighbors' house. The detective went outside and arrested Mr. Delivuk for methamphetamine manufacture.
After he was handcuffed and read his constitutional rights, which he agreed to waive, Mr. Delivuk admitted there were items used to manufacture methamphetamine in his basement. He stated he did not know whether there were any active heat sources in the basement. Detective Barrington called for another officer to assist him in making an assessment of the basement to make sure there were no hazards. Before he went into the basement he saw the photographs taken by Ms. Port. The photographs showed what he believed to be a methamphetamine lab.
When the other officer arrived, they both went into the basement wearing air-purifying respirators. Electrical items were unplugged and a window opened for ventilation. Detective Barrington wrote an affidavit for and obtained a search warrant.
Mr. Delivuk was charged with manufacturing methamphetamine. Defense counsel moved to suppress the evidence obtained through the search warrant alleging it was based on statements obtained from an unlawful arrest and observations made in an unlawful prewarrant search. The trial court made findings of fact and conclusions of law. The trial court held there was probable cause for Mr. Delivuk's arrest based on the information obtained from Ms. Curlott and Ms. Port. The court also held that the warrantless entry was justified by the exigency created by Mr. Delivuk's uncertainty as to whether there was anything dangerous in the basement.
Mr. Delivuk was convicted after a stipulated facts trial. He was sentenced to a standard range sentence of 51 months.
DISCUSSION
We review a trial court's conclusions of law in an order on suppression of evidence de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). No factual issues are in dispute here. We therefore review only the trial court's legal conclusions.
Police have the authority to arrest a person without a warrant when the officer has probable cause to believe that the person has committed a felony. RCW 10.31.100. There is probable cause to arrest when an officer is aware of facts and circumstances that would lead a reasonable person to believe that a crime has been committed. State v. Graham, 130 Wn.2d 711, 724, 927 P.2d 227 (1996). The determination is based upon the totality of facts and circumstances within the knowledge of the arresting officer at the time of arrest. State v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004); State v. Scott, 93 Wn.2d 7, 11, 604 P.2d 943 (1980). It is not necessary that the knowledge or evidence establish guilt beyond a reasonable doubt. Gaddy, 152 Wn.2d at 70; Scott, 93 Wn.2d at 11. The facts and circumstances should be examined in light of the officer's experience. Graham, 130 Wn.2d at 724; State v. Todd, 78 Wn.2d 362, 367, 474 P.2d 542 (1970).
When police use an informant's tip to establish probable cause for an arrest, we employ the Aguilar-Spinelli test. State v. Jackson, 102 Wn.2d 432, 443, 688 P.2d 136 (1984). Under that test, the State must show (1) the basis of the informant's information and (2) the credibility of the informant or the reliability of the informant's information. State v. Cole, 128 Wn.2d 262, 287, 906 P.2d 925 (1995). Both prongs of the Aguilar-Spinelli test must be met in order to establish probable cause. Jackson, 102 Wn.2d at 443.
Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
The basis of knowledge prong tests the factual details provided by the informant. State v. Smith, 102 Wn.2d 449, 455, 688 P.2d 146 (1984). Information showing the informant personally has seen the facts asserted and is passing on firsthand information satisfies the basis of knowledge prong. State v. Smith, 110 Wn.2d 658, 663, 756 P.2d 722 (1988). Both Ms. Curlott and Ms. Port personally saw the materials they described to the officer just hours prior to the report. The basis of knowledge prong is satisfied.
The veracity prong tests the credibility of the informant or the reliability of the informant's information. Smith, 102 Wn.2d at 455. When the identity of an informant is known, the standard for reliability is relaxed. Gaddy, 152 Wn.2d at 72-73; State v. Tarter, 111 Wn. App. 336, 340, 44 P.3d 899 (2002). The loosening of the necessary showing recognizes that there is less risk of the information being a rumor or irresponsible conjecture that may inhere to unidentified informants. Gaddy, 152 Wn.2d at 73. An identified informant's account is also less likely to be corrupted by self-interest. Id. `Citizen informants are deemed presumptively reliable.' Id.
Here, Ms. Curlott called police, identified herself, and made a report. She was a housemate of Mr. Delivuk. The information supplied by Ms. Curlott was corroborated by Ms. Port. The information was also very detailed and consistent with methamphetamine manufacture. The informants' veracity was established.
Mr. Delivuk argues that there was some basis for hostility on Ms. Curlott's part that impairs her credibility. The search warrant reflects that Mr. Delivuk had been living with and paying rent to Ms. Curlott for the past 10 years, but quit paying her when he stopped receiving unemployment benefits approximately 1 month prior. It is not entirely clear that the officer knew that when he decided to arrest Mr. Delivuk. Nonetheless, the otherwise incriminating information provided by Ms. Curlott was corroborated by Ms. Port who obviously was not owed rent. Mr. Delivuk broadly asserts that all three informants are `potentially biased witnesses.' Appellant's Br. at 23. However, he does not give reason for any such bias on the part of Ms. Port or Mr. Ross other than they have a connection to Ms. Curlott. There is nothing in the record to support the assertion that Ms. Curlott's neighbors shared any hostility for Mr. Delivuk. In fact, the record shows Mr. Delivuk had the same relationship with these informants as Ms. Curlott; they were neighbors.
The search warrant affidavit provides the information about the late rent in the same paragraph that it addresses the initial telephone call from Ms. Curlott. This implies that it was all recorded by the officer at the outset as background information.
Warrantless searches are per se unreasonable under both the Fourth Amendment of the federal constitution and article I, section 7 of our state constitution unless they fall within specific, well-established exceptions to the warrant requirement. State v. Ross, 141 Wn.2d 304, 312, 4 P.3d 130 (2000). Exceptions are narrowly drawn. State v. Jones, 146 Wn.2d 328, 335, 45 P.3d 1062 (2002). `The State bears a heavy burden in showing that the search falls within one of the exceptions.' Id. Here, the trial court found that entry was justified to secure the premises against the danger associated with a potential active heat source.
The emergency doctrine "arises from a police officer's community caretaking responsibility to come to the aid of persons believed to be in danger of death or physical harm." State v. Kinzy, 141 Wn.2d 373, 386 n. 39, 5 P.3d 668 (2000) (quoting State v. Leupp, 96 Wn. App. 324, 330, 980 P.2d 765 (1999)). Under this rule, police may `enter a building if they reasonably believe persons are in imminent danger of death or harm, or where there are objects likely to burn or explode.' State v. Muir, 67 Wn. App. 149, 153, 835 P.2d 1049 (1992).
Under the exception, `[t]he emergency nature of each situation must be evaluated on its own facts, and in relation to the scene as it reasonably appeared to the officer at the time.' State v. Angelos, 86 Wn. App. 253, 258, 936 P.2d 52 (1997). To invoke the exception, the State must show: (1) the searching officer subjectively believed an emergency existed; and (2) a reasonable person in the same circumstances would have thought an emergency existed. In determining whether the first of these conditions is satisfied, the court may examine whether the officer's acts were consistent with his or her claimed motivation.
State v. Downey, 53 Wn. App. 543, 545, 768 P.2d 502 (1989) (citations omitted).
Here, the trial court made the unchallenged finding that, at the time of his arrest, Mr. Delivuk told the detective that he did not know whether there were any active heat sources in the basement. The detective called in another officer to assist pursuant to safety protocol. Once inside, he unplugged electrical sources and opened a window to ventilate the room. These activities are consistent with the officer's subjective belief that an emergency existed. A reasonable person familiar with the volatile nature of methamphetamine labs would find that an emergency existed in light of the uncertainty of the presence of active heat sources.
Mr. Delivuk notes that almost an hour lapsed between the detective's arrival at the scene and his entry. Mr. Delivuk alleges that if the detective truly believed there was an emergency, he would not have waited for so long. However, as noted, the reason for the entry was due to Mr. Delivuk's own uncertainty as to the present danger of an active heat source. The entry did not occur until the need for one arose. The detective apparently waited for backup and equipment because that is what department protocol required. Mr. Delivuk also asserts that the detective did not ask the informants if they noticed a heat source in the basement; that shows he had no subjective concern for the public safety or the risk of explosion. However, the record shows that Ms. Port told the detective in their telephone conversation that she saw a hot plate in the room.
Police involvement under the emergency exception is "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." State v. Houser, 95 Wn.2d 143, 151, 622 P.2d 1218 (1980) (emphasis omitted) (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973)); see also State v. Kypreos, 115 Wn. App. 207, 217, 61 P.3d 352 (2002) (citing Kinzy, 141 Wn.2d at 385). `When the State invokes this exception, the reviewing court "must be satisfied that the claimed emergency was not simply a pretext for conducting an evidentiary search."' State v. Schroeder, 109 Wn. App. 30, 38, 32 P.3d 1022 (2001) (quoting State v. Johnson, 104 Wn. App. 409, 414, 16 P.3d 680 (2001)). Mr. Delivuk asserts that the action was not sufficiently separate and apart from the criminal investigation. However, the separation is evinced by the absence of the conduct of any investigation by the officer during the entry. Of note, the only information that the officer included in the search warrant affidavit about the emergency entry was superfluous — that the photographs he had viewed prior to entering the home were accurate depictions of what he found inside. Finally, the officer did not exceed the scope of the intrusion allowed under the emergency exception. See Kinzy, 141 Wn.2d at 388 (holding that the investigation must end when the reasons for it are fully dispelled).
CONCLUSION
Mr. Delivuk's arrest was supported by probable cause. The entry into the home was justified by the emergency exception. Therefore, the search warrant was not obtained with illegally acquired information. Accordingly, we affirm Mr. Delivuk's conviction.
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.
KATO, C.J. and KURTZ, J., Concur.