Opinion
No. 22795-2-III
Filed: May 5, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County. Docket No: 02-1-01229-4. Judgment or order under review. Date filed: 01/28/2004. Judge signing: Hon. Michael W. Leavitt.
Counsel for Appellant(s), Kenneth L. Jr Ramm, Yakima County Courthouse, 128 N 2nd St Rm 211, Yakima, WA 98901-2639.
Counsel for Respondent(s), Rick Hernandez Hernandez Law Office, 440 S 6th St, PO Box 1039, Sunnyside, WA 98944-3039.
The State appeals an order suppressing evidence in a methamphetamine manufacture case. It claims that because an officer's warrantless entry into a motel room was justified on the emergency doctrine, the officer's observations from that entry were the proper basis of a valid search warrant. Because the trial court made an unchallenged finding that the officer did not believe there was an emergency, we affirm.
FACTS
On June 20, 2002, Union Gap Police Officer Edward Levesque responded to a `suspicious circumstances' call at the Cobblestone Motel in Union Gap, Washington. Clerk's Papers (CP) at 3. When the owner of the motel, Frances Nelson, was cleaning the rooms, she came across `odd chemicals' in one of the occupied rooms. CP at 3. Ms. Nelson told the officer she saw coffee filters on top of a lamp shade. When she removed the trash bag from the can in the room, she saw another bag at the bottom. She opened it and found empty blister packs of pseudoephedrine and empty bottles of Heet. Ms. Nelson thought these items odd, and she asked Officer Levesque to look at them. Although he suspected these items related to methamphetamine manufacture, Officer Levesque did not believe he had probable cause to obtain a search warrant at this point. Ms. Nelson told Officer Levesque that no one was currently inside the room.
Officer Levesque knocked on the door. When no one responded, he opened the door and stepped inside, without a warrant, to confirm his suspicions. He did not know that anyone needed emergency aid or that any particular person's safety was at risk, nor was he aware of any kind of an emergency. Officer Levesque saw coffee filters, three jars with clear oily-type liquid, a Pyrex baking dish, several empty blister packs, and empty bottles of Heet in the trash can. He left and shut the door. Officer Levesque applied for a search warrant based on his confirmation of Ms. Nelson's observations.
The search warrant was granted, and evidence of methamphetamine manufacture was seized. Mr. Gardner was lodged in the motel room that was searched. He was charged as an accomplice to the manufacture of methamphetamine. The defense moved to suppress the evidence seized by the execution of the search warrant in that it was based on the prior warrantless search by Officer Levesque. The trial court agreed and entered findings of fact and conclusions of law, and an order suppressing the evidence. The case was dismissed. The State appeals.
ANALYSIS
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.
Warrantless searches are per se unreasonable under both the Fourth Amendment to 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.
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). `The 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 justify the warrantless entry under the exception, the State must show (1) the officer subjectively believed an emergency existed upon entry, and (2) a reasonable person would have thought an emergency existed under similar circumstances. State v. Downey, 53 Wn. App. 543, 545, 768 P.2d 502 (1989).
Significantly, the trial court found that, `At the time Officer Levesque opened the door to the motel room, he did not know if anyone needed emergency aid or that any particular person's safety was at risk, nor was he aware of any kind of an emergency.' CP at 3 (finding of fact 8). Because the State did not challenge that finding, it is a verity on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Additionally, a reasonable person would find no exigency under these circumstances.
There is no evidence that Officer Levesque believed there was an emergency of any nature. On direct examination he testified he was immediately suspicious that the items described by Ms. Nelson involved the manufacture of methamphetamine. But when the prosecutor asked him, `Is there anything else you've described that causes [sic] you concern?', he responded, `At this point, no.' Report of Proceedings (RP) at 21. Officer Levesque testified that while he was not an expert in the area, he was aware that the chemicals used to manufacture methamphetamine are `considered toxic and hazardous' and that some of the methods for manufacturing methamphetamine create a high danger for explosion. RP at 23. However, he testified that he did not know if there were any other guests in the motel or if there were any other cars in the lot. He did not recall asking if there were any other guests in the motel or checking any adjoining rooms.
Police involvement under the emergency exception must be "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) (quoting State v. Lynd, 54 Wn. App. 18, 21, 771 P.2d 770 (1989))). There is no assurance that the officer's motives were legitimate here. Just the opposite is true. In fact, the trial court found that the officer's entry was for the purpose of confirming his suspicions. This unchallenged finding is also a verity.
The State also argues that Ms. Nelson gave the officer consent to enter the motel room. A consensual search is an exception to the warrant requirement. State v. Thompson, 151 Wn.2d 793, 803, 92 P.3d 228 (2004). For a consensual search to be valid, it must be voluntary, given by an individual who has the authority to consent, and it must not exceed the scope of consent. Id.
However, the proprietor of a motel generally does not have the legal authority to give consent to search a guest's room because the guest has the same expectation of privacy during the term of tenancy as the owner or renter of a private residence. State v. Davis, 86 Wn. App. 414, 419, 937 P.2d 1110 (1997). Here, there is no finding that the tenancy had expired. To the contrary, there were findings that the room was paid through June 20, the date Officer Levesque unlawfully entered the room.
CONCLUSION
The trial court properly found that the officer's entry was not justified under the emergency exception to the warrant requirement. Ms. Nelson had no legal authority to authorize a search of the room occupied by one of her guests. Accordingly, we affirm.
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.