Opinion
No. 24928-0-III.
May 29, 2007.
Appeal from a judgment of the Superior Court for Benton County, No. 04-1-00155-6, Robert G. Swisher and Cameron Mitchell, JJ., entered February 16, 2005 and February 2, 2006.
Daniel Petty appeals his conviction of first degree possession of stolen property. He challenges the warrantless search of his apartment. Specifically, he argues that there were no exigent circumstances justifying the protective sweep of the apartment.
Although the police may have suspected the residents of the apartment were involved in a theft, the initial reason for approaching the home was a noise complaint. Police then suspected there were minors in possession of alcohol. Holding that exigent circumstances did not exist to justify the protective sweep, we reverse the trial court's denial of the suppression motion.
FACTS
Benton County law enforcement received an anonymous tip that there was a substantial amount of stolen property in an apartment in Kennewick. Later that day, police received a complaint of excessive noise at the same apartment.
Police responded to the apartment based on the excessive noise complaint. They knocked on the door and heard someone inside say to "dump the beer." Report of Proceedings (Feb. 16, 2005) at 6. Bobby Alton answered the door. When the door opened, police detected the smell of alcohol coming from the apartment and could see alcohol containers inside. Officers also saw several people inside who appeared to be underage. Mr. Alton and Daniel Petty were roommates at that apartment.
An officer saw someone dart into another room. There was no indication that this person was armed. Police told Mr. Alton that they needed to search the apartment for officer safety. During the sweep, police found several musical instruments that still had price tags on them and several cartons of cigarettes.
Mr. Alton consented to answer the officer's questions. During the questioning, Mr. Alton admitted that the property found during the search was stolen. Mr. Alton stated that he, Daniel Petty, and another individual broke into a store, and stole cigarettes and a computer. Mr. Alton also admitted that he and Mr. Petty broke into another store and stole food, alcohol, and money. The value of the stolen property was approximately $13,000.
Mr. Petty was charged with first degree possession of stolen property and possession of a stolen firearm. The charge of possession of a stolen firearm was dismissed. Mr. Petty proceeded to a stipulated facts trial. Mr. Petty unsuccessfully sought to suppress all of the evidence that was obtained as a result of the protective sweep of the apartment. Mr. Petty was convicted of first degree possession of stolen property. He appeals.
ANALYSIS
Warrantless Search
This court reviews conclusions of law entered by a trial court at a suppression hearing de novo. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004).
The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution generally protect against warrantless searches. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). Warrantless searches are presumptively unreasonable unless the State can establish that "one of a very narrow set of exceptions applies." State v. Cardenas, 146 Wn.2d 400, 405, 47 P.3d 127, 57 P.3d 1156 (2002). One of the exceptions to the warrant requirement is exigent circumstances. Id. The State bears the burden of establishing that an exception to the warrant requirement exists. Duncan, 146 Wn.2d at 172.
This court applies several factors in determining whether exigent circumstances exist. These include the seriousness of the offense with which the suspect is charged; whether the suspect is reasonably believed to be armed; whether there is reasonably trustworthy information that the suspect is guilty and that the suspect is on the premises; the likelihood that the suspect will escape if not swiftly apprehended; and that the entry is made peaceably. Cardenas, 146 Wn.2d at 406. It is not necessary that every factor must be met, but these factors must be sufficient to show that officers needed to act quickly. Id. at 408.
"'The focus of this exception is the impracticability of obtaining a warrant.'" State v. Rulan C., 97 Wn. App. 884, 889, 970 P.2d 821, 990 P.2d 422 (1999) (quoting State v. Audley, 77 Wn. App. 897, 905, 894 P.2d 1359 (1995)). As a general rule, this exception usually applies in the context of danger to police or the public, where the suspect is fleeing, or where there is a danger of destruction of the evidence. Rulan C., 97 Wn. App. at 889. Here, there are two grounds upon which the warrantless search of Mr. Petty's apartment could be justified based on exigent circumstances: the potential destruction of evidence and the potential danger to police and the public.
Potential Destruction of Evidence
The trial court relied on the potential destruction of evidence as a basis for finding exigent circumstances. Mr. Petty asserts that there is no exigency arising out of the potential destruction of evidence because the police were at his apartment only for a noise complaint and had evidence of the commission of only a gross misdemeanor (minor in possession) at the time of the warrantless search.
This court's opinion in State v. Ramirez is particularly instructive on this issue. In Ramirez, police conducted a search of Mr. Ramirez's hotel room based on their suspicion that there were drugs inside. Ramirez, 49 Wn. App. at 815-17. The State claimed this search was justified due to exigent circumstances. Specifically, the State asserted that there was a danger that the evidence inside the hotel room could be destroyed. Id. at 818-19.
State v. Ramirez, 49 Wn. App. 814, 746 P.2d 344 (1987).
The court disagreed, noting that the application of the exigent circumstances doctrine should rarely be sanctioned in the context of misdemeanor arrests. Ramirez, 49 Wn. App. at 820; see also Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984). Because a misdemeanor was at issue, the court found that the State's interest in preventing such crimes "is not of sufficient magnitude to justify this warrantless entry and arrest under the Fourth Amendment." Ramirez, 49 Wn. App. at 821.
Here, the suspected offense that brought officers to Mr. Petty's apartment was a noise complaint. Once at the apartment, the officers had probable cause to believe that the individuals present were minors who were in possession of alcohol, which is a gross misdemeanor. RCW 66.44.270(2)(a). This offense was not of sufficient gravity to justify intrusion into Mr. Petty's home for the purpose of a warrantless search of the premises.
Protective Sweep
When exigent circumstances are present, police may take reasonable actions to secure their safety when entering a dwelling. Cardenas, 146 Wn.2d at 410. If the protective sweep is incident to an arrest, law enforcement may look in the places immediately adjoining the place of arrest as a precautionary measure. Maryland v. Buie, 494 U.S. 325, 334, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). Otherwise, "there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. Such a search is limited to a cursory inspection of places where a person may be found and must last no longer than is necessary to dispel the reasonable suspicion of danger. Id. at 335-36. Here, the protective sweep occurred prior to any individual being placed under arrest. As such, the State must establish exigent circumstances constituting a threat to officer safety to justify the search.
Washington courts place an "inversely proportional burden" on the State to prove exigent circumstances in relation to the level of the violation. Duncan, 146 Wn.2d at 177. Thus, "society will tolerate a higher level of intrusion for a greater risk and higher crime than it would for a lesser crime." Id. The converse logically must be true: that this court will tolerate less intrusion on the basis of a less serious and less violent crime.
As noted above, police only had probable cause to believe that the individuals in Mr. Petty's apartment unlawfully possessed alcohol, which is a gross misdemeanor. There was no indication that any persons inside the apartment were armed or posed any threat to the officers. Likewise, the State has not established that there was a reasonable likelihood that the suspects would escape if the officers obtained a warrant prior to the search.
Taken as a whole, the record does not demonstrate that it was impractical or unsafe for the officers to acquire a warrant to search Mr. Petty's apartment. See, e.g., State v. Bessette, 105 Wn. App. 793, 799-800, 21 P.3d 318 (2001). And an examination of the relevant factors in this case likewise does not support a finding of exigency. Thus, the warrantless search of Mr. Petty's apartment was without lawful authority and the resulting evidence should have been suppressed by the trial court.
We reverse.
A majority of the panel has determined 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.
WE CONCUR: Schultheis, A.C.J. Kato, J. Pro Tem.