Opinion
No. 36928-1-II.
September 16, 2008.
Appeal from a judgment of the Superior Court for Clallam County, No. 05-1-00114-2, Kenneth D. Williams, J., entered October 5, 2007.
UNPUBLISHED OPINION
Patricia Schultz appeals her conviction for drug possession, arguing that the trial court erroneously admitted drug evidence police officers found in her apartment. She argues that (1) the officers' initial entry into her apartment was invalid, (2) the officers' search warrant was overbroad, and (3) the officers arrested her without probable cause. We affirm Schultz's conviction and sentence.
FACTS
On April 4, 2004, Sequim police officers, Kori Malone and Michael Hill, went to an apartment complex to check on "a possible domestic disturbance of male and female yelling and arguing in their apartment" because a neighbor called and asked the police to investigate. When Malone and Hill arrived at the apartment, they waited on the porch outside the front door and listened to a male and female speaking loudly, and Malone heard the male say that he "just wanted to leave and needed space." Report of Proceedings (RP) at 12-13. Hill also recalled that the male said he "wanted to be left alone." RP at 61.
All report of proceedings citations are to the CrR 3.6 hearing, held on August 2, 2005.
When Malone knocked on the door, Schultz answered it and appeared agitated and flustered. Malone asked her where the male occupant was located in the apartment, but Schultz replied that no one else was there. Malone "told her that [they had] heard a male voice [coming from the apartment]." "[S]he then stepped back [away from the door] and . . . called for Sam [Robertson], who then came from a second bedroom." RP at 14. As Schultz stepped away from the door, Malone followed her inside. Schultz did not object to Malone's presence. Malone and Hill both testified that the focus of the investigation was the possible domestic violence situation between Schultz and Robertson. Malone testified that she entered the apartment with the intent to investigate the domestic disturbance.
Schultz gave a slightly different account: "Malone and Hill said they heard [Robertson's voice] through the door and they were coming in." At that point, she testified that "[t]hey were coming in, I stepped to the side." She also testified that she "yelled, `Sam, they're coming in.'" RP at 93-94.
Hill interviewed Robertson on the front porch; Malone interviewed Schultz in the main living area of the apartment. Malone asked Schultz to sit down at the dining table with her because Schultz "was moving around a lot and talking fast and agitated and trying to pick things up inside the apartment[,] and [Malone] wanted her to sit down for officer safety reasons and to try to get her to focus so [they] could talk." RP at 16. But Schultz continued to move around, grabbing things in the apartment. Malone cautioned Schultz that if she did not sit still, Malone would have to handcuff her for officer safety reasons. Malone noticed that Schultz's skin was red and blotchy, an indication of a possible assault. Malone asked Schultz if Robertson had assaulted her. Schultz denied any assault and insisted her neck was red only because she was upset. Schultz explained that she and Robertson argued because he had not changed the locks on the door to the apartment.
When Hill came into the apartment to confer with Malone, Schultz leaned out of her chair and grabbed more items off the table. Hill noticed a gun and marijuana pipe that Schultz had uncovered. Hill removed, unloaded, and secured the gun. Schultz said that the pipe belonged to her son who lived in Vermont. Hill asked Schultz if he could check the table for other narcotics. Schultz initially agreed, but then stood up and began grabbing items off the table. Malone handcuffed her to prevent the removal of narcotics evidence or other weapons, but did not place her under arrest.
Schultz asked for her anti-anxiety medication and Hill and Robertson went to look for it. While Hill and Robertson were looking, Robertson admitted that he had smoked marijuana with the pipe earlier that day. Hill then arrested Robertson for possession of drug paraphernalia and handcuffed him. Schultz next insisted that the officers obtain a search warrant before they looked at the items on the table. After Hill obtained a warrant, Malone and Hill searched the apartment and discovered methamphetamine and marijuana.
There was no testimony about this during the CrR 3.6 hearing. But the trial court made this oral finding, and Schultz's attorney neither objected nor appealed it.
When Hill telephonically applied for a search warrant, he told the judge that he also saw "a small tin container with burnt residue and a bloody . . . band-aid inside[, that he] recognized from [his] training and experience as consistent with narcotic use, mainly methamphetamine." Clerk's Papers at 41. There was no testimony about these items during the CrR 3.6 hearing. But Schultz did not object to Hill's inclusion of these items to obtain a search warrant, and Schultz even uses her possession of these items as support in her reply brief.
Again, there was no testimony about the officers' discovery of methamphetamine and marijuana during the CrR 3.6 hearing. But the trial court made this finding of fact and Schultz's attorney did not object nor does she appeal it.
The State charged Shultz with unlawful possession of a controlled substance, methamphetamine. Schultz unsuccessfully moved to suppress the evidence seized from her apartment. The trial court ruled that Hill was in a lawful position to observe the drug paraphernalia which served as the basis for the search warrant because he and Malone were investigating a domestic disturbance. Schultz's counsel told the trial court that the State first provided him with a copy of the search warrant at the CrR 3.6 hearing and that he would now challenge it as overbroad. In a memorandum opinion, without further argument, the trial court denied Schultz's second suppression motion, in which she challenged the scope of the warrant and Hill's affidavit of expertise, finding that the warrant was not overbroad and that Hill's affidavit was adequate.
The trial court convicted Schultz of one count of unlawful possession of a controlled substance on stipulated facts. It sentenced her to 30 days of community restitution, under RCW 9.94A.680, giving her credit for 10 days she had already served, and ordered 4 months of community custody.
RCW 9.94A.680 provides in relevant part:
Alternatives to total confinement are available for offenders with sentences of one year or less. These alternatives include[:]
. . . .
(2) In addition, for offenders convicted of nonviolent offenses only, eight hours of community restitution may be substituted for one day of total confinement, with a maximum conversion limit of two hundred forty hours or thirty days.
Although the trial court convicted Schultz on February 3, 2006, it did not sentence her until October 5, 2007. It appears that Schultz had another case pending, so sentencing was set over numerous times, and then the parties lost track of the fact that she had been found guilty under this cause number. She does not appeal this delay.
ANALYSIS
I. Warrantless Entry
When reviewing a trial court's denial of a suppression motion, "we review challenged findings of fact for substantial supporting evidence." State v. Lawson, 135 Wn. App. 430, 434, 144 P.3d 377 (2006). Substantial evidence is evidence in the record sufficient "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). We review de novo the legal conclusions of the trial court. State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).
Shultz argues that the trial court erred in concluding that the officers' entry into her apartment was legal because the State did not prove that Malone and Hill were facing exigent circumstances. The officers, she contends, could not have subjectively believed that someone needed assistance for health or safety reasons because they quickly discovered no domestic violence had occurred; thus, the officers' warrantless entry into her apartment was unjustified. While the State argues that the officers had a subjective and reasonable belief that someone in the apartment needed assistance, and that belief met the requirements for the exigent circumstances exception.
The Fourth Amendment of the United States Constitution establishes the peoples' right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Article I, section 7 of the Washington State Constitution provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Under the Washington State Constitution, "the home receives heightened constitutional protection." State v. Kull, 155 Wn.2d 80, 84, 118 P.3d 307 (2005). "The heightened protection afforded state citizens against unlawful intrusion into private dwellings places an onerous burden upon the government to show a compelling need to act outside of our warrant requirement." State v. Chrisman, 100 Wn.2d 814, 822, 676 P.2d 419 (1984). And "[u]nder article I, section 7, warrantless searches are per se unreasonable." Kull, 155 Wn.2d at 85.
Of course, we recognize certain exceptions to the warrant requirement, but the State must show how a warrantless search falls within one of these exceptions. Kull, 155 Wn.2d at 85. To assure that exceptions do not abrogate the rule, we "`jealously and carefully'" draw those exceptions. State v. Hendrickson, 129 Wn.2d 61, 72, 917 P.2d 563 (1996) internal quotation marks omitted) (quoting State v. Bradley, 105 Wn.2d 898, 902, 719 P.2d 546 (1986)). One important exception to the search warrant requirement allows officers to enter a building when they encounter exigent circumstances. This exception recognizes that police officers have a caretaking function to assist and protect citizens. Lawson, 135 Wn. App. at 434.
The caretaking or emergency exception permits a warrantless search when "`(1) the officer subjectively believe[s] that someone likely need[s] assistance for health or safety reasons; (2) a reasonable person in the same situation would similarly believe that there was a need for assistance; and (3) there was a reasonable basis to associate the need for assistance with the place searched.'" State v. Kinzy, 141 Wn.2d 373, 386-87, 5 P.3d 668 (2000) (internal quotation marks omitted) (quoting State v. Menz, 75 Wn. App. 351, 354, 880 P.2d 48 (1994)). In addition, the "exception only applies where there is an imminent threat of substantial injury to persons or property." State v. Leffler, 142 Wn. App. 175, 184, 178 P.3d 1042 (2007).
We determine whether the police encountered an exigent circumstance negating the need for a warrant based on the specific facts involved. State v. Raines, 55 Wn. App. 459, 464, 778 P.2d 538 (1989). We decide whether the police officer acted in an objectively reasonable manner by viewing those actions in light of what the officer reasonably knew at the time. State v. Lynd, 54 Wn. App. 18, 22, 771 P.2d 770 (1989). To benefit from this exception, "the State must show that the claimed emergency is not merely a pretext for conducting an evidentiary search."
Police must reasonably believe that "a specific person or persons needed immediate help for health or safety reasons." Leffler, 142 Wn. App. at 182.
Furthermore, in a potential domestic violence situation, RCW 10.99.030(6)(b) requires that a responding police officer "take a complete offense report including the officer's disposition of the case." "Police officers responding to a domestic violence report have a duty to ensure the present and continued safety and well-being of the occupants." Raines, 55 Wn. App. at 465. Within these legal bounds, the exigent circumstances exception allows police officers to enter a building to provide immediate assistance to likely victims of domestic violence. See, e.g., State v. Johnson, 104 Wn. App. 409, 412-13, 16 P.3d 680 (2001) (The emergency exception justified warrantless entry when officers received a domestic violence report from the victim's relative that the victim had locked herself in the bathroom; the defendant was slow to acknowledge victim's presence; the victim was still in the bathroom; and the defendant had a bloody cut on his wrist.); Raines, 55 Wn. App. at 460-61, 464-66 (The emergency exception justified warrantless entry into an apartment when officers received a neighbor's report of domestic violence; officers knew the male defendant had a violent temper; officers saw a man in the apartment window; the adult female and her child appeared to be unharmed; she lied about the defendant's presence; and the defendant was hiding in the bedroom when officers arrived.); Lynd, 54 Wn. App. at 22-23 (The emergency exception justified warrantless entry into defendant's home to investigate the well-being of the wife when a police officer had knowledge of a 911 hang-up call from defendant's home; the phone line remained busy after the 911 call; a domestic violence incident between spouses had just occurred; the defendant was loading his things into his vehicle and preparing to leave; and the defendant did not want the officer to enter the home to check on his wife.).
Here, Malone and Hill responded to a neighbor's call reporting possible domestic violence and police do not need to warn a homeowner of the right to refuse entry when they are seeking entry for legitimate investigative purposes. See State v. Khounvichai, 149 Wn.2d 557, 563-64, 69 P.3d 862 (2003). Upon their arrival at the apartment, the officers heard raised male and female voices arguing about how the male occupant needed time apart from the female occupant. When Schultz answered the door, she initially lied about Robertson's presence. Furthermore, she appeared flushed, nervous, and upset. Therefore, under these circumstances, it was likely that (1) the officers subjectively believed that Schultz needed assistance for health or safety reasons, (2) a reasonable person in the same situation would similarly believe there was a need for assistance, and (3) the need for assistance reasonably related to the place searched — the apartment. See Kinzy, 141 Wn.2d at 386-87. Moreover, the trial court concluded that there was "no indication that the officers' entry into the apartment was in any way a pretextual search for evidence" and Schultz does not challenge this conclusion on appeal. Clerk's Papers (CP) at 23, We hold that in this situation, given the legislative directive requiring police to investigate and report on domestic violence calls, the officers' warrantless investigatory entry was justified and the trial court did not err.
Alternatively, the State argues that Schultz invited the officers into the apartment.
If a householder is in a position to communicate his refusal of admittance and circumstances leading to and surrounding his entry . . . are such that a police officer can reasonably conclude he is not being refused entry, then no invitation, express or implied, is necessary to make the officer's entry lawful.
State v. Sabbot, 16 Wn. App. 929, 937-38, 561 P.2d 212 (1977). Schultz asserts that the trial court did not find that she voluntarily consented to entry and that, even if it had, it would have had to examine whether police properly advised her of her right to refuse consent under State v. Ferrier, 136 Wn.2d 103, 116, 960 P.2d 927 (1998).
When a homeowner gives police consent to enter and conduct a warrantless search, officers need not obtain a search warrant, but "the State bears the burden of establishing the exception." Khounvichai, 149 Wn.2d at 562. Our Supreme Court has "clarified that the Ferrier requirement is limited to situations where police request entry into a home for the purpose of obtaining consent to conduct a warrantless search and have declined to broaden the rule to apply outside the context of a request to search." Khounvichai, 149 Wn.2d at 563. "[T]here is a fundamental difference between requesting consent to search a home and requesting consent to enter a home for other legitimate investigatory purposes." Khounvichai, 149 Wn.2d at 564.
Here, the trial court found that Schultz consented to the officers' entry; she "stepped away from the door, opening it further, and the officers entered." CP at 21. And it concluded as a matter of law that "neither party told them to leave and that the defendant initially acquiesced to their entry, stepping back and opening the door further, and at no time told or asked them to leave." CP at 23-24. This constitutes an affirmative act and conveys implied consent to allow the officers' entry. See State v. Bustamante-Davila, 138 Wn.2d 964, 981, 983 P.2d 590 (1999); Raines, 55 Wn. App. at 462.
Both Malone and Hill testified that they entered the apartment with the intent only to check on Shultz's and Robertson's welfare. Therefore, Malone and Hill did not need to warn Schultz of her right to refuse their entry because they were seeking entry to investigate the report of possible domestic violence. See Khounvichai, 149 Wn.2d at 563-64. Because Schultz consented to the officers' entry, we agree with the State that it is additional support for the trial court's conclusion that the officers' entry was legal.
II. Search Warrant
Schultz argues that the search warrant was overbroad only because Hill did not establish probable cause to search the apartment for evidence of drug sales. She does not argue that the officers lacked probable cause to search her apartment for marijuana and methamphetamine. In fact, she concedes "the telephonic affidavit provided probable cause to seize drug paraphernalia and associated residue." Br. of Appellant at 15.
Under the Fourth Amendment to the United States Constitution, "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." State v. Perrone, 119 Wn.2d 538, 545, 834 P.2d 611 (1992). "The purposes of the search warrant particularity requirement are the prevention of general searches, prevention of the seizure of objects on the mistaken assumption that they fall within the issuing magistrate's authorization, and prevention of the issuance of warrants on loose, vague, or doubtful bases of fact." Perrone, 119 Wn.2d 545. The search warrant particularity requirement limits the officers' discretion and informs the person subject to the search warrant of the items the officer may seize. State v. Riley, 121 Wn.2d 22, 29, 846 P.2d 1365 (1993). "Whether a search warrant contains a sufficiently particularized description is reviewed de novo." Perrone, 119 Wn.2d at 549.
The severability doctrine may be used to save parts of the search warrant when other parts of the warrant are insufficiently particular or are overbroad. Perrone, 119 Wn.2d at 556; State v. Griffith, 129 Wn. App. 482, 489, 120 P.3d 610 (2005), review denied, 156 Wn.2d 1037 (2006). "Under the severability doctrine, `infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant' but does not require suppression of anything seized pursuant to valid parts of the warrant." Perrone, 119 Wn.2d at 556 (quoting United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983)). But we will not apply the doctrine "where to do so would render meaningless the standards of particularity which ensure the avoidance of general searches and the controlled exercise of discretion by the executing officer." Perrone, 119 Wn.2d at 558.
Here, the warrant described the evidence to be seized as follows:
Methamphetamine and Marijuana in their various forms, items commonly used in the ingestion of methamphetamine and marijuana, including but not limited to pipes, bongs, straws and hypodermic needles; items associated in packaging and sales of controlled substances including monies, plastic sandwich baggies, envelopes; or other containers used to hold controlled substances and indicia of occupancy.
CP at 37. We treat the warrant as overbroad because it allowed Hill to search for evidence of drug sales, but excision of the phrase — "items associated in packaging and sales of controlled substances including monies, plastic sandwich baggies, envelopes" — does not render the particularity requirement meaningless. CP at 37. As excised, the warrant did not allow Hill unfettered discretion to search Schultz's apartment. Furthermore, methamphetamine, marijuana, and specific drug paraphernalia were identified in the warrant and the State introduced only the drug evidence in prosecuting Schultz. Thus, the officers validly seized the evidence supporting her conviction. Schultz's overbreadth argument fails. We hold that the trial court did not err in admitting the drug evidence.
Schultz also argues that Malone arrested her without probable cause and, therefore, we should suppress the drug evidence. But the basis of the arrest has no bearing on admission of the drug evidence found as a result of the search warrant, not a search incident to arrest. Furthermore, the warrant was based, in part, on the officers' discovery of drug paraphernalia and Robertson's admission that he used drugs that day. The search warrant was not obtained based on Schultz's arrest.
We affirm Schultz's conviction and sentence.
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.
Bridgewater, J. and Quinn-Brintnall, J., concur.