Opinion
No. 34865-9-II.
February 26, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-1-01532-6, Paula Casey, J., entered April 6, 2006.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.
Brian Smith appeals his multiple drug-related convictions, claiming that the trial court should have suppressed the evidence supporting these charges as its discovery was part of a warrantless criminal investigation not part of a community caretaking function. We affirm.
The trial court found him guilty following a stipulated bench trial of unlawful possession of methamphetamine with intent to deliver, a violation of RCW 69.50.401(2)(b); unlawful possession of oxycodone, a violation of RCW 69.50.4013(1); unlawful possession of hydrocodone, a violation of RCW 69.50.4013(1); unlawful possession of benzodiazepine/clonazepam with intent to deliver, a violation of 69.50.401(2)(a); and unlawful use of drug paraphernalia, a violation of 69.50.412(1).
Facts
Following a CrR 3.6 hearing, the trial court denied Smith's motion to suppress evidence and entered the following findings of fact and conclusions of law:
I. FINDINGS OF FACT
1. On the evening of August 14, 2005, Olympia Police officers exercised their community caretaking responsibilities by transporting Harold Briggs to his residence and by assisting Briggs into the residence, since Briggs was too intoxicated to return home safely on his own.
2. Upon arriving with Briggs at Briggs' residence, one of the officers knocked on the door.
3. A woman answered the door who was not known to the officers and who stated she did not live in the residence, but rather was only there to use the bathroom.
4. The officers then assisted Mr. Briggs into the living room of his residence where he sat down on the couch.
5. In speaking with the woman, Taura Freeman, Officers Lindros and Anderson noted the following: (1) that Freeman was somewhat evasive in her demeanor and the way she answered questions; (2) that Freeman positioned herself to block the way to the hallway; (3) the way Freeman looked back over her shoulder; (4) Freeman's indication that she did not know whether anyone else was in the residence; and (5) the lack of any explanation from Freeman as to why she was in the residence to use the bathroom when she lived in the area.
6. The officers became reasonably concerned that there might be a burglary or other crime in process within the residence, that there might be another person located within the residence who had no right or permission to be there; and that Mr. Briggs' safety might be at risk if the officers left or that their own safety could be at risk if they remained.
7. Officer Anderson proceeded to take a quick look through the residence based on those concerns, momentarily sticking her head inside the doorway of one room and then immediately exiting the room. In that brief moment, Officer Anderson smelled the strong odor of fresh marijuana coming from inside that room.
8. Officer Anderson then proceeded to seek a telephonic search warrant from the Honorable Judge Wm. Thomas McPhee.
Based on the above Findings of Fact, and the applicable legal principles, the Court makes the following:
II. CONCLUSIONS OF LAW
1. The officers in this case acted appropriately, consistent with their community caretaking responsibilities, in assisting Mr. Briggs into the living room of his residence.
2. Under the circumstances the officers were confronted with upon assisting Mr. Briggs into his residence, including Briggs' level of intoxication and Freeman's behavior, it was a reasonable extension of the officers' community caretaking responsibilities for Officer Anderson to conduct a brief sweep of the residence in order to determine whether anyone else was present or whether a burglary or other crime was in progress therein.
3. The information thereafter provided by Officer Anderson to Judge McPhee in support of the request for a search warrant was obtained legally by the police officers in this case.
4. Sufficient information was given to Judge McPhee on August 4, 2005, for a reasonable magistrate to conclude that there was probable cause to authorize a search warrant in this case.
Based upon the above Findings of Fact and Conclusions of Law, the Court hereby denies the defendant's motion to suppress evidence pursuant to CrR 3.6.
Clerk's Papers (CP) at 70-72.
After the court denied Smith's motion to suppress, he waived his jury trial right, stipulated to the police reports, and the court found him guilty of the five counts noted above. According to the court's findings of fact, the officers found Smith hiding in the bedroom of the trailer when they executed the warrant. They also found a backpack, $1,855.00 in small denomination bills, a toolbox containing two small electronic scales, many baggies, and methamphetamine, clonazepam, oxycodone, and dihydrocodeinone. The officers also found a Thurston County Jail wrist band with Smith's name and picture, correspondence and paperwork associated with Smith, and drug paraphernalia.
The court imposed a 90-month Special Drug Offender Sentencing Alternative (DOSA). Smith now appeals the suppression hearing results.
ANALYSIS
We review only those findings of fact from a suppression hearing to which the appellant has assigned error. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994) (independent evaluation of evidence improper). When substantial evidence supports those findings, those findings are binding on appeal. Hill, 123 Wn.2d at 647. We treat unchallenged findings of fact as verities on appeal. State v. Christian, 95 Wn.2d 655, 656, 628 P.2d 806 (1981). We review the conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999); State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996); State v. Ford, 125 Wn.2d 919, 923, 891 P.2d 712 (1995).
Smith assigns error to findings of fact nos. 1, 5, 6, and 7. Substantial evidence supports them all.
As to finding one, all the witnesses testified that Briggs was extremely intoxicated and the officers testified that they gave him a ride home rather than letting him ride his bicycle home. Officers Lindro and Anderson testified that they helped Briggs into his residence.
As to finding five, both officers testified that Freeman was nervous and evasive, that she appeared to be blocking the hallway, that she said she did not know if anyone else was present, and that she did not explain why she was in the residence to use the bathroom when she lived next door. While Freeman testified that she told the officers she did not think it was a good idea for them to come in the residence and later to check the back room, her testimony did not contradict this finding.
As to finding six, both officers testified that Freeman's evasive answers and nervous manner made them concerned that there might be someone else in the residence that had no right to be there and they may have come upon a burglary, leaving them concerned for Briggs's and their safety.
Finally, as to finding seven, Anderson testified that in response to her concerns, she checked the back bedroom and bathroom to see if another person was present. She testified that she briefly opened the bedroom door, immediately smelled grown marijuana, and then closed the door and returned to the living room. While there was some contradictory testimony about whether the bedroom door was locked, substantial evidence supports the trial court's finding of fact.
Smith also assigns error to the trial court's conclusions of law nos. 1, 2, and 3. We find no error in these conclusions of law.
The public relies on law enforcement to perform duties other than simply enforcing criminal law. State v. Acrey, 148 Wn.2d 738, 749-50, 64 P.3d 594 (2003). The community caretaking function is one aspect of an officer's multiple responsibilities to provide emergency aid or a routine check on health and safety. State v. Link, 136 Wn. App. 685, 696, 150 P.3d 610 (2007) (citing State v. Thompson, 151 Wn.2d 793, 802, 92 P.3d 228 (2004)). Still, a proper community caretaking function is divorced from a criminal investigation. State v. Kinzy, 141 Wn.2d 373, 386-88, 5 P.3d 668 (2000) (citing State v. Houser, 95 Wn.2d 143, 151, 622 P.2d 1218 (1980)).
Broadly stated, a law enforcement officer's job is always to serve and protect the community. But where an officer's primary motivation is to search for evidence or make an arrest, this broader purpose does not create an exception to the search warrant requirement. See State v. Gocken, 71 Wn. App. 267, 275-77, 857 P.2d 1074 (1993), review denied, 123 Wn.2d 1024, 875 P.2d 635 (1994).
Link, 136 Wn. App. at 696
The community caretaking function is an exception to the general rule prohibiting warrantless searches and seizures. It applies when "(1) the officer subjectively believed that someone likely needed 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." Kinzy, 141 Wn.2d at 386-7 (quoting State v. Menz, 75 Wn. App. 351, 354, 880 P.2d 48 (1994). We apply this exception cautiously, balancing an individual's freedom from police interference against the officers' duty to perform community caretaking functions. Kinzy, 141 Wn.2d at 387-88.
Applying these rules here, the trial court did not err in finding that the officers were performing their community caretaking function when they brought Briggs into his residence, questioned Freeman about why she was there, and then checked the home to see if anyone else that should not be there was present. The protective sweep was primarily for Briggs's safety given that he was highly intoxicated, could not walk unassisted, and fell asleep when not being held upright. Further, the officers could not leave him alone with a person not knowing if she would care for his health and safety. The officers acted out of concern for Briggs's and their own safety; they were not conducting a criminal investigation of any sort.
Smith argues that the officers were unjustified in searching the residence because there was no evidence to support the officers' suspicions about a burglary. He notes that Freeman opened the door, explained who she was, and there was no evidence that a burglary was in progress. He continues that when the officers suspected that something was wrong because of Freeman's behavior, they were conducting a criminal investigation as there was no longer any danger to Briggs as he was asleep on the couch, there were no sounds coming from other parts of the small trailer, and there was nothing else indicating danger.
We agree with the trial court that these officers acted reasonably in light of the circumstances. They brought Briggs home to find someone that did not live in the residence present, she did not explain why she had to use Briggs's restroom, and Briggs was incapable of assuaging the officers' safety concerns. These officers acted cautiously in making sure that Briggs was safe before leaving him in the trailer. It is also worth noting that once Briggs came to and explained that he knew Freeman and that it was okay that she was there, the officers left. Only after discussing what Anderson had smelled in the back room, did they decide to seek a search warrant. The officers' conduct was reasonable in light of the circumstances. See State v. Johnson, 104 Wn. App. 409, 414-20, 16 P.3d 680 (2001) (warrantless entry into home justified under emergency exception as officer had objectively reasonable purpose); State v. Gocken, 71 Wn. App. 267, 275-78, 857 P.2d 1074 (1993) (officer's good faith belief to decide if someone needed help sufficient to justify warrantless search); State v. Lynd, 54 Wn. App. 18, 771 P.2d 770 (1989) (same).
We affirm.
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.
We concur:
VAN DEREN, A.C.J.
BRIDGEWATER, J.