Opinion
No. 50092-9-I
Filed: April 25, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-1-03130-5. Judgment or order under review. Date filed: 02/25/2002. Judge signing: Hon. Anthony P Wartnik.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
J Thomas — Informational only (Appearing Pro Se), Stafford Creek Corr. Center, 191 Constantine Way, Aberdeen, WA 98520.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Andrea Ruth Vitalich, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Jerell Alderson Thomas was convicted of one count of felony murder, with a predicate felony of assault, and two counts of assault for his participation in the Mardi Gras riots of 2001. He appeals his felony murder conviction on the ground that assault cannot serve as the predicate felony. He further argues that the State cannot charge him with another crime for his deadly assault without violating constitutional prohibitions against double jeopardy or Washington's mandatory joinder rule. Thomas appeals all three convictions on the ground that the trial court should have suppressed his post-Miranda custodial statements and evidence subsequently gathered with a warrant because they resulted from two warrantless entries and a warrantless arrest by the police.
Our Supreme Court's decisions in In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002) and State v. Hanson, 151 Wn.2d 783, 91 P.3d 888 (2004) clearly require this court to vacate Thomas's felony murder conviction. We do so, and we remand for an analysis of the ends of justice exception to the mandatory joinder rule. We affirm the two assault convictions and the decision of the trial court not to suppress Thomas's custodial statements and the subsequently gathered evidence because the first warrantless entry was justifiable as a proper response to a 911 disturbance call and because any illegality in the second warrantless entry and the warrantless arrest does not require suppression of custodial statements or the other evidence.
FACTS
After the Mardi Gras riots in Seattle's Pioneer Square in February 2001, the Seattle Police Department created a task force to solve numerous crimes that occurred during the violence. Seattle police identified Jerell Alderson Thomas as the deadly assailant of Kristopher Kime and as the attacker in two other assaults from witness interviews and television videotape footage. Detectives distributed a probable cause bulletin throughout the Seattle Police Department. In the meantime, Thomas's mother reported him as a juvenile runaway. She filed an at-risk youth petition under the Family Reconciliation Act.
Police discovered and arrested Thomas on the night of March 19, 2001, in a friend's apartment in Seattle. Police initially went to the apartment in response to a 911 disturbance call. Upon arrival, Officers Daniel Bresnahan and Shawn Karr saw a man and a woman arguing in the doorway of an apartment. As Bresnahan and Karr approached, the two individuals saw them, went inside, and closed the door. The lights inside the apartment went out, and several individuals ran out the back. Bresnahan and Karr went to the backyard and saw two men jump over the fence and continue to run. The two officers called for backup, then knocked on the front door and demanded entry. When no one inside opened the door, Karr threatened to force open the door.
Eighteen-year-old Nashique Channer opened the door. Channer was the daughter of leaseholder Lesleen Channer, who rented the apartment under the Section 8 program through the Seattle Housing Authority. Bresnahan and Karr found seven other teen-agers, including Thomas, in the apartment. In the meantime, Officer Matthew Hendry arrived as backup. Bresnahan interviewed Channer away from the others to determine whether anyone was threatening her safety. Karr and Hendry collected the names, addresses, and birthdates of everyone in the apartment. The three police officers came to the conclusion that no domestic violence had occurred. They left the apartment, and Karr decided to run the names through the police department's computer system for warrants.
When Karr came to Thomas's name, he recognized it and remembered that probable cause existed for Thomas's arrest. Bresnahan and Karr contacted their supervisor, Sergeant Daniel Beste. Bresnahan and Karr decided to take custody of Thomas by telling Channer that Thomas was a runaway juvenile and asking her to bring him outside or allow them inside. Beste, Hendry, and other police officers went to the Channer apartment, and the various officers took positions around the apartment. Beste looked into the front room through a gap in the blinds in the front window and saw a man whom he thought was Thomas.
Beste and Karr knocked on the door and identified themselves. Channer asked if they had a warrant. Karr told her he needed to talk with her about a missing juvenile. Sergeant Beste told her to open the door or that they would force it open. She opened the door wide enough for Karr and Beste to see inside. They saw Thomas and another individual leave the living room and disappear around a corner. The police officers entered the apartment without drawing their weapons or employing force. They found Thomas, arrested him and drove him to the South Precinct, then to the Public Safety Building in downtown Seattle. On the way, Hendry read Thomas his Miranda rights.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
During an interview with police detectives, Thomas identified himself in a photograph of the crowd at the Mardi Gras festivities and video footage taken during the violence. When asked, Thomas agreed to give a tape-recorded statement. The detectives re-advised Thomas of his Miranda rights and tape recorded Thomas's statement. Thomas repeated his identifications and identified himself as the assailant in another segment of video footage. Relying on information given by Thomas, police prepared and served a search warrant at the house of a friend of Thomas's. Detectives seized Thomas's Washington state identification card and clothing described in the warrant.
The State charged Thomas with felony murder in the second degree for the death of Kime, with assault as the predicate felony. The State also charged Thomas with two counts of assault in the second degree for attacks on Jesse Wilson and Christopher Shirley. At trial, Thomas moved to suppress his custodial statements and the physical and documentary evidence obtained with a warrant on the basis that his statements were the fruit of an unconstitutional entry into the apartment where Thomas was staying.
In the proceedings below, Thomas's counsel stated that he was 'not conceding' the legality of the first warrantless entry but did not raise a specific challenge. The State contends that Thomas therefore cannot argue on appeal that the first warrantless entry was illegal. We will assume for purposes of this decision that Thomas has raised an issue of constitutional magnitude that can be considered for the first time on appeal. State v. McFarland, 127 Wn.2d 322, 899 P.2d 1251 (1995).
The court made these conclusions of law: (1) Thomas lacked standing to challenge the warrantless entry under the Fourth Amendment because he did not have a legitimate expectation of privacy that society would recognize as objectively reasonable; (2) no grounds for suppression existed because of the police's first entry into the Channer apartment, because the police were acting under the emergency doctrine in responding to a 911 call; (3) Washington's Family Reconciliation Act justified Beste's demand that Channer open the door to her apartment; (4) the doctrine of exigent circumstances justified the second entry into the apartment; (5) even if the entry and arrest were illegal, significant intervening circumstances purged any possible taint on Thomas's custodial statements; (6) Thomas's contention that the police used his status as a juvenile runaway as a ruse to enter the apartment has no bearing on the admissibility of Thomas's statements; and (7) Thomas's custodial statements and the evidence seized as a result were admissible. A jury found Thomas guilty on the felony murder charge and the two assault charges. Thomas appeals.
ANALYSIS
We begin by examining Thomas's argument that assault cannot serve as the predicate offense for felony murder and that his felony murder conviction under former RCW 9A.32.050 must therefore be vacated. Our Supreme Court ruled in Andress and Hanson that under former RCW 9A.32.050, assault cannot serve as the predicate felony for second degree felony murder and that felony murder convictions predicated on assault and not final under RAP 12.7 must be vacated. Hanson, 151 Wn.2d at 784; Andress, 147 Wn.2d at 604. Hanson and Andress clearly control, and we must therefore vacate Thomas's felony murder conviction.
Thomas contends that constitutional prohibitions against double jeopardy prohibit the State from recharging Thomas with manslaughter for his deadly attack on Kime. We disagree. The double jeopardy clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, guarantees that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb[.]' U.S. Const., amends. V, XIV. The double jeopardy clause in article 1, section 9 of the Washington Constitution is coextensive with the federal double jeopardy clause. State v. Gocken, 127 Wn.2d 95, 109, 896 P.2d 1267 (1995). The federal double jeopardy clause bars trial if three elements are met: (a) jeopardy previously attached; (b) jeopardy previously terminated; and (c) the defendant is again in jeopardy for the same offense. State v. Corrado, 81 Wn. App. 640, 645, 915 P.2d 1121 (1996). As a general rule, jeopardy terminates with a conviction that becomes unconditionally final, but not with a conviction that the defendant successfully appeals, so long as the reversal was not for insufficiency of the evidence. State v. Brown, 127 Wn.2d 749, 756-57, 903 P.2d 459 (1995).
The State recognizes that Hanson and Andress require this court to vacate the felony murder conviction and has communicated its intent to charge and try Thomas for manslaughter.
Thomas successfully appeals his felony murder conviction on the ground that, under Andress, the crime of felony murder predicated on assault did not exist at the time of his conviction. Because he does not prevail on an argument that the evidence was insufficient, jeopardy does not terminate. But more importantly, charging Thomas for manslaughter would not place him in jeopardy for the same offense. A decision by the State to try Thomas for felony murder in Kime's death and then to try him for manslaughter in the same death after vacation of the felony murder conviction implicates the state's mandatory joinder rule, not double jeopardy. The constitutional prohibitions against double jeopardy do not bar the State from recharging and retrying Thomas for his attack on Kime.
Thomas further argues that the mandatory joinder rule of CrR 4.3.1(b) bars the State from recharging him for his deadly attack on Kime. Under the mandatory joinder rule, the State may not try a defendant for one offense and later try the same defendant on a related offense for the same conduct 'unless the court determines that . . . the ends of justice would be defeated if the motion were granted.' CrR 4.3.1(b)(3). In State v. Ramos, 124 Wn. App. 334, 101 P.3d 872 (2004), however, this court ruled that the extraordinary circumstances of felony murder convictions vacated under Andress implicate the ends of justice exception to the mandatory joinder rule. Ramos, 124 Wn. App. at 336. Because other, unknown factors might be relevant to an ends of justice analysis, this court remanded to the trial court for a final analysis of the exception. Ramos, 124 Wn. App. at 343. Under Ramos, the extraordinary circumstances of the vacation of Thomas's felony murder conviction implicate the ends of justice exception to the mandatory joinder rule that would normally prohibit the State from retrying Thomas for a different crime. We therefore remand his case to the trial court for an analysis of the exception and a determination as to whether it should apply under the circumstances of this case.
We next analyze whether the trial court erred in denying Thomas's motion to suppress his post-Miranda custodial statements and the evidence gathered with a search warrant issued on the basis of his statements. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. State v. Le, 103 Wn. App. 354, 358, 12 P.3d 653 (2000). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Le, 103 Wn. App. at 358-59. Thomas argues that the police violated his constitutional right to privacy when they twice entered the Channer apartment and then arrested him without a warrant.
The State contends that Thomas cannot raise a Fourth Amendment challenge to the statements and the evidence because he did not have a reasonable expectation of privacy in the Channer apartment and that he lacks standing to challenge the evidence under the state constitution. The State's argument presents a close question, as Thomas was a runaway juvenile and the subject of an at-risk petition filed by his mother at the time of his arrest. Furthermore, he was in the Channer apartment with the permission of Nashique Channer, who lacked the authority under the terms of Section 8 housing to permit Thomas to live there as a guest. We do not need to decide this question, because we go directly to the merits of Thomas's challenge and decide that his privacy rights do not require suppression.
The Fourth Amendment, made applicable to the states through the Fourteenth Amendment, provides that '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' At the very core of the Fourth Amendment stands the right of a person to retreat into the home 'and there be free from unreasonable governmental intrusion.' Kyllo v. United States, 533 U.S. 27, 31, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001). Article 1, section 7 of the Washington Constitution provides similar privacy protections, with a broader scope than the Fourth Amendment, as it "clearly recognizes an individual's right to privacy with no express limitations" and places greater emphasis on privacy. State v. Ladson, 138 Wn.2d 343, 348, 979 P.2d 833 (1999) (quoting State v. Young, 123 Wn.2d 173, 180, 867 P.2d 593 (1994)). Thomas further argues that the trial court should have suppressed his custodial statements and the subsequent evidence as the fruit of the illegal entries and arrest. Evidence obtained in violation of the defendant's constitutional immunity from unreasonable searches and seizures must be suppressed. Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); State v. Boland, 115 Wn.2d 571, 582, 800 P.2d 1112 (1990).
Courts have recognized limited exceptions to the constitutional prohibitions against warrantless entries. The community caretaking, or emergency, exception justifies a warrantless entry and search of a building as part of the police's community caretaking responsibility to aid persons believed to be in danger of physical harm or death. Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); State v. Thompson, 151 Wn.2d 793, 802, 92 P.3d 228 (2004); Gocken, 71 Wn. App. at 275. This doctrine applies to investigations of possible domestic violence, as domestic disturbances are inherently volatile. State v. Raines, 55 Wn. App. 459, 465-66, 778 P.2d 538 (1989). Once summoned to the scene of a possible emergency, the police can investigate suspicious circumstances and do not have to accept statements at face value. Raines, 55 Wn. App. at 465-66. When an officer believes in good faith that someone's health or safety may be endangered, the officer could be considered derelict by not acting promptly to ascertain if someone needed help. Gocken, 71 Wn. App. at 277. The State can demonstrate that an officer's warrantless entry is not merely a pretext to search for otherwise unavailable evidence by proving that: (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. Gocken, 71 Wn. App. at 276.
In this case, the community caretaking exception justifies the first warrantless entry of Officers Bresnahan, Karr, and Hendry into the Channer apartment and the questioning of its occupants. Bresnahan and Karr were responding to a 911 disturbance call. The argument between the man and the woman in the doorway, their retreat into the apartment, the extinguishment of the lights, and the running of unknown individuals out the back establish the strong possibility of domestic violence inside the apartment. Indeed, the officers would have been derelict if they did not demand entry and question the occupants of the apartment to ensure that no one was in danger. Furthermore, the entry and the questioning of the occupants satisfy Gocken's three requirements. The police officers had a subjective belief that they faced a possible domestic violence incident and therefore acted in accordance with the first requirement. A reasonable person would have the same belief, as the circumstances of the argument, the retreat into the apartment, the turning off of lights, and the fleeing of unknown individuals from the apartment would lead a reasonable person to believe in the strong possibility of domestic violence. The second requirement is satisfied. The third requirement is a reasonable basis to associate the need for help with the place searched. The circumstances pointed to a possible incident of domestic violence inside the apartment. A reasonable basis therefore existed to associate the need for help with the interior of the apartment. One procedure the police follow in investigating a possible domestic disturbance call is to identify the individuals present at the scene. Therefore, a reasonable basis existed to associate the need for help with the request for names and personal information.
Thomas contends that Karr and Hendry did not question the occupants until after Bresnahan interviewed Channer and determined that no domestic violence had occurred. But the trial court's unchallenged finding of fact 7 states that Bresnahan spoke with Channer separately and that '[m]eanwhile' Karr and Hendry talked with the other seven individuals. Furthermore, the officers did not have to accept information given by Channer at face value. Given the circumstances of the disturbance call, the argument, the extinguishment of the lights, and the flight of unknown individuals out the back, the officers had a duty to conduct a thorough investigation even if Channer had told them that no intervention was necessary. We additionally note that the police generally have the right to ask individuals for personal information such as their names, addresses, and birthdates during the course of their inquiry. If individuals refuse, the police have to accept that refusal and move on, but nothing prohibits the police officers from making that inquiry.
Thomas also contends that his custodial statements and the subsequently gathered evidence should be suppressed as the poisonous fruit of the second warrantless entry and arrest. The Fourth Amendment, made applicable to the states through the Fourteenth Amendment, bars the police from making a warrantless and nonconsensual entry into a suspect's home to make a routine felony arrest. Payton v. New York, 445 U.S. 573, 576, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); Le, 103 Wn. App. at 359. Article I, section 7 of the Washington Constitution also bars the intrusion by police of a person's home absent authority of law. State v. Holeman, 103 Wn.2d 426, 429, 693 P.2d 89 (1985). But constitutional protections of privacy in the home do not necessarily require the suppression of custodial statements made outside the home, even if the defendant made the statements while in police custody after a Payton violation.
In New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990), the United States Supreme Court held that the federal exclusionary rule does not apply to post-Miranda statements made outside the home after a warrantless entry and arrest, so long as the State had probable cause to make the arrest. Harris, 495 U.S. at 21. The Court reasoned that the Fourth Amendment does not require suppression because a Payton violation does not make subsequent custody illegal. Harris, 495 U.S. at 18. If the defendant is removed to a stationhouse and is given a Miranda warning, statements are not the product of an unlawful custody and are not the fruit of having been arrested at the home. Harris, 495 U.S. at 19. The rule of Payton was designed to protect the physical integrity of the home, not to grant criminal suspects protection for statements made outside the premises. Harris, 495 U.S. at 17.
Thomas argues that the Washington Constitution provides a broader protection of his privacy rights and requires the suppression of his statements and the subsequently gathered evidence. Our state courts have ruled that is explicitly broader than the Fourth Amendment as it clearly recognizes an individual's right to privacy with no express limitations and places greater emphasis on privacy. State v. White, 97 Wn.2d 92, 110-12, 640 P.2d 1061 (1982). For example, our Supreme Court has declined to recognize a good faith reliance exception to the state exclusionary rule. White, 97 Wn.2d at 109-12; State v. Wallin, Wn. App., 105 P.3d 1037, 1044-45 (2005). But Thomas has not offered persuasive argument why a court should view a statement voluntarily made by a defendant in post-Miranda custody supported by probable cause as the fruit of an illegal violation of an individual's right to privacy, even if the statement follows a Payton violation. As the Harris case explains, the application of the exclusionary rule in Payton was intended to protect an individual's privacy interests in the home, not to prevent an individual from making voluntary statements outside the home. Furthermore, Thomas did not brief this court on the six nonexclusive factors of State v. Gunwall, 106 Wn.2d 54, 58-63, 720 P.2d 808 (1986), for determining whether the Washington Constitution offers greater protection than the United States Constitution in this context. Absent a briefing on the Gunwall factors, an appellate court should decline to undertake an independent state constitutional claim. State v. Olivas, 122 Wn.2d 73, 82, 856 P.2d 1076 (1993). We therefore do not consider Thomas's argument that the reasoning of Harris does not apply to the state exclusionary rule.
Even if this court, however, were to apply the state exclusionary rule more broadly that its federal counterpart in this context, the circumstances of Thomas's statements and the subsequently gathered evidence purge the taint of the warrantless entry and arrest. Derivative evidence may be admissible if it was obtained by means sufficiently distinguishable to be purged of the primary taint. Wong Sun, 371 U.S. at 487-88; Le, 103 Wn. App. at 361-62 (citing the attenuation analysis of Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975)).
Courts must weigh four factors to determine whether circumstances have purged the taint: (1) the temporal proximity of the arrest and confession; (2) the presence of significant intervening circumstances between the arrest and the confession; (3) the purpose and flagrancy of the official misconduct; and (4) the giving of Miranda warnings. Brown, 422 U.S. at 603-04; State v. Armenta, 134 Wn.2d 1, 17, 948 P.2d 1280 (1997). If the police obtain statements or evidence with the defendant's consent, the voluntariness of the consent is a threshold requirement but is not alone sufficient to purge the evidence of the primary taint. State v. Avila-Avina, 99 Wn. App. 9, 15, 991 P.2d 720 (2000). The giving of Miranda warnings alone is therefore not dispositive. Avila-Avina, 99 Wn. App. at 15.
We first note that Thomas does not argue that he made his statements involuntarily or without Miranda warnings. The police read Thomas his Miranda rights while transporting him to the police station and again before Thomas made his taped statements. While this is not dispositive, it satisfies the threshold requirement of voluntariness and gives weight to the State's argument that any taint was purged. As for temporal proximity, the findings of fact indicate that Thomas made his statements after the entry and arrest, not contemporaneously, and after the police drove him to two separate locations. We therefore know that a significant amount of time passed between the warrantless entry and arrest and the statements and that they do not share temporal proximity. Furthermore, any misconduct by the police was not purposeful or flagrant, as the police officers had genuine reason to believe they could knock on the door and ask for Thomas as a runaway juvenile and to make a nonviolent entry into the apartment under the doctrine of exigent circumstances. Any taint in the warrantless entry and arrest was therefore sufficiently purged. The trial court did not err in denying Thomas's motion to suppress Thomas's statements and the subsequently gathered evidence.
In conclusion, we reverse and vacate Thomas's conviction for felony murder as required by our Supreme Court's decisions in Andress and Hanson. We remand for an analysis of the ends of justice exception to the mandatory joinder rule that would otherwise bar the State from recharging Thomas for the death of Kime. We affirm the two assault convictions and the trial court's decision not to suppress Thomas's custodial, post-Miranda statements and the evidence gathered with search warrants based on those statements.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
ELLINGTON and APPELWICK, JJ., Concur.