State v. Bell

737 P.2d 254, 108 Wash. 2d 193, 1987 Wash. LEXIS 1065

• Court: Washington Supreme Court
• Decided: May 14, 1987
• Docket: 52685-1
• Status: Published

Opinions

Durham, J.

Sheriff's officers seized material from a marijuana-growing operation without a warrant after it had been discovered by fire fighters at the scene of a fire. Kevin Bell was charged with possession of marijuana, RCW 69.50.401(d), but the case was dismissed after the trial court suppressed the evidence. The Court of Appeals reversed, holding that the warrantless seizure did not violate the state and federal constitutions. We affirm the Court of Appeals and remand the case for trial.

On September 30, 1983, a fire broke out at a house rented by Kevin Bell. Kitsap County Deputy Sheriff Clarke noticed the blaze and called the fire department. Fire fighters arrived at the scene and removed a wood stove, the apparent cause of the fire. The fire had charred one wall from floor to ceiling. As part of common practice, two fire fighters were sent to check the attic directly over the burned area in order to make sure there were no smoldering embers. The attic was full of smoke and had to be ventilated before they could gain access.

When the fire fighters reached the attic, they noticed plants being grown, but proceeded to check the attic for evidence of a fire. They determined that the area directly above the wood stove was no longer on fire but had been charred. One of the fire fighters suspected that the plants were marijuana, and he summoned his superior, an assistant fire marshal, to the attic. The assistant marshal believed that the attic contained a marijuana-growing operation, having noticed that two large lights were being used to grow an estimated 75 to 100 plants.

The assistant marshal then left the residence because of other duties, instructing fire fighters remaining at the scene not to touch the plants. The assistant marshal went to the fire station and telephoned a deputy prosecutor, seeking advice as to how the matter should be handled. The deputy prosecutor recommended that the evidence be confiscated. During this time, no items were seized nor was the defendant told about the attic discovery.

After 15 to 20 minutes, the assistant marshal returned to Bell's house, accompanied by an assistant fire investigator. The investigator first inspected the wood stove to determine the origin and cause of the fire. The investigator and assistant marshal then went to the attic. At that point, the assistant marshal decided to call a deputy sheriff to assist in the seizure.

When Deputy Clarke arrived at Bell's house, he went to the attic along with the investigator and the assistant marshal. The investigator took pictures of the evidence in the attic. Then, a "human chain" of sheriff's officers and firemen was formed to remove the evidence from the attic to a vehicle outside. The record is unclear as to whether the fire department or the sheriff's office supervised the seizure, but at least for part of the time Deputy Clarke considered himself in charge. It took 5 to 10 people approximately an hour to remove the evidence, including 87 to 90 marijuana plants. Also seized were plastic sheets which had covered the walls and ceilings, plastic tubing, ventilator fans, vapor-discharge lights and their power supplies, irrigation equipment and fluorescent light fixtures. The seizure of the items was completed approximately 3 to 4 hours after the marijuana was first discovered. At no time during this period did anyone attempt to get a search warrant, telephonic or otherwise.

Bell argues that the evidence taken from the attic should be suppressed because the warrantless seizure violated his constitutional rights in two ways. First, he contends that the fire fighters needed a warrant to seize the evidence because exigent circumstances no longer existed once the fire was extinguished. Second, he contends that the sheriff's officers needed a warrant to enter Bell's house and take charge of the seizure.

We begin by recognizing that both the state and federal constitutions protect Washington's citizens from unreasonable searches. State v. Bakke, 44 Wn. App. 830, 832-33, 723 (1986). The Washington State Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law", Const. art. 1, § 7, and the United States Constitution establishes citizens' rights "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ..." U.S. Const. amend. 4. Our state constitution generally affords individuals greater protection against warrantless searches and seizures than does the Fourth Amendment. State v. Stroud, 106 Wn.2d 144, 148, 720 P.2d 436 (1986); State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984). In the present case, however, we reach the same result under each constitution.

Warrantless searches and seizures are per se unreasonable unless they fall within a few carefully drawn exceptions. State v. Chrisman, 100 Wn.2d 814, 818, 676 P.2d 419 (1984). The State has the burden of proving that one of the exceptions applies. Chrisman, at 822; Bakke, at 833.

Fire Fighters' Need for a Warrant

Fire fighters, like policemen, are subject to the Fourth Amendment. Michigan v. Tyler, 436 U.S. 499, 504, 508, 56 L. Ed. 2d 486, 98 S. Ct. 1942 (1978). Therefore, fire fighters' warrantless seizures of property found at the scene of a fire¹ are per se unreasonable unless the State can show that they fall within one of the exceptions to the warrant requirement. See Tyler, at 508-09.

The fire fighters' role in this case is justified by the "plain view" exception to the warrant requirement. A "plain view" seizure is valid if the following requirements are met: " (1) a prior justification for intrusion; (2) inadvertent discovery of incriminating evidence; and (3) immediate knowledge by the officer that he had evidence before him." Myrick, at 514 (quoting Chrisman, at 819). We now turn to analysis of those elements.

There was a prior justification for the fire fighters' original intrusion into the attic. "A burning building of course creates an exigency that justifies a warrantless entry by fire officials to fight the blaze." Michigan v. Clifford, 464 U.S. 287, 293, 78 L. Ed. 2d 477, 104 S. Ct. 641 (1984). Moreover, exigent circumstances continue beyond the time when the fire has been extinguished. Tyler, at 510. Fire fighters need no warrant to remain in the building a reasonable time to make sure that the fire does not rekindle, to search for additional fires, and to ventilate the building. Clifford, at 293 n.4; Steigler v. Anderson, 496 F.2d 793, 795-96 (3d Cir.), cert. denied, 419 U.S. 1002 (1974); State v. Olsen, 282 N.W.2d 528, 531 (Minn. 1979). Bell's attorney even concedes that the fire fighters "were permitted to be where they were when they found the plants." Thus, exigent circumstances justify the fire fighters' presence not only in Bell's residence but also in his attic.

The discovery was also inadvertent. The fire fighters had the duty to ensure the fire was fully extinguished and would not rekindle. The fire fighters had to check the attic's condition because the wall beneath it had been burned up to the ceiling. The duty to investigate became even more compelling when they saw the extent of the smoke in the attic. The fire fighters had not exceeded the scope of these duties when they happened upon the marijuana-growing operation.

Finally, the fire fighters were immediately aware that they had evidence before them. The purpose of this immediate knowledge requirements is so that "the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges." Coolidge v. New Hampshire, 403 U.S. 443, 466, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). The fire fighters did not engage in this type of extended search. All that is required to satisfy the "immediate knowledge" element is a reasonable belief that evidence is present.² State v. Lair, 95 Wn.2d 706, 716-17, 630 P.2d 427 (1981); State v. Claflin, 38 Wn. App. 847, 853, 690 P.2d 1186 (1984), review denied, 103 Wn.2d 1014 (1985). One of the two fire fighters who first entered the attic testified that "I suspected that [the plants] were — chances are they were marijuana." The assistant marshal testified that "[t]his appeared to be a marijuana-growing operation to me." The third element is met in the present case.³

Bell contends, however, that we should hold the present seizure unconstitutional because there was plenty of time to obtain a search warrant after the operation was discovered. Bell argues that warrantless seizures should be held constitutional only if exigent circumstances exist throughout the duration of the search and seizure. Courts in this state, however, have time and again recognized that exigency is not a necessary element to a "plain view" seizure. State v. Lair, at 716; State v. Marchand, 37 Wn. App. 741, 749, 684 P.2d 1306 (1984), rev'd on other grounds, 104 Wn.2d 434, 706 P.2d 225 (1985); State v. Johnson, 17 Wn. App. 153, 159, 561 P.2d 701, review denied, 89 Wn.2d 1001 (1977). A search can be upheld under the plain view doctrine in the absence of exigent circumstances, as long as the doctrine's first element is satisfied. Lair, at 716. In other words, exigent circumstances are merely one factor to be considered in determining if the seizing officers' intrusion was justified. Lair, at 716.

The Lair rationale remains equally persuasive today. Plain view alone, without the extra requirement of exigency, satisfies the privacy safeguards imposed by the Fourth Amendment. Coolidge, at 467-68; Johnson, at 159. In Johnson, the Court of Appeals described the privacy safeguards and showed how they are met by plain view searches:

The Fourth Amendment search warrant requirement is satisfied when, first, the scrutinizing eye of a neutral magistrate is imposed between individual privacy and infrequently overzealous police. Second, the scope of search must be limited by particular description of items to be seized. Scope cannot be left to police discretion.

Plain view alone has been recognized as an exception to the Fourth Amendment search warrant requirement because these privacy safeguards remain wholly intact. First, plain view requires the initial police intrusion be lawful, upon a valid search warrant or recognized warrant exception. . . . Second, because discovery must be inadvertent and recognition as contraband be immediate, the scope of search cannot be extended from the limited particular purpose of the initial intrusion to a general rummaging.

(Footnotes omitted.) Johnson, at 158.

In sum, because all three elements of the plain view doctrine have been met, no warrant was required for the fire fighters to seize the evidence.⁴ Because the plain view doctrine is formulated identically under the state and federal constitutions, we hold that neither constitution required the fire fighters to get a warrant.⁵

Sheriff's Officers' Need for a Warrant

Bell next argues that the sheriff's officers needed a warrant to enter the residence and to seize the property found by the fire fighters because they constituted a separate state agency. A handful of Fourth Amendment cases have analyzed this issue. The majority of those cases holds that the warrant is not needed because the defendant no longer has a reasonable expectation of privacy for that area of the residence where one officer is already present. See United States v. Green, 474 F.2d 1385 (5th Cir.) (warrant not necessary when secret service agent entered residence to take custody of counterfeiting plates found by deputy fire marshal investigating the cause of a fire), cert. denied, 414 U.S. 829 (1973); Steigler v. Anderson, 496 F.2d 793 (3d Cir.) (warrant not necessary when police officers seized evidence of arson found by a deputy fire marshal during a warrant-less investigation which occurred during and immediately after a fire was extinguished), cert. denied, 419 U.S. 1002 (1974); United States v. Gargotto, 476 F.2d 1009 (6th Cir. 1973) (warrant not necessary when records of betting activity were microfilmed by IRS agents 2 days after they had been seized by an arson investigator and a police officer); United States v. Brand, 556 F.2d 1312 (5th Cir. 1977) (no warrant required when police officers entered house after another police officer had helped handle an emergency drug overdose and the second group of police officers observed evidence which formed the basis for a subsequent search warrant), cert. denied, 434 U.S. 1063 (1978).

The only case supporting Bell's position that the second agency needs a warrant is United States v. Hoffman, 607 F.2d 280 (9th Cir. 1979). Hoffman conflicts directly with the majority of the cases in that it holds that a reasonable expectation of privacy remains in areas where fire fighters have entered. "[N]o citizen should reasonably expect that . . . any sort of public officer may thereafter invade his home for purposes unrelated to the initial intrusion." Hoffman, at 285.

We find the rationale of the majority cases persuasive and we reject the Hoffman analysis. Once the privacy of the residence has been lawfully invaded, it is senseless to require a warrant for others to enter and complete what those already on the scene would be justified in doing. See Green, at 1390; Steigler, at 798. We hold that where fire fighters have lawfully discovered evidence of criminal activity under the plain view doctrine, it is not necessary for sheriff's officers to obtain a warrant before entering a residence to seize the evidence.

There are, of course, limits on the actions of the police. When the police enter the residence, they are not allowed to exceed the scope of the fire fighters' earlier intrusion.⁶ See Green, at 1390. In essence, they step into the shoes of the fire fighters. They cannot enter any area that the fire fighters were not justified in entering, nor seize any evidence that the fire fighters were not justified in seizing. In the present case, the sheriff's deputies did not exceed their permitted scope of activity. They entered the residence, seized the property already discovered by the fire fighters, and did no more. Their warrantless seizure was valid under the Fourth Amendment.⁷

Our analysis under the Washington State Constitution reaches the same result. Const. art. 1, § 7 provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." The sheriffs officers' disturbance of Bell's private affairs was authorized by law. Given the presence of the fire fighters already rightfully on the scene, the sheriff's officers' entry did not constitute a second invasion. The entry was merely for the purpose of completing what the fire fighters were already authorized to do.

Public Policy

The trial judge in his oral ruling held that public policy supplies an additional ground for suppressing the evidence. He reasoned that if fire fighters can make warrantless seizures of evidence, then citizens will be deterred from calling fire fighters to extinguish fires. Although we agree that the public is benefited when the fire department is promptly summoned to the scene of a fire, it is difficult to see how a warrant requirement will promote that policy. An individual's decision to call the fire department will not depend on a requirement that fire fighters obtain a warrant before seizing "plain view" evidence. The warrant requirement provides little solace to an individual who fears the discovery of incriminating evidence. The only way in which we could increase the likelihood that someone will immediately summon the fire department would be to preclude the seizure of evidence at a fire even with a warrant. This, of course, we will not do. We hold that public policy does not require suppressing the evidence in this case.

We affirm the Court of Appeals and remand this case for trial.

Brachtenbach, Dolliver, Dore, Andersen, and Callow, JJ., concur.

1 In most instances, the property seized in this manner by fire fighters will be evidence of arson. However, fire fighters are also justified in seizing other types of incriminating evidence, including contraband. See generally Annot., Admissibility, in Criminal Case, of Evidence Discovered by Warrantless Search in Connection With Fire Investigation — Post-Tyler Cases, 31 A.L.R.4th 194 (1984).

2 The United States Supreme Court has phrased the test similarly, holding that a "probable cause to believe" satisfies the second element of the plain view doctrine. Texas v. Brown, 460 U.S. 730, 741-42, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1983). Because the test for probable cause is one of reasonableness, State v. Goodman, 42 Wn. App. 331, 336-37, 711 P.2d 1057 (1985), the two tests are essentially the same.

3 Bell argues that the "immediate knowledge" element is missing because the fire fighters called the assistant marshal to the attic, who, in turn, telephoned the prosecutor's office. The record shows, however, that these communications dealt with how to proceed, not whether they had evidence of a crime. This request for advice is by no means incompatible with immediate knowledge of the presence of evidence.

4 There are limits to the length of time the State can take in making "plain view" seizures. The Fourth Amendment prohibits unreasonable searches and seizures. An excessive amount of time can render a seizure unreasonable. See United States v. Johns, 469 U.S. 478, 83 L. Ed. 2d 890, 105 S. Ct. 881 (1985); United States v. Place, 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983). The 3 or 4 hours that it took the officers to seize material from the marijuana-growing operation was reasonable in light of the amount of material which had to be removed and their other duties at the scene of the fire.

5 Furthermore, the assistant marshal did not need a warrant to enter the attic, even though that entry did not have as its sole purpose the control of fire hazards. The "directed discovery" of evidence to an officer already justifiably on the premises by another officer who has discovered that evidence in plain view does not taint the initial inadvertent discovery. State v. McAlpin, 36 Wn. App. 707, 714, 677 P.2d 185, review denied, 102 Wn.2d 1011 (1984).

6 The officers arriving to seize the evidence would be entitled to expand the scope of the earlier intrusion only if they obtain a warrant or if "one of the exceptions to the warrant requirement justifies a more thorough or wide ranging search." United States v. Brand, 556 F.2d 1312, 1317 n.9 (5th Cir. 1977), cert. denied, 434 U.S. 1063 (1978).

7 Similarly, the investigator did not need a warrant to enter Bell's house and the attic, even though his entry into the attic was not for the sole purpose of investigating a fire. His presence in the house was justified by his duty to determine the cause of the fire, and his presence in the attic was justified for the same reasons that justified the sheriffs officers' presence.