State v. Grinier

659 P.2d 550, 34 Wash. App. 164, 1983 Wash. App. LEXIS 2228
CourtCourt of Appeals of Washington
DecidedMarch 3, 1983
Docket5013-7-II
StatusPublished
Cited by8 cases

This text of 659 P.2d 550 (State v. Grinier) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Grinier, 659 P.2d 550, 34 Wash. App. 164, 1983 Wash. App. LEXIS 2228 (Wash. Ct. App. 1983).

Opinions

Petrich, C.J.

Defendant appeals his conviction of unlawful possession of a controlled substance found pursuant to a warrantless search of a locked suitcase taken from the back seat of his automobile. Because the search was not justified by any exigent circumstances, and because it was not an "automobile exception" search allowed by United States v. Ross, 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157 (1982), we hold that the evidence should have been suppressed. Accordingly, we reverse.

In July of 1979, to avoid prosecution, one Claude Shoemaker told law officers from Portland, Oregon, and Van[166]*166couver, Washington, that approximately every 2 weeks, he, the defendant, and Robert Irvin would receive by means of a California licensed pickup truck a 100- to 500-pound shipment of marijuana from Los Angeles. Later that summer, Sergeant Marosi of the Vancouver Police Department was advised by another informant that a shipment of marijuana would be coming into the Portland-Vancouver area around August 22, 23, or 24. A surveillance team consisting of officers from the Vancouver Police Department, Clark County Sheriffs Office, and Portland Police Bureau was assembled; at 4 p.m. on August 22, part of this team began surveillance of Irvin's residence in Portland.

Deputy Harrison observed the suspected California "delivery truck" and a red Austin parked at Irvin's residence. Around 9:10 p.m., Shoemaker was observed arriving at and entering Irvin's residence, and then leaving approximately 10 minutes later. Shoemaker later telephoned the police to say that the marijuana had arrived or "was near" and that Irvin offered to get marijuana for him if he paid an outstanding debt.

Soon thereafter, Irvin drove to the Portland airport where he picked up a man later identified as Larry Falls, who carried a suitcase. Defendant, meanwhile, was observed arriving at Irvin's residence carrying a suitcase. Irvin soon returned with his passenger. Immediately after Irvin's return at approximately 10:30 p.m., Falls and defendant each put his suitcase in the back of defendant's Torino and drove off. Defendant's car was followed by a mobile surveillance unit. Within a few minutes, two other individuals also left Irvin's residence, placed a suitcase in the red Austin and drove off.

Although Deputy Harrison thought there was probable cause to believe marijuana was in Irvin's residence, he also thought it necessary to get a search warrant to enter and search the Irvin residence to prevent further disposal. Harrison relayed these opinions to Sergeant Marosi who agreed that prompt confirmation of the presence of marijuana in defendant's suitcase would be necessary in order to [167]*167apply for a warrant to search Irvin's residence. Sergeant Marosi then gave orders to stop defendant's car.

Defendant's car was soon stopped in Clark County, Washington. Defendant had been driving, a young woman and child were in the front passenger seat, and Falls was in the back seat. Deputy Reese immediately removed the two suitcases from the back seat of the car and asked for the combination to defendant's locked suitcase. After defendant refused to help, Deputy Reese broke open defendant's suitcase and inside found 15 plastic bags, each containing approximately 1 pound of marijuana. Defendant was then arrested. Information of this search was included in an affidavit submitted to obtain a search warrant for Irvin's residence. This search was executed several hours later, in the early morning hours of the following day.

Because the parties stipulated to the above mentioned facts, and because they were incorporated into the suppression hearing's findings of fact which are not challenged, we treat them as verities.

After defendant's motion to suppress the evidence found in the suitcase was denied, defendant was found guilty.

On appeal, defendant challenges the court's denial of his motion to suppress the evidence found in his suitcase. First, he claims the court erred in concluding that the police had probable cause to believe contraband was in his suitcase which thereby justified the stop of his car and seizure of his suitcase. However, because this assignment of error is supported by neither argument nor authority, we will not consider it. State v. Carlson, 27 Wn. App. 387, 618 P.2d 531 (1980).

Second, he claims the court erred in concluding that exigent circumstances excused the requirement of first obtaining a warrant to search his suitcase. The court made the following conclusion of law:

Based upon the fact that Deputy Harrison had observed what appeared to be a further or continuous dissemination of Marihuana from the Irvin residence following the departure of the green Torino, the officers [168]*168involved were justified in acting as promptly as possible to confirm the presence of Marihuana, in order to obtain a search warrant for the Irvin residence, in order to prevent further dispersals of Marihuana.

Our inquiry must be whether the facts demonstrate exigent circumstances which come within an exception to the general warrant requirement. Any exceptions to the warrant requirement are to be drawn carefully and interpreted jealously, with the burden placed on the party asserting the exception. Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). Such exceptions are allowed when the societal costs of obtaining a warrant outweigh the reasons for prior recourse to a neutral magistrate. Arkansas v. Sanders, 442 U.S. 753, 61 L. Ed. 2d 235, 99 S. Ct. 2586 (1979). If, for example, circumstances either place the police in danger or create a risk of loss or destruction of evidence, a warrantless search is permissible. Arkansas v. Sanders, supra.

United States v. Tramunti, 513 F.2d 1087 (2d Cir. 1975) is the State's sole authority for the argument that an exigent circumstance was created by the need to immediately confirm the presence of marijuana in Irvin's residence in order to obtain a search warrant for the Irvin residence. We find Tramunti unpersuasive. Its passing statement that proof of contraband found in luggage seized from a car "may have led to further police action back at 1906 Brooklyn Ave." is dicta; the search was upheld under an "automobile exception" analysis. Also, Tramunti has not been cited in any other case as an example of an exigent circumstance.

We do, however, find some guidance in those cases which hold that the potential destruction of evidence in a dwelling created an exigent circumstance justifying a warrantless search of that dwelling. E.g., United States v. Flickinger, 573 F.2d 1349 (9th Cir. 1978); United States v. Curran, 498 F.2d 30 (9th Cir. 1974). Cf. United States v. Allard, 600 F.2d 1301 (9th Cir. 1979) (no exigent circumstances supported warrantless search, of motel room).

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State v. Grinier
659 P.2d 550 (Court of Appeals of Washington, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
659 P.2d 550, 34 Wash. App. 164, 1983 Wash. App. LEXIS 2228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-grinier-washctapp-1983.