State v. Williams

148 Wash. App. 678

• Court: Court of Appeals of Washington
• Decided: February 10, 2009
• Docket: No. 36539-1-II
• Status: Published

Opinions

Houghton, J.

¶1 John Williams appeals his convictions of three counts of unlawful cocaine possession, arguing that the trial court erred when it denied his motion to suppress evidence seized from his hotel room. We agree and reverse.¹

FACTS

¶2 On March 13, 2007, Port Orchard Police Department Sergeant Dennis McCarthy responded to a 911 call about a disturbance at a local hotel. As he pulled into the parking lot, Cledale Graham approached him and said that his nephew, Williams, was “being violent” with him and that he wanted Williams removed from his hotel room. Report of Proceedings (May 9, 2007) (RP) at 6. He added that his nephew was on parole for a crime committed in California. McCarthy called for additional assistance from Detective Marvin McKinney, and the two officers walked to Graham’s hotel room with him. One of the officers knocked on the door.

¶3 An individual, later identified as Williams, opened the door. Williams’s left hand was behind the partially-opened door and not visible to the officers. McCarthy asked Williams to show his hand. The officers heard the sound of an object dropping behind the door, and Williams brought his left hand into view. Williams then backed up, and the officers and Graham walked into the hotel room.² The officers had Williams sit down.

¶4 McKinney asked Williams his name and Williams said his name was Leo. McKinney, however, was suspicious because (1) Graham had identified his nephew as Williams, (2) “there are very few black males named Leo,” and (3) McKinney saw a luggage tag with the name “John Williams” on it in the hotel room. RP at 25, 27. Williams could not give McKinney the year of his birth. McKinney searched records for “Leo” and did not find anything, but he did find a criminal history for a person named John Williams. At some point during this discussion, McKinney advised Williams that he was under arrest and handcuffed him.

¶5 While the officers were trying to identify Williams, McKinney looked around the room and saw steel wool on a dresser.³ He testified that steel wool is often used as a filter in drug smoking devices. He then peered into a partially opened dresser drawer and saw what he believed to be rock cocaine. A search of the room postarrest revealed rock cocaine in the dresser, a glass smoking tube behind the door, and $1,700 in cash.

¶6 At some point during this process, McCarthy walked outside the hotel room with Graham. Graham told him that Williams had assaulted him and had broken his jaw. McCarthy returned to the hotel room and learned that McKinney was waiting for a K-9 unit to assist with the hotel room search. The K-9 unit swept the room and the officers transported Williams to the jail. During a later search at the jail, an officer found two crack pipes on Williams.

¶7 The State charged Williams with one count of unlawful possession of cocaine.⁴ He moved to suppress the evidence seized at the hotel room. After a CrR 3.6 hearing, the trial court entered findings of fact and conclusions of law. It concluded that the community caretaking function allowed the officers to enter the room.

¶8 In addition, the trial court found that the officers did not seize Williams when they initially asked him for identification. It found that Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), justified the officer’s request for Williams to sit in a chair. Finally, it concluded that the officers had probable cause to arrest Williams for making a false statement and they properly searched the hotel room incident to the legal arrest.

¶9 A jury found Williams guilty on all counts. He appeals.

ANALYSIS

Search and Seizure

f 10 Williams first contends that the police did not legally enter the hotel room. He asserts that the officers’ actions violated both the federal and state constitutions.⁵

¶11 The Fourth Amendment to the United States Constitution states 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.” The more protective Washington Constitution article I, section 7 provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

¶12 Washington law requires us to presume warrantless searches and seizures as unreasonable and a violation the Fourth Amendment unless an exception applies. State v. Duncan, 146 Wn.2d 166, 171-72, 43 P.3d 513 (2002). The State bears the burden of showing one of those exceptions applies. Duncan, 146 Wn.2d at 172. We review conclusions of law entered by a trial court at a suppression hearing de novo and its findings of fact for substantial evidence. State v. Sadler, 147 Wn. App. 97, 123, 193 P.3d 1108 (2008); State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004).

¶13 The trial court primarily relied on State v. Jacobs, 101 Wn. App. 80, 83, 86-89, 2 P.3d 974 (2000), in concluding that the officers could legally enter the hotel room without a warrant. The exception set out in Jacobs provides that officers may enter a residence if

(1) the officers subjectively believed that someone inside might need medical assistance; (2) a reasonable person in the same situation would have similarly believed that there was a need for assistance; and (3) there was a reasonable basis to associate the need for assistance with the place searched in light of the preceding 911 domestic violence call.

101 Wn. App. at 89 n.3.

¶14 A proper community caretaking function and the related emergency aid exception are separate from a criminal investigation. State v. Kinzy, 141 Wn.2d 373, 386-88, 5 P.3d 668 (2000). Where an officer’s primary motivation is to search for evidence or make an arrest, the caretaking function does not create any exception to the search warrant requirement. See State v. Gocken, 71 Wn. App. 267, 275-77, 857 P.2d 1074 (1993).

¶15 With respect to the entry here, the trial court ruled

they had the requirement to go to the door and to start a community caretaking process, which would allow them to enter the room. . . .

It doesn’t matter to this Court whether or not Mr. Graham offered consent or was asked for consent. In my opinion, the police officers did not need consent at that point. And, indeed, for the safety and protection of individuals, frequently, there may be other events going on, that an individual may have to say things or not give consent, because there may be hostages, there may be other events. They have to assume, given a domestic violence situation, assaultive behavior, that they have to go in and check the premises. In light of the behavior at the door, the entry was lawful in my opinion.

RP at 76-77.

116 Two cases, Jacobs and State v. Menz, 75 Wn. App. 351, 880 P.2d 48 (1994), illustrate that officers do not need to know that an alleged victim is inside a residence with an alleged attacker in order to justify a warrantless entry. In Jacobs, the victim previously obtained a no-contact order against the defendant. One morning, the victim made a 911 call but called back to say he did not need assistance. Officers approached the residence and saw the victim leave the house, enter it, and leave again. The victim came to the front gate and appeared intoxicated. He told the officers that the defendant “ ‘was beating’ ” him but also stated that the defendant had left. Jacobs, 101 Wn. App. at 83. The victim did not want the police to enter, but an officer told the victim that she was worried that other people were in the house and might be injured. Jacobs, 101 Wn. App. at 83. The officer entered the house and saw the defendant. She arrested him for violation of the no-contact order. Jacobs, 101 Wn. App. at 84. The opinion in Jacobs noted that the entry was justified.

¶17 In Menz, officers responded to a domestic violence call. They saw the front door to the residence open and heard a television on. They knocked and announced, but no one came to the door. They then entered to make sure that any occupants were safe. Menz, 75 Wn. App. at 353. They found marijuana plants growing in a bedroom. Again, the trial court held that the entry was justified.

¶18 With these cases in mind, we address the three factors necessary to allow warrantless entry under the community caretaking/emergency aid exception. The first factor requires officers to subjectively believe that they need to enter the residence to provide medical assistance. The trial court’s factual findings reference that Graham stated to the officers that Williams had been violent and that the officers had no reason to disbelieve Graham. It concluded that the officers had the right to accompany Graham to the room to speak with Williams. It added that the community caretaking exception also allowed officers to enter the hotel room. Missing from the factual findings, conclusions of law, and testimony of the officers, however, is any indication that before entering, officers actually believed that someone inside the hotel room might need medical assistance or be in danger.

¶19 The State essentially admits that this was not the case by arguing that the officers could use the community caretaking function to remove Williams from the hotel room or to ensure Graham’s safe reentry into the room. It argues by example that unless the exception applied, “where a homeowner reported a burglar or violent guest in his or her home, if the homeowner sought refuge at a neighbor’s before the police arrived, the police would be powerless to immediately enter the home at the owner’s request to ensure the owner’s safe reentry.” Resp’t’s Br. at 12. It relies on cases⁶ other than Jacobs and Menz that restate the relevant factors in slightly broader terms to include not only risks to health but also safety: The emergency exception justifies a warrantless entry when (1) the officer subjectively believes that there is an immediate risk to health or safety, (2) a reasonable person in the same situation would come to the same conclusion, and (3) there is a reasonable basis to associate the emergency situation with the place searched. Gocken, 71 Wn. App. at 276-77.

¶20 Even under the first factor, as set out in Gocken, to affirm the trial court’s conclusion that the officers’ warrantless entry into the hotel room in this matter, we would have to take a broader view of the emergency aid exception than current cases support. The Washington cases applying the exception, even Jacobs and Menz, contain some evidence to support that the officers believed they needed to enter a residence because of an ongoing risk to the health or safety of someone inside the residence. Menz, the case in which officers arrived at a house with the door open and the television on, states, “The officers testified that they subjectively believed someone in the home might need help.” 75 Wn. App. at 354. In Jacobs, the case in which the victim met the officers outside the residence, an officer stated to the victim that “she ‘felt obligated to check his residence ... to briefly look inside to make sure that no one was inside bleeding, hurt, or anything like that.’ ” 101 Wn. App. at 83-84 (alteration in original);⁷ see also State v. Johnson, 104 Wn. App. 409, 418, 16 P.3d 680 (2001) (stating that the trial court found that the deputy subjectively believed that someone in the house might need help).

¶21 In contrast, in a case in which officers had “no information that someone inside the trailer was injured,” we reversed a trial court’s conclusion that officers properly entered the trailer without a warrant. State v. Schlieker, 115 Wn. App. 264, 271, 62 P.3d 520 (2003); see also State v. Thompson, 151 Wn.2d 793, 802-03, 92 P.3d 228 (2004) (stating that no threat to health or safety justified officer’s entry into trailer to retrieve a jacket); State v. Ibarra-Raya, 145 Wn. App. 516, 523, 187 P.3d 301 (2008) (“No immediate risk to health or safety [was] shown” to justify officers’ warrantless entry into allegedly vacant house.).

¶22 Here, the findings of fact and the officers’ testimony do not indicate any concern that somebody inside the hotel room was in immediate danger. Graham never stated that any person other than Williams was in the hotel room or had traveled with them to the hotel. Moreover, unlike a larger residence in which victims could be located far from the front door, much of the hotel room was visible to the officers when Williams opened the door. This case, therefore, fails to satisfy the first prong of the emergency aid exception.

¶23 The State also argues that because this matter involved “domestic violence” as defined in RCW 10.31-.100(2)(c), the officers acted lawfully in entering the room.⁸ RCW 10.31.100(2)(c) allows an officer to effect a warrant-less arrest if he or she has probable cause to believe that a person 16 years or older, within the preceding four hours, assaulted a family member and caused bodily injury, even if not visible to the officer, or caused that person to fear imminent serious bodily injury or death. The definition of “family member” includes an adult uncle and an adult nephew. RCW 10.99.020(3) (also includes “adult persons related by blood or marriage”).

¶24 The record, however, lacks sufficient support that any alleged assault occurred within four hours prior to Graham’s 911 call. RCW 10.31.100(2)(c). The trial court found that “Graham told Officer McCarthy that John Williams, the defendant, was being violent, had assaulted him, had stolen money from him and was threatening him.” Clerk’s Papers (CP) at 19. Graham stated that “the defendant had punched him in the jaw on the way up from California.” CP at 21. The trial court added during the CrR 3.6 hearing that “given a domestic violence situation [and] assaultive behavior, . . . they have to go in and check the premises.” RP at 77. Therefore, while the record supports that Williams had been violent to Graham at some point, there is no indication when any assault occurred.

¶25 Another factor that indicates the officers did not believe RCW 10.31.100(2)(c) applied is that, although they testified they had probable cause to arrest Williams for making a false statement, no one testified regarding probable cause to arrest for domestic violence/assault. Moreover, the State’s reliance on the community caretaking exception is directly at odds with a position that officers could enter the hotel room to effect a warrantless arrest. As noted, a proper community caretaking function and the related emergency aid exception cannot overlap with a search performed during a criminal investigation. Kinzy, 141 Wn.2d at 387-88. Where an officer’s primary motivation is to search for evidence or make an arrest, the caretaking function does not create any exception to the search warrant requirement. See Gocken, 71 Wn. App. at 275-77.

f 26 Another potential means to legalize the entry is to find that Graham invited the officers to enter the hotel room. State v. Ramirez, 49 Wn. App. 814, 817, 746 P.2d 344 (1987) (“for purposes of the Fourth Amendment, the constitutional protections afforded homes are extended to other residential premises such as rented hotel rooms”). Again, the State did not argue this before the trial court, although there is some evidence in the record touching on the issue of consent. Consent to a search by one having the authority to give such consent constitutes one exception to the warrant requirement. State v. Mathe, 102 Wn.2d 537, 541, 688 P.2d 859 (1984). “Where two persons have equal right to the use or occupancy of the premises, either one can authorize a search.” State v. Bellows, 72 Wn.2d 264, 268, 432 P.2d 654 (1967). But where both persons are present,

[w]e have been quite explicit that under our constitution, the burden is on the police to obtain consent from a person whose property they seek to search. In obtaining that consent, police are required to tell the person from whom they are seeking consent that they may refuse to consent, revoke consent, or limit the scope of consent. State v. Ferrier, 136 Wn.2d 103, 116, 960 P.2d 927 (1998). We have never held that a cohabitant with common authority can give consent that is binding upon another cohabitant with equal or greater control over the premises when the nonconsenting cohabitant is actually present on the premises. We have never held that a person is not present in her home unless and until the police come upon her. We decline to do so now.

State v. Morse, 156 Wn.2d 1, 13, 123 P.3d 832 (2005).⁹ Consequently, even had Graham consented to the entry, the officers did not ensure that Williams validly consented as well. As a result, we cannot conclude that the officers acted legally in entering the hotel room. Cf. State v. Raines, 55 Wn. App. 459, 462, 778 P.2d 538 (1989) (addressing whether homeowner gave implied waiver of right to exclude officers).¹⁰

¶27 We reverse and remand with instructions to suppress the evidence.

Armstrong, J., concurs.

1 Williams also assigns error based on ineffective assistance of counsel and trial court error in denying his motion to dismiss two counts of unlawful cocaine possession. Because we reverse, we do not address these arguments.

2 At the CrR 3.6 hearing, McCarthy testified that the officers walked into the room with Graham; McKinney testified that Graham entered first and gave the officers permission to enter. The trial court’s findings of fact do not indicate whether Graham gave the officers permission to enter. No findings of fact support that Williams gave officers permission to enter, and the State did not argue that Williams gave permission.

3 McKinney testified that he looked around the room before the arrest and searched it postarrest.

4 After a CrR 3.5 hearing, the State added a second count of possession for cocaine discovered on Williams at the Kitsap County Jail and later added a third count to address cocaine Williams dropped behind the door of the hotel room. It further amended the information a final time, correcting certain dates.

5 Williams’s argument centers on whether the community caretaking exception to the warrant requirement should be recognized under article I, section 7 of the state constitution. In State v. Johnson, we addressed this issue and declined to hold that the state constitution does not allow this warrant exception. 104 Wn. App. 409, 416-18, 16 P.3d 680 (2001).

6 Johnson, 104 Wn. App. at 418 (authorizing entrance when an officer “believes that someone likely needs assistance for health or safety reasons”); State v. Lynd, 54 Wn. App. 18, 21, 771 P.2d 770 (1989) (authorizing search if an officer needed to “ ‘render aid or assistance’ ” (quoting State v. Loewen, 97 Wn.2d 562, 568, 647 P.2d 489 (1982))).

7 The dissent states that one reason for the warrantless entry in Jacobs was the officer wanted to enter to be sure that nobody inside the house was armed. Dissent at 696 (citing Jacobs, 101 Wn. App. at 83). The reason stated by the officer immediately prior to entering was that

she “felt obligated to check his residence ... to briefly look inside to make sure that no one was inside bleeding, hurt, or anything like that.” She believed there was no time to get a warrant because “the time period that it would take ... to get a warrant, somebody could be dying, bleeding out, who knows.”

Jacobs, 101 Wn. App. at 83-84 (alterations in original). Consequently, the court concluded that warrantless entry was justified because “the officers subjectively believed that someone inside might need medical assistance.” Jacobs, 101 Wn. App. at 89 n.3 (emphasis added). The court did not address any other alleged reason for entering the house.

8 The State did not raise this argument before the trial court. We may, however, affirm on any ground the record supports, even if the trial court did not consider the argument. State v. Michielli, 132 Wn.2d 229, 242-43, 937 P.2d 587 (1997).

9 The dissent believes that Graham had the sole right to occupy the premises and consent to the search because he paid for the hotel room. The record, however, supports that both men had common authority over the hotel room: Graham and Williams were traveling long distances together and both stored personal effects in the hotel room. As set out in United, States v. Matlock, 415 U.S. 164, 171 n.7, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974), common authority is established by “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right.” Moreover, although the parties do not address it, Williams may also have automatic standing to object to the search. State v. Jones, 146 Wn.2d 328, 332-34, 45 P.3d 1062 (2002).

10 Because we reverse on these grounds, we do not address Williams’s argument based on Terry.