State v. Smith

Sanders, J.

¶24 (dissenting) — The Fourth Amendment to the United States Constitution and the Washington Declaration of Rights require the police to obtain a warrant before conducting a search of a home, subject to limited exceptions.4 A warrantless search is impermissible under both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution unless one of the “ ‘few jealously and carefully drawn exceptions to the warrant requirement’ ” applies, which the State has the burden of proving. State v. Kinzy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000) (quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980)). “Both the Fourth Amendment and article I, section 7 provide strict privacy protections where invasion of a person’s home is involved.” City of Pasco v. Shaw, 161 Wn.2d 450, 459, 166 P.3d 1157 (2007). Here, the police searched Brent Smith’s home without a warrant. The majority asserts this warrantless search was justified “under the ‘officer and public safety’ prong of the ‘exigent circumstances’ exception to the warrant requirement.” Majority at 519. I disagree. The warrantless entry into Smith’s home violated the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution because no exception applied.

¶25 Exigent circumstances exist to excuse the warrant requirement if the demand for immediate investigatory action makes it impracticable for the police to obtain a warrant. State v. Cardenas, 146 Wn.2d 400, 405-08, 47 P.3d 127 (2002). To determine if exigent circumstances exist for a warrantless entry, the court looks to six factors for guidance: (1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is reasonably trustworthy information of the suspect’s guilt, (4) whether there is a strong reason to believe the *521suspect is on the premises, (5) whether the suspect is likely to escape if not apprehended, and (6) whether the entry is made peaceably.5 Id. at 406 (citing State v. Terrovona, 105 Wn.2d 632, 644, 716 P.2d 295 (1986)). While the majority is correct that every single factor need not be present to establish exigency, in the aggregate, the factors must establish the need to act quickly. Majority at 518; State v. Patterson, 112 Wn.2d 731, 736, 774 P.2d 10 (1989).

¶26 The majority asserts, “Under the extraordinary facts of this case, the responding officers identified a legitimate threat to officer and public safety sufficient to constitute an exigent circumstance.” Majority at 518. While the facts of this case may not be ordinary, they did not give the police carte blanche to violate Smith’s constitutional rights. The majority asserts the following facts establish exigency: (1) a stolen tanker containing 1,000 gallons of anhydrous ammonia parked next to a believed-to-be vacant home, (2) the presence of Smith and Kimberly Breuer inside the home, and (3) an unaccounted-for shotgun. Id.

¶27 Under the six factor analysis, however, these facts do not establish sufficient exigency to justify a warrantless intrusion into Smith’s home. The theft of a truck containing 1,000 gallons of anhydrous ammonia is not a violent crime. It may be a serious offense, but exigency is not created merely because a serious offense has been committed. Counts, 99 Wn.2d at 59-60. The truck was secured by officers who verified it was not leaking. Clerk’s Papers (CP) at 87; Verbatim Report of Proceedings (RP) (Dec. 17, 2004) at 19-20. Shortly after securing the truck, Smith and *522Breuer were detained by police. CP at 88. While there may have been an unaccounted for shotgun in the home, there was no reason to believe there was anyone else in the home or on the premises to use the weapon. The entry by police may very well have been peaceful, but with at least 15 officers on the scene, there was no reason to believe the fictitious person would escape. There was no apparent urgency to justify the warrantless entry, and there was ample time to obtain a warrant.

¶28 The “officer and public safety” prong of the “exigent circumstances” exception to the warrant requirement does not apply here because there was no threat to officer or public safety inside the home. The only possible threat was outside the home and that threat had been contained when the tanker truck was secured and Smith and Breuer were detained. There was no exigency requiring the officers’ immediate entry into Smith’s home without a warrant.

¶29 The community caretaking exception also does not justify the warrantless search of Smith’s home. Under the Fourth Amendment to the United States Constitution, “[t]his [community caretaking] exception allows for the limited invasion of constitutionally protected privacy rights when it is necessary for police officers to render aid or assistance or when making routine checks on health and safety.” State v. Thompson, 151 Wn.2d 793, 802, 92 P.3d 228 (2004).6

Such invasion is allowed only if (1) the police officer subjectively believed that someone likely needed assistance for health or safety concerns, (2) a reasonable person in the same situation would similarly believe that there was need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place being searched.

Id. (citing Kinzy, 141 Wn.2d at 386-87).

¶30 Two factors must be present to justify a warrantless entry under the “community caretaking” exception: “there *523must be a substantial risk of serious injury to persons or property” and “the risk to persons or property must be imminent.” State v Leffler, 142 Wn. App. 175, 183-84, 178 P.3d 1042 (2007). Moreover, the police officers must be motivated by “ 'noncriminal noninvestigatory purposes.’ ” Thompson, 151 Wn.2d at 802 (quoting Kalmas v. Wagner, 133 Wn.2d 210, 216-17, 943 P.2d 1369 (1997)). In other words, the entry is permissible to render immediate assistance but not to investigate.

¶31 Here, the police were investigating the theft of the tanker truck. The police had no indication of other people in the home. The police had no reason to believe there was an imminent threat of substantial harm. The presence of the tanker truck raises the possibility of harm, but the possibility of harm cannot justify a warrantless entry under the “community caretaking” exception. There was no one who needed immediate assistance. The police entered the home to investigate an apparent missing shotgun previously seen through a window in the home, not to render immediate assistance to anyone.

¶32 Nor does the protective sweep protection apply here even though the Court of Appeals found this exception applicable. State v. Smith, 137 Wn. App. 262, 268, 153 P.3d 199 (2007). The State, however, conceded in its brief below that the “protective sweep” exception was inapplicable because the search of the home was not incident to an arrest. Br. of Resp’t at 12; see also State v. Hopkins, 113 Wn. App. 954, 55 P.3d 691 (2002).

¶33 The court must also be satisfied that the invocation of exigency is not simply a pretext for conducting an impermissible search. State v. Ladson, 138 Wn.2d 343, 356, 979 P.2d 833 (1999). The police may not invoke an exception as pretext to an evidentiary search. Id.; State v. Lawson, 135 Wn. App. 430, 435-36, 144 P.3d 377 (2006). The majority asserts, “[t]here was no pretext here” because “[t]he officers’ actions were consistent with their stated purpose of preventing the risks to themselves and the public.” Majority at 518-19. However, Detective Gonzales of the Tri-City *524Metro Drug Task Force was familiar with the property, having previously responded to it for methamphetamine related incidents. CP at 86; RP (Jan. 21, 2005) at 16. Additionally detectives entered the home without wearing any protective gear or safety equipment. RP (Jan. 21, 2005) at 31. If their actions were consistent with their purpose of preventing harm to themselves and the public, then one would imagine that at the very least they would wear protective gear before entering the home. Furthermore, the risk was outside the home, not inside, so there was no reason for the officers and detectives to enter the home.

¶34 In sum, the police had no urgent need to enter Smith’s home. In any situation, the police may never be truly sure a house is empty until they search it. Yet, the majority wants to allow police to search a house just to ensure it is not empty. This is not a permissible exception to the warrant requirement. Permitting a warrantless intrusion into a house because of something outside the home swallows the warrant requirement in many situations.7 The police had no reason to believe a dangerous suspect was inside the house. Hopkins, 113 Wn. App. at 959-60 (requiring articulable facts to support the belief of the presence of a dangerous person nearby); see also Terrovona, 105 Wn.2d at 644-45; Cardenas, 146 Wn.2d at 406-08. A shotgun was inside the house and a secured tanker truck of anhydrous ammonia was outside the home, but this alone does not justify a warrantless entry. See U.S. Const, amend. II; Wash. Const, art. I, § 24.

¶35 “ ‘When an unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed.’ ” Kinzy, 141 Wn.2d at 393 (quoting Ladson, 138 Wn.2d at 359). Here, evidence of the methamphetamine lab was discovered only after the police warrantlessly entered the house. This warrantless entry was unconstitutional, so the subsequently *525discovered methamphetamine lab became “fruit of the poisonous tree” and should have been suppressed.

¶36 I dissent.

Alexander, C.J., and J.M. Johnson, J., concur with Sanders, J.

U.S. Const, amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”); Const, art. I, § 7 (“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”).

These six factors supplement the five factual scenarios where exigent circumstances could be present: (1) hot pursuit, (2) fleeing suspect, (3) danger to arresting officer or to the public, (4) mobility of the vehicle, and (5) mobility or destruction of the evidence. State v. Terrovona, 105 Wn.2d 632, 644, 716 P.2d 295 (1986) (citing State v. Counts, 99 Wn.2d 54, 60, 659 P.2d 1087 (1983)). According to the majority, the scenario present here is the possible danger to the police or the public. However, a possible danger to the police or public does not automatically cause exigency justifying a warrantless entry. In other words, the six factor analysis determines exigency, not the factual scenario in which they are applied. See Counts, 99 Wn.2d at 60 (cataloguing “five separate circumstances which could be termed ‘exigent’ ” (emphasis added)).

“[T]his Court has not explicitly stated the [community caretaking] exception applies to article I, section 7 of the Washington Constitution.” Kinzy, 141 Wn.2d at 386 n.38.

For example, some homes have external propane tanks. Some properties, such as farms, store fuel in large external tanks. Moreover, anhydrous ammonia is legitimately used in farming operations.