State v. Raines

Winsor, J.

(dissenting) — I agree with the majority that there was sufficient consent to enter the apartment. I disagree, however, with the conclusion that exigent circumstances justified further entry into the bedroom. I therefore reach the issue whether there was consent to enter the bedroom and concur with the majority's intimation that there was no such consent.

First, as to consent to enter the bedroom, as the majority points out, Looney affirmatively closed the bedroom door and indicated that she did not want the officers to enter. The authorities the majority cites support a holding of no consent.1 In addition, two opinions from other states are precisely on point. In State v. Drouhard, 31 Or. App. 1083, 572 P.2d 331 (1977), officers seeking to secure a house where they had observed drug-related activity did not have a search warrant. The officers knocked on the door, and the defendant called from within, "Come in." The officers entered the living room where the defendant was seated, but then proceeded on into the bedroom and found drugs. Unlike our case, the defendant did not protest at any point. Nonetheless, the court held that permission to enter the *468living room did not mean that there was consent to search any other area. The evidence was suppressed.

Likewise, in State v. Monahan, 76 Wis. 2d 387, 251 N.W.2d 421 (1977), police were invited by the defendant into his home. The court observed that " [i]mplicit in [such an] invitation is a right to look around." Monahan, at 393. However, once in the house, the police were directed by the defendant to go to the den and instructed not to go into the living room. Nevertheless, one of the officers followed the defendant as far as the kitchen and there observed the defendant in the living room with contraband. The court held that an invitation to enter one's home may implicitly extend to all areas of the home or may be limited to specific areas. The evidence was suppressed. In light of Looney's affirmative indication that she did not want the officers to enter her bedroom, I would rule that there was no consent to enter.

As a basis for exigent circumstances justifying entry into the bedroom, the majority states that the police were reasonably concerned for the physical safety of Looney and her child. Some additional facts from the record are required in assessing the reasonableness of the officers' concern. The witness Feldhusen, who made the contact with the police, did report overhearing "fighting," but described the fighting as cussing, throwing things, "that kind of fighting." It is also true that the officers testified that they had received previous calls to break up disputes between Looney and Raines, but when asked whether there had ever been any evidence of someone being hurt as a result of those disturbances, the answer was no. The officers therefore had no reason to anticipate violence of a physical nature. In fact, the manner of Officer Kullberg's entering the bedroom — simply opening the door and walking in— indicates that she did not anticipate a physically violent response from Raines.

Thus, when the police had gained access to the apartment and found that Looney and her child were both unharmed, and that Looney was denying any need for help, *469it was unreasonable to proceed further without a warrant. This is especially so with the advent of the telephonic search warrant under CrR 2.3(c). Courts are required to closely scrutinize the totality of the circumstances in determining whether a warrantless search was justified in view of alternatives to either (1) guard the premises while a warrant is sought or (2) apply for a telephonic warrant. State v. Welker, 37 Wn. App. 628, 633, 683 P.2d 1110, review denied, 102 Wn.2d 1006 (1984). Courts must consider the availability of a telephonic warrant in determining whether exigent circumstances exist. State v. Ringer, 100 Wn.2d 686, 702, 674 P.2d 1240 (1983), overruled on other grounds in State v. Stroud, 106 Wn.2d 144, 150, 720 P.2d 436 (1986).

The majority cites State v. Lynd, 54 Wn. App. 18, 22, 771 P.2d 770 (1989) as justifying a warrantless search when the police have concern for imminent danger of death or harm. That case appropriately so holds, but the facts are quite different from the facts presented here. In Lynd, the police received a 911 call from the Lynd home, but when the police answered the phone the caller hung up. The patrolman arriving on the scene very soon thereafter found the defendant packing his automobile as if he were leaving. He had a fresh cut on his face and admitted that he had been in a physically violent fight with his wife, that he had pushed her to the floor and slapped her. When the police requested permission to enter his home to assure that she was safe, he claimed that she had already departed. The police were concerned about a delay in possibly seeking a telephonic warrant under the circumstances and so entered without a warrant. Contraband was found. The court upheld the search.

The significant differences in the case are that in Lynd someone within the home had initiated a call to police for help, the police had clear evidence of physical violence between the defendant and a victim, and the victim was not present to reassure the police that all was well. Likewise, this case is nothing like Commonwealth v. Rexach, 20 *470Mass. App. Ct. 919, 478 N.E.2d 744, review denied, 395 Mass. 1104, 482 N.E.2d 328 (1985), relied upon by the majority. Majority, at 465. There the officers responding to a domestic violence call found the wife badly battered and the husband extremely agitated.

It bears repeating that in our case the police knew that the woman and her child were unharmed, and the woman herself was assuring the police that there was no problem. The police legitimately had a lingering concern, but under all the facts, it clearly was unreasonable to proceed into the bedroom without obtaining a search warrant. I would reverse.

Review denied at 113 Wn.2d 1036 (1990).

See State v. Johnson, 71 Wn.2d 239, 243, 427 P.2d 705 (1967); 3 W. LaFave, Search and Seizure § 8.1(c); Utter, Survey of Washington Search & Seizure Law: 1988 Update, 11 U. Puget Sound L. Rev. 411, 556-57 (1988). Majority, at 463.