State v. Chrisman

• Decision Date: 26 November 1980
• Docket Number: No. 46750,46750
• Citation: 94 Wn.2d 711,619 P.2d 971
• Parties: The STATE of Washington, Respondent, v. Neil Martin CHRISMAN and Carl Philip Overdahl, Petitioners.
• Court: Washington Supreme Court

Page 711

94 Wn.2d 711

619 P.2d 971

The STATE of Washington, Respondent, v. Neil Martin CHRISMAN and Carl Philip Overdahl, Petitioners.

No. 46750.

Supreme Court of Washington, En Banc.

Nov. 26, 1980.

Aitken, Schauble, Patrick, Neill & Charawell, Robert F. Patrick, Pullman, Stephen Bishop, Garfield, for petitioners.

Ronald R. Carpenter, Whitman County Prosecutor, Gerald R. Fuller, Deputy Pros. Atty., Colfax, for respondent.

DOLLIVER, Justice.

Defendants Carl Overdahl and Neil Chrisman, students at Washington State University, were tried without a jury and convicted of possession of more than 40 grams of marijuana, a felony. Chrisman was also convicted of possession of lysergic acid diethylamide (LSD). Both defendants appealed and the Court of Appeals affirmed their convictions. State v. Chrisman, 24 Wash.App. 385, 600 P.2d 1316 (1979). They then petitioned this court for review. The charges against Overdahl, however, were subsequently dismissed, and he withdrew his petition for discretionary review. We accepted review of Chrisman's conviction (93 Wash.2d 1009 (1980)), and reverse.

On the evening of January 21, 1978, defendant Overdahl, carrying a half gallon of gin, walked out of Orton Hall at Washington State University with several student friends on their way to a party. At that moment, Officer Daugherty of the University police department arrived at the dormitory to investigate an unrelated matter. The officer noticed the bottle of gin and suspected that Overdahl was under the age of 21. He stopped Overdahl and requested his identification. Overdahl stated that he would have to go upstairs to his room to get the identification. Officer Daugherty replied that he would have to accompany him to his room. As they were waiting for the elevator, the officer asked Overdahl how old he was. Overdahl responded that he was 19.

Upon arriving on the eleventh floor of the dormitory, Officer Daugherty followed Overdahl down the hallway to his room. Overdahl pushed open the slightly ajar door and entered the approximately 17 by 11 foot room. The officer stood in the open doorway and noticed that the room was occupied by another student, defendant Neil Chrisman. Officer Daugherty testified that Chrisman appeared visibly nervous upon seeing the police officer.

After watching the occupants for a few minutes, Officer Daugherty observed seeds and a small pipe lying on a desk 8 to 10 feet from where he was standing. He recognized the pipe as the type used for marijuana, and proceeded to examine the seeds and the pipe more closely.

Concluding that the seeds were marijuana and that the pipe smelled of marijuana, Officer Daugherty gave the two students their Miranda rights. Both Overdahl and Chrisman indicated they understood their rights and were willing to waive them. The officer then asked them if they had other drugs in the room and Chrisman handed him a small box containing three small plastic bags of marijuana.

Officer Daugherty radioed for assistance and Officer Kenny arrived shortly thereafter. Officer Kenny informed the defendants that a search of their room was necessary. He explained that they had an absolute right to demand that the police obtain a search warrant which would take about 2 hours, or alternatively they could consent to a search of their room. He further explained that their consent must be voluntary and that they had a right to refuse consent. After conferring in whispers, Overdahl and Chrisman agreed to the search. Prior to signing written consent to search forms, defendants were again advised of their rights under Miranda. A search of the room yielded more marijuana and also LSD.

Chrisman and Overdahl were charged by amended information with one count of possession of more than 40 grams of marijuana. Chrisman was also charged with a second count of possession of LSD. Prior to trial, a suppression hearing was held and defendants moved to suppress all evidence on the basis that the evidence was obtained as a result of an illegal search and seizure. The trial judge denied the motion. Defendants were tried without a jury and convicted as charged.

Chrisman contends that Officer Daugherty's initial warrantless examination of the seeds and the pipe amounted to an unconstitutional search and that the evidence seized should have been suppressed. We agree. (S)earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.

(Footnote omitted.) Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Daugherty, 94 Wash.2d 263, 616 P.2d 649 (1980). Since Officer Daugherty had no warrant when he entered Chrisman's and Overdahl's room, the search was proper only if it fell within one of the "jealously and carefully drawn" exceptions to the warrant requirement of the Fourth Amendment. Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958); State v. Daugherty, supra.

The State asserts that the seizure of the marijuana seeds and pipe was permissible under the "plain view" exception to the warrant requirement. This exception permits warrantless seizure of incriminating evidence discovered in a search of a given area for other specified items pursuant to a valid warrant, or discovered inadvertently after an intrusion otherwise excepted from the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Daugherty, supra.

The plain view exception will apply only 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. State v. Daugherty, supra ; State v. Murray, 84 Wash.2d 527, 527 P.2d 1303 (1974), cert. denied, 421 U.S. 1004, 95 S.Ct. 2407, 44 L.Ed.2d 673 (1975); State v. Dimmer, 7 Wash.App. 31, 33, 497 P.2d 613, review denied, 81 Wash.2d 1003 (1972). The burden falls on the State to show that a warrantless search falls within the plain view exception to the warrant requirement. See Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); State v. Daugherty, supra. A greater burden is placed on officials who enter a home or dwelling without a warrant. The "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' " Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980), quoting United States v. United States Dist. Ct., 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972).

Some argument is made by defendant that in fact Officer Daugherty was not in the room at the time he observed the seeds and pipe but was standing only in the doorway. The record is in conflict as to whether Officer Daugherty stood in the doorway and then entered the room or whether, while in the doorway, he was in fact in the room. We need not, however, let the result be determined by such niceties. The police officer was in the room at the time he observed the seeds and pipe. The question is: Did he have a right to be there?

We begin by stating the trial court correctly determined Overdahl had been placed under arrest at the time he was apprehended outside Orton Hall carrying the bottle of gin. Overdahl continued to be under arrest when he was accompanied to his room by Officer Daugherty. As the State observes, there was nothing to prevent Officer Daugherty from accompanying Overdahl to his room. Simply because Overdahl was under arrest, however, did not give Officer Daugherty the right to enter the room and, upon seeing the seeds and pipe, to conduct a search-all without a warrant.

One of the difficulties in this case results from the fact that the focus has been on the marijuana rather than the alcohol. But, as the State claimed and the trial court concluded, we concur that the entry into the room was connected with the arrest for possession of alcohol by a minor, and not the possession of marijuana. Once Officer Daugherty entered the room as he followed up on the alcohol arrest, the validity of his observation of the seeds and pipe and the subsequent search depends on the constitutionality of the original entry.

The United States Supreme Court has consistently held a contemporaneous search is justified by such exigent circumstances as,

the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime-things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control.

Chimel v. California, 395 U.S. 752, 764, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969), quoting from Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). This case does not fit under the contemporaneous search exceptions.

It is clear from the testimony of Officer Daugherty that the only reason he accompanied Overdahl to the room was so that Overdahl could get his identification. Officer Daugherty said at the time he stopped Overdahl he "believed that I had a minor in possession" and that Overdahl could not go to his room alone to get the identification "because we just don't release people from custody." The arrest of Overdahl was for a minor in possession of alcoholic beverages. There is absolutely no evidence that it was necessary for Officer Daugherty to enter the room to seize a weapon which might be used in an assault, that the bottle of gin was about to be destroyed, or that Overdahl was going to attempt an escape. It was a small room. Officer Daugherty was standing in the one exit, and it was on the eleventh story. It was not necessary for the officer to enter the room to make certain Overdahl secured his identification. No exigent circumstances...