State v. Counts

• Decision Date: 24 February 1983
• Docket Number: Nos. 47687-0,48239-0 and 47932-1,s. 47687-0
• Citation: 659 P.2d 1087,99 Wn.2d 54
• Parties: The STATE of Washington, Respondent, v. John Frederick COUNTS, Petitioner. The STATE of Washington, Respondent, v. Larry HOLMES, Petitioner. The STATE of Washington, Respondent, v. Lennis Myles BARILLEAUX, Petitioner.
• Court: Washington Supreme Court

Page 54

99 Wn.2d 54

659 P.2d 1087

The STATE of Washington, Respondent, v. John Frederick COUNTS, Petitioner.

The STATE of Washington, Respondent, v. Larry HOLMES, Petitioner.

The STATE of Washington, Respondent, v. Lennis Myles BARILLEAUX, Petitioner.

Nos. 47687-0, 48239-0 and 47932-1.

Supreme Court of Washington En Banc.

Feb. 24, 1983.

Allen & Hansen Richard A. Hansen, David P. Lancaster, Seattle-King County, Public Defender Ass'n, Seattle, for petitioners.

Norman K. Maleng, King County Prosecutor, Dennis R. Nollette, Deputy Pros. Atty., Seattle, for respondent.

STAFFORD, Justice.

In each of these consolidated cases, the petitioner asks this court to apply retroactively Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Payton held that in the absence of exigent circumstances, police may not make a warrantless, nonconsensual entry into a suspect's home to make a routine felony arrest. We deferred these cases pending resolution of the retroactivity issue by the Supreme Court in United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).

I

In June of 1982, Johnson held Payton to be retroactive in all cases pending on direct appeal at the time Payton was decided. As with the consolidated cases before us, Johnson involved a situation in which the defendant was convicted in part on the basis of evidence gathered after a warrantless entry and arrest within the home. Payton was decided after Johnson's appeal had been denied by the Ninth Circuit. The Ninth Circuit then withdrew its opinion and reversed Johnson's conviction in light of the Payton rule. United States v. Johnson, 626 F.2d 753 (9th Cir.1980).

In Johnson, the Supreme Court adopted a new test for all decisions interpreting the Fourth Amendment which are not clearly controlled by past retroactivity precedent. After Johnson, Fourth Amendment decisions must be applied retroactively to all cases still pending on direct appeal at the time of the new decision. Johnson, 457 U.S. at ----, 102 S.Ct. at 2590, 73 L.Ed.2d at 217-18.

The State suggests that since Johnson arose entirely within the federal system, its precedent should be applicable only within that system. The State also asserts that while Johnson did not effectively alter any federal statute or Supreme Court precedent, if applied to this State, it would effectively overturn RCW 10.31.040 which authorizes warrantless arrests in the home. Although it is true Johnson would require a new interpretation of RCW 10.31.040, we are nevertheless bound by the Supreme Court. The State overlooks the fact that the Supreme Court has remanded several state cases for reconsideration in light of Johnson. See, e.g., People v. Graham, 76 A.D.2d 228, 431 N.Y.S.2d 209 (1980), cert. granted, 457 U.S. ----, 102 S.Ct. 3474, 73 L.Ed.2d 1362 (1982); Ford v. State, 622 S.W.2d 915 (Ky.1981), cert. granted, 457 U.S. ----, 102 S.Ct. 3476, 73 L.Ed.2d 1363 (1982). Moreover, the decision in Payton cannot be called a clear break with past Washington law. See, e.g., State v. Werth, 18 Wash.App. 530, 571 P.2d 941 (1977). Clearly, the result in Payton was foreshadowed by decisions of our State courts. Thus, traditional principles of retroactivity are inappropriate here. ¹

Johnson affirmatively requires this court to apply the principles of Payton to all cases pending on appeal at the time that case was decided. The appeals in Counts, Holmes and Barilleaux all fall within that category; therefore, this court must determine in each case whether the warrantless entry and arrest was made as an exception to the Payton rule.

II

In Payton, 445 U.S. at 576, 100 S.Ct. at 1374-75, the Supreme Court declared that in the absence of exigent circumstances, "the Fourth Amendment ... prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." But, the Court expressly avoided a determination of the "exigent circumstances" that would justify a warrantless entry. Payton, 445 U.S. at 583, 100 S.Ct. at 1378. Moreover, neither Payton nor its companion case, Riddick v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) presented a question of consent. Payton, at 583, 100 S.Ct. at 1378.

Since each of the three cases before us will turn on its own facts, we must consider the application of Payton to each case separately.

A. State v. Counts, No. 47687-0

Shortly after midnight on July 3, 1978, Bellevue police responded to a silent alarm set off at a local golf course. Upon discovering the clubhouse had been burglarized, police searched the immediate vicinity. With the aid of a tracking dog, they discovered 15-year-old Rob Chatelaine crouched in some nearby bushes with candy and cigarettes taken from the clubhouse.

Chatelaine initially denied anyone else had been involved in the burglary. After being interrogated by police between 10 and 60 minutes, during which time the police asked him if one of the Counts brothers was involved, Chatelaine stated that Fred Counts had been with him. Following this admission, the police put the tracking dog on a scent which led them to Counts' house.

Counts' father refused the police permission to enter the home to arrest his son. An hour or more of bitter argument ensued during which Counts' father demanded that the police secure a warrant. The officer in charge decided, however, to proceed with an immediate arrest and ultimately entered the home without a warrant and without consent.

Fred Counts had become quite emotionally upset during this time. When the police entered the home, Fred ran into the kitchen, picked up a butcher knife and moved to within about 15 feet of the officers. The police immediately drew their guns, but Fred's father intervened and took the knife from his son. Fred was then arrested without incident.

Fifteen-year-old Counts was tried as an adult on charges of second degree burglary and second degree assault. A jury found him not guilty of the burglary (the charge under which the entry was made) but guilty of the assault (which occurred after the entry). After trial, but before oral argument to the Court of Appeals, the United States Supreme Court issued its decision in Payton v. New York, supra. The Court of Appeals refused to apply Payton retroactively and affirmed the assault conviction, noting that Payton would control if it were applicable. The Court of Appeals further noted that if the entry was unlawful, Counts would have been entitled to have submitted the issue of whether he had acted reasonably in defending against it. State v. Rousseau, 40 Wash.2d 92, 241 P.2d 447 (1952).

The Court of Appeals is reversed to the extent it relied on the nonretroactivity of Payton. The State nevertheless contends the warrantless entry and arrest of Counts in his home occurred under "exigent circumstances" which would place it outside the Payton rule.

Although the Supreme Court has not had an opportunity to determine what "exigent circumstances" would actually justify a departure from the Payton rule, several federal courts have addressed that issue. In United States v. Kreimes, 649 F.2d 1185, 1192 (5th Cir.1981) the court catalogued five separate circumstances which could be termed "exigent"--1) hot pursuit, United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); 2) fleeing suspect, United States v. Williams, 612 F.2d 735 (3d Cir.1979), cert. denied, 445 U.S. 934, 100 S.Ct. 1328, 63 L.Ed.2d 770 (1980); 3) danger to arresting officer or to the public, United States v. Moschetta, 646 F.2d 955 (5th Cir.1981); 4) mobility of the vehicle, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and 5) mobility or destruction of the evidence, United States v. Eddy, 660 F.2d 381 (8th Cir.1981).

Here, the State maintains the officers were in "hot pursuit" at the time they entered Counts' home to make the arrest. We do not agree.

In United States v. Santana, supra 427 U.S. at 43, 96 S.Ct. at 2410, the Court held that "hot pursuit" does mean "some sort of a chase, but it need not be an extended hue and cry 'in and about [the] public streets.' " (Italics ours.) In this case, the officers argued with petitioner's father for over an hour concerning the necessity of a warrant. The police indicated that because of the tracking dog, they did not need one. The police knew Counts was inside. He was not in flight. Clearly, this is not the kind of situation contemplated by the "hot pursuit" exception. The use of a tracking dog does not change the situation. The police easily could have maintained surveillance while waiting for a warrant. See Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). Counts conceded the police had probable cause sufficient for a warrant. In short, the warrantless entry by the Bellevue police is precisely the kind of conduct prohibited by Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

The decision of the Court of Appeals is reversed and the cause remanded to the trial court for a new trial which should include an instruction to the jury on a defendant's right to use reasonable resistance against an unlawful arrest. See State v. Rousseau, supra.

B. State v. Holmes, No. 48239-0

Late in the evening of January 13, 1980, two men picked up a 17-year-old female hitchhiker. They put her in the back seat, locked the doors and drove her around Seattle for about an hour. They then took her to a house where she was forced to remove her clothes, was beaten and raped by one of the men who she later identified as petitioner, Larry Holmes. After spending the night injured and naked, she was raped by the other man, later identified as Ricky Horne, and then told she could leave.

The victim immediately went to a phone booth to report what had happened. Investigating officers took her to Harborview Medical Center. On the way, she gave officers a description of the two men who had raped...