746 P.2d 344 (Wash.App. Div. 3 1987), 7761-6, State v. Ramirez

Docket Nº7761-6-III.
Citation746 P.2d 344, 49 Wn.App. 814
Opinion JudgeMUNSON,
Party NameSTATE of Washington, Respondent, v. George P. RAMIREZ, Appellant.
AttorneyVictor Lara, Schwab, Kurtz & Hurley, Yakima, for appellant., Robert Hackett, Pros. Atty's. Office, Yakima, for respondent.
Judge PanelTHOMPSON, A.C.J., and GREEN, J., concur.
Case DateDecember 03, 1987
CourtCourt of Appeals of Washington

Page 344

746 P.2d 344 (Wash.App. Div. 3 1987)

49 Wn.App. 814

STATE of Washington, Respondent,

v.

George P. RAMIREZ, Appellant.

No. 7761-6-III.

Court of Appeals of Washington, Division 3, Panel Two.

December 3, 1987

[49 Wn.App. 815] Victor Lara, Schwab, Kurtz & Hurley, Yakima, for appellant.

Robert Hackett, Pros. Atty's. Office, Yakima, for respondent.

MUNSON, Judge.

George Ramirez appeals his conviction for possession of heroin and cocaine, contending the trial court erred in not suppressing the drugs seized by police officers following their warrantless entry into a hotel room where Mr. Ramirez and others were smoking marijuana. We reverse.

The following undisputed facts are taken primarily from the transcript of Mr. Ramirez' suppression hearing. Two Yakima police officers, James Platt and William Dizmang, were on foot patrol in an area which included the Cascade Apartments. The officers had previously received information from the hotel manager that narcotics trafficking was occurring within the building and had been asked to patrol the building. At approximately 7:30 p.m. on January 9, 1986, the officers, pursuant to the request, were on the [49 Wn.App. 816] third floor of the building when they smelled the strong odor of burning marijuana. Both officers recognized that smell from past police experience, as well as from their formal training. The officers determined the smoke was emanating from a 2 inch gap above the door to room 305; the door was not flush with the surrounding casing.

The officers knocked on the door several times, finally receiving a query asking "who was there"? Officer Platt responded, "the desk clerk," because he was afraid the marijuana would be destroyed if he identified himself as a police officer. The officer testified he heard an object being moved prior to opening the door. Thereafter, Mr. Ramirez opened the door. Upon seeing the two officers in full uniform, he stepped back from the door and opened his hands. The officers then stepped inside the room without first requesting permission or receiving an express invitation. Apparently two other men were in the room; their presence has no bearing on this appeal. After the officers entered the room, Mr. Ramirez took several items, resembling

Page 345

marijuana cigarettes, out of his pocket, placed them on the table, and said, "That's all I have."

The officers observed a large bulge in Mr. Ramirez' right cheek which they believed could possibly contain other controlled substances. Officer Platt asked Mr. Ramirez what was in his mouth, to which he replied, "nothing" and clamped his jaw. Following a demand for him to open his mouth, a struggle ensued during which several small packets were knocked out of his mouth. These items later tested positive for heroin and cocaine.

No other testimony was taken at the suppression hearing. Based on this evidence, the trial court initially concluded the State had failed to meet its burden of proving the officers' warrantless entry into room 305 was consensual. In its March 18 memorandum opinion, however, the court concluded the smell of burning marijuana gave the officers probable cause to conduct a further investigation. In addition, the court found the existence of exigent circumstances, i.e., the consumption-destruction of the marijuana, [49 Wn.App. 817] allowed the officers to enter the room without a warrant. Given that the officers had probable cause plus exigent circumstances, the court found the officers' warrantless entry into the room lawful and therefore denied Mr. Ramirez' motion to suppress. 1

The primary issue is whether the officers' entry into the room to arrest Mr. Ramirez without a warrant was permissible under the Fourth Amendment and article 1, section 7 of the Washington Constitution. Both the Fourth Amendment and Const. art. 1, § 7 provide individuals, while in their homes, with significant constitutional safeguards. 2 The State admits, that for purposes of the Fourth Amendment, the constitutional protections afforded homes are extended to other residential premises such as rented hotel rooms. See, e.g., Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); United States v. Rambo, 789 F.2d 1289, 1295 (8th Cir.1986); United States v. Newbern, 731 F.2d 744, 748 (11th Cir.1984); United States v. Bulman, 667 F.2d 1374, 1383 (11th Cir.), cert. denied sub nom., Howard v. United States, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982); State v. Dalton, 43 Wash.App. 279, 283, 716 P.2d 940, review [49 Wn.App. 818] denied, 106 Wash.2d 1010 (1986). Inasmuch as Const. art. 1, § 7 affords greater protection to privacy interests than the Fourth Amendment, State v. Bell, 108 Wash.2d 193, 196, 737 P.2d 254 (1987), its protection similarly applies to other dwelling places such as this hotel room where the privacy interests generated are analogous to those found in a home. Consequently, Mr. Ramirez possessed a "legitimate" or "reasonable" expectation of privacy in the premises here under both the Fourth Amendment and Const. art. 1, § 7.

Searches and seizures under either the federal or state constitution inside a home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980); Bell, 108 Wash.2d at 196, 737 P.2d 254; State v. Daugherty, 94 Wash.2d 263, 266-67, 616 P.2d 649 (1980), cert. denied, 450 U.S. 958, 101 S.Ct. 1417,

Page 346

67 L.Ed.2d 382 (1981). Therefore, in the absence of consent or exigent circumstances, both provisions prohibit the warrantless entry into an individual's home in order to make a felony arrest even though probable cause exists to arrest the individual therein. Payton, 445 U.S. at 587-88, 590, 100 S.Ct. at 1380-81, 1382; State v. Holeman, 103 Wash.2d 426, 429, 693 P.2d 89 (1985); see also State v. Counts, 99 Wash.2d 54, 60-61, 659 P.2d 1087 (1983). The trial court here found the officers' entry was nonconsensual. Because the State does not challenge that finding, we assume for purposes of this appeal that there was no valid consent to enter the hotel room. 3

The State instead contends that Payton's "probable cause plus exigent circumstances" exception to the warrant requirement is applicable under these facts and therefore the officers' warrantless entry was lawful under both the [49 Wn.App. 819] Fourth Amendment and Const. art. 1, § 7. 4 The smell of burning marijuana, when detected by those...

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26 practice notes
  • State v Holland, 012600 NJCA, A-5641-97T2
    • United States
    • November 10, 1999
    ...P.2d 818 (1998); State v. Ackerman, 499 N.W.2d 882 (N.D. 1993); State v. Robinson, 659 N.E.2d 1292 (Ohio Ct. App. 1995); State v. Ramirez, 746 P.2d 344 (Wash. Ct. App. 1987). In our view, it is this latter group of cases that correctly interpret the decision of the United States Supreme Cou......
  • 205 P.3d 178 (Wash.App. Div. 3 2009), 26900-1, State v. Hinshaw
    • United States
    • Washington Court of Appeals of Washington
    • April 16, 2009
    ...7 of the Washington State Constitution 2 prohibit the warrantless entry into a person's home to make an arrest. State v. Ramirez, 49 Wash.App. 814, 818, 746 P.2d 344 (1987) (citing Payton, 445 U.S. at 587-88, 100 S.Ct. 1371). " Freedom from intrusion into the home or dwelling is the ar......
  • 846 P.2d 604 (Wyo. 1993), 90-24, Saldana v. State
    • United States
    • Wyoming Supreme Court of Wyoming
    • January 28, 1993
    ...right to privacy with no express limitations. In a case involving entry into a hotel room, the Washington court in State v. Ramirez, 49 Wash.App. 814, 746 P.2d 344 (1987), recognized that the Washington Constitution afforded greater protection to privacy interests than the Fourth Amendment,......
  • 897 A.2d 242 (Md.App. 2006), 1282, Gorman v. State
    • United States
    • Maryland Court of Special Appeals of Maryland
    • April 26, 2006
    ...between Welsh and McArthur, various courts did determine that marijuana possession was a minor offense. See, e.g., Wash. v. Ramirez, 49 Wash.App. 814, 746 P.2d 344 (1987) (drawing distinction between misdemeanors and felonies); Ill. v. Day, 165 Ill.App.3d 266, 116 Ill.Dec. 525, 519 N.E.2d 1......
  • Request a trial to view additional results
26 cases
  • State v Holland, 012600 NJCA, A-5641-97T2
    • United States
    • November 10, 1999
    ...P.2d 818 (1998); State v. Ackerman, 499 N.W.2d 882 (N.D. 1993); State v. Robinson, 659 N.E.2d 1292 (Ohio Ct. App. 1995); State v. Ramirez, 746 P.2d 344 (Wash. Ct. App. 1987). In our view, it is this latter group of cases that correctly interpret the decision of the United States Supreme Cou......
  • 205 P.3d 178 (Wash.App. Div. 3 2009), 26900-1, State v. Hinshaw
    • United States
    • Washington Court of Appeals of Washington
    • April 16, 2009
    ...7 of the Washington State Constitution 2 prohibit the warrantless entry into a person's home to make an arrest. State v. Ramirez, 49 Wash.App. 814, 818, 746 P.2d 344 (1987) (citing Payton, 445 U.S. at 587-88, 100 S.Ct. 1371). " Freedom from intrusion into the home or dwelling is the ar......
  • 846 P.2d 604 (Wyo. 1993), 90-24, Saldana v. State
    • United States
    • Wyoming Supreme Court of Wyoming
    • January 28, 1993
    ...right to privacy with no express limitations. In a case involving entry into a hotel room, the Washington court in State v. Ramirez, 49 Wash.App. 814, 746 P.2d 344 (1987), recognized that the Washington Constitution afforded greater protection to privacy interests than the Fourth Amendment,......
  • 897 A.2d 242 (Md.App. 2006), 1282, Gorman v. State
    • United States
    • Maryland Court of Special Appeals of Maryland
    • April 26, 2006
    ...between Welsh and McArthur, various courts did determine that marijuana possession was a minor offense. See, e.g., Wash. v. Ramirez, 49 Wash.App. 814, 746 P.2d 344 (1987) (drawing distinction between misdemeanors and felonies); Ill. v. Day, 165 Ill.App.3d 266, 116 Ill.Dec. 525, 519 N.E.2d 1......
  • Request a trial to view additional results