State v. Ramirez

• Citation: 49 Wn.App. 814,746 P.2d 344
• Decision Date: 03 December 1987
• Docket Number: No. 7761-6-III,7761-6-III
• Parties: STATE of Washington, Respondent, v. George P. RAMIREZ, Appellant.
• Court: Court of Appeals of Washington

Page 814

49 Wn.App. 814

746 P.2d 344

STATE of Washington, Respondent, v. George P. RAMIREZ, Appellant.

No. 7761-6-III.

Court of Appeals of Washington,

Division 3, Panel Two.

Dec. 3, 1987.

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 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 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 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 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, 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 Fourth Amendment and Const. art. 1, § 7. ⁴ The smell of burning marijuana, when detected by those qualified to know that odor, is sufficiently distinctive to create probable cause to search or arrest for marijuana possession. State v. Hammond, 24 Wash.App. 596, 598-99, 603 P.2d 377 (1979); State v. Compton, 13 Wash.App. 863, 865, 538 P.2d 861 (1975); 2 W. LaFave, Search & Seizure § 3.6(b), at 36-37 (2d ed. 1987); see also Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 (1948). The court found the officers' testimony clearly demonstrated they had experience in identifying the odor of marijuana and they also had received formal training in making such identifications. See State v. Matlock, 27 Wash.App. 152, 155-56, 616 P.2d 684 (1980). Consequently, the officers possessed probable cause to either search or arrest for marijuana possession upon smelling the odor of burning marijuana. The State maintains, and the court so found, that an exigency existed because the officers needed to ensure the evidence was not totally destroyed, i.e., consumed by being smoked. We disagree.

In Payton, the rule allowing warrantless home arrests upon a showing of probable cause and exigent circumstances was expressly limited to felony arrests. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 749 n. 11, 104 S.Ct. 2091, 2097 n. 11, 80 L.Ed.2d 732 (1984); Payton, 445 U.S. at 574, 588, 100 S.Ct. at 1381. The court in Welsh, 466 U.S. at 750-53, 104 S.Ct. at 2097-99, observed that the State's interest in making a warrantless home arrest only outweighs an individual's interest in being secure from such an invasion where serious crimes are involved. Consequently, under normal circumstances, where officers merely have probable cause to believe a misdemeanor is being, or has been, committed, "application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned ..." Welsh, 466 U.S. at 753, 104 S.Ct. at 2099. As Justice Brennan, writing for the court, explained:

Our hesitation in finding exigent circumstances, especially when warrantless arrests in the home are at issue, is particularly appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. When the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.

(Citation and footnote omitted.) Welsh, 466 U.S. at 750, 104 S.Ct. at 2098. He further noted that consideration of the gravity of an offense in determining whether exigent circumstances exist to make a warrantless home arrest

is not a novel idea. Writing in concurrence in McDonald v. United States, 335 U.S. 451, 93 L.Ed. 153, 69 S Ct 191 (1948), Justice Jackson explained why a finding of exigent circumstances to justify a warrantless home entry should be severely restricted when only a minor offense has been committed:

... Whether there is reasonable necessity for a search without waiting to obtain a warrant certainly depends somewhat upon the gravity of the offense thought to be in progress as well as the hazards of the method of attempting to reach it.... It is to me a shocking proposition that private homes, even quarters in a tenement, may be indiscriminately invaded at the...