State v. Alldredge

• Decision Date: 28 February 1994
• Docket Number: No. 14885-4-II,14885-4-II
• Citation: 868 P.2d 183,73 Wn.App. 171
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Gary Allen ALLDREDGE, Appellant.

Page 171

73 Wn.App. 171

868 P.2d 183

STATE of Washington, Respondent, v. Gary Allen ALLDREDGE, Appellant.

No. 14885-4-II.

Court of Appeals of Washington Division 2.

Feb. 28, 1994.

Arthur D. Curtis, Pros. Atty., and Richard Alan Melnick, Deputy Pros. Atty., Vancouver, for respondent.

Steven Whitman Thayer, Thayer & Muenster, Vancouver, for appellant.

MORGAN, Chief Judge.

Gary Allen Alldredge appeals from a conviction for unlawfully manufacturing marijuana. We affirm.

At about 6 p.m. on October 4, 1990, approximately eight police officers went to Alldredge's home to execute a search warrant. The validity of the warrant is not questioned by either party. The basis for its issuance was probable cause to believe Alldredge was growing marijuana.

The police had no specific information that Alldredge was armed or dangerous. In the past, however, they had often found firearms while executing search warrants on homes in which marijuana was being grown. ¹

Six officers went to the front door. ² The lead officer and another officer took positions on each side of the door. The remaining officers stood behind the first two, and all six had their guns drawn.

The lead officer knocked but received no response. After five or ten seconds, he knocked again, this time announcing "Police with a search warrant". He heard footfalls coming toward the door, and the door opened, revealing Alldredge. At this point, Alldredge and the lead officer were face-to-face, with the lead officer pointing his gun at Alldredge's chest. The lead officer again announced, "Police with a search warrant". Simultaneously, he pushed Alldredge back into the living room. He was followed by the remaining officers, who then "swe[pt] the residence for additional persons." ³

Alldredge had just finished taking a shower when he heard the knock at his front door. He went to the door, opened it, and was pushed back into the living room as described above. He did not perceive an announcement of identity or purpose before or after he opened the door. He concedes, however, that he was very frightened after he opened the door, and that he might have failed to perceive an announcement made at that time.

At no time was Alldredge given an opportunity to grant or deny permission for the police to enter his house. The lead officer did not ask, "May we come in?", nor did Alldredge have a chance to respond, even impliedly, to that sort of inquiry. According to the lead officer, "As soon as the door was open enough to where I could see somebody, ... I announced again and went in." ⁴ According to the trial court's findings, "Alldredge had no time to react before he was pushed back into the residence." ⁵

The police found about 50 marijuana plants growing in the house. About a week later, Alldredge was charged with unlawfully manufacturing marijuana.

Before trial, Alldredge filed a motion to suppress. He did not allege that the search warrant had been improperly issued; rather, he alleged it had been improperly executed. More specifically, he argued that the police had violated the knock-and-wait rule by not asking permission to enter the house, and by not giving him an opportunity to grant or deny such permission. The trial court denied the motion and convicted on stipulated facts.

Alldredge now appeals. The sole issue on appeal is whether the police violated the knock-and-wait rule because they did not ask permission to enter the house, and because they did not give him an opportunity to grant or deny such permission. ⁶

The knock-and-wait rule basically has two parts. One requires that the police knock and announce their identity and purpose. ⁷ State v. Coyle, 95 Wash.2d 1, 6, 621 P.2d 1256 (1980); State v. Garcia-Hernandez, 67 Wash.App. 492, 495, 837 P.2d 624 (1992); RCW 10.31.040. The other requires a waiting period, the duration of which is often linked to whether the police are refused admittance. Coyle, 95 Wash.2d at 6, 621 P.2d 1256. Garcia-Hernandez, 67 Wash.App. at 495, 837 P.2d 624; RCW 10.31.040. As the Ninth Circuit has observed, "[B]oth the cases and the literature have concentrated solely upon the 'announcement' portion ...; little attention has been devoted to the issue of when 'refusal of admittance' is necessary." United States v. Bustamante-Gamez, 488 F.2d 4, 10-11 (9th Cir.1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974).

The announcement portion of the rule is not in issue in this case. Alldredge does not dispute that the police knocked and announced their identity and purpose, both before and after he opened the door.

The waiting period is in issue. Alldredge argues that the waiting period could not end until the police requested, and he granted or refused, permission to enter. Essentially, he contends that when police executing a valid search warrant confront an occupant at the door, they must ask, "May we come in?", and then wait for an express or implied response. The State responds by asserting that the waiting period ended when Alldredge opened the door and the police identified themselves and their purpose face-to-face.

We begin by analyzing the waiting period constitutionally. The knock-and-wait rule is part of the constitutional requirement that search warrants be reasonably executed. State v. Myers, 102 Wash.2d 548, 552, 689 P.2d 38 (1984); Coyle, 95 Wash.2d at 6, 621 P.2d 1256; State v. Young, 76 Wash.2d 212, 214-15, 455 P.2d 595 (1969); State v. Lehman, 40 Wash.App. 400, 401 (1985); State v. Edwards, 20 Wash.App. 648, 650-51, 581 P.2d 154 (1978); State v. Miller, 7 Wash.App. 414, 417-18, 499 P.2d 241 (1972); see Dalia v. United States, 441 U.S. 238, 257, 99 S.Ct. 1682, 1693, 60 L.Ed.2d 177 (1979) (details of executing search warrant rest in discretion of executing officers, "subject of course to the general Fourth Amendment protection 'against unreasonable searches and seizures' "); Ker v. California, 374 U.S. 23, 33, 46, 83 S.Ct. 1623, 1630, 1635-36, 10 L.Ed.2d 726 (1963) (warrantless entry subject to federal constitutional standards). Reasonableness does not require that police wait, if to do so would serve no purpose. Thus, from a constitutional perspective the rule's waiting period ends not later than when the rule's purposes have been fulfilled.

The rule serves three purposes. One is to forestall violence. Coyle, 95 Wash.2d at 5, 621 P.2d 1256. If the police enter a residence before its occupants perceive their identity and purpose, the occupants will be surprised; they may believe themselves under attack; and they may respond with force. If the police enter after the occupants have perceived their identity and purpose, it is more likely than otherwise that the occupants will peacefully submit to their authority.

A second purpose is to protect privacy, Coyle, 95 Wash.2d at 5, 621 P.2d 1256, but in a limited way. The rule does not protect the overall privacy of the premises to be searched, for when police possess a valid search warrant, a neutral magistrate has already determined that privacy of the premises must temporarily yield to the needs of law enforcement. Myers, supra; People v. Tacy, 195 Cal.App.3d 1402, 241 Cal.Rptr. 400, 411 (Cal.App.1987). Nor does the rule protect an occupant of the premises against seizure, for a valid search warrant "implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 2595, 69 L.Ed.2d 340 (1981); Myers, 102 Wash.2d at 556, 689 P.2d 38; State v. Flores-Moreno, 72 Wash.App. 733, 866 P.2d 648 (1994). However, the rule gives an occupant of the premises a few moments to answer the door, and during that time he or she can curtail highly personal activities, such as those that might be occurring in the bathroom or bedroom. Bustamante-Gamez, 488 F.2d at 12; People v. Tacy, 241 Cal.Rptr. 400, 411, 195 Cal.App.3d 1402 (1987).

A third purpose is to avoid unnecessary property damage. Coyle, 95 Wash.2d at 5, 621 P.2d 1256. If the police enter without giving the occupant time to open the door, they will have to break it in, assuming it is locked. If they wait and the occupant opens it, property damage will be averted.

For the most part, each of these purposes is fulfilled not later than when the door of the premises is open, attended by an occupant, and the police have announced to the occupant their identity and purpose. State v. Manning, 396 So.2d 219, 222, review denied, 407 So.2d 1104 (Fla.App.1981); State v. Walker, 107 Idaho 308, 311-12, 688 P.2d 1213, 1216-17 (1984); Commonwealth v. Goggin, 412 Mass. 200, 202-03, 587 N.E.2d 785, 787 (1992); cf. Ker, supra, 374 U.S. at 47, 83 S.Ct. at 1636 (Brennan, J., dissenting; knock-and-wait rule not violated by unannounced police intrusion "where the persons within already know of the officers' authority and purpose"). By then, the occupant knows the persons seeking entry are police, and the rule's purpose of preventing violence has been achieved to whatever extent is possible. Bustamante-Gamez, 488 F.2d at 11 ("To the extent that the rule prevents violence, its utility is exhausted when the actual announcement is made"). Highly personal activities are likely to have been terminated in the interval between the knock and the opening of the door, ⁸ and entry can be made through the open door without damage to property. Bustamante-Gamez, 488 F.2d at 11. Thus, from a constitutional perspective, the rule's waiting period should end not later than when the door of the premises is open, attended by an occupant, and the police have announced their identity and purpose while face-to-face with the occupant.

We next analyze the waiting period statutorily. RCW 10.31.040 provides To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other inclosure, if, after notice of his office and purpose, he be refused...