State v. Bell

• Decision Date: 14 May 1987
• Docket Number: No. 52685-1,52685-1
• Citation: 108 Wn.2d 193,737 P.2d 254
• Parties: , 55 USLW 2642 STATE of Washington, Respondent, v. Kevin Lee BELL, Petitioner.
• Court: Washington Supreme Court

Page 193

108 Wn.2d 193

737 P.2d 254, 55 USLW 2642

STATE of Washington, Respondent, v. Kevin Lee BELL, Petitioner.

No. 52685-1.

Supreme Court of Washington,

En Banc.

May 14, 1987.

Roger A. Hunko, Silverdale, for petitioner.

C. Danny Clem, Kitsap County Pros., Mr. Anthony C. Otto, Deputy Pros., Port Orchard, for respondent.

DURHAM, Justice.

Sheriff's officers seized material from a marijuana-growing operation without a warrant after it had been discovered by fire fighters at the scene of a fire. Kevin Bell was charged with possession of marijuana, RCW 69.50.401(d), but the case was dismissed after the trial court suppressed the evidence. The Court of Appeals reversed, 43 Wash.App. 319, 716 P.2d 973, holding that the warrantless seizure did not violate the state and federal constitutions. We affirm the Court of Appeals and remand the case for trial.

On September 30, 1983, a fire broke out at a house rented by Kevin Bell. Kitsap County Deputy Sheriff Clarke noticed the blaze and called the fire department. Fire fighters arrived at the scene and removed a woodstove, the apparent cause of the fire. The fire had charred one wall from floor to ceiling. As part of common practice, two fire fighters were sent to check the attic directly over the burned area in order to make sure there were no smoldering embers. The attic was full of smoke and had to be ventilated before they could gain access.

When the fire fighters reached the attic, they noticed plants being grown, but proceeded to check the attic for evidence of a fire. They determined that the area directly above the woodstove was no longer on fire but had been charred. One of the fire fighters suspected that the plants were marijuana, and he summoned his superior, an assistant fire marshal, to the attic. The assistant marshal believed that the attic contained a marijuana-growing operation, having noticed that two large lights were being used to grow an estimated 75 to 100 plants.

The assistant marshal then left the residence because of other duties, instructing fire fighters remaining at the scene not to touch the plants. The assistant marshal went to the fire station and telephoned a deputy prosecutor, seeking advice as to how the matter should be handled. The deputy prosecutor recommended that the evidence be confiscated. During this time, no items were seized nor was the defendant told about the attic discovery.

After 15 to 20 minutes, the assistant marshal returned to Bell's house, accompanied by an assistant fire investigator. The investigator first inspected the woodstove to determine the origin and cause of the fire. The investigator and assistant marshal then went to the attic. At that point, the assistant marshal decided to call a deputy sheriff to assist in the seizure.

When Deputy Clarke arrived at Bell's house, he went to the attic along with the investigator and the assistant marshal. The investigator took pictures of the evidence in the attic. Then, a "human chain" of sheriff's officers and firemen was formed to remove the evidence from the attic to a vehicle outside. The record is unclear as to whether the fire department or the sheriff's office supervised the seizure, but at least for part of the time Deputy Clarke considered himself in charge. It took five to ten people approximately an hour to remove the evidence, including 87 to 90 marijuana plants. Also seized were plastic sheets which had covered the walls and ceilings, plastic tubing, ventilator fans, vapor-discharge lights and their power supplies, irrigation equipment and fluorescent light fixtures. The seizure of the items was completed approximately 3 to 4 hours after the marijuana was first discovered. At no time during this period did anyone attempt to get a search warrant, telephonic or otherwise.

Bell argues that the evidence taken from the attic should be suppressed because the warrantless seizure violated his constitutional rights in two ways. First, he contends that the fire fighters needed a warrant to seize the evidence because exigent circumstances no longer existed once the fire was extinguished. Second, he contends that the sheriff's officers needed a warrant to enter Bell's house and take charge of the seizure.

We begin by recognizing that both the state and federal constitutions protect Washington's citizens from unreasonable searches. State v. Bakke, 44 Wash.App. 830, 832-33, 723 P.2d 534 (1986). The Washington State Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law", Const. art. 1, § 7, and the United States Constitution establishes citizens' rights "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ..." U.S. Const. amend. 4. Our state constitution generally affords individuals greater protection against warrantless searches and seizures than does the Fourth Amendment. State v. Stroud, 106 Wash.2d 144, 148, 720 P.2d 436 (1986); State v. Myrick, 102 Wash.2d 506, 510, 688 P.2d 151 (1984). In the present case, however, we reach the same result under each constitution.

Warrantless searches and seizures are per se unreasonable unless they fall within a few carefully drawn exceptions. State v. Chrisman, 100 Wash.2d 814, 818, 676 P.2d 419 (1984). The State has the burden of proving that one of the exceptions applies. Chrisman, at 822, 676 P.2d 419; Bakke, 44 Wash.App. at 833, 723 P.2d 534.

Fire fighters' Need for a Warrant

Fire fighters, like policemen, are subject to the Fourth Amendment. Michigan v. Tyler, 436 U.S. 499, 504, 508, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978). Therefore, fire fighters' warrantless seizures of property found at the scene of a fire ¹ are per se unreasonable unless the State can show that they fall within one of the exceptions to the warrant requirement. See Tyler, at 508-09, 98 S.Ct. at 1949.

The fire fighters' role in this case is justified by the "plain view" exception to the warrant requirement. A "plain view" seizure is valid 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." iMyrick, 102 Wash.2d at 514, 688 P.2d 151 (quoting Chrisman, 100 Wash.2d at 819, 676 P.2d 419). We now turn to analysis of those elements.

There was a prior justification for the fire fighters' original intrusion into the attic. "A burning building of course creates an exigency that justifies a warrantless entry by fire officials to fight the blaze." Michigan v. Clifford, 464 U.S. 287, 293, 104 S.Ct. 641, 646, 78 L.Ed.2d 477 (1984). Moreover, exigent circumstances continue beyond the time when the fire has been extinguished. Tyler, 436 U.S. at 510, 98 S.Ct. at 1950. Fire fighters need no warrant to remain in the building a reasonable time to make sure that the fire does not rekindle, to search for additional fires, and to ventilate the building. Clifford, 464 U.S. at 293 n. 4, 104 S.Ct. 647, n. 4; Steigler v. Anderson, 496 F.2d 793, 795-96 (3d Cir.), cert. denied, 419 U.S. 1002, 95 S.Ct. 320, 42 L.Ed.2d 277 (1974); State v. Olsen, 282 N.W.2d 528, 531 (Minn.1979). Bell's attorney even concedes that the fire fighters "were permitted to be where they were when they found the plants." Thus, exigent circumstances justify the fire fighters' presence not only in Bell's residence but also in his attic.

The discovery was also inadvertent. The fire fighters had the duty to ensure the fire was fully extinguished and would not rekindle. The fire fighters had to check the attic's condition because the wall beneath it had been burned up to the ceiling. The duty to investigate became even more compelling when they saw the extent of the smoke in the attic. The fire fighters had not exceeded the scope of these duties when they happened upon the marijuana-growing operation.

Finally, the fire fighters were immediately aware that they had evidence before them. The purpose of this immediate knowledge requirement is so that "the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges." Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). The fire fighters did not engage in this type of extended search. All that is required to satisfy the "immediate knowledge" element is a reasonable belief that evidence is present. ² State v. Lair, 95 Wash.2d 706, 716-17, 630 P.2d 427 (1981); State v. Claflin, 38 Wash.App. 847, 853, 690 P.2d 1186 (1984), review denied, 103 Wash.2d 1014 (1985). One of the two fire fighters who first entered the attic testified that "I suspected that [the plants] were--chances are they were marijuana." The assistant marshal testified that "[t]his appeared to be a marijuana-growing operation to me." The third element is met in the present case. ³

Bell contends, however, that we should hold the present seizure unconstitutional because there was plenty of time to obtain a search warrant after the operation was discovered. Bell argues that warrantless seizures should be held constitutional only if exigent circumstances exist throughout the duration of the search and seizure. Courts in this state, however, have time and again recognized that exigency is not a necessary element to a "plain view" seizure. State v. Lair, 95 Wash.2d at 716, 630 P.2d 427; State v. Marchand, 37 Wash.App. 741, 749, 684 P.2d 1306 (1984), rev'd on other grounds, 104 Wash.2d 434, 706 P.2d 225 (1985); State v. Johnson, 17 Wash.App. 153, 159, 561 P.2d 701, review denied, 89 Wash.2d 1001 (1977). A search can be upheld under the plain view doctrine in the absence of exigent circumstances, as long as the doctrine's first element is satisfied. Lair, 95 Wash.2d at 716, 630 P.2d 427. In other words, exigent circumstances are merely one factor to be considered in determining...