State v. Boisselle, 95858-1

• Decision Date: 12 September 2019
• Docket Number: No. 95858-1,95858-1
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Michael Clifford BOISSELLE, Petitioner.

194 Wash.2d 1

448 P.3d 19

STATE of Washington, Respondent,

v.Michael Clifford BOISSELLE, Petitioner.

No. 95858-1

Supreme Court of Washington.

Filed SEPTEMBER 12, 2019

Argued March 12, 2019

Dana M. Nelson, Nielsen Broman & Koch PLLC, 1908 E. Madison Street, Seattle, WA 98122-2842, for Petitioner.

Mark Yon Wahlde, Pierce County Prosecuting Attorney Office, 930 Tacoma Avenue S, Room 946, Tacoma, WA 98402-2102, for Respondent.

James Elliot Lobsenz, Carney Badley Spellman, 701 5th Avenue, Suite 3600, Seattle, WA 98104-7010, for Amicus Curiae (Washington Association of Criminal Defense Lawyers).

OWENS, J.

¶1 Law enforcement officers were dispatched to Michael Clifford Boisselle’s home after two anonymous 911 calls reported that a man named Mike shot and possibly killed someone at the residence. While responding to the calls, the officers learned that the residence was related to an ongoing missing person/homicide investigation. Unable to determine whether someone was alive inside the home, the officers entered the residence and conducted a warrantless search, discovering evidence of a murder therein. Boisselle moved to suppress the evidence, arguing that the officers’ warrantless search was unlawful under article I, section 7 of the Washington Constitution. The trial court denied Boisselle’s motion, concluding that the officers’ search fell within the emergency aid function of the community caretaking exception to the warrant requirement. Following a jury trial, Boisselle was convicted of second degree murder and second degree unlawful possession of a firearm. The Court of Appeals affirmed his convictions.

¶2 We hold that the officers’ warrantless search of Boisselle’s home was a pretext for a criminal investigation because the officers had significant suspicions of criminal activity, the officers’ entry was motivated by the desire to conduct an evidentiary search, and there was no present emergency. Accordingly, the search did not fall within the emergency aid function of the community caretaking exception to the warrant requirement and thus violated article I, section 7. Therefore, the trial court’s findings of fact do not support its conclusions of law and the trial court erred in denying Boisselle’s motion to suppress. We reverse the Court of Appeals and remand to the trial court for further proceedings.

FACTS

¶3 On August 13, 2014, a passerby notified law enforcement of a man fleeing the scene of a roadside fire. Auburn Police Detective Douglas Faini responded to the fire and located a pile of charred, bloodied debris, including carpet, carpet padding, laminate flooring, a towel, and a spent bullet casing. Due to the amount of blood on the items, Detective Faini "feared ... that someone could be either seriously injured on the side somewhere, or deceased" and initiated a missing person/homicide investigation. 4 Verbatim Report of Proceedings (VRP) at 613. Detective Faini sent the items to the crime lab for DNA (deoxyribonucleic acid) testing, which rendered a match to Brandon Zomalt. Later in his investigation, Detective Faini identified Boisselle as a suspect.

¶4 At 6:38 p.m. on September 1, South Sound 911 received an anonymous call regarding a possible homicide at a duplex unit in Puyallup. The anonymous caller reported that a friend named Mike said that he had shot and possibly killed someone at the duplex unit in self-defense. Soon after, the Puyallup Police Department’s tip line received a similar anonymous call reporting a possible dead body in the unit.

¶5 Law enforcement was subsequently dispatched to the duplex unit. Pierce County Sheriff’s Deputies Ryan Olivarez and Fredrick Wiggins responded to the residence at approximately 6:50 p.m. Both Deputies Olivarez and Wiggins knocked on the front door of the unit multiple times, but they did not receive a response. The deputies proceeded to walk around the duplex and heard a dog barking aggressively inside the unit as they approached. The deputies could not see inside the unit as the lights were off and the blinds and curtains were drawn throughout.

¶6 Pierce County Sheriff’s Sergeant Christopher Adamson arrived at the duplex unit around 7:13 p.m. Sergeant Erik Clarkson arrived soon after. Due to the nature of the anonymous phone calls, both Sergeants Adamson and Clarkson "wanted to confirm, as best [they] could, that there may or may not have been a crime, or there may or may not have been a victim." 1 VRP at 89. While walking around the unit, Sergeant Clarkson noted a foul odor emanating from the garage. He believed the smell was either rotting garbage or a decomposing body.

¶7 As Sergeants Adamson and Clarkson approached a sliding glass door at the rear of the duplex unit, the dog inside came up to the door and pushed aside the blinds covering the door, allowing the sergeants to see inside the unit. Sergeant Clarkson saw furniture overturned in the living room of the unit and signs of a struggle. Sergeant Adamson also noted that carpet in the living room had been ripped out, which "is never a good sign in police work. It’s something that’s sometimes used to cover up a crime scene." 1 VRP at 31. Sergeant Clarkson determined "[i]t’s a very suspicious welfare check at this point" and called animal control to secure the dog inside the unit in case he and Sergeant Adamson decided to enter the home. Id. at 32.

¶8 The deputies and Sergeant Adamson began contacting neighbors to obtain more information. Neighbors stated that a man named Mike lived in the duplex unit and that although there was usually heavy traffic in and out of the unit, they had not seen anyone in the last four or five days. The officers determined that the duplex unit was Boisselle’s last known address.

¶9 Sergeant Clarkson then noticed a man across the street taking particular interest in law enforcement’s activities. Sergeant Clarkson approached the man, who identified himself as Christopher Williamson. Williamson stated that his friend Zomalt lived in the duplex with Boisselle and that he had not seen Zomalt in several weeks. Williamson also mentioned that Zomalt was associated with a missing person investigation in Auburn and asked if the officers "had details [on the] location of [Zomalt’s] body." Def.’s Ex. 12.

¶10 At approximately 8:00 p.m., there was a phone call between Sergeant Clarkson and Detective Faini. It is unclear from this court’s record who made initial contact with whom, and the exact content of the phone call is not part of this court’s record. During the call, Detective Faini informed Sergeant Clarkson of the roadside fire and the missing person/homicide investigation concerning Zomalt. Detective Faini also stated that he would be interested to know whether any carpet was missing from the duplex unit.

Shortly after, a second phone call between Sergeant Clarkson and Detective Faini took place; the record is silent as to what was discussed during this second call.

¶11 Both Sergeants Adamson and Clarkson decided to enter the unit and conduct a warrantless search, believing the emergency aid function of the community caretaking exception to the warrant requirement justified entry. Sergeant Adamson noted that he had "suspicion of a crime." 1 VRP at 95. Sergeant Clarkson determined:

Dealing with a suspicious welfare check and possibly someone that’s down inside, has been hurt or dead, we don’t know. So at that point I’m thinking the bottom line is you can’t walk away from this. You have got a duty to do something.

....

... There’s too much information to say that ... something possibly happened inside. With what we ... observed, the information I received from Detective Faini, the two anonymous tips, you can’t just walk away from something like that.

1 VRP at 45-46. Law enforcement and animal control entered the duplex unit at 8:20 p.m. The officers located Zomalt’s body in the garage of the unit and later secured a warrant to search the remainder of the home.

¶12 The State charged Boisselle with first degree murder or, in the alternative, second degree murder, and second degree unlawful possession of a firearm. Prior to trial, Boisselle moved to suppress evidence obtained as a result of the warrantless search of his home. Boisselle argued that the officers’ warrantless search did not fall within the emergency aid function because the officers did not subjectively believe that someone was inside the home needing assistance for health and safety reasons.

¶13 The trial court denied Boisselle’s motion to suppress and issued findings of fact and conclusions of law. The trial court ultimately concluded that the officers’ entry into Boisselle’s home fell within the community caretaking exception because the officers subjectively believed that either Zomalt or Boisselle "could be dead or injured and therefore require assistance for health or safety reasons." Clerk’s Papers (CP) at 362. The trial court also concluded that the officers were not motivated to enter the unit to investigate a potential crime and that their entry was not a pretext for conducting an evidentiary search.

¶14 Following a jury trial, Boisselle was convicted of second degree murder and second degree unlawful possession of a firearm. Boisselle appealed his convictions, arguing that the trial court erred in denying his motion to suppress because the officers’ search of his home did not fall within the emergency aid function of the community caretaking exception under either article I, section 7 of the Washington Constitution or the Fourth Amendment to the United States Constitution. State v. Boisselle , 3 Wash. App. 2d 266, 276-77, 415 P.3d 621 (2018). The Court of Appeals affirmed Boisselle’s convictions, holding that the officers’ search was permissible because they had a reasonable belief that someone inside the duplex unit likely needed aid or assistance. Id. at 287, 415 P.3d 621. The court declined to address Boisselle’s Fourth Amendment argument, reasoning that Boisselle did not provide adequate briefing to resolve the...