State v. Cardenas

• Decision Date: 23 May 2002
• Docket Number: No. 70855-0.,70855-0.
• Citation: 47 P.3d 127,146 Wash.2d 400
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Leopoldo Cuevas CARDENAS, Petitioner.

47 P.3d 127

146 Wash.2d 400

STATE of Washington, Respondent, v. Leopoldo Cuevas CARDENAS, Petitioner.

No. 70855-0.

Supreme Court of Washington, En Banc.

Argued October 25, 2001.

Decided May 23, 2002.

Hugh Spall, Ellensburg, for Petitioner.

Jeffrey Sullivan, Yakima County Prosecutor, Kevin Eilmes, Deputy, Yakima, for Respondent.

MADSEN, J.

Petitioner Leopoldo Cuevas Cardenas challenges the Court of Appeals decision affirming his conviction on two counts of robbery. Prior to trial Cardenas moved to suppress items of evidence allegedly taken in the robbery, arguing that police officers illegally entered and searched a motel room in which he was a guest. The trial court denied the motion and Cardenas was convicted. Cardenas then moved for a new trial based on the prosecutor's failure to disclose the key witness' impending prosecution. The trial court also denied that motion. We hold that the trial court properly denied both the motion to suppress and the motion for a new trial and affirm the Court of Appeals.

FACTS

The facts are taken from the trial court's written findings of fact and undisputed testimony from the suppression hearing.

On December 6, 1998, around 11:15 p.m., the Yakima Police Department received a report of a robbery in progress. Officers Castillo and Stephens each responded separately to the location, arriving at approximately the same time and within minutes of the call.

The officers learned that two men, one "white" and one "Hispanic," had forced their way into an apartment and robbed the two occupants. According to the occupants, the two men had taken jewelry, money, a television, and a videocassette recorder (VCR), along with some clothes, and one of the two men had been armed with either a knife or a gun. They reported that the men had fled only moments earlier in a large vehicle, similar to a Torino, with a different color passenger door, possibly orange.

Information regarding the robbery was broadcast over police radio, along with a warning that the suspects were armed and dangerous. While the officers were still at the apartment they were informed by dispatch that a security guard at the Western Motel had seen a vehicle matching the description of the suspects' car pull into the motel parking lot. Officer Castillo testified that he responded immediately, arriving at the motel within five minutes of the call. When he arrived, Officers Scherschligt and Stephens were standing next to a brown 1970 Pontiac LeMans with a blue door, parked in front of room 8. According to Stephens, the hood of the car was still warm. He noticed some clothing items in the back seat that matched the description of the items taken, including what he thought might be a VCR. Two witnesses who were guests at the motel told police that the occupants of the vehicle had hurriedly entered room 3.

Stephens, Scherschligt, and Castillo approached room 3. All of the officers were in full uniform. Stephens testified that there was a three-inch gap in the curtains. He bent his knees and put his face close to the window to look inside.

Through the gap in the curtains Stephens saw two males, one Hispanic and one white, leaning over a bed sorting through papers, including credit cards. Officer Stephens knocked on the door but did not announce "police." Officer Scherschligt was watching through the gap in the curtains and told Stephens and Castillo that the suspects darted to the back of the room following the knock.

Scherschligt and Stephens ran around the back of the motel where they saw Sergeant George. The back of the motel was fenced and Sergeant George said she had it covered. In addition, the window on the back of the motel room was too small to provide an escape route. Stephens and Scherschligt returned to the front entrance of room 3.

Before the others returned, Officer Castillo had decided to enter the room. Castillo slid the window open, and he drew the curtain aside. He looked in the window and saw both suspects but observed no weapons. Castillo then pointed his gun inside, yelled "get your hands up," and jumped through the window. Clerk's Papers (CP) at 53. The other officers subsequently entered and Cardenas and his codefendant were arrested.

ANALYSIS

A. Procedural Issues

As proponent of the motion to suppress, Cardenas had the burden of establishing that his own Fourth Amendment rights were violated by the challenged search. Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); accord Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. $277,000.00 U.S. Currency, 941 F.2d 898, 901 (9th Cir.1991); State v. White, 97 Wash.2d 92, 110 n. 9, 640 P.2d 1061 (1982); State v. Murray, 110 Wash.2d 706, 714, 757 P.2d 487 (1988). This burden arises only if the defendant's standing to claim a privacy violation has been challenged. If the issue of standing is not raised to the trial court, it may not be considered on appeal. Tyler Pipe Indus., Inc. v. Dep't of Revenue, 105 Wash.2d 318, 327, 715 P.2d 123 (1986); see also Baker v. Teachers Ins. & Annuities Ass'n College Ret. Equity Funds, 91 Wash.2d 482, 484, 588 P.2d 1164 (1979).

Although the State questioned Cardenas' standing to challenge the search in the Court of Appeals, the State did not raise the issue of standing to the trial court nor did it file an answer or a cross-petition for review in this court. Accordingly, we decline to consider the issue. RAP 13.4(d), 13.7(b). State v. Bobic, 140 Wash.2d 250, 258, 996 P.2d 610 (2000) (citing Tuerk v. Dep't of Licensing, 123 Wash.2d 120, 124, 864 P.2d 1382 (1994)); see also Estate of Jordan v. Hartford Accident & Indem. Co., 120 Wash.2d 490, 496, 844 P.2d 403 (1993) (citing RAP 13.7(b)).

B. Exigent Circumstances

Nonconsensual entry and search of property is governed by the warrant requirements of the Fourth and Fourteenth Amendments. Michigan v. Clifford, 464 U.S. 287, 293, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984); State v. Leach, 113 Wash.2d 735, 738, 782 P.2d 1035 (1989); Staats v. Brown, 139 Wash.2d 757, 991 P.2d 615 (2000). Additionally, Washington Constitution, article I, section 7, provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." A warrantless search is unreasonable as a matter of law unless the State establishes that one of a very narrow set of exceptions applies. Leach, 113 Wash.2d at 738, 782 P.2d 1035. Although ordinarily warrantless entries are presumptively unreasonable, warrant requirements must yield when exigent circumstances demand that police act immediately. Warden Md., Penitentiary v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782 (1967); State v. Terrovona, 105 Wash.2d 632, 644, 716 P.2d 295 (1986) (citing Dorman v. United States, 435 F.2d 385, 392-93 (D.C.Cir.1970)).

In this case, Cardenas challenges the trial court's conclusion that exigent circumstances justified the warrantless entry into the motel room in which he was a guest.

This court uses six factors as a guide in determining whether exigent circumstances justify a warrantless entry and search: (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) whether there is reasonably trustworthy information that the suspect is guilty; (4) there is strong reason to believe that the suspect is on the premises; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the entry is made peaceably. Terrovona, 105 Wash.2d at 644, 716 P.2d 295. The trial court considered these factors and found that exigent circumstances justified the officers' entry. The Court of Appeals agreed. Cardenas does not assign error to the trial court's factual findings. Therefore, they are verities on appeal. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994).

Specifically, the court found: (1) first degree robbery committed with a weapon is a grave offense; (2) the suspects were believed to be armed with either a knife or a gun; (3) the police had trustworthy information that the suspects had committed the crime because the men matched the description given by the victims, the car matched the description, and two witnesses saw two men run from the car in a hurry; (4) the police had strong reason to believe the suspects were inside the room because two witnesses said they saw the men from the car run inside room 3; (5) even though the danger of escape was not great, the officers reasonably believed that it was possible because the suspects darted to the back of the room when the police knocked; and (6) although the entry was not entirely peaceable, the potential for harm was fairly low.

Cardenas argues that the court's findings of fact do not support the trial court's conclusion that a warrantless entry was justified. He points out that Cardenas' vehicle was a 1970 Pontiac LeMans, brown with a blue door. The victims had described the suspect vehicle as brown with possibly an orange door. He further contends that, although there were clothing items that matched the description of those taken in the robbery and possibly a VCR, the contents of the vehicle were unremarkable. Perhaps most importantly, Cardenas argues that the officers' observations of the two persons in the motel room cannot be considered in determining whether exigent circumstances existed because the observations were illegally obtained.

We review the conclusions of law entered in connection with a suppression order de novo. State v. Mendez, 137 Wash.2d 208, 970 P.2d 722 (1999). Even assuming the validity of Cardenas' claims, the trial court's conclusion that exigent circumstances existed is nonetheless correct. Although Cardenas does not take issue with factors (1) and (2), we agree with the trial court's conclusion that a serious felony, armed robbery, had been committed and that the officers had reason to...