State v. Downey

• Decision Date: 09 January 1989
• Docket Number: No. 21014-9-I,21014-9-I
• Citation: 768 P.2d 502,53 Wn.App. 543
• Parties: STATE of Washington, Respondent, v. William Louis DOWNEY, Appellant.
• Court: Washington Court of Appeals

Page 543

53 Wn.App. 543

768 P.2d 502

STATE of Washington, Respondent, v. William Louis DOWNEY, Appellant.

No. 21014-9-I.

Court of Appeals of Washington,

Division 1.

Jan. 9, 1989.

Publication Ordered March 3, 1989.

Terrence Kellogg, Allan B. Ament, Seattle, for appellant William Louis downey.

Ricardo Martinez, Deputy Pros. Atty., Seattle, for respondent State of Wash.

WINSOR, Judge.

William Downey appeals from a judgment and sentence for violations of the Uniform Controlled Substances Act. Downey contends the trial court erred in refusing to suppress evidence seized as a result of a warrantless search. We affirm.

Officers Mark Body and Bradley Thomas of the Seattle Police Department were dispatched to Downey's residence to investigate a report of a strong ether odor. Sergeant William Green joined Body and Thomas at the scene. The officers noticed an ether odor 150 to 200 feet from Downey's residence. This odor increased in intensity as the officers moved closer to Downey's home. The officers contacted the police narcotics unit for advice on how to proceed. They were cautioned that ether is highly volatile and explosive in concentrated form, and were instructed to leave the residence and contact the fire department's hazardous materials squad if the smell of ether overpowered someone, or if open chemicals were found.

Green and Thomas entered Downey's residence to determine whether and why ether was inside the building and to ensure that no one was inside. They did not have a warrant. Green was able to enter only a few feet into the residence before the ether odor made him nauseous and interfered with his breathing. Green then left the building and called the hazardous materials unit.

Thomas continued into the residence, and found "a chemical-type lab with something cooking on a burner" in the basement. Thomas left the building and told Green what he had discovered. Green then called narcotics detectives. After obtaining a warrant based on information from Green and Thomas, detectives searched the lab and seized small amounts of methamphetamine in the manufacturing stage.

Downey was charged with possession of a controlled substance with intent to manufacture or deliver. Before trial, Downey moved to suppress evidence seized as a result of Thomas' and Green's warrantless search. The trial court concluded that the officers' warrantless entry was justified under the exigent circumstances doctrine, and denied Downey's motion. Downey then stipulated to the facts contained in the police reports and was found guilty as charged. He appeals.

Although warrantless searches are per se unreasonable, Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Chrisman, 100 Wash.2d 814, 817, 676 P.2d 419 (1984), an emergency situation can justify such a search. 2 W. LaFave, Search & Seizure § 5.4(c) (2d ed. 1987). Thus, when premises contain persons in imminent danger of death or harm; objects likely to burn, explode or otherwise cause harm; or information that will disclose the location of a threatened victim or the existence of such a threat, police may search those premises without first obtaining a warrant. Utter, J., Survey of Washington Search and Seizure Law: 1988 Update, 11 U.Puget Sound L.Rev. 421, 538-39 (1988); see also State v. Loewen, 97 Wash.2d 562, 568, 647 P.2d 489 (1982) (medical emergency); State v. McAlpin, 36 Wash.App. 707, 677 P.2d 185, review denied, 102 Wash.2d 1011 (1984) (search for missing gun).

In order for a search to come within the emergency exception, we must be satisfied that "the search was actually motivated by a perceived need to render aid or assistance." Loewen, 97 Wash.2d at 568, 647 P.2d 489. Therefore, the State must show that: (1) the searching officer subjectively believed an emergency existed; and (2) a reasonable person in the same circumstances would have thought an emergency existed. Loewen, 97 Wash.2d at 568, 647 P.2d 489; McAlpin, 36 Wash.App. at 716, 677 P.2d 185. In determining whether the first of these conditions is satisfied, the court may examine whether the officer's acts were consistent with his or her claimed motivation. See Stewart v. State, 681 S.W.2d 774, 778 (Tex.App.1984).

In the instant case, the trial court found as fact that "there is no question that the officers believed that they had a very dangerous, emergency situation on their hands." We have examined the record and conclude that substantial evidence supports this finding. The State has met its burden as to the subjective belief requirement of the emergency exception.

We also hold that the State proved the objective reasonableness of the search. The relevant circumstances are that: (1) Green and Thomas knew that ether in high concentrations was present, and that ether in high concentrations can be extremely volatile and explosive; (2) Downey's home was in a residential area where an explosion could have disastrous consequences; and (3) the officers did not know whether...