State v. Eserjose

• Decision Date: 30 June 2011
• Docket Number: No. 82491–6.,82491–6.
• Citation: 171 Wash.2d 907,259 P.3d 172
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent,v.James Robert ESERJOSE, Appellant.

171 Wash.2d 907

259 P.3d 172

STATE of Washington, Respondent,

v.James Robert ESERJOSE, Appellant.

No. 82491–6.

Supreme Court of Washington, En Banc.

Argued June 10, 2011.Decided June 30, 2011.

Thomas E. Weaver Jr., Attorney at Law, Bremerton, WA, for Appellant.Kevin M. Anderson, Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA, for Respondent.ALEXANDER, J.

[171 Wash.2d 909] ¶ 1 We granted direct review of James Eserjose's conviction on a charge of second degree burglary. He assigns error to the trial court's conclusion that a confession he gave to a deputy sheriff was admissible at trial. We affirm the trial court.

I

¶ 2 In the early morning hours of August 29, 2008, the “Latte On Your Way” coffee shop in Kitsap County was burglarized. When Kitsap County Deputy Sheriff Heather Wright responded to the shop's burglar alarm, she discovered signs of forcible entry; however, aside from shards of broken glass on the floor and an opened cash register drawer and freezer door, the shop's interior appeared essentially undisturbed. The shop's manager soon arrived on the scene and discovered that approximately $400 had been taken from a can in the freezer.

¶ 3 Later that day, a man identifying himself as James Kordell called 911 with information about the burglary. Kordell later met with Deputy Wright at the Poulsbo Police Department and informed her that he worked for the coffee shop owners as an electrician. He went on to say that his former roommate, Joseph Paragone, and another man, James Eserjose, had been responsible for burglarizing the coffee shop. Kordell indicated that the men lived at the home of Eserjose's parents in Illahee.

¶ 4 Kordell provided Deputy Wright with the address of Eserjose's parents' house. Deputy Wright, who was assigned to North Kitsap County, then contacted Sergeant Clithero of the Kitsap County Sheriff's Office and requested that deputies assigned to the central area of Kitsap County arrest Paragone and Eserjose. At approximately 1:30 a.m., Clithero, together with Deputies Sapp, Swayze, and Baker, went to the address that had been provided by Kordell. Although the deputies did not possess an arrest warrant or a search warrant, one of them knocked on the front door of the house. When James Eserjose opened the front door, a deputy asked him if Paragone was at the home. Eserjose responded that Paragone was upstairs sleeping and that he would go get him. Eserjose then went upstairs, leaving the door open.

¶ 5 Eserjose's father then came to the door and invited the deputies into the house, saying that he wanted to close the door to keep out the cold air. Once inside, the deputies stood in the entryway at the bottom of the stairs that led to the second floor of the house. From there, the deputies could see a portion of the upstairs hallway. After waiting about a minute, the deputies talked amongst themselves about the delay and determined that they should ascend the stairs in order to arrest Paragone and Eserjose. Eserjose's father told the deputies to be careful of his dog upstairs because he did not want them to be surprised and harm the animal.

¶ 6 The deputies arrested Paragone in the hallway. Eserjose was arrested just outside the door to his bedroom. After effecting the arrest, the deputies then took the two men outside the house and placed them in separate patrol cars. Deputy Sapp read Eserjose his Miranda¹ rights through the open door of his patrol car and then took him to the Silverdale Office of the Kitsap County Sheriff. The deputy did not, however, ask Eserjose any questions about the burglary on the way to that office.

¶ 7 At the sheriff's office, Eserjose was again advised of his Miranda rights and he signed a form acknowledging that he understood these rights. Although he initially denied any knowledge of the burglary, he ultimately confessed after being told that Paragone had already done so.

¶ 8 The State charged Eserjose in Kitsap County Superior Court with second degree burglary.² Eserjose moved to suppress his confession on the ground that his arrest was unlawful. Following a hearing on Eserjose's motion, the trial court entered findings of fact and conclusions of law, determining that, although the deputies had probable cause to arrest Paragone and Eserjose and consent to enter the home where the arrest was made, they exceeded the scope of the consent when they entered the upstairs hallway and effected the arrests.³ The trial court held, therefore, that the arrest of Eserjose was unlawful. The State has not challenged that conclusion. See Br. of Resp't at 8 n. 1, 15. The trial court, nevertheless, determined that Eserjose's confession was admissible under New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990), a Fourth Amendment case that addressed the admissibility of a confession that a suspect gave at a police station after being unlawfully arrested in his home. It, therefore, denied the suppression motion. On the basis of stipulated facts, the trial court then found Eserjose guilty of second degree burglary. Eserjose petitioned this court for direct review, and we granted the petition.

II

¶ 9 We review conclusions of law relating to the suppression of evidence de novo. State v. Gaines, 154 Wash.2d 711, 716, 116 P.3d 993 (2005). “Unchallenged findings of fact entered following a suppression hearing are verities on appeal.” ⁴ Id. (citing State v. O'Neill, 148 Wash.2d 564, 571, 62 P.3d 489 (2003)).

III

¶ 10 The broad question before us is whether the trial court erred in admitting Eserjose's confession. Eserjose contends that, because he was unlawfully arrested, his confession should have been suppressed. There is no dispute that the arrest was unlawful, the United States Supreme Court having held that, in the absence of exigent circumstances, the Fourth Amendment prohibits police officers from making a warrantless and nonconsensual entry into a suspect's home in order to effect an arrest. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In the Harris case, however, the Court determined that, where the police have probable cause to arrest a suspect, the federal exclusionary rule ⁵ does not bar statements made by the suspect outside his home, even though those statements were made following an illegal arrest inside the home in violation of Payton. Harris, 495 U.S. at 21, 110 S.Ct. 1640. Because Eserjose has not challenged the trial court's conclusion that the information Kordell provided to the deputies gave them probable cause for his arrest, the confession he gave at the sheriff's office is admissible under the Fourth Amendment pursuant to Harris.

A. Is Harris compatible with article I, section 7 of the Washington Constitution?

¶ 11 Eserjose concedes that Harris is controlling under the Fourth Amendment. He contends, though, that Harris is incompatible with article I, section 7 of the Washington Constitution, it being well settled that this provision is often more protective than the Fourth Amendment in the search and seizure context.⁶ State v. Jackson, 150 Wash.2d 251, 259, 76 P.3d 217 (2003). Our state's exclusionary rule, moreover, is generally less permissive than its federal counterpart, the rule having been described as “nearly categorical.” State v. Winterstein, 167 Wash.2d 620, 636, 220 P.3d 1226 (2009). That rule is intended to protect individual privacy against unreasonable governmental intrusion, to deter police from acting unlawfully, and to preserve the dignity of the judiciary by refusing to consider evidence that has been obtained through illegal means. State v. Bonds, 98 Wash.2d 1, 12, 653 P.2d 1024 (1982).

¶ 12 The State points out that this court has recognized exceptions to Washington's exclusionary rule, such as the independent source exception, which this court has recognized in State v. Coates, 107 Wash.2d 882, 887, 735 P.2d 64 (1987), and Gaines, 154 Wash.2d 711, 116 P.3d 993. Whether the exception carved out in Harris is compatible with article I, section 7, however, is an open question.⁷ Courts in other states have considered whether Harris is compatible with their constitutions, but the results are mixed. The Supreme Court of Arizona, for example, adopted the Harris exception in State v. Cañez, 202 Ariz. 133, 42 P.3d 564 (2002). Notably, Arizona's article II, section 8 is identical to Washington's article I, section 7. On the other hand, in State v. Mariano, 114 Hawai‘i 271, 281, 160 P.3d 1258 (Ct.App.2007), the Intermediate Court of Appeals of Hawaii said, “We cannot condone the parsimonious Fourth Amendment protection the Supreme Court doled out in Harris.” It went on to say that article I, section 7 of the Hawaii Constitution ⁸ is more protective than the Fourth Amendment. Similarly, the Supreme Court of Connecticut concluded that the Harris exception falls short of the protection required by that state's constitution. State v. Geisler, 222 Conn. 672, 690, 610 A.2d 1225 (1992), abrogated on other grounds by State v. Brocuglio, 264 Conn. 778, 826 A.2d 145 (2003); see also State v. Luurtsema, 262 Conn. 179, 811 A.2d 223 (2002), overruled on other grounds by State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008).

¶ 13 In order to determine whether the Harris exception is compatible with article I, section 7 of our state's constitution, it is necessary to consider the Court's rationale in Harris very carefully. As noted above, the United States Supreme Court rested its decision in that case on the fact that the police officers there had probable cause to believe that the suspect had committed a felony before they made their warrantless entry into the suspect's home. The Court emphasized that a warrantless arrest is generally per missible so long as it is supported by probable cause. Harris, 495 U.S. at 17–18, 110 S.Ct. 1640 (citing United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)). In distinguishing its decision in Harris from its...