State v. German, 44870-0-II
| Decision Date | 03 February 2015 |
| Docket Number | 44870-0-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JOSE R. GERMAN, Appellant. |
UNPUBLISHED OPINION
Jose German appeals from his jury trial convictions for assault in the second degree with a firearm enhancement, vehicle prowling in the second degree, and unlawful possession of a firearm in the first degree. German argues that evidence seized from his home pursuant to a search warrant should have been excluded at trial because it was the fruit of an unlawful entry by police, and the trial court erred by giving the jury an "abiding belief instruction. In his statement of additional grounds (SAG), German further argues that the trial court abused its discretion by not allowing him to refer to a shooting by police in California, that his trial counsel was ineffective for a variety of reasons, that the trial court abused its discretion by failing to admonish the prosecutor for his closing argument, and that his appellate counsel is ineffective for failing to brief ineffective assistance of trial counsel. We rej ect all of German's claims and affirm the trial court.
In early spring 2012, a "string of break-ins" occurred in the parking lot of Charley's Pub in Fircrest. Report of Proceedings (RP) (Feb. 14, 2013) at 296. Charley's hired Frank James and Noah Frampton to patrol its lot. One evening, James and Frampton noticed an unlocked car containing a purse. Ten or fifteen minutes later, James and Frampton saw a pair of men leaning inside the car. When the men saw James and Frampton, they began to walk away. James told them not to come back.
The two men turned around and shouted an obscenity. One of the two pulled out a pistol. He said "I have something for you big boys, " cocked the gun, and aimed it in the security guards' direction. RP (Feb. 14, 2013) at 303. James and Frampton retreated and called the police.
Police officers were dispatched to Charley's where James and Frampton described the suspects as a white male and a Hispanic male, both wearing white T-shirts and blue jeans who had gone southbound, and who were armed. A couple of blocks southeast of Charley's, Officer Christopher Roberts found German and his .eventual co-defendant, Manuel Urrieta, leaning into a car that had its hood up. German and Urrieta were wearing white T-shirts and blue jeans. When Officer Roberts called out to the two men, they ran into a nearby apartment and slammed the door.
Officer Roberts believed that German and Urrieta had entered a home which did not belong to them. Officer Roberts kicked down the door and ordered German and Urrieta to show him their hands. When German and Urrieta did not comply, Officer Roberts shot them.
The police called for an ambulance. After checking for other individuals inside the apartment, the police left the premises and waited for a search warrant. Subsequently, the police searched the apartment pursuant to a warrant and discovered a gun, ammunition, and letters addressed to German. Frampton later identified German as the gunman from a photographic montage.
The State charged German with two counts of assault in the second degree with a firearm enhancement, [1] one count of vehicle prowling in the second degree, [2] and one count of unlawful possession of a firearm in the first degree.[3]
German moved under CrR 3.6 to suppress the firearm discovered in his residence. He argued that Officer Roberts had entered his home unlawfully and everything that the police discovered thereafter was the fruit of the poisonous tree.[4] Because German agreed that there were no disputed facts, the trial court did not hold an evidentiary hearing. The trial court heard legal argument and then denied German's motion. Based on the undisputed facts the parties presented, the trial court entered the following oral findings of fact:[5] (1) that the police were investigating the crime of assault with a firearm; (2) that the suspects were reasonably believed to be armed; (3) that the police had reasonably trustworthy information, based on eyewitness statements; (4) that there was a strong reason to believe the suspects were still on the property; (5) that the suspects were likely to escape if not apprehended; (6) that the entry was not peaceable but was justified under the circumstances; (7) that the entry was at night; and (8) that the investigation was not part of a planned operation or ongoing investigation.
German went to trial' Over German's objection, the trial court instructed the jury that reasonable doubt required "an abiding belief in the truth of the charge." Clerk's Papers (CP) at 107; 11 Washington Practice Washington Pattern Jury Instructions: Criminal 4.01, at 85 (3rd ed. 2008). The jury convicted German of all the charged offenses and the enhancement. German appeals.
German argues that the firearm seized pursuant to the search warrant for his home should have been excluded as the fruit of an unlawful entry by police. The State argues that German failed to preserve the issue because he failed to challenge the search warrant itself. Alternatively, the State argues that Officer Roberts's warrantless entry was permitted under the doctrine of exigent circumstances. As the State points out, German does not challenge the search warrant itself. In fact, it has not been made a part of the appellate record. Therefore, we do not review the warrant's legality. To the extent German challenges his arrest, we hold that Officer Roberts both lawfully entered German's residence and arrested German. We affirm the trial court.
"Unchallenged findings of fact entered following a suppression hearing are verities on appeal." State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005). Neither party assigns error to the findings of fact, so we take them to be true.[6] "We review a trial court's conclusions of law in an order pertaining to suppression of evidence de novo." State v. Carneh, 153 Wn.2d 274, 281, 103 P.3d 743 (2004).
The state and federal constitutions prohibit warrantless searches of homes unless they fall within a well-delineated exception. State v. Leach, 113 Wn.2d 735, 738, 782 P.2d 1035 (1989); U.S. CONST, amend. IV (); Wash. Const, art. I, § 7 (). But when the police make a warrantless entry justified by exigent circumstances and evidence is discovered only after a search warrant is issued, then the trial court does not err by admitting the evidence. State v. Terrovona, 105 Wn.2d 632, 645, 716 P.2d 295 (1986).
We use six factors to determine whether a warrantless police entry into a home is justified:
"(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 [can be] made peaceably."
State v. Smith, 165 Wn.2d 511, 518, 199 P.3d 386 (2009) (quoting State v. Cardenas, 146 Wn.2d 400, 406, 47 P.3d 127, 57 P.3d 1156 (2002)). This totality of the circumstances test does not require that each factor be satisfied. Circumstances may still be exigent and justify a warrantless search even if they do not satisfy every one of the elements listed above. Smith, 165 Wn.2d at 518. All warrantless entries of a home are presumptively unreasonable, and the State bears the "heavy burden" of proving that exigent circumstances necessitated the entry. State v. Hinshaw, 149 Wn.App. 747, 754, 205 P.3d 178 (2009).
Here, the unchallenged findings of fact support the trial court's conclusion that Officer Roberts lawfully entered German's home without a warrant. Officer Roberts was investigating a crime of violence. James and Frampton had been threatened with a gun. Officer Roberts reasonably believed the suspect to be armed, because moments before he had been seen with a gun. Officer Roberts had reasonably trustworthy information to believe that German and Urrieta were guilty, because they matched the description of the individuals who had threatened James and Frampton. Furthermore, German and Urrieta were found a short distance south of Charley's, the direction that the suspects had fled. German and Urrieta were also engaged in the same conduct that the suspects had been; they were prowling a car and retreated when challenged by a third party. Officer Roberts knew that German and Urrieta were on the premises, because he saw them run into the apartment. German and Urrieta were likely to escape if not swiftly apprehended; they could have exited through the back of the apartment. It is also worth noting that Officer Roberts believed German and Urrieta had entered someone else's apartment, and posed a danger to whomever might be inside.
It is true that Officer Roberts's entry was not peaceable, but "it is not necessary that every factor be met to find exigent circumstances, only that the factors are sufficient to show that the officers needed to act quickly." Cardenas, 146 Wn.2d at 408. Here, the unchallenged findings of fact clearly indicate that Officer Roberts reasonably believed German and Urrieta were the suspects in a crime of violence, that they posed a continuing danger, and that he needed to act quickly in order to apprehend them. We hold that Officer Roberts's entry was justified by exigent circumstances, and the...
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