State v. Groom, 63951-5

• Decision Date: 03 February 1998
• Docket Number: No. 63951-5,63951-5
• Citation: 947 P.2d 240,133 Wn.2d 679
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Larry D. GROOM, Petitioner.

Page 679

133 Wn.2d 679

947 P.2d 240

STATE of Washington, Respondent, v. Larry D. GROOM, Petitioner.

No. 63951-5

Supreme Court of Washington En Banc.

Argued Oct. 10, 1996.

Decided Nov. 20, 1997.

Reconsideration Denied Feb. 3, 1998.

Browne & Ressler, John Henry Browne, Seattle, for petitioner

John D. Knodell, Grant County Prosecutor, Stephen J. Hallstrom, Deputy County Prosecutor, for respondent.

MADSEN, Justice.

The State seeks to prosecute Defendant Larry Groom for criminal trespass, official misconduct, and unlawful search without a warrant under RCW 10.79.040 and .045. The trial court dismissed the charges on a Knapstad motion. The Grant County Superior Court affirmed dismissal of the criminal trespass and official misconduct charges, but reversed as to the unlawful search charge. The Court of Appeals held that none of the charges were properly dismissed, and remanded for trial. Defendant contends that he is immune as a matter of law from prosecution for unlawful search without a warrant. We affirm the Court of Appeals, although on different grounds.

FACTS ¹

In 1993, Defendant was the Chief of Police for Soap Lake. On February 1, 1993, just before midnight, Defendant went to Officer Joe Mandoli's trailer home, 3.3 miles outside Soap Lake's city limits. He maintains he went to the trailer to suspend Mandoli pending investigation of a complaint that Mandoli had sexually harassed a female suspect. ² Defendant had received information that the suspect's husband had made threats against Mandoli. He did not have a search warrant.

Defendant maintains that when he arrived at the trailer the front sliding glass door of the trailer was ajar, the lights were on inside, and Mandoli's patrol car was unlocked with police department keys hanging from the turn signal. Mandoli's coat and briefcase were in the patrol car. The curtain at the door of the trailer was drawn back, and Defendant could see that the trailer was in disarray. A firearm was leaned up against a wall (this later proved to be an air rifle or BB gun). Defendant claims he called out for Mandoli but there was no response.

Defendant did not call for aid or assistance while at the scene. Instead, he left the trailer and the patrol car unlocked, and drove into Soap Lake to the police station where he called Mandoli's home, receiving no answer. He then picked up Officer Tom Jones and returned to Mandoli's residence. He was gone from the trailer approximately 8 to 10 minutes.

When they arrived, Defendant approached the trailer while Jones went to the patrol car. Although Defendant claims the door was still open, Jones did not notice the door open. Jones also said he did not hear Defendant express any concern about Mandoli's welfare. When Jones arrived at the door, Defendant had already opened the Defendant called Lieutenant Scott Stokoe to meet Defendant at Mandoli's home. When Stokoe arrived, he told Defendant they were not supposed to be in Mandoli's residence. Defendant indicated he wanted Stokoe to be a witness to removal of the uniforms and equipment. Stokoe did not hear Defendant mention any concern about Mandoli's welfare. Before the officers left the trailer, Defendant secured it.

door. Jones had not heard Defendant knock or call Mandoli's name. Both officers entered the trailer. Defendant opened one bedroom door but did not turn on the light, enter the room, or call Mandoli. Defendant did enter the second bedroom, Mandoli's bedroom, and called Jones inside. He pointed out a gun in its holster under the chair next to the bed and a .22 rifle leaning up against a wall. These weapons were Mandoli's personal weapons. Jones did not think the position of these guns was unusual. Jones then saw Defendant look under the mattress for several seconds. Defendant found nothing, and set the mattress down. Uncomfortable with the search, Jones returned to the living room, but was called back into the bedroom where Defendant showed him a lighter. Jones left the bedroom again, but was called back again to help remove Mandoli's uniforms, which Jones took to the patrol car along with a police charger and a department portable radio that was on the kitchen table.

On the way back to the police station, Defendant passed Mandoli. Defendant returned to Mandoli's residence and then took Mandoli to Soap Lake. On the way, he told Mandoli he had found the trailer open and the lights on and the patrol car unlocked, and had searched the residence. At the police station, Defendant told Mandoli about the complaint against him and the internal investigation. Mandoli was suspended.

Mandoli maintains that when he left his trailer he left the door closed, his personal gun under a magazine by his bed, and the patrol car locked. He claims that when he returned he noticed the closet door open, his gun uncovered Mandoli filed a complaint with the Grant County Sheriff's Office. On July 15, 1993, Defendant was charged with first degree criminal trespass, official misconduct, and unlawful search. He moved for dismissal pursuant to State v. Knapstad, 107 Wash.2d 346, 729 P.2d 48 (1986). The trial court granted the motion and dismissed all three counts against Defendant. On the State's appeal, the superior court reinstated the unlawful search count. The Court of Appeals granted both parties' motions for discretionary review and remanded for trial on all three counts. State v. Groom, 80 Wash.App. 717, 911 P.2d 403, review granted, 129 Wash.2d 1023, 919 P.2d 600 (1996). Defendant then petitioned for discretionary review by this court, which was granted. The issues raised in the petition for review concern the unlawful search charge.

and some personal items such as notebooks, files, and pens missing.

ANALYSIS

Defendant moved to dismiss on the ground that the State lacked sufficient evidence to prove its case. Under Knapstad, 107 Wash.2d at 356, 729 P.2d 48, such a motion should be initiated by a sworn affidavit "alleging there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt." Then "[t]he State can defeat the motion by filing an affidavit which specifically denies the material facts alleged in the defendant's affidavit. If material factual allegations in the motion are denied or disputed by the State, denial of the motion to dismiss is mandatory." Id. On the other hand, "[i]f the State does not deny the undisputed facts or allege other material facts," the court must decide "whether the facts which the State relies upon, as a matter of law, establish a prima facie case of guilt." Id. at 356-57, 729 P.2d 48. "Since the court is not to rule on factual questions, no findings of fact should be entered." Id. at 357, 729 P.2d 48.

What facts are material depends upon the elements of the charged crime. Defendant was charged pursuant to RCW 10.79.040 and .045. His is the first reported appellate case involving prosecution under these statutes, which were enacted in 1921. Laws of 1921, ch. 71, §§ 1, 2. RCW 10.79.040 provides:

It shall be unlawful for any policeman or other peace officer to enter and search any private dwelling house or place of residence without the authority of a search warrant issued upon a complaint as by law provided.

RCW 10.79.045 provides:

Any policeman or other peace officer violating the provisions of RCW 10.79.040 shall be guilty of a gross misdemeanor.

With respect to the "enter[ing] and search [of] private dwelling house or place of residence," RCW 10.79.040 implements article I, section 7 of the Washington State Constitution. State v. Cyr, 40 Wash.2d 840, 842, 246 P.2d 480 (1952), overruled on other grounds in State v. Ringer, 100 Wash.2d 686, 674 P.2d 1240 (1983); see also State v. Carpenter, 63 Wash.2d 577, 579, 388 P.2d 537 (1964); State v. Sanders, 8 Wash.App. 306, 309, 506 P.2d 892 (1973); State v. Duarte, 4 Wash.App. 825, 833, 484 P.2d 1156 (1971). 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." Article I, section 7 is more protective of the home than is the Fourth Amendment, and the cases reflect the heightened constitutional protection afforded the home under the state constitution. E.g., State v. Young, 123 Wash.2d 173, 185, 867 P.2d 593 (1994); State v. Berber, 48 Wash.App. 583, 589, 740 P.2d 863, 74 A.L.R.4th 491 (1987) (a person's home is a highly private place); State v. Solberg, 122 Wash.2d 688, 861 P.2d 460 (1993). It is apparent that, in enacting RCW 10.79.040 and .045, the Legislature intended potential criminal liability to serve at least in part as a deterrent to unconstitutional searches.

The Court of Appeals observed that read literally, the statutes would criminalize all warrantless searches regardless of whether a search was justified by a recognized exception to the warrant requirement. State v. Groom, 80 Wash.App. at 720-21, 911 P.2d 403. Drawing from the qualified immunity of police officers from civil suit where they act in good faith in the performance of their official functions, the court held that a police officer could be liable under RCW 10.79.040 only if the search was undertaken in bad faith. Id. at 721-22, 911 P.2d 403. The court held the State's allegations were sufficient to create a triable issue of fact as to whether Defendant searched Mandoli's home in order to discover any evidence which might be useful in the internal investigation of Mandoli, and thus engaged in a bad faith search.

The difficulty with the Court of Appeals analysis is that it overlooks prior interpretations of RCW 10.79.040. The statute has always been interpreted in light of exceptions to the warrant requirement which have been recognized under article I, section 7. Thus, no violation of the statute occurs where a search is made incident to a lawful arrest, State v. Thomas, 183 Wash. 643, 646, 49 P.2d 28 (1935), a consensual search is made, State v. Smith, 50 Wash.2d 408, 314 P.2d 1024 ...