State v. Johnson

• Decision Date: 19 January 2001
• Docket Number: No. 24275-3-II.,24275-3-II.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Donovan Quedessa JOHNSON, Appellant.

16 P.3d 680

104 Wash.App. 409

STATE of Washington, Respondent, v. Donovan Quedessa JOHNSON, Appellant.

No. 24275-3-II.

Court of Appeals of Washington, Division 2.

January 19, 2001.

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry (Court Appointed), Chehalis, for Appellant.

Rick L. Porter, Deputy Pros. Atty., Clallam Co. Pros. Atty's Office, Port Angeles, for Respondent.

ARMSTRONG, C.J.

Police responded to a domestic violence report. Johnson, the aggressor, exited the house. While one officer was handcuffing and putting Johnson in the patrol car, another officer entered the home after the victim opened the front door. Inside, the officer immediately smelled marijuana. The victim told the officer that she and Johnson had been smoking marijuana; she also showed the officer a marijuana pipe and some residue. The officers then asked Johnson for consent to search the house, threatening to apply for a warrant if he did not consent. Johnson consented and the officers found marijuana. The trial court denied a motion to suppress the evidence because the officer's initial entry was justified under the emergency exception to the warrant requirement, and Johnson appeals. We affirm.

FACTS

In September 1998, officers responded to a report of domestic violence at a home. The call came from a relative outside the house who reported that the victim had locked herself in the bathroom. Officer Lasnier arrived first and, as he approached the house, Donovan Johnson came out. Lasnier twice asked Johnson if anyone was in the house. Slow to answer, Johnson finally said that his girlfriend was still in the bathroom. Johnson had a bloody cut on his wrist, smelled of marijuana, and appeared to be under the influence of marijuana. Lasnier handcuffed Johnson and put him in his patrol car.

In the meantime, Deputy Gary Velie arrived and knocked on the front door. After several knocks, Babette Markishtum answered. She was shaking and had blood on her lip. It appeared to Deputy Velie that Markishtum was going to come out of the house, but he told her to stay and he walked inside. Deputy Velie immediately smelled marijuana in the house. The trial court found that Deputy Velie entered the house to protect Markishtum and other potential victims, to keep Markishtum and Johnson separate for safety, and to ensure an orderly investigation.

Sergeant Turner also arrived and looked for victims. After asking Markishtum about the domestic violence, the officers asked about the marijuana smell. Markishtum said that she and Johnson had just been smoking marijuana. She showed the officers marijuana paraphernalia, and they noticed a coffee grinder with green residue. The officers asked Markishtum if she would consent to a search of the entire house. She said they would have to ask Johnson because it was not her house.

Sergeant Turner went outside, removed Johnson from Officer Lasnier's patrol car, and read him his rights. Turner then asked if they could search the house. Johnson asked if they needed probable cause. Turner replied that he had probable cause because of what he had seen and smelled and because of what Markishtum had told the officers. Johnson asked whether he could limit the scope of the search, and Turner said that if he did, the officers would apply for a warrant. Turner also told Johnson that he had the right to refuse consent. Johnson eventually said, "[y]ou can look," and he signed a consent form. During the search, the officers found marijuana plants growing in the lower level of the house. The trial court denied Johnson's motion to suppress the evidence of the marijuana grow operation.

ANALYSIS

I. Factual Findings

A trial court's findings of fact following a motion to suppress are verities on appeal if unchallenged. State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994). Johnson assigns error to the trial court's finding that Deputy Velie did not push his way into Johnson's house. If findings are challenged, we review the record for substantial evidence to support the findings. Hill, 123 Wash.2d at 644, 870 P.2d 313. Substantial evidence is "a sufficient quantity of evidence ... to persuade a fair-minded, rational person of the truth of the finding." Hill, 123 Wash.2d at 644, 870 P.2d 313.

The trial court found that Deputy Velie "did not literally push to get into the home but made it certain that he intended to go in the home by walking through the door and not letting the defendant outside." The record contains substantial evidence to support this finding. Deputy Velie testified that he "pushed [his] way into the house." But he later corrected his testimony, stating that "she looked like she was going to step out, [but] I said don't come out and I went on in." Moreover, whether Deputy Velie pushed past Markishtum or simply stepped around her is not the critical issue; rather, the issue is whether Deputy Velie lawfully entered the home without a search warrant.

II. Emergency Exception

Both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution prohibit unreasonable searches and seizures. State v. Davis, 86 Wash.App. 414, 420, 937 P.2d 1110 (1997). Warrantless searches are per se unreasonable, but the warrant requirement is subject to narrowly drawn exceptions. Davis, 86 Wash.App. at 420, 937 P.2d 1110. The emergency exception recognizes the "community caretaking function of police officers, and exists so officers can assist citizens and protect property." State v. Menz, 75 Wash.App. 351, 353, 880 P.2d 48 (1994); See also Davis, 86 Wash.App. at 420,

937 P.2d 1110.

But when the State invokes the emergency exception "we must be satisfied that the claimed emergency was not simply a pretext for conducting an evidentiary search[.]" State v. Lynd, 54 Wash.App. 18, 21, 771 P.2d 770 (1989). Thus, the exception may be invoked only when

(1) the officer subjectively believed that someone likely needed assistance for health or safety reasons; (2) a reasonable person in the same situation would similarly believe that there was a need for assistance; and (3) there was a reasonable basis to associate the need for assistance with the place searched.

State v. Gocken, 71 Wash.App. 267, 276-77, 857 P.2d 1074 (1993). And the officer must be able to articulate facts and reasonable inferences that justify the warrantless search. Davis, 86 Wash.App. at 420, 937 P.2d 1110.

Furthermore, we scrupulously protect a citizen's right to privacy in his or her home, because "[i]n no area is a citizen more entitled to his privacy than in his or her home." State v. Young, 123 Wash.2d 173, 185, 867 P.2d 593 (1994). Thus, the home is a "highly private place" and "receives heightened constitutional protection." Young, 123 Wash.2d at 185,867 P.2d 593. "For this reason, `the closer officers come to intrusion into a dwelling, the greater the constitutional protection.'" Young, 123 Wash.2d at 185,867 P.2d 593 (quoting State v. Chrisman, 100 Wash.2d 814, 820, 676 P.2d 419 (1984)).

Johnson contends that the warrantless search of his home was unconstitutional under both the federal and state constitutions. We first consider the protection the state constitution affords.

A. Article I, Section 7

"It is by now axiomatic that article I, section 7 provides greater protection to an individual's right of privacy than that guaranteed by the Fourth Amendment." Parker, 139 Wash.2d at 493, 987 P.2d 73. Unlike the Fourth Amendment, article I, section 7 "clearly recognizes an individual's right to privacy with no express limitations." Parker, 139 Wash.2d at 493, 987 P.2d 73 (quoting State v. White, 97 Wash.2d 92, 110, 640 P.2d 1061 (1982)). In addition, article I, section 7 affords greater protection from an officer's search of a home than the Fourth Amendment. See State v. Ferrier, 136 Wash.2d 103, 111-13, 960 P.2d 927 (1998)

.

Division One considered the scope of the emergency exception under the state constitution in State v. Bakke, 44 Wash.App. 830, 723 P.2d 534 (1986). The court recognized the "heightened protection of privacy" guaranteed by article I, section 7. Bakke, 44 Wash.App. at 840, 723 P.2d 534. But the court concluded that "the state interest in protecting its citizens' private property in an emergency situation is consistent with the Fourth Amendment's protection afforded to an individual's privacy rights so that extending the protection under our state constitution is unwarranted...."¹ Bakke, 44 Wash. App. at 840, 723 P.2d 534.

In Ferrier, our Supreme Court considered the scope of the consent exception to the warrant requirement under article I, section 7. Ferrier, 136 Wash.2d 103, 960 P.2d 927. The court performed a Gunwall analysis, concluding that under article I section 7, police officers must advise citizens of their right to refuse consent to search a home when the officers use a "knock and talk" procedure. Ferrier, 136 Wash.2d at 118, 960 P.2d 927. And article I, section 7 affords greater protection than the federal constitution in other contexts. For example, the warrantless search of a car, including any containers and the trunk, incident to arrest does not violate the Fourth Amendment. State v. Stroud, 106 Wash.2d 144, 151, 720 P.2d 436 (1986) (citing New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). But locked containers or glove compartments are outside the scope of a search of an automobile incident to arrest in Washington. Stroud, 106 Wash.2d at 152, 720 P.2d 436. And while "open fields" are not protected from unreasonable searches and seizures under the Fourth Amendment, Oliver v. United States, 466 U.S. 170, 179, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), article 1, section 7 allows individuals to protect their private affairs in open fields if they have "manifested their desire to exclude others from their `open fields.'" State v. Johnson, 75 Wash.App. 692, 707, 879 P.2d...