State v. Johnson

• Decision Date: 20 May 1974
• Docket Number: No. 2326--I,2326--I
• Citation: 522 P.2d 1179,11 Wn.App. 311
• Parties: STATE of Washington, Respondent, v. Michael Eugene JOHNSON, Appellant.
• Court: Washington Court of Appeals

Page 311

11 Wn.App. 311

522 P.2d 1179

STATE of Washington, Respondent, v. Michael Eugene JOHNSON, Appellant.

No. 2326--I.

Court of Appeals of Washington, Division 1.

May 20, 1974.

Defender Ass'n, Thomas L. Gayton, Seattle, Wash., for appellant.

Christopher T. Bayley, King County Pros. Atty., Jonathan B. Noll, Deputy Atty. Gen., Seattle, for respondent.

SWANSON, Chief Judge.

Michael Eugene Johnson appeals from his conviction of grand larceny by possession. The decisive issue presented by this appeal is the legality of the entry and search of Johnson's apartment by police.

Trial was to the court sitting without a jury, and its findings, some of which are disputed by appellant, reveal the following facts pertinent to our review: Seattle Police Officer Greg Hull learned from a reliable informant that Frank Mooney, an escapee from juvenile detention who was believed to be armed and dangerous, was living with appellant Johnson in an apartment [522 P.2d 1180] at 3608 Phinney Avenue North in Seattle, Washington. Hull also was informed that the residence contained firearms and stereo equipment stolen in recent burglaries. Further, Hull knew that Johnson and Mooney were frequent companions and that Mooney had advised another police officer several days prior to December 10, 1972, that he was armed and would kill any police officer who attempted to arrest him.

On December 10, 1972, Officers Hull and Robert Elmore proceeded to stake out the Phinney Avenue North residence, and at approximately 5:15 p.m., they saw Mooney arrive in a red sports car, enter the residence, and then leave in the same vehicle with an unknown person. As he was leaving, Mooney recognized Hull and accelerated his vehicle. A high-speed circular chase resulted which ended when Mooney drove his car back to the driveway at 3608 Phinney Avenue North where it crashed and stopped against a wall.

While placing Mooney and the other occupant of the vehicle under arrest, Hull saw appellant Johnson standing near the entrance to his apartment watching the arrest. Johnson then moved quickly back into his residence which caused Hull to believe that Johnson was securing weapons to assault the officers and to interfere with the arrest of Mooney. Accordingly, Hull directed two other officers to assist him in entering the residence. Officer Hull went up the stairs to a landing leading to Johnson's residence, saw Johnson through the partially open front door, knocked open the front door and entered. Two other officers entered through the rear door and appellant Johnson and a companion were taken into custody. At the same time, the police officers observed silverware and other kitchenwares on the drainboard and in open drawers in the kitchen which they recognized as stolen property. At trial, Johnson's motion to suppress the admission of this evidence was denied, and it is that denial which forms the basis for appellant's primary assignment of error. ¹

Appellant's basic contention is that the state failed to sustain its burden of showing a legal justification for the unannounced forceable no-knock entry and subsequent search of his apartment and therefore the evidence so obtained is inadmissible and the motion to suppress should have been granted. The state asserts that the entry of appellant's apartment by police was proper as a cautionary search to insure the safety of the officers who were effecting the arrest of Mooney. Both parties direct our attention to State v. Toliver, 5 Wash.App. 321, 487 P.2d 264 (1971), in which this court approved basic principles applicable to the cautionary search of a private residence. Although we do not retreat from the rule announced in Toliver, we are of the opinion that the state's apparent reliance upon the result reached in that case to support what happened here is misplaced.

In Toliver, police sought to arrest one Gerald Speaks who was wanted on a federal warrant for the unlawful sale of a machine gun. The officers were told by a reliable informant that persons in the house where Speaks was living were armed and would resist any effort by police to make the arrest. Speaks was arrested in his car which was located directly off the porch of the house in question. The Toliver opinion contains this graphic description of the arrest scene at 323, 487 P.2d at 266:

At this time, one Stephanie Vasiliou, who was standing outside the car with Speaks, began screaming. The open front door of the house was slammed shut and sounds of running could be heard from inside the house. Officer Pellegrini yelled that they were police officers and to come out. About that time the defendant Toliver jumped out of an upstairs window and began running around the roof of the house. He was told to come down off the roof, which he did. The officers were informed there was one more man in the house. They believed it was necessary for their safety and protection that the house be cleared of people who were in a position to fire at them as they left with their prisoner. At this time Detective Pellegrini again yelled for the person in the house to come out, and obtaining no response, entered the house through the front door in order to secure the downstairs.

Upon entering the house, the officers in Toliver noticed certain articles which appeared to resemble property taken in a recent burglary. They also discovered a man lying under a bed and placed him in custody, but no further search of the house was made until after a warrant was obtained. The Toliver court concluded that the police officers had reasonable cause to believe their safety was endangered and therefore upheld the limited self-protective search.

It is not to be doubted that police officers must be permitted to take all reasonable and necessary steps to assure their safety when performing their official duties. At the same time, as stated in Toliver at 326, 487 P.2d at 268:

The principle that officers are entitled to take action to protect themselves must necessarily be tempered, however, by a respect for the personal security and privacy of individuals which is secured by the Fourth and Fourteenth Amendments. If a confederate or friend of an arrestee is to be detained, or a search made of his house to effect his detention, the Fourth Amendment, at the minimum, requires that the officers have reasonable cause to believe that, in carrying out their duty to arrest, their safety would be endangered, I.e., the question is 'whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.'

Appellant argues that the scope of protective search incident to an arrest must be defined in terms of exigent circumstances and asserts that no exigency was occasioned by the arrest of Mooney and appellant's disappearance into his apartment which was less than 100 feet from the point where Mooney was arrested. As the state points out, however, the trial court entered specific findings of fact as to the reasonableness of the officers' belief that Johnson's return to his apartment posed a threat to their safety. The court made these crucial findings of fact:

(T)hat Officer Hull entered the defendant's residence and directed Officers Ferris and Collins to enter the defendant's residence for the reason that he feared the defendant was securing weapons to assault the officers and interfere with the arrest of Mooney.

Disputed finding of fact No. 1, in part.

That Officer Hull was familiar with the arrest record of the defendant Michael Eugene Johnson and had reasonable cause to fear for the safety of himself and the other officers.

Disputed finding of fact No. 2. Substantial evidence supports these findings which are therefore determinative of any question as to the right of the officers to take self-protective action. Therefore, our review must be limited to an examination of the self-protective action taken by police to determine whether such action, under the circumstances, was reasonable.

At the outset, it must be noted that any finding of 'reasonableness' in circumstances such as those presented in the case at bar can only be respected insofar as it is consistent with Fourth Amendment guarantees. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). In this context, the question of whether self-protective actions of police are reasonable or necessary can be determined only on a case by case basis. It is settled, however, that in the absence of exigent and necessitous circumstances such as those described in State v. Young, 76 Wash.2d 212, 455 P.2d 595 (1969), entry by police into a private residence as a part of necessary and justified self-protective action must be preceded by an announcement of identity, purpose, and demand for admittance such as is required to execute a search warrant or to make an arrest within a private dwelling. See RCW 10.31.040. ² This...