State v. Johnson
| Decision Date | 29 March 1999 |
| Docket Number | No. 40938-7-I,40938-7-I |
| Citation | 94 Wn.App. 882,974 P.2d 855 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Matthew Danny JOHNSON, Appellant. |
Kristin Chandler, King County Pros. Office, Seattle, for Respondent.
Matthew Johnson appeals his Violation of the Uniform Controlled Substances Act ("VUCSA") conviction, alleging that the trial court erred in (1) admitting evidence seized in violation of RCW 10.31.040, the "knock and announce" rule; (2) denying his motion to dismiss the deadly weapon allegation because his weapon was not easily accessible at the time of arrest; (3) denying his motion to suppress statements made without a valid waiver of Miranda rights; (4) improperly instructing the jury on accomplice liability; and (5) admitting into evidence currency seized from his apartment safe. Because the trial court erred in allowing the jury to consider the deadly weapon issue, we reverse the sentence enhancement. We find no other error and therefore affirm the underlying conviction.
On August 11, 1994, at 7:45 p.m., Detective Howard Gordon Detective Glenn Edmondson also testified that there were two knocks and announcements of police presence, and that approximately 10 seconds passed between the first knock and the forcible entry. He was unsure whether any movement occurred in the apartment before they entered. When he entered the apartment, he saw Johnson standing between the bathroom and living room. He "pulled him from the hallway into the living room ... put him down on the floor ... and advised him of his constitutional rights." After Detective Edmondson read Johnson his Miranda rights and he "indicated he understood those rights," he moved Johnson to a table between the living room and the dining room. Soon after, an officer brought Detective Edmondson then asked Johnson if there were any weapons in the residence, and Johnson replied that there was one in the "book case," by which he meant the coffee table in front of the couch. The coffee table had two doors that opened onto a space underneath where books or magazines could be stored. The gun was inside the enclosed area on top of a pile of magazines. At the time, Johnson was handcuffed and seated between the living room and the dining room, and the gun was five to six feet away from where he was sitting.
and several other police officers executed a search warrant on Johnson's Burien apartment which he shared with Ethel Washington. Detective Gordon testified 1 that he knocked on the door and announced "King County police with a search warrant." He then waited a couple of seconds and repeated the announcement. He did not recall if he demanded that the occupants open the door. When he heard movement on the other side of the door, he "felt the individuals in the apartment were either destroying evidence or possibly arming themselves," so he instructed Detective Gaddy to force the door open. Once inside, Detective Gordon saw Johnson running from the living room toward the bathroom and Washington running toward the bedroom. He followed Washington into the bedroom and saw her throw an object, later identified as a plate, out the bedroom window. The plate contained heroin residue. The officers also found balloons in the bedroom that appeared to contain heroin. Miriam Parangot of the Washington State Patrol crime lab confirmed that the substance found in the balloon, and in a plastic bag, was heroin. In addition, police discovered a safe inside the apartment which contained bundles of cash totaling $8,034, along with several watches, rings, and bracelets
Washington into the living room, and Detective Gordon read them both their rights. After stating again that he understood his rights, Johnson told the police to leave Washington alone because she "didn't have anything to do with it."
Johnson testified that he was in bed in the bedroom, half asleep, when he heard a knock and an announcement. Two seconds later, police forced the door and "the dogs came in at the same time...." 2 Johnson jumped up and ran out to the hallway where Detective Edmondson stopped and arrested him. Johnson testified that no one read him his Miranda rights, and the officers would not let him see the search warrant. It was only when they were leaving the house to go to the jail that Johnson says Detective Edmondson finally informed him of his rights.
The State charged Johnson with two VUCSA violations, each count alleging that he was armed with a deadly weapon at the time of the crime. The jury found that Johnson was armed and convicted him of one count of possession of heroin with intent to deliver and one count of possession of cocaine.
Johnson first contends that the police conducted an illegal search of his home because they did not wait a reasonable time after knocking and announcing their presence before forcibly entering his apartment. Absent exigent circumstances, 3 RCW 10.31.040 requires officers executing a search warrant to knock, announce their identity and purpose, demand admittance, and give the occupants a reasonable time to voluntarily admit them. 4 Failure to comply with the "knock and announce" rule renders the entry illegal, and any evidence seized during the search inadmissible. 5 A police officer who identifies himself and announces that he has a search warrant has implicitly demanded admission. 6 Because it is undisputed that the officers identified themselves and stated they had a search warrant, the issue is whether the officers waited a sufficient time between the announcement and the forced entry.
The trial court found that Detective Gordon waited from five to ten seconds after announcing his presence and purpose before knocking again and repeating the announcement. The court also found that Detective Gordon heard quick movement or rapid scurrying inside the apartment which did not sound like people were moving toward the door, and that the officers had reason to believe that the occupants may have been trying to discard evidence. While slightly conflicting testimony was offered on each of these points, substantial evidence supports the trial court's findings. We also defer to the trial court's resolution of factual issues because it sits "'closest to the trial scene and [i s] thus afforded the best opportunity to evaluate contradictory testimony.' " 7
Whether an officer waited a reasonable time before using force to enter a residence depends on the circumstances of the case. 8 To determine whether police officers have complied with the "knock and announce" rule, the trial court must decide whether, before the nonconsensual entry, the officers' conduct effectuated the purposes of the rule. They are (1) to reduce the potential for violence to both occupants and police; (2) to prevent unnecessary destruction of property; and (3) to protect the occupants' right to privacy. 9 But the right of privacy is severely limited when the police have satisfied the Fourth Amendment's probable cause and warrant requirements, as the officers did in this case, and destruction of property is permitted when necessary. 10 Suspicious noises and the possibility that evidence is being destroyed are factors courts have looked at to determine whether there was sufficient time between announcement and entry to comply with the knock and announce rule. 11
Johnson relies on State v. Edwards to argue the police violated his rights when they "kicked in the door simultaneously with knocking and announcing their identity." He cannot rely on Edwards for two reasons. First, as previously noted, the trial court found that five to ten seconds passed between the first announcement and the forcible entry, so the knock and entry were not simultaneous. Second, in Edwards, the police knocked without saying anything, and then "as they identified themselves, kicked in the door." 12 Here, Detective Gordon identified himself with both knocks.
This case is more analogous to State v. Schmidt, 13 where we held that the following circumstances justified a three-second delay between the knock and the forcible entry: barking dogs may have alerted the occupants to the officers' presence, the people inside suddenly become very quiet, the building was small and police had reason to suspect the occupants were armed and/or concealing evidence. 14 Here, the police sought drug evidence which can easily be destroyed, and Detective Gordon testified that he suspected just that when he heard Johnson and Washington run away from the door. Detective Gordon's suspicions were correct: Washington had time to get out of bed, pick up a saucer containing heroin residue, and throw it out the window during the time between the first police announcement and entry. Under these circumstances the trial court properly concluded that the officers waited a reasonable time and complied with the knock and announce rule.
Johnson next contends that the trial court should have dismissed the deadly weapon allegation because he was not armed at the time of the crime and his arrest. Detective Gordon testified that when the police entered Johnson's apartment, Johnson and Washington were running "from the living room," in different directions--Washington toward the bedroom, and Johnson toward the bathroom. After the police handcuffed Johnson, they "took him into the living room," 15 and sat him down. When the police asked Johnson if there were any loaded weapons in the residence, he replied that there was a weapon inside the cabinet compartment of a coffee table in front of the couch. At that time, the handgun was "within five to six feet of him." On the basis of this information, the State included a deadly weapon sentence enhancement in its charge.
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