State v. Leffler

• Decision Date: 18 December 2007
• Docket Number: No. 34019-4-II.,34019-4-II.
• Citation: 178 P.3d 1042,142 Wash.App. 175
• Parties: STATE of Washington, Respondent, v. Fred Irvine LEFFLER, Appellant.
• Court: Washington Court of Appeals

178 P.3d 1042

142 Wash.App. 175

STATE of Washington, Respondent, v. Fred Irvine LEFFLER, Appellant.

No. 34019-4-II.

Court of Appeals of Washington, Division 2.

December 18, 2007.

Carol A. Elewski, Attorney at Law, Tumwater, WA, for Appellant.

¶ 1 Kathleen Proctor, Pierce County Prosecuting Atty. Office, Tacoma, WA, for Respondent.

PENOYAR, J.

¶ 1 Pierce County Sheriff's Department deputies responded to an anonymous tip complaining of chemical smells at Fred Leffler's property. Upon arrival, they discovered that Leffler had an outstanding Department of Corrections (DOC) felony escape warrant and arrested him. Leffler informed the officers that there was muriatic acid and a "gasser" inside the fifth wheel on the property, but he did not consent to a search. Clerk's Papers (CP) at 106. The deputies did not immediately search the premises but instead called in the Clandestine Lab Team (the Team) to do so. The team conducted a performance safety assessment of all structures on the property and found evidence of methamphetamine manufacturing; the trial court then convicted Leffler of manufacturing methamphetamine based on this evidence. Leffler argues that the evidence from the search was improperly admitted, and we agree. The emergency exception does not apply where there is not an imminent threat of substantial harm to persons or property, and there was no such threat here. However, the evidence from the illegal search may still be admissible if sufficient untainted evidence existed to support a finding of probable cause. We therefore remand for further proceedings at the trial court in accordance with this opinion.

FACTS

¶ 2 Deputy Jake Greger and his Community Support Team (CST) responded to an anonymous complaint alleging "strong chemical smells" coming from a property in Puyallup. Report of Proceedings (RP) (Sep. 1, 2005) at 7-8. Specifically, the caller stated that the smells were especially strong by the fifth wheel travel trailer near the property's driveway. The property contained a fifth wheel, a mobile home, a shed, and a garage. A neighboring home was "at least within 200 feet" of Leffler's trailer. CP at 110.

¶ 3 Upon arriving at the property, Deputy Greger could smell a "really harsh chemical smell" from about 30 feet away from the fifth wheel. RP (Sep. 1, 2005) at 10. A CST member knocked on the fifth wheel's door (from which the smell was emanating), and Fred Leffler exited the trailer and closed the door behind him.

¶ 4 The officers ran Leffler's name through the records system and discovered an outstanding DOC felony escape warrant. Deputy Greger arrested Leffler, placed him in the patrol car, and read him his Miranda¹ rights. Leffler informed Deputy Greger that a friend had been "pound[ing] out some slugs" in the fifth wheel, and that he was "gassing" (a specific phase of methamphetamine production). CP at 106. He also told officers that there was muriatic acid inside the fifth wheel, which is used in the final phase of methamphetamine manufacturing to create hydrochloric acid gas.

¶ 5 Community Corrections Officer McDonough (also a CST member) spoke with Leffler's probation officer and learned that he had permission to search the fifth wheel as part of Leffler's DOC conditions. Leffler refused to consent to the DOC search. Officer McDonough asked Leffler if there was a methamphetamine lab inside the trailer, and Leffler replied that there was some muriatic acid inside and a "gasser." CP at 106. Leffler also stated that he was the only person on the premises.

¶ 6 Based on Leffler's statements and the strong chemical smell, the officers concluded that it was not safe for them to enter the trailer, and they called the Team to the scene. While waiting for the Team, the CST began to conduct a protective check of the property for officer safety reasons but did not enter any buildings. They noticed a strong chemical smell coming from a mobile home on the property, but no CST officer entered the mobile home to secure it due to safety concerns. The Team, including Deputies Clark and Banach, arrived about one hour later.

¶ 7 When Deputy Clark arrived at the scene, he was briefed by the CST officers, and he and Deputy Banach decided to clear the property for officer safety reasons and to execute a performance safety assessment, "making sure that there is not an active cook or some sort of chemical reaction going on that could erupt into flame or explode." RP (Sep. 1, 2005) at 37. The Team entered the property structures and observed methamphetamine manufacturing evidence in each of them. The officers detected chemical odors emanating from the fifth wheel, mobile home, and shed. They could smell the chemical odor through their respirators, but no one identified the specific smell in their testimony. The team also entered the garage despite the fact that they never smelled chemical odors from outside the garage at any time.

¶ 8 Deputy Clark testified that there was not time to get a search warrant because of the dangers methamphetamine labs pose — he had seen "reactions that have actually exploded or tanks that were leaking with ammonia ... areas had to be evacuated." RP (Sep. 1, 2005) at 47. He also pointed out that one of the byproducts of the red phosphorous method of manufacture is phosphene gas, which is fatal if inhaled.² The officers applied for and obtained a search warrant after the scene was secured.

¶ 9 In April 2005, Leffler was charged with the unlawful manufacture of methamphetamine in violation of RCW 69.50.401(1)(2)(b). He filed a motion to exclude all evidence discovered during the search. After a hearing, the trial court denied the motion. It found that the search was not pursuant to Leffler's probation status and was not a valid protective sweep, but that it was valid under the emergency exception to the search warrant requirement. Further, the court found that the sweep of the garage was not justified, but it concluded that even without the evidence from the garage, the affidavit would have been sufficient for a warrant.

¶ 10 Leffler was convicted after a bench trial on stipulated facts. He was sentenced to 68 months, the low end of the standard range. This appeal followed.

ANALYSIS

¶ 11 In reviewing a trial court's denial of a suppression motion, we review challenged findings of fact for substantial supporting evidence. State v. Lawson, 135 Wash.App. 430, 434, 144 P.3d 377 (2006). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994). We review the trial court's conclusions of law de novo. State v. Levy, 156 Wash.2d 709, 733, 132 P.3d 1076 (2006).

¶ 12 Here, Leffler argues that the emergency exception to the warrant requirement was unavailable in this case. Specifically, he claims that (1) the emergency was a pretext for the search, (2) no objective emergency existed, and (3) obtaining a telephonic warrant would have been "very doable." Appellant's Br. at 16.

¶ 13 Warrantless searches of constitutionally protected areas are presumed unreasonable absent proof that one of the well-established exceptions applies. See State v. Ladson, 138 Wash.2d 343, 349, 979 P.2d 833 (1999). The State bears the burden of establishing an exception to the warrant requirement. State v. Potter, 156 Wash.2d 835, 840, 132 P.3d 1089 (2006).

¶ 14 Police officers may enter a building without a warrant when facing exigent circumstances (emergency exception). The exception recognizes the "community caretaking function of police officers, and exists so officers can assist citizens and protect property." State v. Schlieker, 115 Wash. App. 264, 270, 62 P.3d 520 (2003). The emergency exception justifies a warrantless search when (1) the officer subjectively believes that someone needs assistance for health or safety reasons, (2) a reasonable person in the same situation would similarly believe there was a need for assistance, and (3) the need for assistance reasonably relates to the place searched. Lawson, 135 Wash. App. at 434-35, 144 P.3d 377 (citing State v. Kinzy, 141 Wash.2d 373, 386-87, 5 P.3d 668 (2000)). When analyzing these factors, we view the officer's actions as the situation appeared to the officer at the time. Lawson, 135 Wash.App. at 435, 144 P.3d 377 (citing State v. Lynd, 54 Wash.App. 18, 22, 771 P.2d 770 (1989)).

¶ 15 When invoking the emergency exception, the State must show that the claimed emergency is not merely a pretext for conducting an evidentiary search. Schlieker, 115 Wash.App. at 270, 62 P.3d 520 (citing Lynd, 54 Wash.App. at 21, 771 P.2d 770). Generally, we have endorsed an emergency entry where the officers reasonably believed that a specific person or persons needed immediate help for health or safety reasons. Lawson, 135 Wash.App. at 437, 144 P.3d 377; see, e.g., Lynd, 54 Wash.App. at 22-23, 771 P.2d 770 (where a police officer had knowledge of a 911 hang-up call from defendant's home, the phone line remained busy after the 911 call, a domestic violence incident between spouses had just occurred, defendant was loading his things into his vehicle and preparing to leave, and defendant did not want the officer to enter the home to check on his wife, emergency exception justified warrantless entry into defendant's home to investigate the wife's well-being); see also State v. Gocken, 71 Wash.App. 267, 272-77, 857 P.2d 1074 (1993) (the emergency exception justified a warrantless search where police officers entered the defendant's and victim's condominium and kicked in the victim's bedroom door to perform a "routine check on [the victim's] welfare" after reports of decaying flesh odor and reports from family and friends that they had not seen the victim for several weeks). We have been unwilling to extend the doctrine to authorize warrantless entries where the officers express only a generalized fear that methamphetamine labs and their ingredients are...