State v. Leupp

• Decision Date: 11 June 1999
• Docket Number: No. 22448-8-II,22448-8-II
• Citation: 980 P.2d 765,96 Wn.App. 324
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. James M. LEUPP, Appellant.

Page 765

96 Wn.App. 324

980 P.2d 765

STATE of Washington, Respondent, v. James M. LEUPP, Appellant.

No. 22448-8-II.

Court of Appeals of Washington,

Division 2.

June 11, 1999.

As Amended and Publication Ordered

July 9, 1999.

John Michael Rosellini, Seattle, WA and James A. McNally, Lake Forest Park, WA (Court Appointed), for Appellant.

Jason S. Richards, Grays Harbor Dep. Pros. Atty., Grays Harbor County Pros., Montesano, WA, for Respondents.

SEINFELD, J.

James M. Leupp appeals from a conviction of possession of cocaine with intent to deliver. He challenges the superior court's denial

of his motion to suppress evidence. We affirm.

FACTS

Findings of Fact. We paraphrase the findings of fact that the trial court entered to support the suppression decision, CrR 3.6(b). In the early hours of July 6, 1997, an intoxicated person made a "911 hang-up call" from Leupp's residence. Grays Harbor Deputy Sheriff Keith Peterson responded. At the front door, Peterson spoke with Leupp and two females, Roberta Schumacher and Michelle Frost; everyone in the residence was nervous and uncooperative.

Peterson subjectively believed that someone might have been injured, perhaps assaulted, and that the three occupants were trying to prevent him from discovering that other person. Leupp gave Peterson permission to enter the residence to see if anyone was injured or in need of assistance, and Peterson entered.

One of the women walked to a back room that Leupp later admitted was his. Peterson followed her. Upon entering the room, he immediately saw, in plain view atop a dresser, a white powder residue that resembled cocaine in color and texture. Peterson had the training and experience to enable him to recognize cocaine.

Peterson then noticed a triple beam scale on the floor, and he knew that such scales are commonly used to weigh illicit drugs. On the scale he could see more white powder residue. And next to the scale Peterson saw brown paper formed into an oval and wrapped with tape, in a manner consistent with that used to package larger amounts of illicit drugs, including cocaine, when such drugs have been shipped by a supplier. The oval shaped package was laying on a grocery bag, but Peterson could not see the bag's contents.

Leupp entered the room and stood between Peterson and the dresser, preventing Peterson from seeing anything else. Leupp then revoked his consent.

Peterson applied for a search warrant on the basis of his observations.

Conclusions of Law. Based upon the above findings, the trial court concluded: (1) Peterson was faced with exigent circumstances--a 911 call by an intoxicated person in the early morning hours and three nervous, uncooperative people at the door--warranting his entry into the residence; (2) Peterson received valid consent to enter and check for an injured person; (3) Peterson had an absolute right to follow the female to the back room in the interests of officer safety; (4) the white powder, scales and packaging were in plain view; (5) those items alone gave Peterson probable cause to believe a crime was being committed inside the residence; (6) any statements Leupp made at the time are admissible because he was not in custody when he made them.

Search Warrant Affidavit. In Peterson's affidavit for a search warrant, he outlined his extensive training and experience in the detection of cocaine and other illicit drugs and his knowledge of the usual behavior and characteristics of drug dealers. He described events at the residence, beginning with his being met at the door by the three "extremely nervous" individuals, who initially avoided answering his questions and then told him that a woman named "Lisa" had fought with Michelle Frost but had left before Peterson arrived. Leupp consented to Peterson's entry to "look around to ensure that no one was injured due to some type of assault which may have taken place." All three occupants paced the floor and glanced around as if making sure that nothing had been left in view. Schumacher in particular had dilated pupils and seemed to be under the influence of drugs.

Peterson then related how he had followed Frost to the back room, concerned that she might be attempting to conceal someone or retrieve a weapon. He described seeing the white powder, scales and packaging, and how Leupp hastened into the room and stood between him and the dresser, and then asked Peterson to leave the room. Peterson stated that Frost meanwhile had left the residence and that Schumacher explained that Frost had gone to find and fight with "Lisa."

Peterson checked the three occupants for warrants, discovered a warrant for Schumacher Back at the station, Peterson checked further and learned that "Lisa" Downing and Leupp had been stopped for a traffic violation on May 24, 1997, in Leupp's pickup. Downing had been driving on a suspended license. The arresting officer had found nearly $7,000 in cash on Leupp's person and a duffel bag containing 24 baggies of cocaine, of which Leupp and Downing denied any knowledge. Leupp had explained that he intended to use the money to buy cedar.

                and arrested her.  He looked around outside for Frost and "Lisa," but could not find them.  Peterson returned to the residence later, after Frost had called 911 again, sounding "under duress."   But he found Frost still uncooperative
                

Finally, Peterson averred that Leupp had several previous convictions for dealing drugs and that the drug task force had periodically received tips, the most recent in early 1997, that Leupp was a major cocaine dealer.

The Search. Based upon Peterson's affidavit, a magistrate issued a warrant on July 8, 1997, authorizing the search of Leupp's residence, person and vehicles, and ordering a return of the warrant within five days. Officers executed the warrant on July 18, 1997, finding: large amounts of cocaine, drug paraphernalia and packaging materials, and quantities of cash in the residence and on Leupp's person.

Motion to Suppress. The State charged Leupp with possession of cocaine with intent to deliver and Leupp then moved to suppress the evidence. He argued that (a) the warrant was defective for requiring a return of the warrant within five days of its execution, rather than the three days specified by RCW 69.50.509; and (b) the affidavit failed to establish probable cause because: (i) Peterson improperly obtained much of the information in his affidavit: he lacked consent to search, or at least exceeded the scope of consent; and his search for an injured person was merely a pretext to find evidence; (ii) the items observed by Peterson--the white powder, scales and paper oval--were innocuous, and (iii) the court could not properly consider the tips about Leupp's drug activities by unidentified informants or the "tainted" evidence found in the traffic stop on May 24.

The superior court denied Leupp's motion, entered the findings and conclusions paraphrased above, and found Leupp guilty on a stipulated record.

LEGAL ISSUES AND ANALYSIS

On appeal, Leupp repeats some of the issues in his motion to suppress, but he no longer contends that the items seen by Peterson did not establish probable cause or that the warrant mistakenly required a return within five days. Instead, he raises two new issues on appeal: (1) He argues that the warrant had become stale by the time it was served, 10 days after being issued; and (2) he argues in a supplemental brief that the search was invalid because Peterson failed to inform him that he could refuse consent to enter, as allegedly required by State v. Ferrier, 136 Wash.2d 103, 960 P.2d 927 (1998).

The general rule is that issuance of a warrant is a matter of judicial discretion, with the reviewing court according great deference to the magistrate's determination of probable cause and resolving any doubts in favor of the warrant's validity. State v. Olson, 73 Wash.App. 348, 354, 869 P.2d 110 (citing State v. Kalakosky, 121 Wash.2d 525, 531, 852 P.2d 1064 (1993)), review denied, 124 Wash.2d 1029, 883 P.2d 327 (1994).

I. Emergency Exception to Warrant Requirement.

Ordinarily, the police must have a warrant to enter and search a private building. An exception to this rule exists for emergencies. See, e.g., State v. Muir, 67 Wash.App. 149, 153-55, 835 P.2d 1049 (1992); State v. Lynd, 54 Wash.App. 18, 771 P.2d 770 (1989). As Muir explains, the emergency doctrine is related to another exception to the search warrant requirement, i.e., where exigent circumstances are present. Exigent circumstances are present where it may be impractical to obtain a search warrant, as in cases of hot pursuit. Muir, 67 Wash.App. at 152, 835 P.2d 1049, citing cases.

In contrast to the exigent circumstances exception, the emergency doctrine does not involve officers investigating a crime but arises from a police officer's community caretaking responsibility to come to the aid of persons believed to be in danger of death or physical harm. See State v. Menz, 75 Wash.App. 351, 353, 880 P.2d 48 (1994), review denied, 125 Wash.2d 1021, 890 P.2d 463 (1995); State v. Gocken, 71 Wash.App. 267, 276, 857 P.2d 1074 (1993), review denied, 123 Wash.2d 1024, 875 P.2d 635 (1994); Muir, 67 Wash.App. at 153-56, 835 P.2d 1049. For example, in Lynd, the police, responding to a "911 hang-up call," had a right to enter a home to seek out a woman who might have made the call and might have been injured by her husband, who was departing the scene with a cut face. 54 Wash.App. at 22-23, 771 P.2d 770. Lynd explained that for a search to come within the emergency exception,

we must be satisfied that the claimed emergency was not simply a pretext for conducting an evidentiary search and instead was "actually motivated by a perceived need to render aid or assistance." To that end, the State must show that: (1) the searching officer subjectively believed an emergency existed; and (2) a reasonable person in the same circumstances would have thought an emergency...