State v. Lynd

• Decision Date: 01 May 1989
• Docket Number: No. 21651-1-I,21651-1-I
• Citation: 54 Wn.App. 18,771 P.2d 770
• Parties: STATE of Washington, Respondent, v. Jesse Raymond LYND, Appellant.
• Court: Washington Court of Appeals

Page 18

54 Wn.App. 18

771 P.2d 770

STATE of Washington, Respondent, v. Jesse Raymond LYND, Appellant.

No. 21651-1-I.

Court of Appeals of Washington,

Division 1.

May 1, 1989.

Reconsideration Denied June 13, 1989.

Timothy L. Sell, Public Defenders, Seattle, for Jesse ray lynd.

Jonathan Love, Craig Peterson, King County Deputy Pros. Atty., Seattle, for State of Wash WINSOR, Judge.

Jesse Raymond Lynd appeals from his judgment and sentence for a Uniform Controlled Substances Act violation. Lynd contends the trial court erred in refusing to suppress evidence seized as the result of a warrantless search. We affirm.

On February 28, 1987, Officer Linda Hall of the King County Police Department was dispatched to investigate a 911 hang-up call made from a telephone at Lynd's address. ¹ Before proceeding to the Lynd home, Hall called the number from which the call originated and received a busy signal.

When Hall reached Lynd's residence she found Lynd outside, loading things into an automobile "as if he were going to leave". Hall noticed a recently inflicted cut on Lynd's face. Hall questioned Lynd, who explained that he and his wife had argued, and that he had been cut when she hit him in the face. Lynd admitted to Hall that during the argument he pushed his wife to the floor, sat on her, and slapped her. Lynd also said that after the argument, Mrs. Lynd left the house and went to her mother's, "right down the street." Hall asked for permission to enter Lynd's home to look for Mrs. Lynd. Lynd refused.

Without first attempting to look inside the residence, contact Mrs. Lynd at her mother's, or obtain a search warrant, Hall entered Lynd's residence. She immediately found evidence of a struggle, e.g., broken dishes and parts of a broken telephone. Hall searched the house, but did not find Mrs. Lynd. Hall did, however, discover evidence indicating the presence of a marijuana grow operation.

Based on Hall's discovery, narcotics detectives obtained a search warrant for Lynd's home and recovered over 1000 grams of marijuana and marijuana growing paraphernalia. Lynd was charged with possession of marijuana with intent to manufacture or deliver in violation of RCW 69.50.401(a).

Lynd moved to suppress evidence seized as a result of Hall's warrantless search. At the suppression hearing Hall testified that:

I could see that [Lynd] at least was injured, and he said that an argument had occurred, I had to check to see that she wasn't injured inside the house.

* * *

... He was injured and he admitted to an argument. It is very possible that she was injured and even more severely, because he is a big guy.

Based on this testimony, the trial court found as fact that:

At all times Officer Hall was concerned about the safety of Mrs. Lynd. Officer Hall feared, based on defendant's injuries, his statements, and his reluctance to allow her to enter the residence, that Mrs. Lynd could need medical assistance as a result of domestic violence.

The trial court also found that Hall had no knowledge Lynd was growing marijuana until she actually entered the residence. The court concluded that Hall's entry into Lynd's residence was reasonable and justifiable under the exigent circumstances exception to the warrant requirement, and denied Lynd's motion to suppress. Lynd stipulated to the facts contained in the police reports and the trial court found him guilty as charged.

Warrantless searches are per se unreasonable, Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Chrisman, 100 Wash.2d 814, 817, 676 P.2d 419 (1984). An emergency situation, however, can justify a warrantless search. 2 W. LaFave, Search & Seizure § 5.4(c) (2d ed. 1987). For example, when premises contain persons in imminent danger of death or harm; objects likely to burn, explode or otherwise cause harm; or information that will disclose the location of a threatened victim or the existence of such a threat, police may search those premises without first obtaining a warrant. Utter, J., Survey of Washington Search and Seizure Law: 1988 Update, 11 U. Puget Sound L.Rev. 411, 538-39 (1988); see State v. Loewen, 97 Wash.2d 562, 568, 647 P.2d 489 (1982) (medical emergency); State v. Downey, 53 Wash.App. 543, 544-45, 768 P.2d 502 (1989) (overpowering ether odor); State v. McAlpin, 36 Wash.App. 707, 716, 677 P.2d 185, review denied, 102 Wash.2d 1011 (1984) (search for missing gun); see also State v. Bakke, 44 Wash.App. 830, 833-34, 837-38, 723 P.2d 534 (1986) (burglary in progress); State v. Nichols, 20 Wash.App. 462, 465-66, 581 P.2d 1371 (1978) (fight in progress reported); State v. Sanders, 8 Wash.App. 306, 310-11, 506 P.2d 892 (1973) (entry in response to emergency call and officer's observation of suspicious activity).

In order 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." Loewen, 97 Wash.2d at 568, 647 P.2d 489. 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 existed. Loewen, 97 Wash.2d at 568, 647 P.2d 489; Downey, 53 Wash.App. at 545, 768 P.2d 502; McAlpin, 36 Wash.App. at 716, 677 P.2d 185. In addition, there must be some reasonable basis to associate the emergency with the place searched. Nichols, 20 Wash.App. at 466, 581 P.2d 1371.

Lynd's challenge focuses on the objective reasonableness of Hall's search. ² He contends that a reasonable person in the same circumstances would have sought additional information before making a warrantless search. Lynd argues that before entering the dwelling, Hall should have attempted to contact Mrs. Lynd at her mother's, look into the windows of the Lynd home, or at least knocked and called out for Mrs. Lynd.

Lynd relies on several cases which, he contends, establish that a warrantless emergency search is justifiable only when officers face a genuine threat to police or public safety, or after officers have taken measures to verify that an emergency probably exists. See, e.g., United States v. Booth, 455 A.2d 1351 (D.C.App.1983) (warrantless entry justified when par...