State v. Nichols

• Decision Date: 19 June 1978
• Docket Number: Nos. 2215-II,2272-III,s. 2215-II
• Citation: 581 P.2d 1371,20 Wn.App. 462
• Parties: STATE of Washington, Respondent, v. John Frederic NICHOLS and William Allen Nelson, Appellants. (Consolidated).
• Court: Washington Court of Appeals

Page 462

20 Wn.App. 462

581 P.2d 1371

STATE of Washington, Respondent, v. John Frederic NICHOLS and William Allen Nelson, Appellants.

Nos. 2215-III, 2272-III (Consolidated).

Court of Appeals of Washington, Division 3, Panel One.

June 19, 1978.

Rehearing Denied July 19, 1978.

Richard L. Cease, Public Defender, Richard F. Ayres, Jr., Richard W. Sanger, Asst. Public Defenders, Spokane, for appellants.

Donald C. Brockett, Pros. Atty., Roger C. Clement, Jr., Spokane, for respondent.

MUNSON, Chief Judge.

The defendants appeal their convictions of grand larceny contending the court erred in denying their motions to suppress evidence. We affirm.

Shortly after 11 p.m. July 15, 1976, two police units responded to a radio notification of a fight in progress in the alley near East 603 Ermina, Spokane, Washington. The first police unit responded within 3 to 4 minutes of the call and immediately contacted the complainant. The complainant informed the officer a fight had broken out several minutes earlier, six to eight subjects armed with beer bottles and chains were involved, but they had departed a minute or 2 before the police arrived. Further conversation with the informant disclosed that one of the participants lived at the other end of the alley; the participants had departed in two or three cars, one of which was a 1968 Camaro; and that one of the occupants of the Camaro had advised her that some of the beer bottles involved in the fight were filled with gasoline.

The officers then went to the vicinity of the house and garage where the fight allegedly had occurred and began an investigation. They checked the alley, went to the house, knocked on the door, but received no response. In the yard they saw a green Camaro, which was apparently being remodeled because its panels were different colors. Obviously, this was not the car in which the alleged combatants had departed. Seeking other possible participants, injured people, or people who might be hiding for one reason or another, they continued their investigation, approaching a garage near the house. A side door to the garage was open; without announcing his entry or knocking, one of the officers entered with his flashlight and revolver in hand. Another officer followed him in. They checked the area, found no one in the garage, but they did find another Camaro automobile parked therein. It appeared that this car had been stripped to its frame. The windshield was missing and auto parts and spray paint cans were strewn around the premises. One of the officers stepped up to the car and, using his flashlight, noted the vehicle identification number located on a small, clearly visible metal plaque on the top of the dashboard.

Thereafter, the officers left the vicinity having found neither participant nor injured persons. While on patrol, one of the officers called the identification number of the automobile into the station. It was ultimately ascertained that the Camaro in the garage was a stolen vehicle. Subsequently, a search warrant was issued, the car was seized, and these defendants were arrested for possession of stolen property.

Defendants first contend the entry into the garage was illegal because it was done without a warrant. We disagree. State v. Sanders, 8 Wash.App. 306, 310, 506 P.2d 892 (1973), recognized that exigent circumstances, including the emergency rule, can justify exception to the general rule that a warrant is necessary for a valid search. The court, summarizing the emergency rule as set out in United States v. Goldenstein, 456 F.2d 1006 (8th Cir. 1972), stated:

Police officers may enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance. In applying the rule, courts must require that the police officer "be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Footnote omitted.) Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

State v. Sanders, supra 8 Wash.App. at 310, 506 P.2d at 895. See also Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), and People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607, Cert. denied 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191 (1976). In Mitchell at 39 N.Y.2d 177-78, at 383 N.Y.S.2d 248, at 347 N.E.2d 609, the court laid down three basic elements of this exception:

(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.

(2) The search must not be primarily motivated by intent to arrest and seize evidence.

(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

Here, after receiving the report of an affray involving chains and beer bottles, the officers arrived to find there had been a sudden abandonment and departure. They had no knowledge of whether anyone had been injured and made an immediate investigative search of the area. In conducting this investigation the officers acted reasonably by entering the garage through the open door adjacent to the location of the affray. They had reasonable grounds to believe their assistance was necessary for the protection of life; the purpose of the search was not to arrest or seize evidence; and there was probable cause to associate the garage with the emergency. For this reason, the defendants' contention that it was violative of the prohibition of warrantless searches is not well taken.

The knock-and-announce statute, RCW 10.31.040 ¹ is applicable to the situation wherein police enter a building either to arrest or to search. Ker v. California, 374 U.S. 23, 10 L.Ed.2d 726, 83 S.Ct. 1623 (1963); State v. Young, 76 Wash.2d 212, 455 P.2d 595 (1969); State v. Campbell, 15 Wash.App. 98, 547 P.2d 295 (1976); Coleman v. Reilly, 8 Wash.App. 684, 508 P.2d 1035 (1973); State v. Miller, 7 Wash.App. 414, 499 P.2d 241 (1972); Annot., What Constitutes Compliance with knock-and-announce rule in search of private premises State Cases, 70 A.L.R.3d 217 (1976). Here, the police were investigating a reported affray and entered the garage to determine whether any participants, particularly anyone who had possibly been injured, were hiding therein. Their entry into the garage was not for the purpose of making an arrest or for searching for evidence, but was merely an investigatory procedure. Therefore, the knock- and-announce rule is not applicable to this situation. People v. Gallmon, 19 N.Y.2d 389, 280 N.Y.S.2d 356, 227 N.E.2d 284 (1967). Defendants' contention of violation of RCW 10.31.040 is without merit. ²

Lastly, defendants contend that the noting of the identification number located on the dashboard of the automobile was an unlawful seizure, not within the plain-view exception to warrantless searches and seizures. The plain-view exception has three essential safeguards as set forth in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), which have been recognized in this state by numerous cases, including State v. Johnson, 16 Wash.App. 899, 559 P.2d 1380 (1977); State v. Keefe, 13 Wash.App. 829, 537 P.2d 795 (1975); State v. Proctor, 12 Wash.App. 274, 529 P.2d 472 (1974); State v. Dimmer, 7 Wash.App. 31, 497 P.2d 613 (1972). These safeguards are: (1) a prior justification for the intrusion; (2) an inadvertent discovery of incriminating evidence; and (3) immediate knowledge by the police that they have evidence before them.

First, we have held that the intrusion into the garage was justified. Second, the discovery of the Camaro in the garage was inadvertent. The fact of (a) the car's state of disrepair; (b) the miscellaneous automobile parts and paint cans; (c) the presence of the other Camaro located in the yard; and (d) the information that the parties involved in the affray had left in several vehicles, including a Camaro, immediately raised the likelihood in the minds of the investigating officers that there was incriminating evidence before them. Third, the identification number was plainly visible; the officers did not rummage about the premises in the hope or expectation of discovering incriminating evidence or contraband. The use of the flashlight does not detract from their right to note the identification number. The police had the right to make a notation with the use of a flashlight in the darkness to see that which they could have seen in the daylight. State v. Cagle, 5 Wash.App. 644, 490 P.2d 123 (1971).

The notation of the identification number is distinguishable from State v. Murray, 8 Wash.App. 944, 509 P.2d 1003 (1973), Affirmed 84 Wash.2d 527, 527 P.2d 1303 (1974). In Murray, we found unreasonable the officers' rationale for noting the identification number, I. e., it looked incongruous in that living-room setting. Likewise, in State v. Keefe, supra, the officers were authorized to search for a weapon. The officer's action of inserting a piece of paper in the typewriter to obtain impressions of the "e" and "i" letters was held to be unreasonable because he lacked immediate knowledge evidence was before him.

We believe that the facts of this case fall more directly under the rationale of State v. Proctor, supra, wherein the officers obtained the identification number of several calculators. Therein the court stated 13 Wash.App. at 276, 529 P.2d at 474:

In other words, police who are rightfully upon a citizen's property for a limited purpose may not rummage about in the hope or expectation that incriminating evidence or contraband will turn up. But that is not this case. . . . The temporary detention may continue while the officer questions other persons present or radios police headquarters to check the information gained. (Citations omitted.) . . ....