State v. Ortiz

• Decision Date: 13 October 2016
• Docket Number: No. 32970–4–III,32970–4–III
• Citation: 196 Wash.App. 301,383 P.3d 586
• Court: Washington Court of Appeals
• Parties: State of Washington, Respondent, v. Jude Joseph Ortiz Sr., Appellant.

196 Wash.App. 301

383 P.3d 586

State of Washington, Respondent,

v.Jude Joseph Ortiz Sr., Appellant.

No. 32970–4–III

Court of Appeals of Washington, Division 3.

October 13, 2016

David N. Gasch, Gasch Law Office, P.O. Box 30339, Spokane, WA, 99223–3005, for Appellant.

Joseph Anthony Brusic, Yakima County Prosecutor's Office, 128 N. 2nd St., Rm. 329, Yakima, WA, 98901–2621, Codee Lynn McDaniel, Yakima County Prosecutor's Office, 128 N. 2nd St., Rm. 233, Yakima, WA, 98901–2639, for Respondent.

Siddoway

, J.

The principal issue in this appeal is whether officers executing a search warrant at a home at a time when residents can reasonably be expected to be asleep satisfy the “knock and announce” rule by knocking and announcing their presence three times before forcing entry, but over a total elapsed time of only six to nine seconds. We hold that they do not, and conclude that Jude Joseph Ortiz's trial lawyer provided ineffective assistance of counsel when he failed to challenge the search. We reverse the conviction without prejudice and remand with directions to suppress the fruits of the search. Because we reverse, we decline to address Mr. Ortiz's remaining claims of error.

FACTS AND PROCEDURAL HISTORY

¶2 In late July 2011, in response to information from a fellow officer, Wapato police Sergeant Robert Hubbard viewed the backyard of 304 North Harding Avenue from the property of a cooperative neighbor. He saw two marijuana plants. Sergeant Hubbard applied for, and was granted, a search warrant for the property.

¶3 Sergeant Hubbard, with 11 other officers, executed the search warrant at approximately 6:47 a.m. on August 11, 2011. Sergeant Hubbard knocked on the door three times, announced “police search warrant,” waited one to two seconds, and repeated that process twice more. Report of Proceedings (RP) at 151. Hearing nothing inside the home, the officers breached the front door and entered the home.

¶4 Once inside, the officers encountered Raquel Hernandez Ortiz, the mother of defendant Jude Joseph Ortiz, Sr. and the owner of the home, the defendant's 15–year old son, J.O., another teenage male, and two small children. Ms. Ortiz and the two small children appeared to be just waking up. J.O. was coming out of the bedroom where he had been sleeping and the other teenage male was still sleeping on the couch in the living room. Although Mr. Ortiz¹ lived at the home, he was not present.

¶5 Upon searching the property, the officers found 41 marijuana plants in various stages of growth and other evidence of a grow operation. Mr. Ortiz later admitted to Sergeant Hubbard that he had taught his son how to grow marijuana and that they were growing the marijuana together. Mr. Ortiz was eventually charged with one count of manufacture of a controlled substance, one count of involving a minor in an unlawful controlled substance transaction, and several other counts not relevant on appeal.

¶6 During trial, the following exchange occurred between the prosecutor and Sergeant Hubbard:

Q. Okay. So is it any surprise to you when you're trying to catch people unawares early in the morning when they're dead asleep that they're not going to be able to get up in time in those three short announcements to get up and open the door voluntarily?

A. It's not a surprise.

RP at 193. At the end of trial, the jury found Mr. Ortiz guilty on both counts. Mr. Ortiz appeals.

ANALYSIS

¶7 Mr. Ortiz argues he received ineffective assistance of counsel because his defense attorney failed to challenge the execution of the search warrant for failure to comply with the knock and announce rule.²

¶8 Effective assistance of counsel is guaranteed by both the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution

. U.S. CONST . amend. VI ; WASH. CONST . art. I, § 22 ; Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Mierz, 127 Wash.2d 460, 471, 901 P.2d 286 (1995). A court reviewing a claim of ineffective assistance of counsel engages in a two-pronged test. First, the defendant must show he received deficient representation. Mierz, 127 Wash.2d at 471, 901 P.2d 286 (citing Strickland, 466 U.S. at 688–89, 104 S.Ct. 2052 ). Deficient performance is determined using an objective standard of reasonableness. State v. Stenson, 132 Wash.2d 668, 705–06, 940 P.2d 1239 (1997). In this assessment, the appellate court will indulge in a strong presumption that the defendant was properly represented. State v. Tilton, 149 Wash.2d 775, 784, 72 P.3d 735 (2003). “If trial counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant received ineffective assistance of counsel.” State v. McNeal, 145 Wash.2d 352, 362, 37 P.3d 280 (2002).

¶9 Second, the defendant must show he suffered prejudice as a result of the deficient performance. Mierz, 127 Wash.2d at 471, 901 P.2d 286

(citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052 ). Prejudice will result if “ ‘counsel's errors were so serious as to deprive the defendant of a fair trial.’ ” Id.

(quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052 ). “This showing is made when there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different.” Id. If a defendant fails to establish either prong, his claim fails. State v. Hendrickson, 129 Wash.2d 61, 78, 917 P.2d 563 (1996). “A claim of ineffective assistance of counsel presents a mixed question of fact and law reviewed de novo.” State v. Sutherby, 165 Wash.2d 870, 883, 204 P.3d 916 (2009).

I. Deficient Performance

¶10 Mr. Ortiz claims defense counsel's performance was deficient because there was no legitimate strategic or tactical reason for not moving to suppress the evidence based on a violation of the knock and announce rule.

¶11 The knock and announce rule has both constitutional and statutory components. The Fourth Amendment to the United States Constitution requires “that a nonconsensual entry by the police ‘be preceded by an announcement of identity and purpose on the part of the officers.’ ” State v. Coyle, 95 Wash.2d 1, 6, 621 P.2d 1256 (1980)

(quoting State v. Young, 76 Wash.2d 212, 214, 455 P.2d 595 (1969) ). This is part of the “constitutional requirement that search warrants be reasonably executed.” State v. Alldredge, 73 Wash.App. 171, 175, 868 P.2d 183 (1994).

¶12 The parallel requirement of article I, section 7 of the Washington Constitution

has been codified in RCW 10.31.040. State v. Lehman, 40 Wash.App. 400, 401, 698 P.2d 606 (1985). RCW 10.31.040 provides: “To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other inclosure, if, after notice of his or her office and purpose, he or she be refused admittance.” “To comply with the statute, the police must, prior to a nonconsensual entry, announce their identity, demand admittance, announce the purpose of their demand, and be explicitly or implicitly denied admittance.” Coyle, 95 Wash.2d at 6, 621 P.2d 1256

. “The requirement of a demand for admittance and an explicit or implicit denial of admittance have been merged into a ‘waiting period,’ often linked to whether the police officers are refused admittance.” State v. Richards, 136 Wash.2d 361, 370, 962 P.2d 118 (1998). “Strict compliance with the rule is required unless the State can demonstrate that one of the two exceptions to the rule applies: exigent circumstances or futility of compliance.” Id. at 372, 962 P.2d 118. “The proper remedy for an unexcused violation is suppression of the evidence obtained by the violation.” Coyle, 95 Wash.2d at 14, 621 P.2d 1256.

¶13 The parties agree the police knocked on the door and announced “police search warrant” three times. The only disputed issue is whether the police waited long enough before they broke down the door.

¶14 “Whether an officer waited a reasonable time before entering a residence is a factual determination to be made by the trial court and depends upon the circumstances of the case.” Richards, 136 Wash.2d at 374, 962 P.2d 118

. The reasonableness of the waiting period is evaluated in light of the purposes of the rule, which are: “(1) reduction of potential violence to both occupants and police arising from an unannounced entry, (2) prevention of unnecessary property damage, and (3) protection of an occupant's right to privacy.” Coyle, 95 Wash.2d at 5, 621 P.2d 1256. To comply with the constitutional reasonableness requirement, the waiting period ends once the rule's purposes have been fulfilled and waiting would serve no purpose. Alldredge, 73 Wash.App. at 176, 868 P.2d 183. Similarly, under the statute, “the waiting period ends as soon as the police are refused admittance, but not later than when the purposes of the rule are fulfilled.” Id. at 178, 868 P.2d 183. “The police need not wait for an actual refusal following their announcement; denial of admittance may be implied from the occupant's lack of response.” State v. Garcia–Hernandez, 67 Wash.App. 492, 495, 837 P.2d 624 (1992).

In this case, due to the early hour of the search, the occupants were foreseeably asleep. Six to nine³ seconds was not a reasonable amount of time for them to respond to the police, and thus no denial of admittance can be inferred. Even Sergeant Hubbard admitted it would not be a surprise that sleeping occupants would be unable to respond in that amount of time. In addition, the purposes of the rule were not fulfilled due to the property damage done by battering in the door. The police did not comply with the rule.

¶16 The State nonetheless cites five cases that it claims support its position that the knock and announce rule was not violated. Each case is distinguishable from the facts present here.

¶17 In State v. Lomax, 24 Wash.App. 541, 543, 603 P.2d 1267 (1979)

, an officer approached the defendant's home at about 5:30 p.m., “knocked loudly,...