State v. Raines

• Decision Date: 05 September 1989
• Docket Number: No. 21619-8-I,21619-8-I
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. David John RAINES, Appellant, and Claudine Jean Looney and each of them, Defendants.

Page 459

55 Wn.App. 459

778 P.2d 538

STATE of Washington, Respondent, v. David John RAINES, Appellant, and Claudine Jean Looney and each of them, Defendants.

No. 21619-8-I.

Court of Appeals of Washington,

Division One.

Sept. 5, 1989.

As Changed Sept. 18, 1989.

[778 P.2d 540] Washington Appellate Defender,

Andrew Zinner, Seattle, for appellant

Norm Maleng, King County Pros. Atty., Lynn Moberly, Deputy, Seattle, for respondent.

SCHOLFIELD, Judge.

David Raines appeals his convictions on two counts of violating the Uniform Controlled Substances Act. Raines claims that the convictions were based on illegally seized evidence. We affirm Raines' conviction on count 1 and reverse his conviction on count 3. The State properly concedes error regarding admission of evidence supporting the third count pursuant to State v. Boyce, 52 Wash.App. 274, 758 P.2d 1017 (1988). We therefore address only admissibility of evidence supporting the first count.

On July 20, 1987, at about 10:30 p.m., Deborah Feldhusen called Kent police to report a domestic dispute in Claudine Looney's apartment. Feldhusen reported that Raines was involved in the dispute, that the fighting was intense, and that she heard Looney yelling, telling Raines not to hit her 7-year-old son.

When police officers arrived, Feldhusen again reported what she had overheard. The officers, Kullberg and Boone, were familiar with Looney and Raines, having responded to prior reports of domestic violence involving them. The officers knew from these incidents that Raines had a violent temper and that Looney had previously been extremely inconsistent, telling officers at one moment that there was no problem and then reversing herself moments later.

When Kullberg arrived at the scene, she saw a man peering out a window in Looney's apartment. Neither officer heard any disturbance as they approached the apartment. The officers knocked at the door and Looney answered. Looney told the officers there was no problem. When Kullberg asked to speak with Raines, Looney stated that Raines was not there and persisted in denying any problem existed. Kullberg asked if they could enter the apartment. Looney did not object, but stepped back, as if gesturing to the officers to enter.

Upon entering the apartment, Kullberg saw Looney's child standing in the front room, apparently unharmed. Looney walked immediately to an interior door and closed it, stating that it was her room and there was nothing inside. Kullberg said she believed Raines was in the room and that she was going to investigate. Looney did not object. Kullberg opened the door and entered the room, where she found Raines hiding.

While in the room, Kullberg saw a substance which she believed was cocaine. Acting on this suspicion, the officers arrested Raines and searched the apartment, uncovering more cocaine and drug paraphernalia. Based on this evidence, the State charged Raines with one count of possessing cocaine. The trial court denied Raines' motion to suppress the evidence. Raines was convicted and now appeals the trial court's conclusion that the evidence was properly seized.

Raines contends that the officers' initial entry into Looney's apartment was not consensual; that mere acquiescence in the face of a show of authority, after repeated demands to be allowed entry, is not consent for purposes of justifying a warrantless search. Further, Raines asserts that entry into Looney's bedroom, after Looney closed the door leading to the room, was clearly not consensual.

Raines' contentions recognize that two entries are at issue: the officers' initial entry into the apartment and Officer Kullberg's subsequent entry into the bedroom. The trial

                court concluded that Looney's consent and exigent circumstances justified the former, and that exigent circumstances supported the latter.   We agree
                

CONSENT TO ENTER AND SEARCH

A warrantless search of a home is constitutional when the householder voluntarily consents. State v. Hashman, 46 Wash.App. 211, 214, 729 P.2d 651 (1986), review denied, 108 Wash.2d 1021 (1987). Whether consent to search was voluntary, and thus valid, or was "the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973) (quoted in State v. Jensen, 44 Wash.App. 485, 488, 723 P.2d 443, review denied, 107 Wash.2d 1012 (1986)). If a householder is in a position to communicate refusal of admittance, and circumstances surrounding the warrantless entry "are such that [police officers] can reasonably conclude [they are] not being refused entry, then no invitation, express or implied, is necessary to make the [officers'] entry lawful." State v. Sabbot, 16 Wash.App. 929, 937-38, 561 P.2d 212 (1977).

When Officers Kullberg and Boone arrived at Looney's apartment, they requested permission to enter "to look around". Looney made no objection, but stepped aside as if to allow them to enter. This affirmative act in response to a request to enter amounted to more than mere acquiescence to entry. Looney was in a position to communicate an objection to the officers' entry if the officers misunderstood her affirmative gesture. Looney's failure to expressly object to the officers' entry in these circumstances amounted to an implied waiver of her right to exclude them.

Raines does not offer an alternative interpretation of Looney's act, but argues, in substance, that her consent was coerced. The circumstances surrounding the officers' request to enter and "look around", however, do not indicate the type of coercion that would vitiate Looney's voluntary consent. See Bumper v. North Carolina, 391 U.S. 543 Entry into Looney's bedroom presents a more difficult question. Looney's affirmative act of closing the bedroom door and indicating her desire that the officers not enter arguably limited the scope of her consent to enter the apartment. See State v. Johnson, 71 Wash.2d 239, 243, 427 P.2d 705 (1967); 3 W. LaFave, Search & Seizure § 8.1(c); Utter, J., Survey of Washington Search & Seizure Law: 1988 Update, 11 U. Puget Sound L.Rev. 411, 556-57 (1988). However, because the trial court did not rely on Looney's consent for its finding that entry into the bedroom was proper, and because we agree with the trial court's conclusion that exigent circumstances justified the entry, we need not reach this issue.

                549-50, 88 S.Ct. 1788, 1792-93, 20 L.Ed.2d 797 (1968);  3 W. LaFave, Search & Seizure § 8.2(b) (2d ed. 1987).   We therefore agree with the trial court's conclusion that the officers' initial entry of the apartment was consensual
                

EXIGENT CIRCUMSTANCES

Raines contends that exigent circumstances justifying the officers' entering Looney's apartment and bedroom simply did not exist. Raines asserts that the officers observed no signs of a disturbance when they arrived, they detected no evidence of harm or danger to either Looney or her child, and Looney expressly told them no problem existed. Further, if after entering the apartment, the officers were concerned about Looney and the child's safety, they could have guarded them while obtaining a telephonic warrant to search the bedroom.

Although 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 can justify a search. 2 W. LaFave, Search & Seizure § 6.5(b)-(d), at 656-85 (2d ed. 1987). For instance, when premises contain persons in imminent danger of death or harm or information that will disclose the location of a threatened victim or the existence of such threat, police may search those premises without first obtaining a warrant. State v. Lynd, 54 Wash.App. 18, 20, 771 P.2d 770 (1989).

For a search to come within the emergency exception, we must find that the search was "actually motivated by a perceived need to render aid or assistance." State v. Loewen, 97 Wash.2d 562, 568, 647 P.2d 489 (1982). Accordingly, 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. State v. Loewen, supra at 568, 647 P.2d 489; State v. McAlpin, 36 Wash.App. 707, 716, 677 P.2d 185, review denied, 102 Wash.2d 1011 (1984). We hold that in this case, exigent circumstances justified both entries.

The determination of whether an emergency justifies a warrantless search must be based on the individual facts of each case. State v. Lynd, supra 54 Wash.App. at 22, 771 P.2d 770. "Whether a police officer's acts in the face of a perceived emergency were objectively reasonable is a matter to be evaluated in relation to the scene as it reasonably appeared to the officer at the time". Lynd, at 22, 771 P.2d 770 (citing State v. Bakke, 44 Wash.App. 830, 837, 723 P.2d 534 (1986)).

Here, the evidence establishes that Kullberg and Boone believed they were responding to an emergency. The officers were familiar with Raines' violent tendencies and Looney's penchant to misrepresent the seriousness of domestic situations to protect Raines. Feldhusen had reported that the incident was intensely violent and that she heard Looney plead for her child's safety. Although the dispute had apparently subsided when the officers approached the apartment and Looney insisted that no problem existed, given their past experience with Raines and Looney, there was a basis for the officers to reasonably believe that conditions in the apartment were still volatile. In these circumstances, the officers had a duty to ensure that the child was safe and that conditions in the apartment had returned to a state of normalcy. See State v Lynd, supra 54 Wash.App. at 23, 771 P.2d 770. Their initial entry into the apartment, therefore, was reasonable and justified by exigent...