State v. Smith

• Decision Date: 13 February 2007
• Docket Number: No. 23986-1-III.,23986-1-III.
• Parties: STATE of Washington, Respondent, v. Brent Richard SMITH, Appellant.
• Court: Washington Court of Appeals

153 P.3d 199

137 Wn. App. 262

STATE of Washington, Respondent, v. Brent Richard SMITH, Appellant.

No. 23986-1-III.

Court of Appeals of Washington, Division 3.

February 13, 2007.

Dennis W. Morgan, Attorney at Law, Ritzville, WA, for Appellant.

Alexander Carl Ekstrom, Heather Dawn Czebotar, Benton County Prosecutor's Office, Kennewick, WA, for Respondent.

PUBLISHED OPINION

KULIK, J.

¶ 1 Brent Smith was convicted of manufacturing methamphetamine based in part on evidence from the warrantless search of a house. Law enforcement searched this house after they found two 1,000 gallon tanks of anhydrous ammonia near the house and after a gun case observed through the window of the house disappeared. Mr. Smith challenges the admission of evidence that was obtained as a result of this search. We hold that the search of the house was within the protective sweep, exigent circumstances, and community caretaking exceptions to the warrant requirement. We affirm the conviction.

FACTS

¶ 2 Patrol Sergeant Rick Welch received an anonymous tip that a stolen semi truck filled with anhydrous ammonia was located at a specific address in Benton County. This vehicle was stolen from the Spokane area, where both police and the Federal Bureau of Investigation were attempting to locate it. The semi contained two 1,000 gallon tanks that were filled with anhydrous ammonia.

¶ 3 When Sergeant Welch arrived at the address, he could see a semi truck partially concealed by a chain link fence. He verified that this truck was the stolen truck. Sergeant Welch radioed the Tri-Cities drug task force and fire department, and the Washington State Patrol for assistance.

¶ 4 Sergeant Welch testified that he required extensive police back-up because of the volatile nature of anhydrous ammonia. When liquid anhydrous ammonia comes into contact with air, it turns into a gas that can be fatal if inhaled. Another officer testified that they typically find anhydrous ammonia in much smaller amounts, normally between 5 and 20 gallons. Several houses were located nearby. The officers were concerned that the stolen tanks may have been altered and could be leaking anhydrous ammonia. And the tanks presented a danger of explosion due to internal pressure from the evaporating anhydrous ammonia.

¶ 5 Before checking the anhydrous ammonia tanks, police attempted to secure the home and surrounding outbuildings that were near the truck. The primary purpose of this check was officer safety. Sergeant Welch knocked and announced his presence at the house, but no one responded. Two individuals were seen in an upstairs window and a dog was barking inside the house. Police also observed a gun case through one of the windows.

¶ 6 Some time later, a man and woman came out of the house. The man was later identified as Mr. Smith. The gun case that had been near the window was gone. Police were uncertain as to whether there were additional people inside the house. Based on these facts, police did a protective sweep of the house to check for the gun and any other persons who may have been inside.

¶ 7 Police smelled a strong chemical odor immediately upon entering the home. As they were searching, they found the gun case they had seen in the window in a crawl space. Law enforcement secured the residence and obtained a search warrant. Later, police opened what appeared to be a footlocker in the bathroom and found a portable methamphetamine lab.

¶ 8 Mr. Smith was charged with manufacture of methamphetamine.

¶ 9 Mr. Smith made a motion under CrR 3.6 to exclude any evidence obtained during the warrantless search of his residence. The trial court entered findings of fact and conclusions of law denying the motion. The court concluded that the officers' sweep of the home fell within the emergency exception to the warrant requirement.

¶ 10 The jury found Mr. Smith guilty of the crime of manufacturing methamphetamine.

ANALYSIS

Did the trial court err by admitting evidence obtained during the search of Mr. Smith's house?

¶ 11 The fourth amendment to the United States Constitution and article 1, section 7 of the Washington State Constitution generally prohibit warrantless searches. See, e.g., State v. Ladson, 138 Wash.2d 343, 348-49, 979 P.2d 833 (1999). This general prohibition, however, is subject to several narrowly drawn exceptions. Id. at 349, 979 P.2d 833. The burden is on the State to prove the exception. Id. at 350, 979 P.2d 833. Here, the State asserts that the search was valid because of the protective sweep, exigent circumstances, and community caretaking exceptions to the prohibition against warrantless searches.

Protective sweep exception

¶ 12 Police may make a protective sweep of the premises for security purposes as part of the lawful arrest of a suspect. State v. Hopkins, 113 Wash.App. 954, 959, 55 P.3d 691 (2002). But the scope of the sweep is limited to a visual inspection of only those places where a person may be hiding. Id. In addition, a general desire to make sure that there are no other individuals present alone is not sufficient to justify a protective sweep. Id. at 960, 55 P.3d 691.

¶ 13 Here, police were responding to theft of a large amount of anhydrous ammonia. They did not know if individuals were present in the home or adjacent buildings. They observed a gun case through one of the windows in the home. While no one answered the knock on the door, 10 minutes later Mr. Smith and his companion came out of the house. And the gun case was gone from near the window.

¶ 14 Then police searched the house but only areas that could have concealed a person. They limited their search to a visual inspection of those areas. The search was within the protective sweep exception to the warrant requirement.

Exigent circumstances exception

¶ 15 Exigent circumstances are also an exception to the warrant requirement. State v. Morgavi, 58 Wash.App. 733, 736, 794 P.2d 1289 (1990). Exigent circumstances may include those that present a threat to officer safety. State v. Jeter, 30 Wash.App. 360, 362, 634 P.2d 312 (1981).

¶ 16 This court looks to six factors in determining whether exigent circumstances justify a warrantless entry and search: (1) the seriousness or violence of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) whether there is reasonably trustworthy information that the suspect is guilty; (4) whether there is strong reason to believe that the suspect is on the premises; (5) the likelihood that the suspect will escape if not swiftly apprehended; and (6) whether the entry was made peaceably. State v. Cardenas, 146 Wash.2d 400, 406, 47 P.3d 127 (2002). Each of the six factors need not be present in every case. Id. at 408, 47 P.3d 127. All that must be shown is that, in light of these factors, officers needed to react quickly to the...