State v. Thompson

• Decision Date: 02 August 2002
• Docket Number: No. 27140-1-II.,27140-1-II.
• Citation: 112 Wash.App. 787,51 P.3d 143
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. James Ross THOMPSON, Appellant.

51 P.3d 143

112 Wash.App. 787

STATE of Washington, Respondent, v. James Ross THOMPSON, Appellant.

No. 27140-1-II.

Court of Appeals of Washington, Division 2.

August 2, 2002.

Rita Joan Griffith, Seattle, for Appellant.

Kathleen Proctor, Dpty Pros Attorney, Maureen Goodman, Rule 9 Intern, Tacoma, for Respondent.

SEINFELD, J.

James Thompson appeals his conviction for unlawful manufacture of a controlled substance, contending that the trial court erred in denying his motion to suppress evidence that the police obtained when they arrested him at his home. He argues that his outstanding arrest warrant for failure to appear at a contempt hearing, which arose out of a child support issue, did not support the use of a nonconsensual entry into his travel trailer. We hold that police may use RCW 10.31.040, which authorizes forcible entry for arrests "in criminal actions," where there is a general arrest warrant and we further find that the searches following Thompson's arrest were valid. Thus, we affirm.

FACTS¹

According to the testimony of Deputy Sheriff Terrill Larson, John Thompson asked Larson to arrest his son James Thompson on an outstanding arrest warrant that was related to the failure to pay child support.² John Thompson also told Larson that he suspected his son was engaging in illicit drug activity.

Larson confirmed that Thompson had an outstanding arrest warrant for failure to appear for a show cause hearing in superior court. The bench warrant indicated that Thompson had failed to appear at a contempt review hearing.

Later that day, Larson and his partner went to John Thompson's Fox Island property where Thompson was living in a 22-foot travel trailer. There were also two buildings on the property, the main house with attached garage and a detached boathouse.

Larson knocked on the travel trailer door and announced, "This is the Sheriff's office, I have a warrant for James [sic] arrest." Clerk's Papers (CP) at 82. Larson heard movement and scuffling inside the trailer that he did not believe were related to opening the door. After about 10 seconds, Larson opened the door. Larson immediately saw Thompson and ordered him out of the trailer, handcuffed him and later placed him in the patrol car.

Meanwhile, Larson saw another man, later identified as Eric Sund inside. Larson ordered Sund out, patted him down for weapons, and then asked him to leave. At this point, Sund either asked Larson to retrieve his coat from inside the trailer or asked if he could do so.

Larson stepped inside the trailer to retrieve the jacket and in the three seconds it took to do this, he smelled a strong chemical odor like paint thinner, he saw a glass container with a white crystalline substance through the open door of the oven, and he observed foil with a white powder and glass smoking pipes. Based on his experience, Larson was concerned that there was a methamphetamine lab on the premises.

When Larson stepped out, Sund had disappeared. Consequently, Larson went toward the main house where the senior Thompsons lived to look for Sund and to tell John Thompson about his son's arrest. Larson testified that he wanted to arrest Sund because he had been in the trailer where Larson observed the suspicious items.

The senior Thompsons said that no one had come to the house and John Thompson asked Larson to search the attached garage. Larson found no one in the garage and he then asked John Thompson about the detached boathouse. John Thompson said that it was his, that Thompson used it, and replied, "Please do," when Larson asked if he could look inside. Report of Proceedings (RP) at 45.

Larson did not find Sund in the boathouse but, in a living area on the second floor, he found items consistent with a methamphetamine lab. Larson then asked the senior Thompsons to sign a consent form for a search of the boathouse, which they did. Larson did not ask Thompson for consent.

In response to a call from Larson, Deputy Harms, a clandestine lab investigator, came to the property, spoke with Larson, entered the trailer to verify that the oven was off, looked into a burn barrel and burn piles on the property that contained evidence of a methamphetamine lab, checked the safety of a corroded propane tank in front of the trailer, and looked inside the boathouse. After determining that the property appeared to be a "fairly safe environment," he secured the premises and returned the next day with a search warrant. RP at 80.

The State charged Thompson with one count of unlawful manufacture of a controlled substance, methamphetamine. RCW 69.50.401(a)(1)(ii). Thompson moved to suppress the evidence obtained following his arrest. The trial court denied the motion and subsequently convicted Thompson in a bench trial on stipulated evidence and imposed a drug offender sentencing alternative.

DISCUSSION

I. RCW 10.31.040—"KNOCK AND WAIT" STATUTE

Thompson alleges that his arrest was for a civil matter and, consequently, Deputy Larson lacked authority under the "knock and wait" statute to open his trailer door to make the arrest. See RCW 10.31.040. Thus, Thompson challenges both the arrest and the subsequent searches.

The "knock and wait" statute 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 office and purpose, he be refused admittance." RCW 10.31.040 (emphasis added). Under the statute, before a nonconsensual entry, police officers must "(1) announce their identity, (2) announce their purpose, (3) demand admittance, (4) announce the purpose of their demand, and (5) be explicitly or implicitly denied admittance." State v. Richards, 136 Wash.2d 361, 369, 962 P.2d 118 (1998). The statute applies whenever officers seek to enter the premises without valid permission. State v. Coyle, 95 Wash.2d 1, 5, 621 P.2d 1256 (1980).

Thompson does not argue that the officers did not comply with the procedures in RCW 10.31.040. Rather, he asserts that because his arrest warrant resulted from his failure to appear for a show cause hearing on child support obligations, he was subject only to civil contempt proceedings under RCW 7.21 for his non-compliance. Therefore, Thompson concludes, he was not arrested in a "criminal action."

Thompson's arrest warrant apparently was issued under RCW 26.18.050, which provides:

(1) If an obligor fails to comply with a support or spousal maintenance order, a petition or motion may be filed without notice under RCW 26.18.040 to initiate a contempt action as provided in chapter 7.21 RCW. If the court finds there is reasonable cause to believe the obligor has failed to comply with a support or spousal maintenance order, the court may issue an order to show cause requiring the obligor to appear at a certain time and place for a hearing, at which time the obligor may appear to show cause why the relief requested should not be granted....

....

(3) If the order to show cause served upon the obligor included a warning that an arrest warrant could be issued for failure to appear, the court may issue a bench warrant for the arrest of the obligor if the obligor fails to appear on the return date provided in the order.

....

(5) As provided in RCW 26.18.040, the court retains continuing jurisdiction under this chapter and may use a contempt action to enforce a support or maintenance order until the obligor satisfies all duties of support, including arrearages, that accrued pursuant to the support or maintenance order.

(emphasis added). A contempt action under RCW 7.21, which the trial court has authority to use to enforce a support order, may involve remedial or punitive sanctions. RCW 7.21.030 (remedial sanctions); RCW 7.21.040 (punitive sanctions).

Even if we could determine that it is more likely that an arrest under RCW 26.18.050 would lead to a civil contempt action under RCW 7.21 rather than to a criminal proceeding, the record does not provide a basis for the officers to make this conclusion at the time of the arrest. The bench warrant states:

TO ALL PEACE OFFICERS IN THE STATE OF WASHINGTON, GREETING:

WHEREAS, [an] Order of Court has been entered directing the Clerk of the above entitled Court to issue a warrant for the arrest of the above named respondent, JAMES ROSS THOMPSON, [identifying information];

You are hereby commanded to forthwith arrest the said JAMES ROSS THOMPSON for failure to appear at the Contempt Review Hearing and bring him into Court to be dealt with according to law. Bail is to be set in open Court.

CP at 40.

Thus, although the warrant for Thompson's arrest could have resulted in either a civil or a criminal contempt action, we decline to require officers at the scene of an arrest to anticipate the nature of any resulting court proceeding. As the officers had a duty to arrest once they knew of the warrant and there is no evidence of bad faith, the officers did not unreasonably use the "knock and wait" statute under the facts of this case. See State v. Chelly, 94 Wash.App. 254, 262, 970 P.2d 376 (1999)

.

We further note that there is no showing that the arrest here violated constitutional protections. See Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)

("[A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within."); State v. Williams, 142 Wash.2d 17, 24, 11 P.3d 714 (2000) (defendant could not successfully challenge police entry into his home to serve arrest warrant and defendant has no additional privacy protections when he is arrested in home of third person who consents to police entry). Finally, the presence of a neutral magistrate issuing the bench warrant provides an additional layer of protection "between the zealous officer and the citizen." Payton, 445 U.S. at 602,

100 S.Ct. 1371....