[No. 23986-1-III. Division Three. February 13, 2007.]
THE STATE OF WASHINGTON , Respondent , v. BRENT RICHARD SMITH , Appellant . [1] Searches and Seizures - Warrantless Search - Validity - In General. The Fourth Amendment and Const. art. I, § 7 generally
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prohibit warrantless searches, subject to several narrowly drawn exceptions.
[2] Searches and Seizures - Warrantless Search - Validity - Burden of Proof. The burden of establishing the validity of a warrantless search under a recognized exception to the constitutional warrant requirement is on the State.
[3] Searches and Seizures - Incident to Arrest - Protective Sweep - Scope. Law enforcement officers making a lawful arrest may, for security purposes, conduct a reasonable "protective sweep" of the premises where the arrest was effected. The scope of such a sweep is limited to a cursory visual inspection of areas where a person might be hiding.
[4] Searches and Seizures - Incident to Arrest - Protective Sweep - Large Amount of Stolen Anhydrous Ammonia on Property - Firearm Inside Residence. When law enforcement officers lawfully arrest a person who has exited a residence situated on property where a large amount of stolen anhydrous ammonia is being stored, the officers are certain that a firearm is located inside the residence, and the officers are uncertain whether there are other persons inside the residence, the officers may conduct a "protective sweep" of the home for security purposes.
[5] Searches and Seizures - Warrantless Search - Validity - Exigent Circumstances - Threat to Officer Safety. Circumstances that present a threat to the safety of law enforcement officers may justify a warrantless search under the exigent circumstances exception to the constitutional warrant requirement.
[6] Searches and Seizures - Warrantless Search - Validity - Exigent Circumstances - Factors. In determining whether a warrantless search was justified under the exigent circumstances exception to the constitutional warrant requirement, a court considers (1) the gravity or violent nature of the offense the suspect was suspected of committing, (2) whether the police reasonably believed the suspect was armed, (3) whether the police had reasonably trustworthy information that the suspect was guilty, (4) whether and to what degree the police believed the suspect was on the premises, (5) the likelihood the suspect would have escaped if not swiftly apprehended, and (6) whether the entry was made peaceably. Exigent circumstances are shown if an examination of the factors show that the police needed to act quickly; all six factors need not be met to find exigent circumstances.[7] Searches and Seizures - Warrantless Search - Validity - Exigent Circumstances - Existence of Emergency - Absence of Pretext - Determination. In order to find that a warrantless search was justified under the exigent circumstances exception to the constitutional warrant requirement, a court must be satisfied that the asserted emergency was not merely a pretext for
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the search and that the search was actually motivated by a perceived need to render aid or assistance. This inquiry involves a determination of both the subjective and objective reasonableness of the belief that an emergency existed.
[8] Searches and Seizures - Warrantless Search - Validity - Exigent Circumstances - Imminent Danger - Explosive Objects. A warrantless search may be justified under the exigent circumstances exception to the constitutional warrant requirement when law enforcement officers reasonably believe that persons are in danger of imminent death or harm or when there are objects present that are likely to burn or explode.
[9] Searches and Seizures - Warrantless Search - Validity - Exigent Circumstances - Harmful Substance on Premises - Firearm Inside Residence. When law enforcement officers lawfully arrest a person who has exited a residence situated on property where a potentially lethal substance is being stored, the officers are certain that a firearm is located inside the residence, and the officers are uncertain as to whether there are other persons inside the residence, a warrantless search of the residence is justified under the exigent circumstances exception to the constitutional warrant requirement.
[10] Searches and Seizures - Warrantless Search - Validity - Community Caretaking Function - In General. The community caretaking function exception to the constitutional warrant requirement allows for a warrantless search only if (1) the law enforcement officer subjectively believes that someone likely needs assistance for health or safety concerns, (2) a reasonable person in the same situation would similarly believe that there is a need for assistance, and (3) there is a reasonable basis to associate the need for assistance with the place being searched.
[11] Searches and Seizures - Warrantless Search - Validity - Community Caretaking Function - Absence of Pretext - Necessity. In order to find that a warrantless search was justified under the community caretaking function exception to the constitutional warrant requirement, a court must be satisfied that the asserted emergency was not merely a pretext for the search.
[12] Searches and Seizures - Warrantless Search - Validity - Community Caretaking Function - Harmful Substance on Premises - Firearm Inside Residence - Other Nearby Residences. When law enforcement officers lawfully arrest a person who has exited a residence situated on property where a potentially lethal substance is being stored, the officers are certain that a firearm is located inside the residence, the officers are uncertain whether there are other persons inside the residence, and several other residences are located nearby, a warrantless search of the residence is justified under the community caretaking function exception to the constitutional warrant requirement.
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Nature of Action: Prosecution for unlawful manufacture of methamphetamine. Evidence of the crime was found during a warrantless search of the defendant's home incident to his arrest outside of the home. Law enforcement officers searched the home after they observed two 1,000 gallon tanks of stolen anhydrous ammonia near the home and after a gun case observed through a window of the home disappeared.
Superior Court: The Superior Court for Benton County, No. 04-1-01456-9, Cameron Mitchell, J., on January 21, 2005, entered an order denying the defendant's motion to suppress the evidence seized during the warrantless search and Robert G. Swisher, J., on April 1, 2005, entered a judgment on a verdict of guilty.
Court of Appeals: Holding that the warrantless search of the defendant's home was justified under the protective sweep, exigent circumstances, and community caretaking function exceptions to the constitutional warrant requirement, the court affirms the judgment.
Dennis W. Morgan , for appellant .
Andrew K. Miller , Prosecuting Attorney, and Alexander C. Ekstrom and Heather D. Czebotar , Deputies, for respondent .
¶1 KULIK, J. - 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 circum
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stances, 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 backup 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.
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¶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?
[1, 2]¶11 The fourth amendment to the United States Constitution and article I, section 7 of the Washington State Constitution generally prohibit warrantless searches. See , e.g. , State v. Ladson , 138 Wn.2d 343 , 348-49, 979 P.2d 833 (1999). This general prohibition, however, is subject to several narrowly drawn exceptions. Id . at 349. The burden is on the State to prove the exception. Id . at 350. Here, the State asserts that the search was valid because of the protective sweep, exigent circumstances, and community
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caretaking exceptions to the prohibition against warrantless searches.
Protective sweep exception
[3]¶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 Wn. 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.
[4]¶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
[5]¶15 Exigent circumstances are also an exception to the warrant requirement. State v. Morgavi , 58 Wn. App. 733 , 736, 794 P.2d 1289 (1990). Exigent circumstances may include those that present a threat to officer safety. State v. Jeter , 30 Wn. App. 360 , 362, 634 P.2d 312 (1981).
[6]¶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
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the suspect will escape if not swiftly apprehended, and (6) whether the entry was made peaceably. State v. Cardenas , 146 Wn.2d 400 , 406, 47 P.3d 127 (2002). Each of the six factors need not be present in every case. Id . at 408. All that must be shown is that, in light of these factors, officers needed to react quickly to the situation. Id .
[7]¶17 In order to find that exigent circumstances exist, this court must also be satisfied that the asserted emergency was not merely a pretext for the search and that the search was "actually motivated by a perceived need to render aid or assistance." State v. Loewen , 97 Wn.2d 562 , 568, 647 P.2d 489 (1982). This inquiry involves a determination of both the subjective and objective reasonableness of the belief that an emergency existed. Morgavi , 58 Wn. App. at 736 .
[8]¶18 One of the recognized situations in which a warrantless search may be justified under the exigency exception is where police reasonably believe that persons are in danger of imminent death or harm, or where there are objects present that are likely to burn or explode. State v. Muir , 67 Wn. App. 149 , 153, 835 P.2d 1049 (1992).
[9]¶19 Here, there is little likelihood that the asserted emergency was merely a pretext. Unlike the cases cited by Mr. Smith, law enforcement was not on the premises searching for a particular suspect. From the beginning, police were responding to an emergency. A potentially lethal chemical was present in large amounts near residences. The tanker held approximately 2,000 gallons of anhydrous ammonia, an amount significantly greater than the amount typically found in the manufacture of methamphetamine. And there was also a danger of the tanker exploding.
¶20 The search for suspects was secondary to the need to secure the tanker. While police were concerned for their own safety in light of the gun case they observed, they were also concerned that a person might discharge the weapon at the tank, causing a dangerous chemical spill. Under the facts here, police were acting under exigent circumstances.
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A swift response was appropriate to protect the officers and the community.
Community caretaking exception
[10, 11]¶21 Another exception to the warrant requirement that may arise when police confront emergency situations is the community caretaking exception. State v. Schroeder , 109 Wn. App. 30 , 37, 32 P.3d 1022 (2001). This exception may apply if (1) the law enforcement officer subjectively believed that an individual or individuals needed assistance for health or safety reasons, (2) a reasonable person in the same or a similar situation would also believe that there was a need for assistance, and (3) that there was a reasonable basis to associate the need for assistance with the place to be searched. Id . at 38. As with the exigent circumstances exception, this court must also be satisfied that the claimed emergency was not merely a pretext for a search for evidence. Id .
[12]¶22 As previously noted, police were responding to a dangerous situation that posed a threat to the health and safety of the community. Testimony showed that inhaling anhydrous ammonia could be lethal and that a large amount of anhydrous ammonia was present immediately next to the home that was searched. Police were uncertain as to how many individuals were present at this location. They observed a gun case in the home that was no longer visible after Mr. Smith and his companion left. Given the volatile nature of anhydrous ammonia, the presence of nearby homes, and the possibility that a firearm might puncture the anhydrous ammonia tanks, it was subjectively and objectively reasonable for the officers to enter the home and conduct a limited search to secure the weapon and any individuals who were present within the home.
¶23 We affirm the conviction.\
SWEENEY , C.J., and KATO , J. PRO TEM. , concur.
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