[No. 34019-4-II. Division Two. December 18, 2007.]
[1] Criminal Law — Evidence — Suppression — Findings of Fact — Review — Standard of Review. An appellate court reviews findings of fact entered following an evidence suppression hearing for substantial supporting evidence. Substantial evidence is evidence sufficient to persuade a fair-minded rational person of the truth of the finding. [2] Criminal Law — Evidence — Suppression — Conclusions of Law — Review — Standard of Review. An appellate court reviews conclusions of law entered following an evidence suppression hearing de novo. [3] Searches and Seizures — Warrantless Search — Validity — In General. A warrantless search of a constitutionally protected area is presumed to be unreasonable absent proof that one of the well-established exceptions to the warrant requirement applies. [4] Searches and Seizures — Warrantless Search — Validity — Burden of Proof. The State bears the burden of establishing an exception to the warrant requirement. [5] Searches and Seizures — Warrantless Search — Validity — Emergency — Test. Police officers may enter a constitutionally protected area without a warrant when facing exigent circumstances. This exception to the warrant requirement recognizes the community caretaking function of police officers and exists so officers can assist citizens and protect property. A police officer's warrantless search is justified by the emergency exception where (1) the officer subjectively believes that someone needs assistance for health or safety reasons, (2) a reasonable person in the same situation would similarly believe that there was a need for assistance, and (3) the need for assistance reasonably relates to the place searched. When analyzing these factors, a court views the officer's actions as the situation appeared to the officer at the time. [6] Searches and Seizures — Warrantless Search — Validity — Emergency — Absence of Pretext — Burden of Proof. When invoking the emergency exception, the State must show that the claimed emergency was not simply a pretext to conduct an evidentiary search. [7] Searches and Seizures — Warrantless Search — Validity — Emergency — Private Dwelling — Investigation of Possible Methamphetamine Lab — Generalized Danger. The emergency exception to the warrant requirement does not justify warrantless entries based on no more than a generalized fear that methamphetamine labs and their ingredients are dangerous to people who might live in the neighborhood. [8] Searches and Seizures — Warrantless Search — Validity — Emergency — Factors. Two factors must be present for a warrantless search to be justified under the emergency aid exception: (1) there must be a substantial risk of serious injury to persons or property and (2) the risk to persons or property must be imminent. [9] Searches and Seizures — Warrantless Search — Validity — Emergency — Police Officer's Concern for Personal Safety. A police officer's concern for personal safety is insufficient to justify a warrantless search under the emergency exception. [10] Searches and Seizures — Warrantless Search — Validity — Emergency — Private Dwelling — Investigation of Possible Methamphetamine Lab — Imminent Danger to Persons or Property — Necessity. Police officers are not justified in conducting a warrantless search under the emergency exception if they have no reason to believe that any person or property is in imminent danger of substantial harm. [11] Searches and Seizures — Warrant — Affidavit — Misstatement or Misconduct — Illegally Obtained Information — Probable Cause Determination — Sufficient Lawful Information. When the issuance of a search warrant is partly based on illegally obtained information, the warrant is nonetheless valid and evidence seized thereunder may be admitted if the affidavit submitted in support of the warrant application relates other facts sufficient to establish probable cause independent of the illegally obtained information. [12] Searches and Seizures — Warrant — Affidavit — Sufficiency — Test. An affidavit is sufficient to establish probable cause to issue a search warrant if it sets forth sufficient untainted facts to allow a reasonable person to conclude that the defendant is probably involved in criminal activity and that evidence of that activity will be found at the placed to be searched. ARMSTRONG, J., concurs by separate opinion. Nature of Action: Prosecution for unlawful manufacture of a controlled substance, methamphetamine. Superior Court: The Superior Court for Pierce County, No. 05-1-01933-8, Kitty-Ann van Doorninck, J., entered a judgment of guilty on October 24, 2005. Court of Appeals: Holding that the warrantless entry into buildings on the defendant's property by government agents could not be justified under the emergency exception to the constitutional warrant requirement because there was not an imminent threat of substantial harm to persons or property but that evidence from a subsequent search conducted pursuant to a warrant may be admissible if sufficient untainted evidence existed to support a finding of probable cause to issue the warrant, the court remands the case for further proceedings. Carol A. Elewski-, for appellant. Gerald A. Horne-, Prosecuting Attorney, and Kathleen Proctor-, Deputy, for respondent. ¶1 PENOYAR, J. — Pierce County Sheriff's Department deputies responded to an anonymous tip complaining of chemical smells at Fred Leffler's property. Upon arrival, they discovered that Leffler had an outstanding Department of Corrections (DOC) felony escape warrant and arrested him. Leffler informed the officers that there was muriatic acid and a "gasser" inside the fifth wheel on the property, but he did not consent to a search. Clerk's Papers (CP) at 106. The deputies did not immediately search the premises but instead called in the Clandestine Lab Team (Team) to do so. The Team conducted a performance safety assessment of all structures on the property and found evidence of methamphetamine manufacturing; the trial court then convicted Leffler of manufacturing methamphetamine based on this evidence. Leffler argues that the evidence from the search was improperly admitted, and we agree. The emergency exception does not apply where there is not an imminent threat of substantial harm to persons or property, and there was no such threat here. However, the evidence from the illegal search may still be admissible if sufficient untainted evidence existed to support a finding of probable cause. We therefore remand for further proceedings at the trial court in accordance with this opinion. FACTS ¶2 Deputy Jake Greger and his Community Support Team (CST) responded to an anonymous complaint alleging "strong chemical smells" coming from a property in Puyallup. Report of Proceedings (RP) (Sept. 1, 2005) at 7-8. Specifically, the caller stated that the smells were especially strong by the fifth wheel travel trailer near the property's driveway. The property contained a fifth wheel, a mobile home, a shed, and a garage. A neighboring home was "at least within 200 feet" of Leffler's trailer. CP at 110. ¶3 Upon arriving at the property, Deputy Greger could smell a "really harsh chemical smell" from about 30 feet away from the fifth wheel. RP (Sept. 1, 2005) at 10. A CST member knocked on the fifth wheel's door (from which the smell was emanating), and Fred Leffler exited the trailer and closed the door behind him. ¶4 The officers ran Leffler's name through the records system and discovered an outstanding DOC felony escape warrant. Deputy Greger arrested Leffler, placed him in the patrol car, and read him his Miranda ¶5 Community Corrections Officer McDonough (also a CST member) spoke with Leffler's probation officer and learned that he had permission to search the fifth wheel as part of Leffler's DOC conditions. Leffler refused to consent to the DOC search. Officer McDonough asked Leffler if there was a methamphetamine lab inside the trailer, and Leffler replied that there was some muriatic acid inside and a "gasser." CP at 106. Leffler also stated that he was the only person on the premises. ¶6 Based on Leffler's statements and the strong chemical smell, the officers concluded that it was not safe for them to enter the trailer, and they called the Team to the scene. While waiting for the Team, the CST began to conduct a protective check of the property for officer safety reasons but did not enter any buildings. They noticed a strong chemical smell coming from a mobile home on the property, but no CST officer entered the mobile home to secure it due to safety concerns. The Team, including Deputies Clark and Banach, arrived about one hour later. ¶7 When Deputy Clark arrived at the scene, he was briefed by the CST officers, and he and Deputy Banach decided to clear the property for officer safety reasons and to execute a performance safety assessment, "making sure that there is not an active cook or some sort of chemical reaction going on that could erupt into flame or explode." RP (Sept. 1, 2005) at 37. The Team entered the property structures and observed methamphetamine manufacturing evidence in each of them. The officers detected chemical odors emanating from the fifth wheel, mobile home, and shed. They could smell the chemical odor through their respirators, but no one identified the specific smell in their testimony. The Team also entered the garage despite the fact that they never smelled chemical odors from outside the garage at any time. ¶8 Deputy Clark testified that there was not time to get a search warrant because of the dangers methamphetamine labs pose—he had seen "reactions that have actually exploded or tanks that were leaking with ammonia . . . areas had to be evacuated." RP (Sept 1, 2005) at 47. He also pointed out that one of the by-products of the red phosphorous method of manufacture is phosphene gas, which is fatal if inhaled. ¶9 In April 2005, Leffler was charged with the unlawful manufacture of methamphetamine in violation of RCW 69.50.401(1) and (2)(b). He filed a motion to exclude all evidence discovered during the search. After a hearing, the trial court denied the motion. It found that the search was not pursuant to Leffler's probation status and was not a valid protective sweep, but that it was valid under the emergency exception to the search warrant requirement. Further, the court found that the sweep of the garage was not justified, but it concluded that even without the evidence from the garage, the affidavit would have been sufficient for a warrant. ¶10 Leffler was convicted after a bench trial on stipulated facts. He was sentenced to 68 months, the low end of the standard range. This appeal followed. ANALYSIS ¶12 Here, Leffler argues that the emergency exception to the warrant requirement was unavailable in this case. Specifically, he claims that (1) the emergency was a pretext for the search, (2) no objective emergency existed, and (3) obtaining a telephonic warrant would have been "very doable." Appellant's Br. at 16. ¶16 The emergency exception has also been applied to validate police entry based on knowledge that dangerous chemicals exist that may imminently cause harm. State v. Downey, 53 Wn. App. 543, 544-45, 768 P.2d 502 (1989) (ether odor justified warrantless entry under emergency exception). Courts have also extended the emergency exception to the requirement for a search warrant to allow police to enter a building if they reasonably believe persons are in imminent danger of death or harm, or where there are objects likely to burn or explode. State v. Muir, 67 Wn. App. 149, 153, 835 P.2d 1049 (1992). ¶18 Ninth Circuit jurisprudence has similarly defined "exigent circumstances" as " 'those circumstances that would cause a reasonable person to believe that entry . . . was necessary to prevent physical harm to the officers and other persons, the destruction of relevant evidence, the escape of the suspects or some other consequence improperly frustrating legitimate law enforcement efforts.' " United States v. Echegoyen, 799 F.2d 1271, 1278 (9th Cir. 1986) (quoting United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.), cert. denied, 469 U.S. 824 (1984)). Under this rule, a substantial risk to persons or property (such as property that contains evidence) is a sufficient threshold test for application of the emergency exception. ¶19 Second, the risk to persons or property must be imminent. See Downey, 53 Wn. App. at 544-45 (emergency exception applies when entry is based on knowledge that dangerous chemicals exist that may imminently cause harm); State v. Nichols, 20 Wn. App. 462, 465-66, 581 P.2d 1371 (1978) (police must have reasonable grounds to believe there is an emergency at hand, and there must be a reasonable basis to associate the emergency with the area searched). ¶20 In sum, the emergency exception only applies where there is an imminent threat of substantial injury to persons or property. The evidence demonstrates no such threat here. The initial response team was clearly concerned for their own safety, ¶21 Deputy Greger testified that none of the officers entered any of the buildings on the premises before the Team wearing protective gear. Additionally, Deputy Clark testified that had there been an ongoing chemical reaction, he believed that the resulting fumes would have been a danger to the surrounding area. He also pointed out that he had seen such reactions explode, but he did not testify as to the imminence of this danger. ¶22 The deputies had no information indicating the presence of other persons on the property, and no reason to believe that any person or property was under imminent threat of substantial harm. While these particular circumstances raised valid concerns for officer safety and raised the possibility of toxic gas release, fire, and explosion, there is no evidence that any of these threats were imminent. Thus the emergency exception does not apply. ¶24 The State raised a parallel issue in its response brief by arguing that even if the evidence obtained from the garage was excised, the warrant was supported by sufficient untainted evidence to find probable cause to search the entire property. Not until its motion for reconsideration did the State suggest that the warrant may still stand even if more evidence is excised, specifically that evidence obtained from the other structures on the property. Still, the State introduced the logic of their current argument in their opening brief, only failing to apply that logic to a more limited (and more relevant) set of facts. ¶25 Here, the declaration for determination included the following evidence obtained prior to the warrantless search: (1) the anonymous complaint of chemical smells at Leffler's property, (2) the officers' own observations of strong odors at the property, (3) Leffler's DOC warrant, and (4) Leffler's statements to the officers that there was some muriatic acid and a gasser inside the fifth wheel trailer. Thus, even excluding the evidence found during the search, the redacted affidavit would likely contain ample evidence to support a determination of probable cause. ¶26 We therefore remand this matter to the trial court to determine first whether the police would have sought the warrant with only the information they obtained before the search, see State v. Gaines, 154 Wn.2d 711, 719, 116 P.3d 993 (2005); second, whether the State's warrant would have been sufficiently supported with only this evidence; and third, which areas of the property could have been searched on the basis of that evidence. Finally, a fact finder must assess whether sufficient untainted evidence remains to prove Leffler's guilt beyond a reasonable doubt. BRIDGEWATER, J., concurs. ¶27 ARMSTRONG, J. (concurring) — I concur in the result. I write separately because the majority repeats our dicta in Schlieker that the emergency exception recognizes the " 'community caretaking function of police officers, and exists so officers can assist citizens and protect property.' " Majority at 6 (internal quotation marks omitted) (quoting State v. Schlieker, 115 Wn. App. 264, 270, 62 P.3d 520 (2003)). Schlieker repeated the language from State v. Menz, 75 Wn. App. 351, 353, 880 P.2d 48 (1994), where it was also dicta. Menz cited to State v. Swenson, 59 Wn. App. 586, 589, 799 P.2d 1188 (1990), where the court distinguished the exigent circumstances from the emergency doctrine. The court held that the emergency doctrine did not apply where the officers, responding to a neighbor's report that the defendant's front door was open, found the open door, called out to anyone inside, and then entered the home, where they found marijuana. The court held that the emergency doctrine did not apply because the officers had no reason to believe that anyone in the home was injured or that anyone in the vicinity was acting inappropriately. Swenson, 59 Wn. App. at 590. Thus, no Washington case has held that officers may enter a home under the emergency doctrine merely to protect property. And we should not further erode federal and state constitutional protections again unlawful searches by repeating the "protect property" language from Schlieker, Menz, and Swenson. The emergency doctrine applies only where the entering officer subjectively believes that " 'someone likely need[s] assistance for health or safety reasons.' " Schlieker, 115 Wn. App. at 270 (quoting State v. Gocken, 71 Wn. App. 267, 276-77, 857 P.2d 1074 (1993)).