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Frank Cikutovich:
Cases
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[U] State v. Faydo, No. 16771-2-III (Wash.App.Div.3 02/16/1999)
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Washington Court of Appeals |
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No. 16771-2-III |
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1999.WA.42324 <http://www.versuslaw.com> |
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February 16, 1999 |
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STATE OF WASHINGTON, APPELLANT,
v.
CHRISTOPHER ALEXANDER FAYDO, RESPONDENT. |
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Source of Appeal: Appeal from Superior Court of Spokane County
Docket No: 96-1-02215-3 Judgement or order under review Date filed:
06/13/1997 Judge signing: Hon. Paul A. Bastine |
| [7] |
Counsel: Counsel for Appellant(s) Kevin M. Korsmo Spokane County
Prosecutor's Office W. 1100 Mallon Spokane, WA 99260 Counsel for
Respondent(s) Roger E. Metz 7523 N Drumheller
Spokane, WA 99208 Frank L. Cikutovich 1408 W Broadway
Spokane, WA 99201 Counsel for Other Parties Joe Wittstock (Appearing
Pro Se) Official Court Reporter 1100 West Mallon Spokane, WA 99260 |
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The opinion of the court was delivered by: Sweeney, J. |
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Judges: Authored by Dennis J. Sweeney Concurring: Frank L. Kurtz
Kenneth H Kato |
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Panel Nine |
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[Editor's note: originally released as an unpublished opinion] |
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Two Spokane police officers searched Christopher Faydo's house
after it was reported burglarized. During the search, Officer Kurt
Vigesaa found Mr. Faydo's mail on the table, determined Mr. Faydo
was the occupant, and asked radio dispatch to contact him. Officer
Vigesaa then opened a kitchen cabinet and discovered a controlled
substance anabolic steroids. Based on this discovery, a search warrant
was obtained and cocaine was eventually found in the house. The
trial court suppressed the steroids and cocaine. On appeal, the
State contends (1) the "emergency" need for the search did not end
when the officer attempted to notify Mr. Faydo of the alleged burglary,
and (2) it is reasonable to search inside an upper-level kitchen
cupboard when conducting a search for suspected burglars. We affirm
the trial court's result, although on different grounds. |
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FACTS |
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Spokane Police Officers Stormi Koerner and Kurt Vigesaa investigated
a reported burglary. Upon arriving at the house, they saw a broken
window. A neighbor reported that someone was possibly in the house.
The officers entered the house through the broken window. |
| [15] |
While Officer Koerner was searching the house, Officer Vigesaa
searched the kitchen area. He found an open letter from Safeway
on the kitchen table. Officer Vigesaa read it and concluded that
Christopher Faydo lived in the house and worked at Safeway. Officer
Vigesaa contacted radio dispatch and asked them to tell Mr. Faydo
of the burglary. |
| [16] |
He then opened the door to an upper-level kitchen cupboard.
He saw a bottle of Dianabol, along with dishes and shelves. Officer
Vigessa recognized the Dianabol as a controlled substance. The officer
admitted he could not tell whether the bottle was a prescription
drug or evidence of a crime without reaching into the cupboard.
He did not reach into the cupboard. |
| [17] |
Officer Vigesaa then completed the search of the house and called
a detective assigned to the drug unit and reported the Dianabol.
The officers completed the search of the house and waited for the
warrant. Later after the warrant was issued and served, police discovered
cocaine in a clothes dryer. |
| [18] |
Mr. Faydo was charged with possession of two controlled substances,
testosterone cypionate (Dianabol) and cocaine. He moved to suppress
the Dianabol and cocaine. The trial court concluded that the officers
validly entered the home to investigate the burglary complaint.
However, the court further concluded that the search of the cupboard
was invalid because (1) the emergency justifying the search ended
once Officer Vigesaa began inspecting the mail and made the dispatch
call, and (2) the search of the upper-level cupboard was unreasonable.
The motion to suppress was granted and the court dismissed the action. |
| [19] |
DISCUSSION |
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Standard of Review. The State assigns error to the court's Conclusions
that Officer Vigesaa's actions ended the emergency need for the
warrantless search and that the search of the cupboard was unreasonable.
Review of questions of law is de novo. State v. Crist, 80 Wn. App.
511, 514, 909 P.2d 1341 (1996). |
| [21] |
Both the federal and state constitutions prohibit unreasonable
searches. U.S. Const. amend. IV; Const. art. I, sec. 7. Searches
conducted outside the judicial process, without prior approval by
Judge or magistrate, are per se unreasonable subject only to a few
specifically established and well-delineated exceptions. Katz v.
United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576
(1967); State v. Muir, 67 Wn. App. 149, 151-52, 835 P.2d 1049 (1992). |
| [22] |
Entry into the Home. Under the emergency exception, police officers
may enter a home without a warrant to investigate a reported burglary.
Muir, 67 Wn. App. at 153; State v. Bakke, 44 Wn. App. 830, 840-41,
723 P.2d 534 (1986), review denied, 107 Wn.2d 1033 (1987); State
v. Campbell, 15 Wn. App. 98, 100, 547 P.2d 295 (1976). Therefore,
as the trial court concluded, the initial entry into Mr. Faydo's
home was appropriate. |
| [23] |
Emergency Search of the Kitchen Cupboard. After entry into the
home, police may take appropriate steps to investigate the crime,
render aid to any possible victims, protect the occupant's property,
and search for remaining suspects. Campbell, 15 Wn. App. at 100-01;
State v. Swenson, 59 Wn. App. 586, 589, 799 P.2d 1188 (1990);
see Muir, 67 Wn. App. at 153-54; Bakke, 44 Wn. App. at 834;
3 Wayne R. LaFave, Search and Seizure sec. 6.6(b) (3d ed. 1996).
However, a warrantless search must be strictly circumscribed by
the circumstances which justify it. See Mincey v. Arizona, 437 U.S.
385, 393, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978) (citing Terry
v. Ohio, 392 U.S. 1, 25-26, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).
There must also be some reasonable association between the place
searched and the emergency. State v. Lynd, 54 Wn. App. 18, 21, 771
P.2d 770 (1989). Said another way, officers may only search
areas which further the purposes of their entry. See Bakke, 44 Wn.
App. at 841 (finding discovery of marijuana plants in walk-in
closet was reasonable); Campbell, 15 Wn. App. at 101 (finding
discovery of marijuana plants in kitchen closet was reasonable);
see also State ex rel. Zander v. District Court, 180 Mont. 548,
554, 591 P.2d 656 (1979) (stating "{t}he permissible scope of the
search is as broad as is reasonably necessary to prevent the escape
of the suspect from the house" and finding search of closet lawful). |
| [24] |
The officer's acts must be objectively reasonable considering
the scene as it appeared to the officer at the time. Lynd, 54 Wn.
App. at 22; Bakke, 44 Wn. App. at 837. Acts inconsistent
with the perceived emergency may demonstrate that the warrantless
search was unjustified. See Muir, 67 Wn. App. at 157 n.4 (noting
that State's contention the emergency ceased upon discovery of marijuana
conflicts with the emergency doctrine and finding search unconstitutional). |
| [25] |
The trial court erred in concluding that Officer Vigesaa's actions
demonstrated that the "emergency" need for the search ended before
he searched the cupboard. The officer acknowledged that reading
mail and contacting radio dispatch before securing a room is not
normal procedure. However, given the purposes of this search, the
need to search did not end. They searched the house and cupboard
for burglary suspects or victims needing assistance. At the time
Officer Vigessa placed the radio call, both he and Officer Koerner
immediately continued the search for burglars and victims. Notifying
the property owner of a burglary was neither unreasonable nor did
it end the need for the search. |
| [26] |
Moreover the cupboard was a reasonable place to look for intruders.
The cupboard turned out to be a typical kitchen storage area with
a vertical wooden divider and two doors. But Officer Vigessa did
not know that until he opened it. Both Officer Vigesaa and Officer
Koerner also testified that searching cupboards is part of their
officer training. Therefore, the trial court erred in concluding
that the search of the kitchen cupboard was unreasonable. |
| [27] |
Plain View Doctrine. If the officers were in a place where they
had a right to be, and were engaged in a reasonable search, then
the inadvertent*fn1 discovery
of immediately recognizable evidence in plain view was lawful. And
it may be used to support the subsequent issuance of a search warrant.
Bakke, 44 Wn. App. at 841. |
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"{The plain view} exception permits government officials to
seize clearly incriminating evidence or contraband without a warrant
if the official (1) has a prior justification for the intrusion
into the protected area; (2) discovers the incriminating evidence
inadvertently; and (3) immediately recognizes that he has evidence
before him." |
| [29] |
Id. (quoting State v. Bell, 43 Wn. App. 319, 321, 716 P.2d 973
(1986), aff'd, 108 Wn.2d 193, 737 P.2d 254 (1987)); see
State v. Kennedy, 107 Wn.2d 1, 13, 726 P.2d 445 (1986). |
| [30] |
Like in Bakke, the officers searched only those areas where
a burglar could be hiding. The investigation did not exceed a scope
reasonably calculated to disclose an intruder's presence. Bakke,
44 Wn. App. at 841. The question then is whether the discovery
of the Dianabol was inadvertent. And whether Officer Vigessa immediately
recognized the Dianabol as evidence. |
| [31] |
The term "inadvertent" means that the officer discovered the
evidence while in a position which did not infringe on any reasonable
expectation of privacy. And he or she did not take any further unreasonable
steps to find the evidence from that position. State v. Callahan,
31 Wn. App. 710, 712-13, 644 P.2d 735 (1982); see Bakke, 44
Wn. App. at 841. |
| [32] |
Officer Vigesaa saw the bottle while looking for burglars. See
Kennedy, 107 Wn.2d at 13 ("the discovery was inadvertent since
{the officer} came upon the contraband while looking for a weapon
under the front seat"). Investigating further the nature of the
contents of the bottle, however, would be outside the scope of the
search here. Officer Vigesaa's testimony supports our Conclusion: |
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Q. "Now let's take a look at the Dianabol, which I think you
said you recognized from your experience as a controlled substance?" |
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A. "Yes." |
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Q. ". . . . Dianabol can be prescribed?" |
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A. "Yes." |
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Q. "I wonder, was there something in the mail from which you
were able to conclude that there was no prescription on the bottle,
or did you have to examine the bottle to conclude that?" |
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A. "Neither. I didn't know at that point whether they had a
prescription, or not." |
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Q. "So you would grant me that in looking at that bottle of
Dianabol did not tell you that there was anything wrong on the premises,
that there was anything illegal on the premises; you couldn't tell,
could you?" |
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A. "No." |
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Q. "You wouldn't be able to tell that without reaching into
the cabinet, removing the bottle, looking on the bottom of it or
looking around it, to see if there was a prescription indicated;
is that a fair summary?" |
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A. "Correct." . . . . |
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Q. "Did you reach in and examine the bottle to see if it was
a prescription before you called Officer Burbridge and made arrangements
to have all the search warrants secured?" |
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A. "No." |
| [45] |
"Immediate knowledge" requires a reasonable belief that evidence
is present. See State v. Claflin, 38 Wn. App. 847, 853, 690 P.2d
1186 (1984), review denied, 103 Wn.2d 1014 (1985). Officer Vigessa
testified that he knew Dianabol to be a controlled anabolic steroid
based on his personal experience and readings pertaining to muscle
and fitness training. The officer was also informed of the controlled
nature of Dianabol during his law enforcement drug classes. But
he could not determine whether the Dianabol was contraband without
further investigation; investigation which was not authorized. The
officer did not possess the immediate knowledge required under the
plain view doctrine. Id. |
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We affirm the trial court's suppression of the evidence. |
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A majority of the panel has determined that this opinion will
not be printed in the Washington Appellate Reports but it will be
filed for public record pursuant to RCW 2.06.040. |
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Sweeney, J. WE CONCUR: |
| [49] |
Kurtz, A.C.J. |
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Kato, J. |
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Opinion Footnotes |
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*fn1 Inadvertence has
been eliminated as a requirement as a matter of federal constitutional
law. State v. Fowler, 76 Wn. App. 168, 173, 883 P.2d 338 (1994),
review denied, 126 Wn.2d 1009 (1995). |
