State v. Bell

May 14, 1987.] En Banc. 52685-1. [No. Respondent, Washington, State Lee Bell, Petitioner. Kevin Hunko, A. Roger petitioner. Clem, Attorney, Anthony C. Danny Prosecuting

C. Otto, Deputy, respondent. material from a seized J. Sheriff's officers

Durham, it operation without warrant after marijuana-growing of a by fighters discovered fire the scene fire. Kevin been possession Bell RCW charged marijuana, was with 69.50.401(d), after but the case was dismissed the trial Appeals The Court of suppressed court the evidence. reversed, seizure not that the warrantless did vio- holding the late the state and federal constitutions. We affirm Appeals Court of and remand the case trial.

On September a fire broke out at a house County Deputy Bell. Sheriff Clarke Kitsap rented Kevin department. fight- Firе noticed the blaze and called the fire stove, the removed a wood the ers arrived at scene and apparent cause of the fire. The fire had charred one wall part from floor As of common two fire ceiling. practice, to directly were sent to check the attic over the area in order to make there no burned sure were smolder- ing embers. The attic was full of smoke and to be ven- they gain access. tilated before could attic, When the fire reached the noticed being proceeded but to check the attic for plants grown, that They directly evidence of a fire. determined the area on fire but longer above the wood stove was no had been plants that fighters suspected charred. One of fire superior, he summoned his an assist- marijuana, were and marshal, The marshal ant fire to attic. assistant marijuana-growing the attic contained believed operation, having large lights being noticed that two were plants. used to an estimated 75 to 100 grow marshal then left the residence because of The assistant duties, at the scene instructing fighters remaining fire to assistant marshal went plants. touch the The to prosecutor, telephoned deputy seeking station deputy The the matter should be handled. advice as how the evidence be confiscated. prosecutor recommended

I95 time, was this no items were seized nor the defend- During ant told about the discovery. attic minutes,

After 15 to the assistant marshal returned house, accompanied by investigator. Bell's an assistant inspected first the wood stove to deter- investigator mine the and cause of fire. origin investigator assistant marshal then went At point, to the attic. assistant marshal decided to call a sheriff deputy to assist in the seizure. house, Deputy

When Clarke arrived at Bell's he went to the attic with along investigator and the assistant mar- shal. The investigator pictures took of the evidence Then, attic. "human chain" of sheriff's officers and fire- men formed to remove the evidence from the attic to a vehicle outside. The record is unclear as to whether the fire department supervised seizure, or the sheriff's office but part аt least for Deputy time Clarke considered him- self It charge. people took 5 approximately an hour evidence, to remove the including 87 to 90 marijuana plants. plastic Also seized were sheets which had covered the walls and ceilings, plastic tubing, fans, vapor- ventilator discharge lights power and supplies, their irrigation equip- ment and fluorescent fixtures. The light seizure of the items completed 4 approximately 3 to after mari- hours juana was first discovered. At no time during period this anyone attempt warrant, did get to a search telephonic otherwise. argues

Bell the evidence taken from the attic should suppressed be because the warrantless seizure violated his First, constitutional in two he rights ways. contends the fire fighters needed a warrant to seize the evidence because exigent longer circumstances no existed once the Second, fire was he extinguished. contends that sheriff's officers needed warrant to enter Bell's house take charge of the seizure. federal begin by recognizing

We that both the state and constitutions from unreason protect Washington's citizens Bakke, State v. 830, 832-33, 44 App. able searches. Wn. (1986). Washington pro P.2d 534 State Constitution person private his vides that shall be disturbed "[n]o affairs, invaded, law", authority or his home 1, 7, Const. and the United States Constitution art. § rights persons, establishes citizens' "to be secure their houses, effects, against searches papers, and unreasonable ..." 4. сonsti and seizures U.S. Const. amend. Our state greater protection individuals generally tution affords warrantless searches and seizures than does against 148, Stroud, v. State Wn.2d Fourth Amendment. (1986); v. Myrick, State Wn.2d 720 P.2d case, however, we reach present P.2d 151 constitution. the same result under each searches and seizures are se unreason- per Warrantless excep- a few they carefully able unless fall within drawn Chrisman, tions. State 100 Wn.2d 676 P.2d one proving has the burden State Chrisman, Bakke, 822; exceptions applies. Fighters'

Fire Need Warrant subject are the Fourth policemen, Fire like fighters, 499, 504, 508, 56 Tyler, Michigan Amendment. (1978). Therefore, fire fighters' L. S. Ct. 1942 Ed. 2d of a property found at the scene warrantless seizures of can show that are unreasonable unless State рer fire1 se the warrant exceptions fall within one of the at 508-09. Tyler, requirement. fighters' justified by

The fire role this case is A requirement. the warrant "plain exception view" requirements following is valid if the "plain view" seizure " intrusion; (2) (1) inadver prior justification met: are (3) evidence; immediate discovery incriminating tent him." officer that he had evidence before knowledge instances, by fighters property fire will be in this manner seized 1In most types However, justified seizing fighters in fire are also of arson. evidence Annot., generally Admissibil evidence, including contraband. incriminating by Case, ity, Search Connec Discovered Warrantless in Criminal Evidence Cases, (1984). Investigation Post-Tyler A.L.R.4th 194 tion With Fire 31 —

197 819). Chrisman, 514 Myrick, at We turn to (quoting at now analysis of those elements.

There was a prior justification fighters' fire origi nal burning intrusion into the attic. "A course building of an exigency justifies creates warrantless fight Michigan officials to the blaze." Clifford, 477, L. Moreover, Ed. 2d 104 S. Ct. exigent beyond circumstances continue time when the extinguished. fire has been Fire Tyler, at 510. need fighters no warrant to remain in the time to building reasonable rekindle, make sure that the fire does not to search fires, additional and to building. Clifford, ventilate the at n.4; Steigler v. Anderson, 793, (3d 496 F.2d 795-96 Cir.), denied, (1974); cert. Olsen, 419 U.S. 1002 State v. (Minn. 1979). attorney N.W.2d Bell's even con fighters cedes that the fire permitted "were to be where they they were plants." Thus, when found the exigent cir cumstances the fire justify fighters' only not Bell's residence but also his attic.

The discovery was also inadvertent. The fire fighters had duty fully to ensurе the fire was extinguished fighters would not rekindle. The fire had to check the attic's condition wall because the beneath it had been to up burned ‍​‌​​‌​‌‌​‌‌‌‌​​‌​‌‌​​‌‌​​‌‌‌‌​‌‌​‌‌‌‌​​​​‌‌​​​‌‌‍the ceiling. duty investigate The became even compelling they more when saw extent of smoke the attic. The fire had not exceeded the fighters of these scope happened upon duties when the mari- juana-growing operation.

Finally, immediately were aware they had evidence them. before of this imme- knowledge requirements diate is 'plain so that "the view' doctrine be a general used to extend exploratory object search from one until another incrimi- something nating Coolidge v. New emerges." Hampshire, last 29 L. Ed. 2d Ct. U.S. S. did not this of extended search. engаge type required satisfy

All the "immediate knowledge" 198 is present.2 that evidence is a reasonable belief

element (1981); Lair, v. 706, 716-17, P.2d 427 State 95 Wn.2d 853, P.2d 847, Claflin, State App. Wn. (1985). One of the denied, (1984), review 103 Wn.2d 1014 that "I first entered the attic testified who two they are were plants] were —chances suspected that [the testified that The assistant marshal marijuana." "[t]his to me." The marijuana-growing operation to be a appeared present is met in the case.3 third element however, contends, present that we should hold the Bell plenty there time to unconstitutional because seizure operation the was discovered. a search warrant after obtain seizures should be held consti- that warrantless argues Bell exist the throughout if circumstances only tutional exigent state, in this and seizure. Courts of the search duration however, rеcognized exigency is again have time and State v. seizure. necessary "plain element view" not a Lair, Marchand, State v. at 716; App. 37 Wn. 434, grounds, rev'd on other (1984), 104 Wn.2d

P.2d 1306 Johnson, State (1985); App. 17 Wn. 706 P.2d (1977). A denied, 89 Wn.2d 1001 review P.2d view doctrine upheld plain under the search can be circumstances, as the doctrine's long as exigent absence of Lair, words, In exi- is satisfied. at 716. first element considered one factor to be gent merely circumstances are if officers' intrusion was determining seizing justified. Lair, similarly, holding Supreme phrased Court has the test 2The United States plain "probable view the second element of

that a cause believe" satisfies Brown, 730, 741-42, 502, 103 S. Ct. Texas v. 75 L. Ed. 2d doctrine. reasonableness, State v. probable is one of the test for cаuse Because Goodman, (1985), 336-37, App. 711 P.2d 1057 the two tests are 42 Wn. essentially the same. missing knowledge" because the argues "immediate element is 3Bell who, turn, attic, telephoned the assistant marshal to the called shows, however, prosecutor's these communications dealt The record office. request they proceed, evidence of a crime. This not whether with how to by incompatible knowledge of the with immediate advice is no means evidence.

I99 The Lair equally persuasive today. rationale remains alone, requirement Plain view the extra of exi- gency, safeguards imposed satisfies Coolidge, Johnson, 467-68; Fourth at Amendment. 159. Johnson, the Court of Appeals described are met safeguards by plain and showed how searches: requirement Fourth Amendment search warrant when, first, eye

satisfied scrutinizing a neutral magistrate is imposed between individual Second, infrequently search must be police. scope overzealous of by particular

limited items description of to be Scope seized. cannot be left to discretion.

Plain recognized view alone has been an exception as to the Fourth Amendment search requirement warrant because these privacy safeguards remain wholly intact. First, plain requires the initial police intrusion be lawful, upon a valid search warrant or recognized warrant Second, . . . exception. discovery because must be inad- vertent and recognition immediate, as contraband be scope of search cannot be extended from the limited par- purpose ticular of the initial general intrusion to a rum- maging.

(Footnotes omitted.) Johnson, sum, because all three elements of the plain view doc- met, trine have been no required warrant was for the fire fighters to seize the plain evidence.4 Because the view doc- trine is formulated identically under the state and federal constitutions, we hold that neither required constitution a get warrant.5 length making "plain 4There are limits to time the State can take in prohibits view" seizures. The Fourth Amendment unreasonable searches and seiz ures. An excessive amount of time can render a seizure unreasonable. See United Johns, (1985); v. States U.S. 469 83 L. Ed. 2d Ct. 105 S. 881 United Placе, U.S. States 77 L. Ed. 2d S. 103 Ct. 2637 3 or marijuana-growing oper hours that it took the officers to seize material from the light ation was reasonable of the amount of material which had to be removed and their other duties at scene fire. of the 5Furthermore, attic, the assistant marshal did not need a warrant to enter the though even did not as its sole the control of fire hazards. a Officers' Need Warrant

Sheriff's a needed war the sheriff's officers argues Bell next found property residence and to seize rant to enter the separate they because constituted by cases have A of Fourth Amendment agency. handful state those cases holds that majority analyzed this issue. longer defendant no needed because the the warrant not that area expectation has reasonable See United already present. where one officer is residence (5th Cir.) (warrant Green, not nec States F.2d 1385 entered residence to take agent secret service essary when by deputy fire mar custody counterfeiting plates found denied, cert. fire), of a U.S. the cause investigating shal Cir.) Anderson, (3d Steigler v. (1973); 496 F.2d 793 (warrant necessary when officers seized evidence not fire marshal a warrant- by deputy during found arson immediately investigation during less which occurred denied, cert. 419 U.S. 1002 extinguished), after a fire was (6th Cir. Gargotto, States v. United (1974); 476 F.2d 1009 (warrant 1973) necessary betting when records activ by IRS after ity agents days were microfilmed police officer); investigator seized an arsоn and a been 1977) Brand, (5th (no States v. United 556 F.2d Cir. officers entered house after required police warrant when drug an emergency officer handle helped another officers observed group overdose and the second for a search subsequent which formed the basis evidence denied, (1978). warrant), cert. 434 U.S. 1063 the second position Bell's that only supporting case Hoffman, States v. is United a warrant needs agency 1979). (9th directly Cir. conflicts with F.2d 280 Hoffman in a reasonable cases it holds that majority the fighters privacy remains areas where ‍​‌​​‌​‌‌​‌‌‌‌​​‌​‌‌​​‌‌​​‌‌‌‌​‌‌​‌‌‌‌​​​​‌‌​​​‌‌‍expectation of already prem- justifiably discovery" on the officer of evidence an "directed plain by evidence in view does officer who has discovered that isеs another App. discovery. McAlpin, 36 Wn. State v. taint the initial inadvertent denied, 102 Wn.2d 1011 677 P.2d review have entered. citizen reasonably expect should "[N]o any . . . of public sort officer thereafter invade his purposes home for unrelated to the initial intrusion." Hoff- man, at 285.

We find the majority persua rationale cases sive and we reject analysis. Once the Hoffman invaded, of the residence has been it is lawfully senseless to require complete a warrant others enter what already those on the scene would be See justified doing. Green, 1390; Steigler, at at hold 798. We that where fire lawfully discovered evidence of criminal activ ity plain doctrine, under necessary it is not sheriff's officers to obtain entering a warrant before a resi dence to seize the evidence. are, course,

There limits on police. the actions of the When the residence, enter the they are not allowed scope exceed the of the fire fighters' earlier intrusion.6 Green, essence, In they 1390. step into the shoes the fire fighters. They any cannot enter area that the fire fighters were not justified nor entering, any seize evi- dence were not justified seizing. case, present the sheriff's deputies did not exceed their permitted scope of activity. They residence, entered the property already seized the discovered by fighters, and did no more. Their warrantless seizure was valid under the Fourth Amendment.7

Our analysis under the Washington State Constitution reaches the same result. Const. art. 7 provides that § arriving expand 6The officers to seize the evidence would be entitled to scope only of the earlier intrusion if if obtain warrant or "one of the exceptions requirement justifies thorough ranging to the warrant a more or wide Brand, (5th search." United States v. 1977), cert. 556 F.2d 1317 n.9 Cir. denied, 434 U.S. 1063 7Similarly, investigator did not warrant need a to enter Bell's house and attic, though even his into the attic not for was the sole investigating duty justified a fire. His the house his to deter fire, presence justified mine of the cause the and his in the was same attic for the justified presence. reasons that sheriffs officers' affairs, or his private shall be disturbed his person "[n]o offi invaded, authority of law." The sheriffs home of Bell's affаirs was authorized private disturbance cers' fighters already right the fire Given the of law. scene, entry not con on the the sheriff's officers' did fully merely for the invasion. The stitute a second already were fighters what completing to do. authorized Policy

Public public held that judge ruling The trial his oral supplies ground suppressing an additional policy war fighters that if fire can make evidence. He reasoned evidence, then citizens will be deterred seizures rantless Although we extinguish fire fires. calling from fire public department is benefited when the agree fire, it is difficult summoned to the scene of a is promptly promote policy. requirement will see how a warrant department call fire will not decision to An individual's fire obtain a warrаnt depend requirement require view" The warrant evidence. seizing "plain before an who fears provides little solace to individual ment only way incriminating evidence. The which discovery of likelihood that someone will immedi could increase the we department preclude would be ately summon the This, warrant. at a even with a seizure of evidence course, public policy does not we will not do. We hold that the evidence this case. require suppressing and remand this case Appeals We affirm the Court trial. Callow, Andersen,

Brachtenbach, Dolliver, Dore, JJ., concur. result) sepa- write (concurring in the C.J.

Pearson, —I analysis of the law- majority's I because believe rately seriously in this and seizure case of the search fulness misapplication majority's The flaw lies flawed. expectation "the reasonable concept Amendment Fourth privacy". Although agree I the search and in this seizure holding lawful, case were I must believe the be based on grounds by different from the one offered the court. disputes fighters justified

No one that the fire were entering petitioner's remaining premises and on in order extinguish to larly, the blaze and ensure its Simi- nonrecurrence. disputes fighters lawfully

no one fire the marijuana plants plain observed the view. Petitioner has argued statutory authority not that the fire lacked plain although to make a seizure, view has the issue not been briefed. assume, however, We that RCW 48.48- .060(2) fight- Thus, authorizes such a seizure.8 had the fire marijuana plants, ers on their own removed the the seizure clearly would been lawful.

However, the fire contraband; did not remove the police discovery. instead, notified the of their police subsequently petitioner's entered home without a marijuana warrant and assisted the seizure. order for plants against the to have been admissible into evidence petitioner, entry then, the officers' warrantless must have been constitutional. entry

I believe the warrantless was constitutional based perceive logical synthesis plain Iwhat to be a of view exigent explaining why and circumstances doctrines. Before theory appropriate case, is the one this I will dis- why majority's analysis unsatisfactоry why cuss is and plain exigent doctrines, circumstances each support itself, is insufficient to the search and seizure here.

I majority appears to hold that officers' entry petitioner's warrantless into home did not violate the petitioner longer any Fourth Amendment because no expectation Majority reasonable home. his 48.48.060(2) provides police powers 8RCW fire "are marshals vested with particular argued to enforce the laws of this state." Petitioner has that the fire fighters, marshal, inspector observing marijuana plants fire lacked the statutory training police powers. prerequisites the exercise and other expectation reasonable Petitioner's at 200-01. opinion, destroyеd by lawful privacy allegedly majority fighters. continuing Unfortunately, this conclusion misconstrues opinion.9 expectation privacy”. "reasonable concept of Amendment a Fourth an individual raises Whenever intrusion, question threshold objection pri- expectation of individual had a reasonable whether the houses, effects" that "persons, papers, in the vacy [or] States, See Katz v. United upon. intruded (1967) (Harlan, J., 347, 360, 19 L. Ed. 2d 88 S. Ct. 507 Const, is held to person 4. If the concurring); U.S. amend. then the privacy, of expectation had no reasonable have thus, search; no not, a legally speaking, was intrusion See violated. right could have been Amendment Fourth Katz, exposes to the

Generally, person knowingly a "[w]hat office, subject hоme is not a of in his own or public, even Katz, example, at 351. For protection." Fourth Amendment with expectation privacy no of a has reasonable person States v. E.g., United his facial characteristics. respect Dionisio, 2d S. Ct. 764 1, 14, 35 L. Ed. 410 U.S. (1973). reasonably is can believe because no one This A hair, will unobserved. skin, eye color remain his a for justification making therefore needs no police officer characteristics; ‍​‌​​‌​‌‌​‌‌‌‌​​‌​‌‌​​‌‌​​‌‌‌‌​‌‌​‌‌‌‌​​​​‌‌​​​‌‌‍no Fourth there is of these salient note to be protected. Amendment interest expec- held have no reasonable When an individual is Appeals supporting majority cases 9The cites four circuit Court evaporates expectation privacy person's homе once a in his that a reasonable lawfully Majority opinion, agent 200. government enters the home. Two (5th) case, v. Gar United States A third are from the same circuit. cases cited Gargotto (6th 1973), gotto, inapposite. entered Cir. The 476 F.2d 1009 fire, exception recognized question investigate building in cause of a Tyler, 499, 510, Michigan v. requirement. L. Ed. 436 U.S. to the warrant (1978). at issue Gar premises No other onto 2d 98 S. Ct. majority's position. gotto, support consequently the case lends little for Hoffman, then, See United States circuits, split 2 to 1 on this issue. are 1979). (9th Cir. 607 F.2d 280 location, in an or two conclusions privacy object tation of First, intruded no upon can be drawn. because interest, no con- protected they need for their justification typical justifications duct. Fourth Amendment probable are searches cause and either a warrant or a rec- to the ognized exception requirement. entering warrant But public area of a store —where the owner has no reason- expectation requires justification; able no — hunch, evidence, enter on a fishing expedition Maryland Macon, for no reason at all. See good 472 U.S. 463, 469, L. Ed. 2d 105 S. Ct. 2778 Entering private establishment, areas of a commercial hand, requires probable some measure of cause and prior judicial approval, for expectation pri- a reasonable vacy Barlow's, Inc., inheres such areas. See Marshall v. 56 L. 2d Ed. 98 S. Ct. 1816 words, In other when no expectation reasonаble of privacy location, is held to exist probable existence of cause or a warrant is immaterial to the lawfulness the intrusion on that location.

The second conclusion from stemming a determination that no expectation reasonable exists a loca- any agent may intrude, tion is that government provided he or she has enabling authority Thus, so. to do not only (IRS) Internal police but also Revenue Service agents, (INS) and Naturalization Immigration Service employees, may and state social workers enter public com- areas of premises, mercial without probable cause and without a warrant. person

A is said to have no expectation reasonable of in privaсy objects places and when the objects or can places readily public be observed at See Katz v. large. States, Thus, United supra above, as noted a store owner has no expectation privacy reasonable of pub- lic areas of his Maryland Macon, store. v. 472 U.S. at 469. A no expectation homeowner has privacy reasonable of with respect to the aerial backyard observation of in his objects objects by anyone when the can be seen flying the legally Ciraolo, v. navigable airspace above the yard. California (1986). 210, 207, 476 U.S. L. Ed. 2d S. Ct. 1809 Cf. (1984) State Myrick, v. 102 Wn.2d 688 P.2d 151 (article 1, may section of State Constitution Washington privacy protected by offer federal protection places to not constitution). And no expecta- an individual has reasonable tion privacy against objects of the observation of protecting in his visible from access routes to house that are normal 902, Seagull, v. 898, house. See State 95 Wn.2d (1981). P.2d 44 however, is important recognize,

It that this doctrine— to only, to visual intrusions "open applies view" doctrine — to physical premises. intrusions such as entries onto of person may expectation have no reasonable Although privacy objects protecting against police observation home, expectation he have a reasonable window his does entry into his home.10 privacy protecting against police 2.2(a), and at 322-24 Search Seizure W. LаFave § Chrisman, 1, 6-7, (2d 1987). Washington v. 455 U.S. ed. Cf. (1982) 778, (although officer 70 L. 102 S. Ct. 812 Ed. 2d doorway suspect's room and open to lawfully stood room, jus- not enter room without officer could looked into literally however, remain tification; officer's to "right [an justification). times" furnished at all elbow arrestee's] expectation have a reasonable individual does When an not mean that location, of course does in a this" must have enter; only it means police may never justification must entering, justification some expectation always say reasonable individual has a that an is not to 10This may "open entry premises. physical enter against Police privacy protecting onto States v. United any infringing Fourth Amendment interest. fields" 326, 1134, 1141 Police also Dunn,_U.S__, 2d 107 S. Ct. 94 L. Ed. рublic, impliedly open such the usual access to the as are enter into areas 902, (1981), Seagull, P.2d 44 State house, 95 Wn.2d see to routes Macon, Maryland premises, see commercial areas of customer determining whether a rea But 105 S. Ct. 2778 L. 2d Ed. premises, applies physical it onto is not expectation sonable readily public; premises one are visible to enough examine whether implied permission public enter. has examine whether must also satisfy may in the Fourth Amendment. Justification be see, e.g., exigent circumstances, form of cause and probable Counts, State v. 54, 99 Wn.2d 659 P.2d 1087 (1983), see, e.g., Washing- arrestee, of an officer an right to follow Chrisman, ton 455 U.S. at 6. person

That has a reasonable expectation of privacy еntry into his home protecting against beyond dispute. " entry of the [P]hysical home is the chief evil which against (Cita wording Fourth Amendment is directed." omitted.) Payton v. York, New 573, 585, tion 445 U.S. L. 639, (1980). Ed. 2d 100 S. Ct. 1371 privacy This interest persists even when the opens resident in response the door Holeman, See State v. police to a officer's knock. 426, 429, Wn.2d 693 P.2d 89 privacy interest in fire, continues even homes in slightly damaged by as Michigan instant case. v. Clifford, 464 U.S. (1984)

L. Ed. 2d 104 S. Ct. 641 (plurality opinion); Michigan v. Tyler, 505-06, L. Ed. 2d Moreover, entry S. Ct. into a lawful ‍​‌​​‌​‌‌​‌‌‌‌​​‌​‌‌​​‌‌​​‌‌‌‌​‌‌​‌‌‌‌​​​​‌‌​​​‌‌‍one portion necessarily entry house will not justify into See Clifford, portions.

The majority one government agent holds that once law- home, enters fully and remains an individual's the rea- expectation sonable destroyed, home is government and other agents аgent's follow the first opinion, 200-01; footsteps. Majority see also majority (under opinion, at 201-02 article section 7 of the Wash- Constitution, ington while fire fighters already lawfully premises "did constitute a second invasion"). implications of such a conclusion are trou- First, as above, blesome. discussed if expec- no reasonable home, tation remains then officers may enter without justification is: probable without —that cause, a warrant, any and without of the circum- typically justify entry. stances that Suppose a warrantless had not discovered contraband home petitioner's just but the wandered in hopes decided to enter that something might unlawful up. analysis, turn Under a dozen officers majority's could crowd into the home for no whatsoever: petitioner would Fourth Amendment claim to have no raise, expectation pri- for he no would have reasonable vacy. analysis,

Secondly, majority's under once the home, the agent, agent, entered the IRS the INS I and worker would be free to As the state social enter. above, no expectation indicated when reasonable location, any A government agent may exists a enter. call for city emergency suddenly to the ambulance a medical and the opens one's home to the tax assessor marines. How objection can a Fourth Amendment when petitioner raise in the expectation he has no left reasonable home? outrageous expects no one such scenarios

Although problem actually arise, they do illustrate with navigable airspace, A home is not like majority's reasoning. any federal or state store, pathway, a or a where public dispense with We cannot may freely. officer wander entering person's officers requirement government that entry. What for their justification home some have circumstances, on the but depend justification may be will that some than the observation be more certainly it must It would be already "is there". officer government to hold otherwise. constitution grave of the disfigurement permit would a different reasoning majority's Finally, the equally one that likely more scenario —and but perhaps cause and war- probable circumvention impermissible: the "probable well established It is rant requirements. is not as strin- search an administrative for required cause" for a inves- criminal required cause" gent "probable as the for the administrative required the warrant tigation, than a area encompass geographical a broader search Court, Municipal U.S. See Camara criminal warrant. S. Ct. In the 2d 534-39, L. Ed. context, seeking private to enter officers administrative only premises magistrate must show or administrative standards legislative reasonable conducting respect inspection an area are satisfied with . . . particular to a Such standards will dwelling. condi- specific necessarily depend upon knowledge dwelling. tion of the particular contrast, Camara, context, suspi- the criminal 538. to be particular dwelling cion must be focused on Camara, searched.

This distinction between the and the administrative probable requirements criminal cause carries and warrant over into fire Fire investigations. inspectors entering fire- damaged premises to determine of a origin the cause require- blaze need not meet stringent same warrant inspectors ments as who fire's already determined the the premises solely cause enter to collect evidence use in a prosecution. Michigan criminal Clifford, 294; Michigan at U.S. v. at Tyler, 436 U.S. 508. majority's analysis, however, Under the a once inspector lawfully building enters a to determine the causе fire, origin police pursuing a officers a inves- criminal on tigation inspector's follow the heels both- to obtain the ering traditional "criminal" warrant. Whether probable such circumvention of the cause and warrant requirements for is investigations likely criminal ever to be a prevalent practice point; is the the beside critical question is the prevent whether constitution would the I practice. would, it opinion believe although majority the sug- would otherwise. gest I

Because believe petitioner continued to have reason- expectation of able in his after fight- home entered, ers lawfully the lawfulness of the entry officers' depend sufficiency justifi- will the their then, cation. The appropriatе inquiry point, at this is whether the entry officers' warrantless fits into any recognized exceptions requirement. the warrant

II One of the justifications entry common for a warrantless home exigent California, into a circumstances. See Ker v. 210 23, 39-41, 726, L.

374 10 Ed. 2d 83 S. Ct. 1623 U.S. examples exigent Typical circumstances include evidence, of harm to danger imminent destruction community, suspect officers or the or the likelihood the will Ker, 40; Warden, Penitentiary Hayden, Md. v. escape. at 294, 297-99, 782, 18 S. 387 U.S. L. Ed. 2d Ct. 1642 exigencies exigent None of these here. The apply v. Michigan Tyler, see fire, circumstance created (1978), 486, L. 2d Ct. U.S. Ed. 98 S. also for offi- apply, does not the State concedes that single contra- seizing cers entered with band, assisting extinguishing and not the blaze. exceptions requirement,

Other to the warrant such as v. Loewen, see State 562, 97 Wn.2d emergency, medical 568, (1982), arrestee, an accompanying 647 P.2d Washington Chrisman, v. see 1, 778, L. Ed. 2d (1982), 102 S. Ct. 812 similarly inapplicable. are The right to make warrantless to determine the cause of a Tyler, see fire, State; at is of as indi no avail above, any not enter cated did fire-related purpose. currently espoused pro- also plain view doctrine as entry. officers' warrantless justification

vides no per- only That the warrantless seizure of justifies doctrine police already lawfully when the property sonal Chrisman, see 5-6; Washington entered home. L. Coolidge Hampshire, also v. New Ed. U.S. Johnson, State (1971); 17 Wn. 2d 91 S. Ct. 2022 denied, review 153, 154-55, 89 Wn.2d App. 561 P.2d on the premises, The officers' lawful to fact, prerequisite plain in first a view seizure. is the Coolidge, then, exceptions to the the traditional appears,

It justify police offi- requirement cannot serve to warrant any pre- of entry home. absence petitioner's cers' into however, us exception, need not deter viously recognized when an extension would extending existing from doctrine reasonable. appear

III noted, previously As the fire were entitled to a plain petitioner's plants. make view seizure of marijuana The majority justifies police entry by observing officers' lawfully of the residence has been "[office invaded, require it is to senseless warrant others to complete enter and what would already those on the scene in justified be doing." Majority opinion, point at 201. The however, here, is not his reasonable petitioner loses expectation of his home but that a war rather rant is unnecessary when purpose enter with the completing already "what those the scene would be justified in doing." words, entry is critical to its lawfulness. Police would not jus have been tified entering general conduct exploratory search or evidence, look around for other nor would justified been if entering the fire fighters had not first discovered the But contraband. when their sole purpose was to assist the seizure of the contra band, the need for a dispelled. warrant was Camara v. Cf. Court, Municipal 523, 534-39, 18 U.S. L. Ed. 2d (1967) S. Ct. (purpose an entry behind officer's deter prоbable mines nature cause and warrant required entry); Michigan Tyler, also at 510-12 (entry of fire- cf. damaged premises with purpose determining origin preventing fire and its may warrant, recurrence require entry with purpose whereas crime collecting evidence of warrant). require would

I believe make a warrantless into a home when:

1. Other government agents already lawfully present are home; in the

2. The already agents present have discovered contra- view; band evidence in plain 3. The agents already present authority have lawful perform plain seizure;

4. The reasonably are called to assist the seiz- ure; assisting the sole purpose

5. The enter with seizure; entry by do not scope 6. The exceed the government agents; and reasonably seizure is performed expeditiously. 7. The support I believe the facts this case warrаntless theory. lawfully peti- The fire entered under this lawfully out fire remained in the put tioner's home to and permanently extinguished. certain the fire home to be was contraband, and fighters lawfully came across the The fire statutory they lacked the argument makes no petitioner ‍​‌​​‌​‌‌​‌‌‌‌​​‌​‌‌​​‌‌​​‌‌‌‌​‌‌​‌‌‌‌​​​​‌‌​​​‌‌‍seizure of contraband. authority perform plain extensive, requiring marijuana operation was plants' persons of a number of to effect assistance petition- in a reasonable time. entered removal in the seizure assisting er's home with the sole confined their to the area the marijuana; recurrence, monitor continued to delay. undue performed the seizure facts, seizure I hold the search and Based on these would in this case to be lawful. J., Tern., J. Pro concur with Schumacher,

Utter, Pearson, C.J. May En Banc. 52737-7. 1987.]

[No. Bobby Respondent, Washington, The State Petitioner. Perkins, Dean

Case Details

Case Name: State v. Bell

Court Name: Washington Supreme Court

Date Published: May 14, 1987

Citation: 737 P.2d 254

Docket Number: 52685-1

Court Abbreviation: Wash.