THE STATE OF WASHINGTON, Respondent, v. WILLIE ALLEN HASTINGS, Petitioner.
No. 57309-3
Supreme Court of Washington
June 4, 1992
Reconsideration denied July 1, 1992.
119 Wn.2d 229 | 830 P.2d 658
En Banc.
BRACHTENBACH and DURHAM, JJ., concur with ANDERSEN, J.
Reconsideration denied July 1, 1992.
Norm Maleng, Prosecuting Attorney, and Peter Goldman, Deputy, for respondent.
DURHAM, J. — On November 4, 1986, two undercover Seattle police officers went to a house to buy drugs after receiving complaints. They knocked on the front door, stated their purpose, and were invited inside. Upon entry, they saw customers lined up before a table, at which sat Willie Hastings. When their turn came, each officer bought a small amount of rock cocaine from Hastings.
Based on information provided by the officers, police obtained a search warrant for the house. Police went to the house to serve the warrant at about 1:30 a.m. on November 5, 1986. The officers knocked on the door, identified themselves, announced that they had a search warrant, and demanded entry. From inside the house, the police heard people running away from the door. A few seconds later, the police forced the door open.
Inside, the police found approximately 18 people, including Hastings. Hastings and several other people were ordered to lie down on the floor. The police subsequently discovered cocaine near Hastings, and arrested him for possession of a controlled substance.
Hastings was charged with two counts of unlawful delivery and one count of possession. Prior to trial, he moved to suppress evidence. Hastings primarily argued first, that the initial entry by undercover officers was an illegal warrantless search, and second, that the subsequent search warrant was executed in violation of the knock and announce rule. The motion was denied, and a jury found him guilty of the
WARRANTLESS ENTRY
The Court of Appeals correctly held that the initial entry here was permissible because no constitutionally protected expectation of privacy was involved. State v. Hastings, 57 Wn. App. 836, 839, 790 P.2d 645 (1990). This holding follows from the longstanding rule:
What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210[, 17 L. Ed. 2d 312, 87 S. Ct. 424 (1966)]... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
...
...
(Citation omitted.) Katz v. United States, 389 U.S. 347, 351, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967).
There is no reasonable expectation of privacy in a home where illegal business is openly conducted and, therefore, it is not entitled to Fourth Amendment protection.
[W]hen, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant.
Lewis v. United States, 385 U.S. 206, 211, 17 L. Ed. 2d 312, 87 S. Ct. 424 (1966), quoted in Hastings, at 839. As noted in a concurring opinion, the Fourth Amendment offers protection against intrusion into the sanctity of the home. “However, the occupant can break the seal of sanctity and waive his right to privacy in the premises.” Lewis, at 213 (Brennan, J., concurring).1
Hastings argues that the rule from State v. Hashman, 46 Wn. App. 211, 729 P.2d 651 (1986), review denied, 108 Wn.2d 1021 (1987) should be applied here because the police used deception to gain entry.2 In Hashman, at 216, the Court of Appeals held that the police must have a “justifiable and reasonable basis to suspect criminal activity” before they may effect a ruse entry. However, Hashman does not apply. See Hastings, 57 Wn. App. at 839. Where there is no expectation of privacy, the Fourth Amendment is not implicated. Moreover, the threshold requirement set forth in Hashman for using a ruse is an unnecessary limitation on undercover police investigations. This court has never utilized such a rule, and the proposed threshold requirement serves no valid purpose.
In sum, the Court of Appeals correctly held that the premises here were “a center for transacting unlawful business, and thus were not an area in which the occupants had a constitutionally protected expectation of privacy.” Hastings, at 839. We adopt that reasoning.3
It is also worth noting that even if the Fourth Amendment did apply, our decision would be justified. The Fourth
A search conducted pursuant to consent is proper, even absent a warrant. Schneckloth, 412 U.S. at 219; State v. Mak, 105 Wn.2d 692, 713, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986). In any consent case, two issues are involved: was there a valid, voluntary consent by the defendant or a competent third party, and did the ensuing search exceed the scope of the consent?4 See generally 3 W. LaFave, Search and Seizure § 8.1, at 147-48 (2d ed. 1987). When consent is obtained by concealing the true identity of the entrants, we must determine if the ruse vitiated that consent.
In Lewis v. United States, supra, the Court found that a warrantless entry under almost identical circumstances to those here did not run afoul of the Fourth Amendment. The Court held that the undercover activity was permitted.5 It reasoned that the agent had been invited into the petitioner‘s home for the illegal purpose of purchasing drugs, and that the conduct involved did not exceed this
This conclusion is also supported by cases which hold that knowledge of one‘s Fourth Amendment rights is unnecessary to effect a valid consent. Consent must be voluntary, but this does not mean that it must be made with full knowledge of the right to refuse the entry or search. Schneckloth, at 229-31. In this way, the voluntariness involved in giving consent is distinct from the requirements for a knowing and voluntary waiver of rights implicated in the trial process. The Court has recognized this distinction:
Nor can it even be said that a search, as opposed to an eventual trial, is somehow “unfair” if a person consents to a search. While the Fourth and Fourteenth Amendments limit the circumstances under which the police can conduct a search, there is nothing constitutionally suspect in a person‘s voluntarily allowing a search. The actual conduct of a search may be precisely the same as if the police had obtained a warrant. And, unlike those constitutional guarantees that protect a defendant at trial, it cannot be said every reasonable presumption ought to be indulged against voluntary relinquishment.
Schneckloth, at 242-43. The lack of knowledge on the part of the person who opened the door in this case that those who entered were actually police has no bearing on whether the entry was consensual. The decision to allow strangers to enter was made absent coercion by the police and with full
KNOCK AND ANNOUNCE
Hastings argues that the police violated the knock and announce rule when they executed the search warrant.
To make an arrest in criminal actions, the officer may break open any outer or inner door, ... if, after notice of his [or her] office and purpose, he [or she] be refused admittance.
The remedy for a violation of the statute is suppression of the evidence seized. State v. Coyle, 95 Wn.2d 1, 14, 621 P.2d 1256 (1980). Here, the only evidence seized was related to the possession charge that was dismissed. Since the evidence pertinent to the convictions here was not involved, the execution of the search warrant is not at issue. Hastings’ argument that the evidence prejudiced the jury in regard to the delivery charges is unconvincing. Clearly, in light of the testimony of the undercover officers, the untainted evidence offered in the delivery case was “so overwhelming that it necessarily leads to a finding of guilt.” State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). Thus, any error was harmless beyond a reasonable doubt.
Hastings also argues that the undercover officers’ in-court identification should be suppressed, because it was based in part on the examination of photographs taken at the scene of the arrest. Relying again on the knock and announce rule, Hastings claims that the identifications were tainted by the fruit of an illegal search. We are not persuaded. The in-court identification had an independent basis due to the officers’ interaction with Hastings when they bought the drugs. Thus, the identification is admissible, regardless of whether the warrant was executed properly. See State v. Mathe, 102 Wn.2d 537, 546-47, 688 P.2d 859 (1984).
The Court of Appeals is affirmed.
DORE, C.J., and BRACHTENBACH, ANDERSEN, and GUY, JJ., concur.
UTTER, J. (concurring) — The conclusion reached by the majority is correct. Although this case was briefed and argued as a ruse case, there was in fact no ruse, as revealed by the facts of this case.7 Here the police truthfully said they were there to purchase cocaine. This should narrowly focus the inquiry on whether the police conduct was a search and, as such, a reasonable warrantless entry. See Skinner v. Railway Labor Executives’ Ass‘n, 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989).
Instead, the majority unnecessarily discusses rules governing ruse cases in what is purely nonbinding dicta. It also erroneously discusses and unnecessarily confuses what
I
The “essential purpose of the . . . Fourth Amendment” is to impose a standard of reasonableness on the exercise of discretion by government officials in order to safeguard privacy from arbitrary invasion. Delaware v. Prouse, 440 U.S. 648, 653, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). A warrantless entry into the home is presumed to be unreasonable, subject to a limited number of exceptions. Welsh v. Wisconsin, 466 U.S. 740, 749-50, 80 L. Ed. 2d 732, 104 S. Ct. 2091 (1984); Payton v. New York, 445 U.S. 573, 586, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980); Seattle v. Altschuler, 53 Wn. App. 317, 319-20, 766 P.2d 518 (1989).8 While the “Fourth Amendment generally prohibits the warrantless entry of a person‘s home,” this prohibition does not apply where the police obtain voluntary consent, either from the individual whose property is searched, or from a third person who possesses common authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 181, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990).
While the majority examines the warrantless entry as a consent search, its analysis fails to take account of all the
A consent to search is not valid unless the person consenting to the search has authority to consent. Illinois v. Rodriguez, 497 U.S. at 181; State v. Leach, 113 Wn.2d 735, 738, 782 P.2d 1035 (1989). Under the Fourth Amendment, the police may reasonably rely on the apparent authority of the person consenting to the entry. Illinois v. Rodriguez, supra; but see State v. Leach, supra. Petitioner did not admit the undercover officers,9 and the record does not disclose the status of the person who let the undercover officers enter. Thus, an issue arises whether the man at the door actually or apparently possessed “common authority” over the premises.
In United States v. Matlock, 415 U.S. 164, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974) the Supreme Court articulated a definition of “common authority“:
Common authority . . . rests . . . on mutual use of the property by persons generally having joint access or control for most purposes . . . .
United States v. Matlock, supra at 171 n.7. “The burden of establishing that common authority rests upon the State.” Illinois v. Rodriguez, 497 U.S. at 181. The ultimate standard for the common authority rule is objective reasonableness: “‘... would the facts available to the officer at the moment . . . “warrant a man of reasonable caution in the belief“‘“. Illinois v. Rodriguez, 497 U.S. at 188. While there is some doubt whether the man at the door actually or apparently possessed “common authority” over the premises, the under-
“Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.”
Illinois v. Rodriguez, 110 S. Ct. at 2800 (quoting Brinegar v. United States, 338 U.S. 160, 176, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949)). If, under the circumstances as then known, it was reasonable for the undercover officers to believe that the person who admitted them to the living room had the authority to do so, the search is valid. Illinois v. Rodriguez, 497 U.S. at 188-89.
The Supreme Court has sanctioned the use of undercover tactics similar to the one used by the police in this case. See Maryland v. Macon, 472 U.S. 463, 86 L. Ed. 2d 370, 105 S. Ct. 2778 (1985); Lewis v. United States, 385 U.S. 206 (1966). This is one factor that enters into the analysis of the reasonableness of the undercover officers’ reliance on the doorman‘s authority to admit them inside. Necessity grounds the use of undercover tactics: police could not effectively investigate certain forms of crime if in every circumstance they always had to reveal their official identity. This case presents a type of criminal activity effectively investigated with undercover tactics.
Because people who regularly sell drugs out of a home tend to restrict strangers’ access to the illegal activity that occurs inside, it is reasonable that a person stationed at the door of such an alleged house has the authority to admit or refuse persons entry. Under the circumstances presented in this case, it would be unreasonable to say that the person at the door did not have the authority to admit the undercover officers. The function of the doorman at a drug house is to restrict entry to those persons who want to purchase drugs. It is reasonable to rely on their authority to select persons for admittance.
Here, the undercover officers could reasonably rely on the authority of the man in the gray and red sweat suit to
II
The majority‘s two alternative holdings appear to provide two different and seemingly equally valid answers to the same question: was there a violation of the Fourth Amendment? However, in its first alternative holding, the majority claims that the Fourth Amendment does not apply here; in its second alternative holding, the majority claims that the warrantless entry was reasonable. In light of the Fourth Amendment analytic framework expressed in Illinois v. Rodriguez, 497 U.S. 177, 181, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990), these two alternative holdings are answers to two different questions. The majority has collapsed these two different questions into one. This move will needlessly confuse, not clarify, Fourth Amendment doctrine for the trial courts of this state.10
The cornerstone of the majority‘s first alternative holding is its misreading of Lewis v. United States, supra. The key language in Lewis is found in the following passage:
[W]hen, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater
However, the majority expressly rejects this conclusion: “Where there is no expectation of privacy, the Fourth Amendment is not implicated.” Majority opinion, at 233. If the Fourth Amendment does not apply to the police conduct, there is no legal basis for imposing any sort of limitation on the scope of the police activity inside the home. If there is no “search“, then there is no constitutional basis for imposing any sort of reasonableness requirement on the scope of the police action inside the home.
(Italics mine.) Lewis v. United States, 385 U.S. 206, 211 (1966). In the passage from Lewis quoted above, the Supreme Court spoke of “business” that has no reasonable expectation of privacy when it is openly conducted before outsiders invited into the home. Lewis, at 211. The Lewis Court used the word “business” to refer to acts and conduct, not a “place of business” or some physical structure. Rakas provides cogent support for this conclusion. See Rakas v. Illinois, 439 U.S. 128, 143 n.12, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978).11 However, the majority reads the word “business” as “place of business” and misreads Lewis. It loses sight of what Lewis and Rakas say is exposed to the public: the illegal transaction itself and the immediate area where it occurred.
Given the Fourth Amendment expressly protects “houses” and “persons” from “unreasonable searches and seizures“, no amount of interpretative gymnastics applied to Lewis can hide the analytic error of the majority‘s first alternative holding. The majority forgets “the Fourth Amendment has drawn a firm line at the entrance to the house.” Payton v. New York, 445 U.S. 573, 590, 586, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980) (quoting Johnson v. United States, 333 U.S. 10, 92 L. Ed. 436, 68 S. Ct. 367 (1948)).12 The majority relies on Lewis for its conclusion that no search occurred:
Majority opinion, at 232. Under the Fourth Amendment, obtaining evidence is a “search” if it infringes an expectation of privacy society is prepared to recognize as reasonable. Skinner v. Railway Labor Executives’ Ass‘n, 489 U.S. 602, 616 (1989); Maryland v. Macon, 472 U.S. 463, 469 (1985). A “search” is needed to trigger the protections of the Fourth Amendment. See Maryland v. Macon, supra at 468. These protections are twofold:
What [a criminal defendant] is assured by the trial right of the exclusionary rule, where it applies, is that no evidence seized in violation of the Fourth Amendment will be introduced at his trial unless he consents. What he is assured by the Fourth Amendment itself, however, is not that no government search of his house will occur unless he consents; but that no such search will occur that is “unreasonable.”
(Citation omitted. Italics mine.) Illinois v. Rodriguez, 497 U.S. at 183.
The Supreme Court decisions have more narrowly confined their expectation of privacy analysis than the majority. In Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979), a case involving a bookseller convicted of selling obscene materials, the Court stated:
The suggestion is that by virtue of its display of the items at issue to the general public in areas of its store open to them, petitioner had no legitimate expectation of privacy against governmental intrusion, see Rakas v. Illinois, 439 U. S. 128 (1978) .... But there is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not conform to Fourth Amendment guarantees. See
Lo-Ji Sales, at 329. The language used in Lo-Ji Sales is clear: an invitation to enter commercial premises does not trump the protections of the Fourth Amendment. Thus, even when the premises are commercial rather than residential in nature, the protections of the Fourth Amendment do not evaporate; any search must still be reasonable. See Lo-Ji Sales.
By claiming there was no reasonable expectation of privacy in the premises, the majority‘s first alternative holding rests on the legal conclusion that no search occurred. See Skinner. The conclusion that the undercover police were not searching for evidence of suspected crimes flies in the face of common sense and the facts of this case. The police had received numerous complaints about alleged illegal drug activity occurring at the residence. The undercover officers even waited outside the residence for approximately an hour, observing many people enter, before trying to gain entry.
The police conduct in this case was much more intrusive than radio monitoring or aerial surveillance of a person driving to a destination. Cf. United States v. Knotts, 460 U.S. 276, 281-82 (1983). The undercover officers crossed the threshold of a home. Cf. Payton v. New York, supra. The undercover officers could not have made firsthand observations of the illegal activity occurring inside the home had they not crossed the threshold. But cf. United States v. Knotts, supra at 285 (no search occurred when a beeper was not used to reveal information about the movement of a container inside a cabin or information that would not be visible from the outside of the cabin).
In footnotes, the majority seeks to dispel concern about the effects of its holding. However, under current Fourth Amendment doctrine, a legal finding of no legitimate expectation of privacy deprives a defendant of the protections of the exclusionary rule. See Illinois v. Rodriguez, 497 U.S.
In seeking to remove perceived (but not empirically proved or substantiated) burdens on undercover operations, the majority goes too far in restricting the scope of the Fourth Amendment. I do not dispute that the criminal conduct presented by this case and its setting in a neighborhood home present serious problems for law enforcement and society as a whole. Yet, as the Supreme Court observed of this dilemma:
“Crime, even in the privacy of one‘s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also of grave concern, not only to the individual, but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.” Johnson v. United States, 333 U. S. 10, 14 (1948), quoted with approval in Payton v. New York, 445 U. S. 573, 586 (1980).
United States v. Knotts, supra at 282.
By holding that the warrantless entry was not a search, the majority forecloses any inquiry into the constitutional requirement that all searches and seizures be reasonable. No judge, either before or after the fact, will ask the State to substantiate the warrantless entry into the home. There
The final troubling aspect of the majority opinion is its unreasoned conclusion that the warrantless entry into the home did not violate
Recourse to our state constitution as an independent source for recognizing and protecting the individual rights of our citizens must spring not from pure intuition, but from a process that is at once articulable, reasonable and reasoned.
(Footnote omitted.) State v. Gunwall, supra at 63.
DOLLIVER, SMITH, and JOHNSON, JJ., concur with UTTER, J.