136 Wash. 2d 361 | Wash. | 1998
Lead Opinion
Petitioner Grant Myron Richards seeks review of a decision of the Court of Appeals, Division One, which affirmed a decision of the King County Superior Court denying his motion to suppress evidence, ruling that police officers executing a valid search warrant were not required to wait for Petitioner to grant or deny them entry into his apartment because all the requirements of RCW 10.31.040, the “knock and wait” rule, were satisfied. We granted review. We affirm.
QUESTION PRESENTED
The question presented in this case is whether plainclothes police officers executing a valid search warrant violated the “knock and wait” or “knock and announce” rule, codified in RCW 10.31.040, absent exigent circumstances, by not waiting for Petitioner to grant or deny them entry into his apartment after they announced their presence, identity and purpose while entering an open sliding glass doorway.
STATEMENT OF FACTS
At about 5:55 p.m. on April 4, 1990, members of the Multi-Eastside Agency Narcotics Task Force, in association with the Mercer Island Police Department, executed a valid narcotics search warrant at the apartment residence of Petitioner Grant Myron Richards at 13012 - 117th Place Northeast, number F-4, Kirkland, King County, Washington.
Petitioner Richards was advised of his “Miranda” rights, but waived them.
On August 20, 1991 the King County Prosecuting Attorney filed an Amended Information in the King County Superior Court charging Petitioner with one count of possession with intent to manufacture or deliver cocaine.
That the defendant GRANT MYRON RICHARDS in King County, Washington on or about April 4, 1990, unlawfully and feloniously did possess with intent to manufacture or deliver cocaine, a controlled substance and narcotic drug, and did know it was a controlled substance.[23 ]
Petitioner made a motion to suppress the cocaine and other evidence, claiming Detective Erickson failed to comply with the “knock and wait” rule before entering his apartment to execute the search warrant.
The purpose of the knock and announce rule is different in*367 cases involving closed doors and open doors. In this case, there is an area of visibility which is not present in a closed door situation. The open glass door gave the defendant an opportunity to see the police officers. Thus their presence was known to him prior to their entry. . . . As he was entering the apartment, and after his presence was made known, Detective Erickson announced “Police, search warrant,” which informed the defendant of their presence, identity and purpose. . . . Under the circumstances presented, the officers did not need to wait for defendant to permit or deny entrance into the apartment. The context in which this happened required the police to act quickly.[26 ]
After a trial on stipulated facts on August 21, 1991, in which Petitioner Richards was found “guilty” of the crime of violation of the Uniform Controlled Substances Act as charged,
On remand, the trial court, the Honorable Nancy Ann Holman, on October 4, 1991 entered supplemental findings of fact and conclusions of law confirming that Detective Erickson announced his presence, identity and purpose before entering Petitioner’s apartment:
The purpose of the knock and announce rule is different in cases involving closed doors and open doors. In this case, there is an area of visibility which is not present in a closed door sit*368 uation. The open glass door gave the defendant an opportunity to see the police officers. Thus their presence was known to him prior to their entry. . . . Prior to entering the apartment, and after his presence was made known, Detective Erickson announced “Police, search warrant,” which informed the defendant of their presence, identity, and purpose. . . . The officers entered immediately after announcing their presence and purpose. Since the defendant turned around and made eye contact with them prior to their entry, he knew who they were and why they were there. Thus they did not need to wait for him to permit or deny entrance into the apartment. The context in which this happened required the police to act quickly.[32 ]
After a hearing on Petitioner Richards’ second appeal, the Court of Appeals again affirmed his conviction on August 11, 1997.
Petitioner then sought review by this Court, which was granted on March 4, 1998.
DISCUSSION
Petitioner Grant Myron Richards contends the plainclothes police officers, while attempting to serve a search warrant upon his residence, violated the “knock and wait” rule (1) by not waiting to be granted or denied entry by the occupant, Petitioner, as required by the “knock and wait” rule codified in RCW 10.31.040;
The “knock and wait” rule in RCW 10.31.040 states:
To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other inclosure, if, after notice of his office and purpose, he be refused admittance.[38 ]
The federal statute containing the “knock and wait” rule, 18 U.S.C. § 3109, is substantially similar to RCW 10.31.040.
This Court in State v. Coyle concluded that, in order to comply with the “knock and wait” rule, police officers prior to a nonconsensual entry must (1) announce their identity, (2) announce their purpose, (3) demand admittance, (4) announce the purpose of their demand, and (5) be explicitly or implicitly denied admittance. Under Coyle these requirements must be satisfied even if the officers enter through an open door.
The language of RCW 10.31.040 is consistent with the less demanding interpretation of the “knock and wait” rule announced by the United States Court of Appeals for the Ninth Circuit in decisions relating to 18 U.S.C. § 3109; and is consistent with recent decisions by the Washington Court of Appeals relating to RCW 10.31.040. But this Court in Coyle provided a more expansive interpretation of the statute. The requirement of a demand for admittance and an explicit or implicit denial of admittance have been merged into a “waiting period,” often linked to whether the police officers are refused admittance.
The United States Court of Appeals for the Ninth Circuit in United States v. Bustamante-Gamez stated:
[B]oth the cases and the literature have concentrated solely upon the “announcement” portion of section 3109; little attention has been devoted to the issue of when “refusal of admittance” is necessary. Such case law as there is, however, suggests that this requirement, like the rule of announcement in general, is a flexible one which is not to be applied mechanically. See generally United States v. Pratter, 7 Cir. 1972, 465 F.2d 227, 231-233 nn. 10-13 (collecting cases). For example, in McClure v. United States, 9 Cir., 1964, 332 F.2d 19, we held that a refusal of admittance is generally to be implied, and that the test is whether “the circumstances were such as would convince a reasonable man that permission to enter had been refused.” Id. at 22. . . .
*371 The simple fact is that a homeowner has no right to prevent officers armed with a warrant or proper grounds to make a warrantless entry from entering his home. At the most, the “refusal of admittance” requirement gives him a few moments to decide whether or not he will open the door himself. See, e.g., United States v. Woodring, 9 Cir., 1971, 444 F.2d 749 (permitting entry after a one-minute wait following announcement).[43 ]
This Court in Coyle concluded that police officers must not only announce their identity and purpose, but must also demand admittance and be explicitly or implicitly denied admittance. Since Coyle, the Washington Court of Appeals, Division One, has at least in one case in 1985 determined that a statement by a police officer identified as such and who announces that the officer possesses a search warrant constitutes an implicit demand for admission into the residence.
The announcement portion of RCW 10.031.040 is not at issue in this case because the supplemental findings of the trial court confirmed that the two lead detectives announced their identity and purpose before entering Petitioner’s apartment.
In interpreting RCW 10.31.040, this Court adheres to the purposes for which the statute was enacted.
Petitioner Richards argues that the police officers did not comply with two of the “knock and wait” rule requirements announced by this Court in Coyle. He claims there was no demand by the police officers to be admitted to his apartment and he had no opportunity to grant or deny them admittance. Respondent State counters that Detective Erickson’s announcement, “Hey, Grant, Police. We have a search warrant” provided sufficient notice of the officers’ identity and purpose and therefore the officers did not need to specifically request entry or be granted or denied admittance. Under this Court’s decision in Coyle, a court must examine whether police officers’ actions effectuated the purpose of the “knock and wait” rule in determining whether a demand for entry and a grant or denial of admittance are required.
In this case, the Court of Appeals concluded that the police officers were not required to wait for an implicit or explicit refusal of admittance because all purposes of the rule had been satisfied before they entered.
Failure to demand admittance did not increase the likelihood of physical destruction of property because the sliding glass door was open and only a sliding screen door remained in a closed position. Petitioner’s expectation of privacy was significantly reduced because the police officers had a valid search warrant and could see him through the open sliding glass door with curtains open. Once the officers have satisfied the probable cause and warrant requirements, the occupant’s right of privacy is limited because police are authorized to enter the premises with or without consent of the occupant.
In this case, the police officers in clear view observed Petitioner adjusting a video cassette recorder. As the officers proceeded to enter the apartment, Petitioner was afforded reasonable warning by Detective Erickson’s immediate prior and almost simultaneous announcement of Petitioner’s name and the officers’ identity and purpose. Petitioner’s privacy was not impermissibly disturbed.
Entry upon private property to execute a search warrant must be lawful. A lawful entry, being conditioned upon an announcement of identity and purpose and a demand for admittance, must be “reasonable” and subject
In this case, the detectives acted reasonably when they immediately entered Petitioner’s apartment after announcing their identity and purpose. Shouting of Petitioner’s name by Detective Erickson was equivalent to a knock because the detectives had a clear and unobstructed view of the apartment’s occupants through the sliding screen door. Yelling “Hey, Grant” to get Petitioner’s attention was as good a notice as a knock on the door would have been. When Petitioner turned to face the detectives standing in full view at his open glass door and made eye contact with them, Detective Erickson immediately identified himself and the other detective as police officers and announced the purpose of their entry by stating, “Police. We have a search warrant.” The announcement of a search warrant constituted an implicit demand for entry.
Although the detectives did not wait for Petitioner to grant or deny them permission to enter the apartment before sliding open the screen door and entering the apartment, waiting would have served none of the purposes of the “knock and wait” rule. An occupant, confronted with a valid search warrant, has no right to refuse admission to police officers because no interest served by the “knock and wait” rule would be furthered by requiring the officers to stand at an open sliding glass doorway for a few seconds to determine whether the occupant would permit their entry.
Petitioner claims the detectives’ entry into his apartment
In Ellis, plainclothes officers executing a valid search warrant at 4:00 a.m. initially tried to gain entry by the ruse of claiming to be an acquaintance of the defendant named “Louie.”
When the defendant [in Ellis] realized that he had been tricked into opening the door, he tried to shut it again, but the officers forced the door open while simultaneously announcing their true identity. The Ellis court observed that because the uniformed officers in that case were not reasonably visible to one looking out the door, because the plain-clothes detective who announced the officers’ true identity did not clearly display his badge, and because the officers forced entry while simultaneously announcing their true identity and purpose, the defendant was faced with a situation resembling that in State v. Bresolin, 13 Wn. App. 386, 534 P.2d 1394 (1975), in which robbers entered a house falsely claiming to be federal*376 agents. Ellis, 21 Wn. App. at 127. The Ellis court noted that the circumstances of the confrontation made it understandable that the defendant, upon discovering that he had been tricked into opening the door, would instinctively close the door in an effort to protect himself. Id. The Ellis court observed that forceful entry simultaneous with identification is dangerous when the only visible officers are in plain clothes, especially during late night hours. Ellis, 21 Wn. App. at 127-28.[64 ]
Petitioner’s case is distinguishable from Ellis. As the United States Supreme Court has stated, each case must be evaluated on its own facts.
The defendant in Ellis had reason not to believe the announcement of the true identity of the police officers in their undercover attire because the officers had already attempted to get him to open his door by claiming to be an acquaintance. In this case Petitioner Richards had no reason not to believe Detective Erickson’s announcement of identity and purpose. Although the detectives’ attire and physical appearance in this case and in Ellis did not lend to immediate realization of their true identity as police officers, the detectives in this case did in fact immediately inform Petitioner of their true identity and purpose mo
Petitioner argues that the opinion of the Court of Appeals in this case is in conflict with State v. Coyle.
Petitioner’s arguments based on Coyle are not persuasive. The Coyle decision applies to “no-knock” entry where there has been no compliance with the “knock and wait” rule. Under the facts of this case, Petitioner Richards saw and heard the detectives announce their identity and purpose immediately before they entered. Stricter compliance with the “knock and wait” rule was not required because the detectives were “virtually certain” Petitioner was aware of their presence and purpose.
It is logical to conclude under the facts of this case that the detectives reasonably believed Petitioner Richards knew they were police officers and that they entered his apartment to serve a search warrant.
SUMMARY AND CONCLUSIONS
Service of a search warrant implicitly constitutes demand for admission to premises. To wait for grant or denial of admission after an occupant has been made aware of a police officer’s presence and purpose would serve no logical purpose. The police officer is already authorized by the search warrant to enter the premises without permission from the occupant.
In this case, the purposes of the “knock and wait” rule, RCW 10.31.040, were satisfied because there was no unannounced entry, there was no danger of violence or property damage, and entry through an open sliding glass door by moving a sliding screen door did not invade the occupant’s privacy because the police officers gave a reasonable warning identifying themselves and announcing their purpose. Under these circumstances, it would serve no purpose to require the officers to wait for a response to a demand or request for admittance.
The police officers in this case complied with the requirements of the “knock and wait” rule stated in RCW 10.31.040. The Court of Appeals correctly determined the trial court did not commit error in denying Petitioner’s motion to suppress cocaine found in his apartment by police officers who entered with a search warrant after announcing their identity and purpose.
We affirm the decision of the Court of Appeals, Division One, which affirmed a decision of the King County Superior Court denying Petitioner Grant Myron Richards’ motion to
Durham, C.J., and Dolliver, Guy, and Talmadge, JJ., concur.
Clerk’s Papers at 16-17.
Id. at 16.
Id. at 7.
Id. at 27 (Court of Appeals, Division One, unpublished opinion in the first appeal, State v. Richards, 75 Wn. App. 1001 (1994), review denied, 126 Wn.2d 1002 (1995)).
Id.
Id.
State v. Richards, 87 Wn. App. 285, 288, 941 P.2d 710 (1997).
Id.
Clerk’s Papers at 8.
Id.
Id.
Clerk’s Papers at 27.
Richards, 87 Wn. App. at 288.
Id. The record does not contain the search warrant. Neither party raises a question concerning its content or purpose.
Clerk’s Papers at 8.
Id. at 17.
Id.
Clerk’s Papers at 23.
Id. at 17.
Id. at 17-18.
Id. at 18-19.
Id. at 5.
Id.
Id. at 7-10.
Id.
Id. at 7-10.
Id. at 11.
Id. at 24.
Id. at 26-32. (State v. Richards, 75 Wn. App. 1001 (1994), review denied, 126 Wn.2d 1002 (1995)).
Id. at 31.
126 Wn.2d 1002.
Clerk’s Papers at 36-39 (emphasis added).
State v. Richards, 87 Wn. App. 285, 288, 941 P.2d 710 (1997).
Id. at 293.
Pet. for Review at 1.
Id.
Id.
RCW 10.31.040.
18 U.S.C. § 3109 states: “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.”
State v. Coyle, 95 Wn.2d 1, 5, 621 P.2d 1256 (1980).
Id. at 6.
Cases from the United States Court of Appeals for the Ninth Circuit interpreting the “knock and wait” rule include: United States v. Ramirez, 91 F.3d 1297, 1300 (9th Cir. 1996); United States v. Bustamante-Gamez, 488 F.2d 4, 10-11 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S. Ct. 1993, 40 L. Ed. 2d 559 (1974).
Recent Washington Court of Appeals cases interpreting the “knock and wait” rule include: State v. Alldredge, 73 Wn. App. 171, 868 P.2d 183 (1994); State v. Lehman, 40 Wn. App. 400, 404, 698 P.2d 606, review denied, 104 Wn.2d 1009 (1985); State v. Schmidt, 48 Wn. App. 639, 643, 740 P.2d 351, review denied, 109 Wn.2d 1013 (1987); State v. Hilliard, 18 Wn. App. 614, 616, 570 P.2d 160 (1977).
United States v. Bustamante-Gamez, 488 P.2d at 10-11.
See State v. Lehman, 40 Wn. App. at 404.
Clerk’s Papers at 36-39.
Coyle, 95 Wn.2d at 14.
Id. at 5.
See Coyle, 95 Wn.2d at 5.
Id. at 9-11.
Richards, 87 Wn. App. at 288.
Clerk’s Papers at 36-39.
Id. at 17-18 (Petitioner Richards submitted peaceably to the police officers and voluntarily disclosed the location of seven bindles of cocaine).
State v. Myers, 102 Wn.2d 548, 554-55, 689 P.2d 38 (1984).
State v. Rose, 128 Wn.2d 388, 394, 909 P.2d 280 (1996) (there is no expectation of privacy in what can be seen through uncurtained windows) (citing State v. Manly, 85 Wn.2d 120, 124, 530 P.2d 306, cert. denied, 423 U.S. 855, 96 S. Ct. 104, 46 L. Ed. 2d 81 (1975)).
State v. Young, 76 Wn.2d 212, 215, 455 P.2d 595 (1969).
Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421-22, 137 L. Ed. 2d 615 (1997).
See State v. Schmidt, 48 Wn. App. 639, 642, 740 P.2d 351, review denied, 109 Wn.2d 1013 (1987); Lehman, 40 Wn. App. at 404.
See United States v. Kemp, 12 F.3d 1140, 1142 (D.C. Cir. 1994).
Pet. for Review at 11. Petitioner has not established that the physical appearance of the detectives constituted a disguise as “drug buyers.”
Id.
State v. Ellis, 21 Wn. App. 123, 584 P.2d 428 (1978).
Pet. for Review at 11.
Ellis, 21 Wn. App. at 125.
Richards, 87 Wn. App. at 291.
See Richards, 520 U.S. at 394.
Ellis, 21 Wn. App. at 125-29 (Entry by ruse is permissible if no force is used.).
Clerk’s Papers at 27. (Court of Appeals, Division One, unpublished opinion in the first appeal is noted at State v. Richards, 75 Wn. App. 1001 (1994), review denied, 126 Wn.2d 1002 (1995)).
Ellis, 21 Wn. App. at 125.
95 Wn.2d 1, 621 P.2d 1256 (1980).
Pet. for Review at 10.
Coyle, 95 Wn.2d at 11.
Richards, 520 U.S. 385.
Dissenting Opinion
(dissenting) — At the outset of its opinion, the majority identifies the issue before us as whether plainclothes police officers executing a search warrant violated Washington’s knock and announce statute, RCW 10.31.040, by entering an occupant’s apartment after announcing their presence, identity, and purpose, but without waiting for the occupant to grant or deny them entry into the apartment. Majority op. at 364. It answers that question by concluding that the statute was not violated because waiting for the occupant of the apartment to grant or deny entry in such circumstances would “serve no logical purpose.” Majority op. at 378. It, therefore, affirms the decision of the Court of Appeals upholding the trial court’s denial of Richards’ motion to suppress the fruits of the search.
I submit that the majority not only decides the case incorrectly, it incorrectly states the issue. In my view, the pertinent question is whether plainclothes police officers executing a search warrant violated RCW 10.31.040 when they entered an apartment as, or immediately after, they announced their presence, identity, and purpose and without pausing sufficiently so that they could be “virtually certain” that the occupant of the apartment was aware of their presence, identity, and purpose prior to their entry. To that question, I would answer yes and, thus, would reverse the Court of Appeals. Accordingly, I dissent.
In State v. Coyle, 95 Wn.2d 1, 621 P.2d 1256 (1980), this court held in a unanimous opinion that in order for the police to comply with the provisions of RCW 10.31.040, they must, prior to any nonconsensual entry into a dwelling house, announce their identity, demand admittance, announce the purpose of their demand, and be explicitly or implicitly denied admittance. See Coyle, 95 Wn.2d at 6.
In Coyle, we indicated that the useless gesture exception to the requirements of RCW 10.31.040 is applicable only in instances where it is shown that the police are “virtually certain” that the occupant is aware of their presence, identity, and purpose prior to their entry. See Coyle, 95 Wn.2d at 11. The majority concludes that the police officers were “virtually certain” that Richards was aware of their presence and purpose before they entered his apartment. See Majority op. at 377. This conclusion is difficult to understand in light of the trial court’s failure to make a specific finding that the police were “virtually certain” that Richards had the requisite awareness.
Although Erickson did—as, or immediately before, he opened the screen door and walked into Richards’ apartment—say, “Police, search warrant,” CP at 26, it can hardly be said that the authority, purpose, and identity of the officers who entered the dwelling were conveyed to Richards before they entered, much less that the officers could be “virtually certain” that Richards possessed such an awareness before the entry occurred.
As its secondary, but more fundamental, basis for upholding the search here, the majority seemingly abandons the “virtual certainty” test we set forth in Coyle. In doing so it says that “[petitioner's reliance on the ‘virtual certainty’ standard in Coyle is also not persuasive because recent United States Supreme Court decisions have concluded that ‘virtual certainty’ is not the standard for entry of premises under the Fourth Amendment.” Majority op. at 377. If this statement is meant to suggest that the majority is overruling Coyle, it should say so. More importantly, though, there is absolutely no basis for the court to forsake our holding in Coyle. I reach that decision because the decision of the United States Supreme Court upon which the majority purports to rely, Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997), simply does not compel a departure from the standard we set forth in Coyle.
The fact that the United States Supreme Court has, in a Fourth Amendment context, given its imprimatur to this less rigorous standard for judging the validity of a no-knock entry, does not mean that a state cannot establish a standard that is more rigorous in its protection of individual rights. Unfortunately, the majority’s decision—which, in my view, goes a long way toward rendering Washington’s long-standing knock and announce statute
Johnson, Madsen, and Sanders, JJ., concur with Alexander, J.
The closest the trial court came to making such a finding is its finding of fact III in which it indicates that one of the officers announced his identity and • purpose before entering.
I am not at all critical of the fact that the police officers were attired in this way. Obviously, a police officer’s duties may require the officer to wear a variety of clothing if he or she is engaged in undercover activities. While an officer of the law is no less an officer incognito, it is reasonable to assume that the attire is worn so that persons coming into contact with the undercover officer will not be aware that the person is a police officer.
RCW 10.31.040 was first enacted in 1881. Code of 1881 § 1170.
