State v. White
168 P.3d 459
Wash. Ct. App.
2007
Check Treatment
168 P.3d 459 (2007)

STATE of Washington, Respondent,
v.
Paul David WHITE, Appellant.

No. 23502-5-III.

Court of Appeals of Washington, Division 3.

October 4, 2007.

*461 Stephanie C. Cunningham, Attorney at Law, Seattle, WA, for Appellant.

Kenneth L. Ramm Jr., Yakima County Courthouse, Yakima, WA, for Respondent.

SCHULTHEIS, A.C.J.

¶ 1 Paul White was convicted of manufacturing methamphetamine on his mother's property after his motion to suppress was denied. On appeal, Mr. White argues that police could not rely on a neighbor's consent to search his mother's property, despite the limited authority of that third party, because he was present and had аt least common authority not to consent, and he attempted to assert that right. He also contends that entry was not justified for community caretaking reasons. We agree and reverse.

FACTS

¶ 2 Mr. White's mother, Janet White, owns real property and a residence in a rural area outside of Grandview, Washington. Bill Michener, a neighbor, leases orchards surrounding Janet's[1] property. Mr. Michener owns a house and orchards adjacent to Janet's property. He has known her family since 1984.

¶ 3 Located on Janet's property is a multipurpose building that holds tools and houses the controls for the orchards' irrigation system and also has a furnished sunroom that opens to a garden. This building has always been unlocked. In the past, Mr. Michener had regularly come upon Janet's property and entered the building, sometimes with hired hands, to operate the irrigation controls and, at times, to use tools. Mr. Michener also had keys and the security code to Janet's residence and was given full access to the home and outbuildings.

¶ 4 When Janet was out of town, Mr. Michener helped out by watering her lawn and shrubs in the backyard and picking up her mail and newspaper. Janet had never expressly limited Mr. Michener's access to any part of her property. She assumed that Mr. Michener would deal with a break-in of her property if one occurred, and she had no problem with him taking the police intо her premises under such circumstances. In fact, *462 several years prior to the events in this case, Janet's security alarm went off when she was away, and Mr. Michener had police check inside the home.

¶ 5 Mr. White had not lived at his mother's residence for a few years, but he had permission to come and go and he, too, had keys and the access codes. Mr. White kept clothing at the residence and stored furniture and various other items in the outbuildings.

¶ 6 Janet left on a trip a couple of days before the events of May 7, 2003. She made the usual arrangements with Mr. Michener to look after her place. Mr. White did not tell either Janet or Mr. Michener that he would be at the residence during Janet's absence.

¶ 7 In the early morning hours of May 6, Mr. Michener came to Janet's property to irrigate the fields. At 3 or 4 a.m. he recognized Mr. White's pickup parked near the irrigation room, and he saw lights coming from under the door оf the room. By 8 a.m., it appeared that Mr. White (or whoever was there earlier) had gone. Mr. Michener noticed an odd odor in the irrigation room.

¶ 8 When Mr. Michener returned the next morning, the door to the irrigation room was locked and a "very strong odor" was coming from inside.[2] Report of Proceedings (RP) (Apr. 13, 2004) at 44. Unlike the prior morning, Mr. Michener saw no vehicles parked nearby. He called the sheriff's office and requested that a deputy come out to investigate.

¶ 9 Yakima County Sheriff's Deputy Derrick Artz responded. Mr. Michener reported his observations to the deputy and stated that he had the authority to enter and use the building. Mr. Michener led the deputy to the irrigation room, which was still locked. As Mr. Michener began to walk around to try the sunroom door, Mr. White opened the irrigation room door. In a brief conversation, Mr. White identified himself and stated that he had a right to be there.

¶ 10 Deputy Artz smelled a strong ammonia-type odor coming from the open door. He sensed something was wrong because of Mr. White's body language so he directed Mr. White to step outside. Mr. White initially refused. He complied when the deputy unholstered, but did not aim, his firearm. Deputy Artz secured Mr. White in a patrol car "so he could further investigate the situation." Clerk's Papers (CP) at 102 (Finding of Fact 15).

¶ 11 The deputy returned to the building and looked inside the doorway. On the ground, he saw a bucket filled with liquid that was emitting a vapor. He also saw a box containing black and clear tubing, plastic bottles of HEET, and a 10-gallon container of paint thinner. Mr. Michener said that he had not seen the items in the shed before. Deputy Artz believed that the items were indicators of a possible methamphetamine lab.

¶ 12 Deputy Artz stepped inside and followed an extension cord from the irrigation room to a hotplate in the backyard. On top of the hotplate was a bubbling container of liquid that was emanating a strong ammonia odor. He returned to the patrol car and arrested Mr. White for manufacturing methamphetamine.

¶ 13 In denying Mr. White's motion to suppress ‍​‌​​‌​‌​​​​‌​​​‌‌​​‌​​​​‌‌‌‌​​‌‌‌​​‌​​​​‌‌‌​​‌​​‍the evidence, the trial court concluded that:

Although Deputy Artz's entry onto the property and into the [irrigation room] was made without a warrant, his entry was lawful because of Mr. Michener's invitation and request for the Deputy to enter the property and building to investigate. Mr. Michener was standing in the shoes of the proрerty owner, as he had been given authority by Mrs. White to enter, use, and bring other people onto the property. Mr. Michener had actual authority to invite the Deputy to go inside the [irrigation room] *463 and he had actual authority to give consent to search.

CP at 104 (Conclusion of Law 2).

¶ 14 The trial court further concluded that Mr. White's initial detention was lawful "based upon an articulable and substantial possibility that criminal conduct may have occurred." CP at 105 (Conclusion of Law 3). Finally, the trial court concluded that Deputy Artz had probable cause to arrest Mr. White based on what was found in the building.

¶ 15 Mr. White was convicted of one count of manufacturing methamphetamine after a stipulated facts trial on the evidence seized by the warrantless search of his mother's home. This appeal follows. We remanded for the entry of findings of fact and conclusions of law.

DISCUSSION

¶ 16 We review challenged findings of fact related to a motion to suppress for substantial evidence. State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. Id. at 644, 870 P.2d 313. Conclusions of law pertaining to suppression of evidence are reviewed de novo. State v. Johnson, 128 Wash.2d 431, 443, 909 P.2d 293 (1996).

¶ 17 Article I, section 7 of the Washington Constitution provides greater protection to individual privacy rights than the Fourth Amendment to the United States Constitution. State v. Jones, 146 Wash.2d 328, 332, 45 P.3d 1062 (2002). "Article I, section 7 provides that `[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.'" Id. (alteration in original) (quoting WASH. CONST. art. I, § 7). This state constitutional provision is violated when the State unreasonably intrudes upon a person's private affairs. Id. at 332, 45 P.3d 1062.

¶ 18 Warrantless searches are per se unreasonable under article I, section 7 unless they qualify as specific exceptions to the warrant requirement. State v. Ross, 141 Wash.2d 304, 312, 4 P.3d 130 (2000). Warrant exceptions are "`jealously and carefully drawn . . . which provide for those cases where the societal costs of obtaining a warrant . . . outweigh the reasons fоr prior recourse to a neutral magistrate.'" State v. Duncan, 146 Wash.2d 166, 171, 43 P.3d 513 (2002) (internal quotation marks omitted) (quoting State v. Williams, 102 Wash.2d 733, 736, 689 P.2d 1065 (1984)). "`[W]here the police have ample opportunity to obtain a warrant, we do not look kindly on their failure to do so.'" State v. Ferrier, 136 Wash.2d 103, 115, 960 P.2d 927 (1998) (internal quotation marks omitted) (quoting State v. Leach, 113 Wash.2d 735, 744, 782 P.2d 1035 (1989)). The State has the burden to show that a warrantless search or seizure falls within one of the exceptions to the warrant requirement. State v. Acrey, 148 Wash.2d 738, 746, 64 P.3d 594 (2003) (quoting State v. Kinzy, 141 Wash.2d 373, 384, 5 P.3d 668 (2000)).

¶ 19 One recognized exception to the warrant requirement is a consent to search. State v. Mathe, 102 Wash.2d 537, 541, 688 P.2d 859 (1984). To establish valid consent, the State must show that the persоn consenting to the search had authority to consent. State v. Thompson, 151 Wash.2d 793, 803, 92 P.3d 228 (2004). Under Washington's constitution, "[o]ne who has equal or lesser control over a premises does not have authority to consent for those who are present and have equal or greater control." State v. Morse, 156 Wash.2d 1, 4-5, 123 P.3d 832 (2005).

¶ 20 "A third party may consent to a search if he or she possesses `common authority over or other sufficient relationship to the premises or effects sought to be inspected.'" State v. Holmes, 108 Wash.App. 511, 518, 31 P.3d 716 (2001) (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)). Common authority exists when there is "`mutual use of the property ‍​‌​​‌​‌​​​​‌​​​‌‌​​‌​​​​‌‌‌‌​​‌‌‌​​‌​​​​‌‌‌​​‌​​‍by persons generally having joint access or control for most purposes.'" Id. (quoting Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988). "Access and permission to enter are the hallmarks of common authority." Id. at 520, 31 P.3d 716. This includes the authority to invite others into the area as Mr. *464 Michener had done here. Morse, 156 Wash.2d at 11, 123 P.3d 832.

¶ 21 Under the circumstances here, however, the State has not shown authority to search on Mr. Michener's consent alone. "If the police choose to conduct a search without a search warrant based upon the consent of someone they believe to be authorized to so consent, the burden of proof on issues of consent and the presence or absence of other cohabitants is on the police." Id. at 15, 123 P.3d 832 (citing Acrey, 148 Wash.2d at 746, 64 P.3d 594).

¶ 22 The trial court found in finding of fact 7 that Mr. White had not lived at his mother's residence for a few years, but he had permission to come and go, and he also had keys to and the alarm access codes fоr the residence. We note that finding of fact 7 is supported by substantial evidence in the record through the testimony of Mr. Michener, the State's witness, who agreed that Mr. White had the same access to the premises that he had. Mr. White challenges this finding of fact and others that minimize his right to access his mother's property. Mr. White raises a good point in that the record is replete with uncontested evidence of Mr. White's common authority.[3]

¶ 23 But we need no more factual bases than those contained in the trial court's findings in order to hold that the State did not meet its burden to show valid consent when someone who had common authority was present and attempting to assert it. As our Supreme Court has stated regarding the State's burden: "We recognize that issues of `common authority' and `presence' will not always be simple and straightforward. . . . However, such difficulties may be avoided by the police by obtaining either a search warrant or the consent of the person whose property is to be searched." Morse, 156 Wash.2d at 15 n. 5, 123 P.3d 832.

¶ 24 Mr. White's objection to the court's finding of fact 9—that "[n]either Mrs. White nor Mr. Michener was told that [Mr. White] would be at the residence during [Janet White's] absence"—is well taken for its implication that Mr. White should have so informed someone. CP at 101. The record clearly shows that Mr. White had an open invitation for which he was neither required nor expected to inform his mother or Mr. Michener in advance of his acceptance.

¶ 25 A consenting occupant has common authority if (1) he or she could permit the search in his or her own right, and (2) the nonconsenting party had assumed the risk that a cohabitant might permit a search.[4]Morse, 156 Wash.2d at 10, 123 P.3d *465 832 (citing Mathe, 102 Wash.2d at 543-44, 688 P.2d 859); Thompson, 151 Wash.2d at 804, 92 P.3d 228. However, the consent of a person who has common authority over the premises is valid only if the cohabitant is absent. Thompson, 151 Wash.2d at 803-04, 92 P.3d 228; State v. Walker, 136 Wash.2d 678, 682, 965 P.2d 1079 (1998). If the non-consenting cohabitant is present and able to object, the police must also get his or her consent. Thompson, 151 Wash.2d at 803-04, 92 P.3d 228; Walker, 136 Wash.2d at 682, 965 P.2d 1079; Leach, 113 Wash.2d at 744, 782 P.2d 1035. Here, Mr. White was present and asserting his rights.

¶ 26 Relying on Thompson, 151 Wash.2d 793, 92 P.3d 228, the State argues that because Mr. White did not have the authority to consent to search in his own right, he could not object to a search. In Thompson, an officer serving a civil arrest warrant detected an odor he associated with methamphetamine. The defendant's father consented to a search of a boathouse on the property. The defendant lived in a trailer on the property and sometimes used the boаthouse. Police did not seek the defendant's consent who lived in the trailer rent-free. The court concluded that the defendant did not have joint control because his access to the boathouse was contingent on his parents' permission. Id. at 806-07, 92 P.3d 228. Therefore, he did not have common authority and his permission was not necessary.

¶ 27 Here, both parties' access to the irrigation control room located on Janet's property was subject tо Janet's permission. Even though Mr. Michener had business there, his access could be revoked as readily as the access Janet granted to her son. In other words, either the family relationship or the business relationship could collapse; the consequences of which would be the revocation of previously granted licenses to enter the premises. Each party's access is contingent on the party's relationship with Janet.

¶ 28 Next, the State relies on State v. Summers, 52 Wash.App. 767, 770, 764 P.2d 250 (1988). In Summers, the court uphеld as valid the consent given by the defendant's adult sister who was acting not only as a baby-sitter, but also as the head of household during their mother's four-day absence. In so doing, the court examined the conditions under which a parent may consent to the search of a child's room. Id. at 771-73, 764 P.2d 250. The State claims that Mr. Michener is in the position of a parent taking adult responsibility for the residence. The consenting party in Summers was asked to live in the house and take care оf the children. Id. at 769, 764 P.2d 250. It is logical to find that she stepped into the mother's shoes as the head of household; she literally took her place. While Mr. Michener assumed some of Janet's chores, he by no means stepped into her shoes. He did not live there and he never assumed control over Janet's adult son, Mr. White. Summers also involved the failure to obtain the consent of the juvenile who was ‍​‌​​‌​‌​​​​‌​​​‌‌​​‌​​​​‌‌‌‌​​‌‌‌​​‌​​​​‌‌‌​​‌​​‍not present at the time of the search. It is not controlling here.

¶ 29 The State also relies on State v. Thang, 145 Wash.2d 630, 638-39, 41 P.3d 1159 (2002), which provides that "consent to search by a host is always effective against a guest within the common areas of the premises." The State seems to suggest that Mr. White was a guest of Mr. Michener, who was exercising control over a common area. Mr. Michener was not a host, but a third party. Janet was Mr. White's host.

¶ 30 The parties engage in a separate and lengthy analysis regarding Mr. White's expectation of privacy. The trial court addressed the issue on the merits rather than dismissing the motion for lack of standing. Jones, 146 Wash.2d at 332, 45 P.3d 1062 (a defendant has no standing to challenge a search of an item he does not own unless the defendant is entitled to assert automatic standing). Nor did the State seek dismissal of the appeal for Mr. White's lack of standing. See RAP 2.4(a).

¶ 31 Expectation of privacy is, however, relevant to the authority to control. Morse, 156 Wash.2d at 15, 123 P.3d 832. And our courts have consistently held that a temporary guest has an expectation of privacy in his or her hоst's residence. State v. *466 Rison, 116 Wash.App. 955, 959, 69 P.3d 362 (2003); State v. Rodriguez, 65 Wash.App. 409, 415, 828 P.2d 636 (1992); State v. Jungers, 125 Wash.App. 895, 906, 106 P.3d 827 (2005). Of course, that expectation of privacy is qualified by the valid consent to search of another resident. Rison, 116 Wash.App. at 959, 69 P.3d 362; Rodriguez, 65 Wash. App. at 415, 828 P.2d 636; Jungers, 125 Wash.App. at 906, 106 P.3d 827; see Leach, 113 Wash.2d at 739, 782 P.2d 1035 ("In essence, an individual sharing authority over an otherwise private enclave inherently has a lessened expectation that his affairs will remain only within his purview, as the other cohabitants may permit entry in their own right."). The consent issue has been fully addressed above.

¶ 32 The trial court made a factual finding that because Deputy Artz wаs "[c]oncerned that there may be a danger to people and the community, Deputy Artz wanted to make sure that nobody else was inside." CP at 103 (Finding of Fact 17). And it was not until after this thought process that he actually stepped inside the building. But in its legal conclusions, the trial court did not justify the deputy's entry as a part of his community caretaking duties.[5]

¶ 33 It appears from the findings that the deputy may have abandoned the authority of Mr. Michener's consent when he actually entеred the premises, which would be proper under the circumstances where Mr. White was present and attempting to assert his right of control. Instead, he looked through the open door and saw evidence of a methamphetamine manufacturing lab and decided to check it out.

¶ 34 Notably, the trial court unequivocally concluded that Mr. Michener's consent was used to justify the search in lieu of a warrant. Because the deputy improperly relied on Mr. Michener's consent to enter, we address the community caretaking exception as an alternate justification to the warrant requirement. See State v. Williams, 96 Wash.2d 215, 221, 634 P.2d 868 (1981) (reviewing erroneously labeled findings of fact to determine whether the evidence justified the legal conclusion). Nonetheless, the record does not support entry on the basis of community safety and only shows that the entry was related to a criminal investigation.

¶ 35 The community caretaking exception to the search warrant requirement allows for the limited invasion of constitutionally protected privacy rights when it is necessary for police officers to render aid or assistance or when making routine checks on health and safety. Kinzy, 141 Wash.2d at 386, 5 P.3d 668. This invasion is allowed only if: (1) the police officer subjectively believed that someone likely needed assistance for health or safety concerns, (2) a reasonable person in the same situation would similаrly believe that there was need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place being searched. Id. at 386-87, 5 P.3d 668. "Whether an encounter made for noncriminal noninvestigatory purposes is reasonable depends on a balancing of the individual's interest in freedom from police interference against the public's interest in having the police perform a `community caretaking function.'" Kalmas v. Wagner, 133 Wash.2d 210, 216-17, 943 P.2d 1369 (1997).

¶ 36 Police involvement under this exception must be "`totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'" State v. Houser, 95 Wash.2d 143, 151, 622 P.2d 1218 (1980) (emphasis omitted) (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)); see also State v. Kypreos, 115 Wash.App. 207, 217, 61 P.3d 352 (2002) (citing Kinzy, 141 Wash.2d at 385, 5 P.3d 668); Thompson, 151 Wash.2d at 802, 92 P.3d 228. A warrantless search is justified, for instance, "when premises contain persons in imminent danger of death or harm; objects likely to burn, explode, or *467 otherwise cause harm; or information that will disclose the location of a threatened victim or the existence of such a threat." State v. Downey, 53 Wash.App. 543, 544-45, 768 P.2d 502 (1989).

¶ 37 There was no evidence that Deputy Artz had any concern for the safety of persons or property. In contrast to the lack of testimony to support ‍​‌​​‌​‌​​​​‌​​​‌‌​​‌​​​​‌‌‌‌​​‌‌‌​​‌​​​​‌‌‌​​‌​​‍the exception, there is ample evidence to support his intent to investigate his belief that Mr. White was engaged in ongoing criminal activity.

¶ 38 Deputy Artz testified that upon seeing Mr. White, "[I]n my 24 years as a law enforcement officer I have seen that look in a person[']s eyes that have been caught in the act."[6] RP (Apr. 13, 2004) at 65. When Mr. White told Deputy Artz he had a right to be there and refused to exit, the officer unholstered his weapon and told Mr. White that "it would be in his best interest to step out now." Id. at 66. He then placed Mr. White in his patrol car and told him he intended to find out what Mr. White was doing. And that is what he did; he returned to the irrigation room and looked inside and saw what he believed was a methamphetamine lab. But based on his limited experience and training with methamphetamine manufacturing—consisting mainly of a two-hour class— he was still uncertain at that point.

¶ 39 He did not apply for a warrant nor did he call the drug task force as he was trained. Rather, he entered, stating that he wanted to make sure that there was nobody else there that he needed to detain. He said that he was not sure if there was a burglary, trespass, or exactly what was going on, given the smell. Deputy Artz was clearly investigating. He did not, however, testify to any cоmmunity caretaking justification for the entry, nor does the record support one.

¶ 40 "When the State invokes [the community caretaking] exception, the reviewing court `"must be satisfied that the claimed emergency was not simply a pretext for conducting an evidentiary search."'" State v. Schroeder, 109 Wash.App. 30, 38, 32 P.3d 1022 (2001) (quoting State v. Johnson, 104 Wash.App. 409, 414, 16 P.3d 680 (2001) (quoting State v. Lynd, 54 Wash.App. 18, 21, 771 P.2d 770 (1989))). There is no assurance that the deputy's motives were not a pretext here.

¶ 41 The exceptions to the warrant requirement do not apply to the circumstances prеsented in this case. We therefore reverse the conviction.

WE CONCUR: KULIK, J., KATO, J. Pro Tem.

NOTES

Notes

[1] In the interest of clarity, Janet White's first name will be used.

[2] The trial court's findings of fact had the deputy making these observations. Clerk's Papers at 101 (Finding of Fact 11) ("The Deputy smelled a strong chemical kind of ammonia type odor permeating out the open door."). Mr. White properly objects to this finding. Because the deputy had not yet arrived, we agree with Mr. White that this finding is not supported by substantial evidenсe. State v. Hill, 123 Wash.2d 641, 644-47, 870 P.2d 313 (1994); see State v. Broadaway, 133 Wash.2d 118, 129-31, 942 P.2d 363 (1997).

[3] The record shows that Mr. White lived in the residence until he was 18 years old and again in 1999 and 2000, but not in 2003. He kept personal effects, his all-terrain-vehicle, and furniture in the house, irrigation room, and garage. He had full access to Janet's property without limitation as well as permission to be there whether she was present or not—and Mr. Michener knew it. He received quite a bit of mail at Janet's residence and he was a frequent visitor. And Janet knew that Mr. White was often there when she was out of town.

Before remand, Mr. White claimed prejudice owing to the court's failure to enter findings of fact and conclusions of law. We will reverse for a trial court's failure to timely enter findings of fact and conclusions of law as required by CrR 3.6 if the appellant can establish that he was prejudiced by delay, or that the findings and conclusions were tailored to meet the issues presented in the appellant's brief. State v. Byrd, 83 Wash.App. 509, 512, 922 P.2d 168 (1996). Mr. White does not expressly argue in his post-remand brief that the findings were tailored. But the significant evidence of tailoring in this case is worth mentioning. Notably, the trial court did not review the two-year-old suppression transcripts before the hearing on the entry of the findings and conclusions. Instead, it accepted the facts as argued by the State in this appeal, presented in the form of proposed findings of fact and conclusions of law.

[4] The State argues that cases that involve сo-occupants or cohabitants do not apply to the facts before us. Relying on Leach, 113 Wash.2d 735, 782 P.2d 1035, the State argues that Leach "requires that the party who is objecting to the search be a `co-occupant' or `cohabitant.'" Resp't's Br. at 6. Leach does not stand for that proposition. It holds that a "`mere property interest'" does not create common authority; rather it is based on "`joint access or control for most purposes.'" Leach, 113 Wash.2d at 739, 782 P.2d 1035 (quoting Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988). This standard applies to common authority to search "`premises or effects.'" Leach, 113 Wash.2d at 739, 782 P.2d 1035 (emphasis added) (quoting Matlock, 415 U.S. at 170, 94 S.Ct. 988). Cohabitants or co-occupants are merely examples of those with joint access or control. The authority concerning cohabitants and co-occupants applies equally to joint controllers and those with joint access.

[5] The conclusions of law addressed consent to search and Mr. White's detention and arrest. Mr. White's appeal does not address his detention or arrest, except to the extent that he was removed rather ‍​‌​​‌​‌​​​​‌​​​‌‌​​‌​​​​‌‌‌‌​​‌‌‌​​‌​​​​‌‌‌​​‌​​‍than being allowed to assert his right to object to the search. And the State does not argue that Deputy Artz had probable cause to arrest Mr. White when he opened the irrigation room door.

[6] The defense objection to this testimony was sustained on the issue of the State's justification for the search on the theory of consent. But it is relevant to the deputy's subjective belief on the alternate community caretaking theory.