State v. Nichols
State v. Nichols
Opinion of the Court
The defendants appeal their convictions of grand larceny contending the court erred in denying their motions to suppress evidence. We affirm.
The officers then wént to the vicinity of the house and garage where the fight allegedly had occurred and began an investigation. They checked the alley, went to the house, knocked on the door, but received no response. In the yard they saw a green Camaro, which was apparently being remodeled because its panels were different colors. Obviously, this was not the car in which the alleged combatants had departed. Seeking other possible participants, injured people, or people who might be hiding for one reason or another, they continued their investigation, approaching a garage near the house. A side door to the garage was open; without announcing his entry or knocking, one of the officers entered with his flashlight and revolver in hand. Another officer followed him in. They checked the area, found no one in the garage, but they did find another Camaro automobile parked therein. It appeared that this car had been stripped to its frame. The windshield was missing and auto parts and spray paint cans were strewn around the premises. One of the officers stepped up to the car and, using his flashlight, noted the vehicle identification number located on a small, clearly visible metal plaque on the top of the dashboard.
Defendants first contend the entry into the garage was illegal because it was done without a warrant. We disagree. State v. Sanders, 8 Wn. App. 306, 310, 506 P.2d 892 (1973), recognized that exigent circumstances, including the emergency rule, can justify exception to the general rule that a warrant is necessary for a valid search. The court, summarizing the emergency rule as set out in United States v. Goldenstein, 456 F.2d 1006 (8th Cir. 1972), stated:
Police officers may enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance. In applying the rule, courts must require that the police officer "be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Footnote omitted.) Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
State v. Sanders, supra at 310. See also Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967), and People v. Mitchell, 39 N.Y.2d 173, 347 N.E.2d 607, 383 N.Y.S.2d 246, cert. denied, 426 U.S. 953, 49 L. Ed. 2d 1191, 96 S. Ct. 3178 (1976). In Mitchell at pages 177-78, the court laid down three basic elements of this exception:
(1) The police must have reasonable grounds to believe that there is ail emergency at hand and an immediate need for their assistance for the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest and seize evidence.
*466 (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.
Here, after receiving the report of an affray involving chains and beer bottles, the officers arrived to find there had been a sudden abandonment and departure. They had no knowledge of whether anyone had been injured and made an immediate investigative search of the area. In conducting this investigation the officers acted reasonably by entering the garage through the open door adjacent to the location of the affray. They had reasonable grounds to believe their assistance was necessary for the protection of life; the purpose of the search was not to arrest or seize evidence; and there was probable cause to associate the garage with the emergency. For this reason, the defendants' contention that it was violative of the prohibition of war-rantless searches is not well taken.
The knock-and-announce statute, RCW 10.31.040
Lastly, defendants contend that the noting of the identification number located on the dashboard of the automobile was an unlawful seizure, not within the plain-view exception to warrantless searches and seizures. The plain-view exception has three essential safeguards as set forth in Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971), which have been recognized in this state by numerous cases, including State v. Johnson, 16 Wn. App. 899, 559 P.2d 1380 (1977); State v. Keefe, 13 Wn. App. 829, 537 P.2d 795 (1975); State v. Proctor, 12 Wn. App. 274, 529 P.2d 472 (1974); State v. Dimmer, 7 Wn. App. 31, 497 P.2d 613 (1972). These safeguards are: (1) a prior justification for the intrusion; (2) an inadvertent discovery of incriminating evidence; and (3) immediate knowledge by the police that they have evidence before them.
First, we have held that the intrusion into the garage was justified. Second, the discovery of the Camaro in the garage was inadvertent. The fact of (a) the car's state of disrepair; (b) the miscellaneous automobile parts and paint
The notation of the identification number is distinguishable from State v. Murray, 8 Wn. App. 944, 509 P.2d 1003 (1973), aff'd, 84 Wn.2d 527, 527 P.2d 1303 (1974). In Murray, we found unreasonable the officers' rationale for noting the identification number, i.e., it looked incongruous in that living-room setting. Likewise, in State v. Keefe, supra, the officers were authorized to search for a weapon. The officer's action of inserting á piece of paper in the typewriter to obtain impressions of the "e" and "i" letters was held to be unreasonable because he lacked immediate knowledge evidence was before him.
We believe that the facts of this case fall more directly under the rationale of State v. Proctor, supra, wherein the officers obtained the identification number of several calculators. Therein the court stated at pages 276-77:
In other words, police who are rightfully upon a citizen's property for a limited purpose may not rummage about in the hope or expectation that incriminating evidence or contraband will turn up. But that is not this case. . . . The temporary detention may continue while the officer questions other persons present or radios police headquarters to check the information gained. ... A noting*469 of the serial numbers on the calculators was such an intermediate response.
(Citations omitted.)
Here, the police merely noted the identification number and resumed their patrol, at which time they asked for a check on the number. It subsequently developed that the number was assigned to a vehicle reportedly stolen. Then having probable cause, the officers properly obtained a search warrant and proceeded in accordance thereto.
We find the noting of the serial numbers was not an unreasonable search and did not constitute a wrongful seizure of evidence. Cf. Arizona v. McCleary, 116 Ariz. 244, 568 P.2d 1142 (1977); Singleton v. Oklahoma, 568 P.2d 284 (Okla. Crim. App. 1977).
Green, J., concurs.
CW 10.31.040:
"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."
If the police had entered the garage for the purpose of effecting an arrest and/or to conduct a search, there may have been sufficient compliance with the requirements of the knock-and-announce rule to negate defendants' contention the statute was violated. The knock-and-announce rule is applicable to a police entry of the garage. United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973); United States v. Mullin, 329 F.2d 295 (4th Cir. 1964). In Bustamante-Gamez, the court ruled that the officers had sufficiently complied with the statutory knock-and-announce rule. As one officer had knocked at the door of the house, another officer had simultaneously opened the nearby garage door. The court ruled that the knock and announcement at the front door of the house, which was 25 feet from the garage, was a proper announcement for the officer's entry into the garage. The court stated that the simultaneous entry into the garage was justified because of the exigent circumstances. Thus, there was no need for the officers to wait for a refusal of entry. Furthermore, the court stated that the simultaneous entry was not against the purpose of the rule, particularly since the officer's entry into the garage had been nonviolent.
There is also authority to the effect that even if the notation of the vehicle identification number is a search, it is not constitutionally prohibited so long as a legitimate reason exists for doing so. United States v. Brown, 470 F.2d 1120, 1122 (9th Cir. 1972); United States v. Williams, 434 F.2d 681 (5th Cir. 1970); Pasterchik v. United States, 400 F.2d 696 (9th Cir. 1968). Furthermore, other authorities hold it is not a search to take down a vehicle identification number when an officer has a reason to believe the vehicle is stolen, so long as the vehicle is lawfully available to him. United States v. Johnson, 413 F.2d 1396 (5th Cir. 1969), aff'd, 431 F.2d 441 (5th Cir. 1970); Weaver v. United States, 374 F.2d 878 (5th Cir. 1967); Cotton v. United States, 371 F.2d 385, 393 (9th Cir. 1967).
Dissenting Opinion
(dissenting) — I respectfully dissent. This case falls squarely within State v. Murray, 8 Wn. App. 944, 509 P.2d 1003 (1973), aff'd, 84 Wn.2d 527, 527 P.2d 1303 (1974) , and State v. Keefe, 13 Wn. App. 829, 537 P.2d 795 (1975) . Neither here nor in either of those cases were the officers aware at the time they "seized" the evidence that it was evidence of a crime. Here, as in Murray and Keefe, it was a subsequent investigation that disclosed the incriminating nature of the evidence seized by the officers.
Just as there was nothing incongruous about the presence of the television set from which the officers took the identification number in Murray, there is nothing incongruous about the Camaro in the garage here. Indeed, that is where
Thus, under these circumstances, State v. Proctor, 12 Wn. App. 274, 276-77, 529 P.2d 472 (1974), relied upon by the majority, is distinguishable. As the more complete context of that portion of the opinion cited by the majority reads:
In other words, police who are rightfully upon a citizen's property for a limited purpose may not rummage about in the hope or expectation that incriminating evidence or contraband will turn up. But that is not this case. The information which the police had about Proctor, coupled with the incongruity of the items seen in the business office, gave the officer probable cause to believe that he was looking at stolen property. It was reasonable for him to note the serial numbers.
(Italics ours.)
If, as the majority strenuously argues, the officers entered the garage solely for the purpose of finding possible fight participants, injured victims or "people who might be hiding for one reason or another," they exceeded the scope of their exceptional and limited intrusion just as did the police officers in Murray. Their discovery of the Camaro could have been inadvertent, but the discovery of a metal identification tag on its dashboard was not. Finding and recording the identification number required an overt, searching act beyond the purpose for which the officers were lawfully present. This is a classic case of extending a justifiable but limited intrusion to ’’a general exploratory search from one object to another until something incriminating at last emerge[d]." Coolidge v. New Hampshire, 403 U.S. 443, 466, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971).
Applying the plain-view doctrine here lets the exception swallow the rule. I would reverse the judgment of the Superior Court.
Reconsideration denied July 19, 1978.
Review denied by Supreme Court December 1, 1978.
Reference
- Full Case Name
- The State of Washington, Respondent, v. John Frederic Nichols, Et Al, Appellants
- Cited By
- 33 cases
- Status
- Published