Nos. 58557-6-1; 58628-9-I.The Court of Appeals of Washington, Division One.
November 5, 2007.
Appeals from a judgment of the Superior Court for King County, No. 05-1-06319-6, Michael Heavey, J., entered July 3, 2006.
Affirmed by unpublished opinion per Ellington, J., concurred in by Coleman and Grosse, JJ.
PER CURIAM.
Police may not enter a residence without a warrant unless an emergency or some other recognized exception to the warrant requirement justifies their entry. Because the facts known to the police in this case created an emergency justifying their brief entry of a residence, and because appellant’s other claims lack merit, we affirm.
FACTS
On April 2, 2005, Auburn police officers investigating a noise complaint heard sounds of a possible fight coming from Lakisha Walker’s apartment. A hysterical young girl, later identified as Walker’s daughter, ran toward the officers and said, “Help me, help me, somebody help me. . . . [T]hey are hitting each other.” Report of Proceedings (RP) (Apr. 17, 2006) at 9, 58. The officers looked around the corner and saw Ricco Graves yelling at Walker and pinning her against the front door jamb with his chest. After announcing their presence, the officers ordered Graves to the ground. One officer grabbed his right arm, which was outside the apartment, while the other grabbed his left arm, which was inside.
After a struggle, the officers wrestled Graves to the ground and handcuffed him. They later found a fully loaded pistol on the ground where his waist had been. There was a bullet in the pistol’s chamber and the hammer was cocked. A search of Graves’ person yielded 25 grams of cocaine, $1,258 in cash, and 88 small plastic baggies.
The State charged Graves with first degree unlawful possession of a firearm and possession with intent to deliver. Prior to trial, he moved to suppress the evidence discovered following the officers’ warrantless entry into Walker’s residence. He argued that the actions they witnessed did not justify a warrantless entry. In rejecting this argument, the trial court described the scene confronting the officers as “a very volatile situation” and concluded that a warrantless entry was lawful under the emergency and exigent circumstances exceptions to the warrant requirement. RP (Apr. 17, 2006) at 46. The matter then proceeded to a bench trial on stipulated facts and the court found Graves guilty as charged.
The court sentenced Graves for these offenses as well as a simple possession offense prosecuted under a different cause number. Graves’ counsel on the offenses arising from the apartment incident requested an exceptional sentence below the standard range. Pursuant to a plea agreement that included an agreed recommendation, Graves’ counsel on the possession offense requested a low-end standard range sentence. The court imposed concurrent standard range sentences of 90 months on those offenses and 12 months and one day on the possession offense under the other cause number. Immediately after the court announced its sentence, Graves’ counsel on the possession offense told the sentencing court that he had intended, but neglected, to obtain a DOSA evaluation prior to sentencing.
DECISION
Graves contends the trial court erred in concluding that the officers’ warrantless entry was justified under the emergency and exigent circumstances exceptions. We disagree.
The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit unreasonable searches and seizures. State v. Johnson, 104 Wn. App. 409, 414, 16 P.3d 680
(2001). Although warrantless searches or seizures in a residence are per se unreasonable, there are several well-settled exceptions, including the emergency/community caretaking exception and exigent circumstances. Id., at 44-45; State v. Terrovona, 105 Wn.2d 632, 644, 716 P.2d 295 (1986) State v. Bakke, 44 Wn. App. 830, 832-40, 723 P.2d 534 (1986). The emergency exception justifies a warrantless entry by police as part of their responsibility to aid persons believed to be in danger of physical harm or death. State v. Thompson, 151 Wn.2d 793, 802, 92 P.3d 228
(2004); State v. Gocken, 71 Wn. App. 267, 275, 857 P.2d 1074 (1993). This exception applies to investigations of possible domestic violence, as domestic disturbances are inherently volatile. State v. Raines, 55 Wn. App. 459, 465-66, 778 P.2d 538 (1989) (police officers responding to a domestic violence call “have a duty to ensure the present and continued safety and well-being of the occupants”); State v. Johnson, 104 Wn. App. 409, 418-19, 16 P.3d 680 (2001) (police responding to domestic violence call justified in entering the house to talk to apparent victim and to check for other potential victims).
To invoke the emergency exception, the State must show that the claimed emergency was not a pretext for conducting an evidentiary search. State v. Lynd, 54 Wn. App. 18, 21, 771 P.2d 770 (1989). This showing is made if (1) the officer subjectively believed that someone likely needed assistance for health or safety reasons, (2) a reasonable person in the same situation would similarly believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched. Gocken, 71 Wn. App. at 276-77. In applying these criteria, we view the officers’ actions in light of how the situation appeared to them at the time. Lynd, 54 Wn. App. at 22.
The court’s unchallenged findings in this case satisfy all of the emergency exception criteria. The court specifically found the officers’ testimony credible. They testified that, based on their own observations and R.W.’s report, they believed Walker needed their assistance for safety reasons. Contrary to Graves’ assertions, a reasonable person in the officers’ situation would have reached the same conclusion. The incident had the hallmarks of a domestic violence dispute, and Graves’ physical aggression toward Walker, together with R.W.’s report, demonstrated that Walker’s safety was in jeopardy. Confronted with these circumstances, a reasonable person would have concluded that Walker needed assistance. There is also no question that the officers had a reasonable basis to associate Walker’s need for assistance with the area they entered.
Thus, considering all the circumstances, we conclude the trial court did not err in applying the emergency exception to this case. Given our conclusion, we need not address the exigent circumstances exception cited by the trial court as an alternate basis for its decision.
Graves next contends he received ineffective assistance of counsel at sentencing. Specifically, he contends his counsel on the possession charge was deficient for failing to either request a DOSA evaluation prior to sentencing or request a continuance for that purpose at sentencing. Again, we disagree.
To prove ineffective assistance, a defendant must show both deficient performance and prejudice. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990). Prejudice is established if there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Graves has not established either deficient performance or prejudice. His counsel on the simple possession offense negotiated a plea agreement that included an “agreed recommendation as to time.” Clerk’s Papers at 24. The agreed recommendation was for a low end standard range sentence of twelve months and one day. That page of the plea agreement bore the heading, “Use For . . . Non-DOSA Sentences Of Over One Year Only.” Clerk’s Papers at 24 (emphasis added). Given this agreement, Graves counsel could not present a DOSA evaluation or request a DOSA without risking a breach of the plea agreement. See State v. Turley, 149 Wn.2d 395, 400, 69 P.3d 338 (2003) (plea agreement is a contract between the defendant and the State). Accordingly, we cannot say counsel’s performance was deficient.
And even assuming counsel could have pursued a DOSA without breaching the agreement, Graves fails to establish a reasonable probability that the court would have imposed a DOSA. The DOSA program is meant to provide drug treatment to drug offenders who are likely to benefit from it. State v. Grayson, 154 Wn.2d 333, 337, 111 P.3d 1183 (2005). Although the State concedes Graves was eligible for a DOSA, there is no showing that an evaluation would have indicated he was a good candidate for rehabilitation or that the State would have endorsed such a sentence. If anything, Graves’ extensive criminal history, including a fairly recent DOSA, and the ominous fact that he committed the apartment offenses while carrying a loaded gun with a cocked hammer, indicate that a DOSA was unlikely. Graves has not demonstrated a reasonable probability that the court would have granted a DOSA on the possession charge had counsel pursued that sentence. His claim that his counsel on the apartment offenses should have pursued a continuance and a DOSA on the delivery and firearm offenses fails for the same reason.
Graves’ statement of additional grounds for review raises no meritorious issues. To the extent he alleges his counsel promised him a DOSA, his claim is insufficient to overcome his contrary statements in his signed statement on plea of guilty and his guilty plea colloquy State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984).
Affirmed.