No. 20061-2-III.The Court of Appeals of Washington, Division Three. Panel Six.
Filed: June 18, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Yakima County, No. 001021530, Hon. C. J. Lust, March 14, 2001, Judgment or order under review.
Counsel for Appellant(s), Stephanie C. Cunningham, Attorney At Law, # 552, 4603 N.E. University Villag, Seattle, WA 98105.
Counsel for Respondent(s), Lauri M. Boyd, Deputy Prosecutor, Yakima Co Crths-Appel Div, 128 N 2nd St. Ste 211, Yakima, WA 98901-2631.
JOHN A. SCHULTHEIS, J.
After he was convicted of unlawful possession of a firearm, Brian Mitchell appealed the trial court’s denial of his suppression motions. He claims the trial court’s determination that exigent circumstances justified the officers’ warrantless entry into and search of the trailer where he was staying was in error. Likewise, he maintains the trial court improperly relied on the inevitable discovery doctrine in denying his motion to suppress the weapons seized by the officers. Finding the suppression motions properly determined, we affirm.
Facts
Yakima Police Officer Tarin Miller and her partner, Reserve Officer Wristen, were dispatched on December 23, 2000, to a trailer park in Yakima regarding an unwanted guest making threats with a gun. Dispatch informed the officers that the complaining victim, Dawn Tracy, was waiting for them in a trailer parked in space 8 and the unwanted guest was in the victim’s trailer parked in space 7A. When the officers arrived on the scene they first knocked on the door of the trailer in space 7A and announced their presence, but there was no response. They then contacted Ms. Tracy inside the trailer in space 8.
Ms. Tracy told the officers that she and Mr. Mitchell were in a dating relationship and that he had been living with her in her trailer. The title to the trailer showed Ms. Tracy as the registered owner. Mr. Mitchell, as a guest of Ms. Tracy, was required to fill out an information sheet for the trailer park office. He was not, however, a registered tenant of her trailer. Ms. Tracy told the officers that an argument had erupted when Mr. Mitchell asked her to move with him to California and she refused. He told her that he would tell people that she lived alone and that she would probably get robbed. As he said this he was scratching the side of his head with a pistol. She fled from her trailer and went to a neighbor’s trailer to make a 911 emergency call to the authorities because she was afraid Mr. Mitchell would use the pistol against her.
Officer Miller testified that when first contacted, Ms. Tracy was nervous, frightened, and visibly shaking. Officer Miller could see no signs of physical violence or assault on Ms. Tracy’s person. The officer admitted that Ms. Tracy did not allege that an actual, physical assault had occurred, just that she was terrified of Mr. Mitchell because of the gun. Ms. Tracy believed that Mr. Mitchell was still in her trailer but said she was too afraid of him to accompany the officers back to her trailer to check. Instead, she gave Officer Miller her key and gave both officers consent to enter the trailer to see if Mr. Mitchell was still there.
At this point the officers were not sure whether Mr. Mitchell was inside since he had not answered their original knock and announce. The officers were quite concerned about officer and public safety issues because of the report of a weapon in the trailer. They did not know if Mr. Mitchell was angry or suicidal or whether he would fire a weapon as they approached. The situation was quite tenuous due to the close proximity of the other trailers in the park and because the officers had no backup unit to assist them. The lack of a backup team was due to a concurrent investigation into an officer shooting in the area, which required all available units. Officer Miller testified that investigating a person with weapons inside a trailer is especially dangerous because the walls of the trailer are thin and bullets can easily penetrate them. Although it was downplayed as a factor, Officer Miller’s partner that day was a reserve officer still in training.
When the officers reached the trailer a second time they did not knock but, relying on Ms. Tracy’s consent to enter the trailer, opened the door by using the key she had provided. From their position in the doorway outside the trailer the officers could see Mr. Mitchell lying on the bed in an elevated portion of the trailer. Because they could not see his hands, Mr. Mitchell was asked to come down off the bed and kneel on the floor in front of the officers who then patted him down for weapons. Officer Miller testified she explained to Mr. Mitchell why she was there and immediately asked him where the weapon was. The officer testified that for officer and public safety reasons, securing the weapon was her immediate priority upon contacting Mr. Mitchell. Mr. Mitchell was cooperative and told the officers that two firearms were in a stack of personal items stacked on the couch. Although neither weapon was in plain view, both were in close proximity to Mr. Mitchell as he sat on the floor of the trailer.
As the weapons were being secured, Mr. Mitchell began to cry and spontaneously admitted to the officers that he was a convicted felon. Before anything else was said or done, Officer Wristen read Mr. Mitchell his rights. He agreed to talk with the officers without an attorney present. He gave the officers information about the fight with Ms. Tracy and the two seized firearms. Through the dispatch operator the officers learned that: (1) one of the weapons was stolen; (2) Mr. Mitchell had been convicted of felonies in the past; and (3) Mr. Mitchell had a current outstanding misdemeanor warrant for his arrest. Consequently, he was arrested at the scene.
Mr. Mitchell was charged with second degree unlawful possession of a firearm and possession of a stolen firearm. He filed motions for suppression of physical evidence and statements made at the scene. Oral arguments were spread out over several days. The court did not immediately rule on the suppression issues. Mr. Mitchell also filed a motion to dismiss the weapons charges but the motion was denied.
A jury was in the process of being chosen when the big 2001 earthquake disrupted the proceedings, forcing evacuation of the courtroom. As a result, several potential jurors saw Mr. Mitchell in handcuffs. Consequently, the court declared a mistrial and released the entire jury panel. Afterward, the court set forth its reasoning regarding the suppression motions. It determined the statements Mr. Mitchell made prior to receiving his Miranda[1] warnings should be suppressed but those made after the warnings were read were voluntary and admissible. The court also found that the police did have valid permission to enter the trailer but not to search it without Mr. Mitchell’s permission. However, it also determined that exigent circumstances necessitated the entry and search.
Finally, the court found that the police would have searched the trailer incident to Mr. Mitchell’s arrest on the outstanding warrant, inevitably discovering the weapons in his possession.
Recognizing Mr. Mitchell would appeal the suppression rulings, the parties agreed to hold a bench trial on stipulated facts after which Mr. Mitchell was found guilty of unlawful possession and not guilty of possession of a stolen firearm. The stolen firearm charge was later dismissed.
Analysis
Mr. Mitchell appeals the trial court’s denial of his CrR 3.5 and 3.6 suppression motions, specifically assigning error to findings of fact 1(B) and 1(G) and conclusions of law 2 and 4. Findings are reviewed under the substantial evidence standard. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Conclusions of law are reviewed de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).
The portion of finding 1(B) to which Mr. Mitchell assigns error is the court’s determination that Ms. Tracy told the responding officers that Mr. Mitchell `had a gun and had threatened’ her with it. Clerk’s Papers (CP) at 7. Ms. Tracy did not testify at the suppression hearing but Officer Miller took the stand on two different occasions in order to explain to the court just how Ms. Tracy explained Mr. Mitchell’s behavior on the date in question. The officer was unequivocal that Ms. Tracy felt threatened by Mr. Mitchell’s possession and handling of a weapon on the date in question.
Because the parties agree the pistol was never pointed at Ms. Tracy, Mr. Mitchell contends he could not have threatened her. He is incorrect. The definition of `threat’ is included in RCW 9A.04.110(25):
[T]o communicate, directly or indirectly the intent:(a) To cause bodily injury in the future to the person threatened or to any other person; or
(b) To cause physical damage to the property of a person other than the actor; or
. . . .
(f) To reveal any information sought to be concealed by the person threatened; or
. . . .
(j) To do any other act which is intended to harm substantially the person threatened or another with respect to his health, safety, business, financial condition, or personal relationships[.]
The trial court determined that Mr. Mitchell threatened Ms. Tracy with a gun. The record supports this finding because of his assurances that Ms. Tracy would be robbed after he told everyone he knew that she lived alone. This constitutes a threat under RCW 9A.04.110(25)(f) and (j).
Additionally, Ms. Tracy told the officers she was afraid Mr. Mitchell would have used the gun on her if she had not left the trailer, which also constitutes a threat pursuant to subsections (a) and (j) above. Substantial evidence in the record supports the trial court’s finding 1(B).
The portion of finding 1(G) to which Mr. Mitchell assigns error is the court’s determination that `[n]either weapon was in plain view, but both were in very close proximity to [Mr. Mitchell] and easily within his immediate reach.’ CP at 8. Testimony revealed the trailer was quite small, perhaps only 5-feet wide and 10- or 12-feet long, not including the floor space taken up by the furnishings. When the officers ordered Mr. Mitchell off the bed he was asked to kneel in the living room in front of the couch where the weapons were located. Officer Miller testified the couch was so close that had Mr. Mitchell lunged three feet he could have reached the weapons. Common sense dictates that a distance of three feet makes the weapons within `very close proximity’ or `easily within his immediate reach.’ CP at 8. Substantial evidence in the record supports finding 1(G).
Regarding the court’s conclusions, Mr. Mitchell agrees with the court’s decision that Ms. Tracy did have authority to grant permission to the officers to enter her trailer without a warrant. However, he assigns error to that portion of conclusion of law 2 that holds `[w]ith the possible exception of flight’ all the exigency factors that allow a warrantless search and arrest were present under the facts of this case. CP at 9.
As a general rule, warrantless searches are per se unreasonable. State v. Bessette, 105 Wn. App. 793, 797, 21 P.3d 318 (2001). Courts narrowly construe any exceptions to this rule. State v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73 (1999). The burden rests with the State to prove that a warrantless search falls within one of the limited exceptions. Id.
A warrantless search may be constitutional if it is in response to an immediate emergency or as part of the police function of protecting and assisting the public. State v. Gocken, 71 Wn. App. 267, 274-75, 857 P.2d 1074 (1993).
In Washington, `it is not a violation of either the letter or spirit of Miranda for police to ask questions which are strictly limited to protecting the immediate physical safety of the police themselves and which could not reasonably be delayed until after warnings are given.’ State v. Lane, 77 Wn.2d 860, 863, 467 P.2d 304 (1970). In Lane, while one officer read Mr. Lane his Miranda rights, another officer specifically asked the defendant if he had a gun. Id. at 861. The court determined an officer may properly ask this type of question of a defendant prior to Miranda warnings without violation as long as two specific conditions are met. First, the question must be solely for the purpose of officer or public safety. Second, the circumstances must be sufficiently urgent to warrant an immediate question. Id. at 862-63. `If both conditions are met, the question does not constitute an interrogation in violation of Miranda.’ State v. Spotted Elk, 109 Wn. App. 253, 260, 34 P.3d 906
(2001) (citing State v. Richmond, 65 Wn. App. 541, 544-46, 828 P.2d 1180 (1992)).
Although this theory was not argued to the court below, applying the Lane principles to the facts of this case we find the two-part test has been satisfied. First, Officer Miller’s question to Mr. Mitchell regarding the location of the weapons was related solely to officer and public safety concerns as well as the safety of Mr. Mitchell, whose state of mind was not clear. Second, there was a sense of urgency in immediately contacting Mr. Mitchell and securing the weapons, especially considering the nature of the emergency call and because Ms. Tracy was too frightened of Mr. Mitchell to accompany the officers to her trailer. As mentioned above, the officers were investigating a man-with-a-gun scenario in a trailer court with no backup officers available. Their main concern was securing the weapons.
In emergency situations our peace officers must make split second decisions that may affect constitutional rights. This is a case where the officers’ quick actions were justified.
Although similar to the analysis set forth above, we next consider whether the exigent circumstances exception applies. In its oral decision the trial court relied on Washington decisions to determine whether the officers’ entry into and search of the trailer without a warrant was justified under the exigent circumstances exception. The parties agree the officers had valid consent to enter the trailer. The record reflects the officers entered the trailer, not to arrest Mr. Mitchell, but to investigate the emergency call.
A careful reading of conclusion of law 2 does lead to some confusion. While perhaps inartfully drafted, it is clear the trial court meant to find the exigency exception applied to the warrantless search for and seizure of the weapons rather than just the warrantless entry into the trailer. The exigency exception applies when it is impractical to obtain a warrant because: (1) the officer is in hot pursuit; (2) the suspect is fleeing the scene; (3) there is immediate danger to the arresting officer or the public; (4) there is potential mobility of a vehicle; and (5) there is potential mobility or destruction of the evidence. Bessette, 105 Wn. App. at 798. When claiming exigent circumstances exist, the State must convince the court that it was impractical or unsafe for the officers to take the time to acquire a warrant or explain why the warrant would have been unavailable if requested. Id.
Here, the court’s unchallenged finding was that [b]ecause of the possible presence of weapons inside the trailer, and since the investigation was still in its preliminary stages, Officer Miller was concerned for officer safety, for Ms. Tracy’s safety, for the safety of the other park residents, and also for the defendant’s safety. Her primary concern at this time was to locate and secure the weapons. Finding of Fact 1(F), CP at 8.
This finding is supported by substantial evidence in the record and is clearly one of the exigent circumstances recognized by the courts of this state. The trial court did not err when it concluded the exigent circumstances exception applied under the facts of this case.
Mr. Mitchell also assigns error to the court’s conclusion of law 4 that the weapons would have been inevitably discovered during the officers’ investigation of Ms. Tracy’s emergency call. It is not necessary for us to discuss the merits of this contention since we have already found the police intrusion was appropriate under Lane and the exigent circumstances doctrine.
Conclusion
Substantial evidence supports the court’s findings and the conclusions necessarily follow from those findings. The trial court decision is affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: SWEENEY, J., KURTZ, J.
(1966).