King County v. Primeau , 98 Wash. 2d 321 ( 1982 )

Dolliver, J.

Mrs. Irene Primeau is the owner of approximately 13 V2 acres of land near Kirkland. The differing ways in which this property is viewed by King County and by Mrs. Primeau are illustrated by the trial briefs of each party. According to the County:

The neighborhood is a typical subdivision single family residence area. The subject property contains a single family residence plus a number of storage buildings, an old house trailer and various other structures. In addition, the premises are littered with discarded appliances, junked cars, broken and used lumber, and all manner of garbage and debris. A garbage dump exists on the rear of the property.

The house itself is in a deteriorated and dangerous condition. The plumbing is largely inoperable, portions of the siding and roof are missing or damaged, the electrical system is very substandard, and the chimney is damaged. Several of the rooms are completely filled with debris, creating a substantial fire hazard.

Mrs. Primeau maintains a substantial collection of domestic animals on the property, including dogs, cats, pigs, goats, chickens and ducks. As a consequence, large quantities of animal feces have accumulated on the property. The combination of these problems has created a substantial rodent problem in the neighborhood.

Mrs. Primeau sees things in a somewhat different light:

Farm animals have always been present on these premises. Pigs were raised commercially for many years until the combined actions of King County and some neighbors forced its closure. Cows, goats, chickens, ponies, geese, dogs, and cats and other animals have been raised and kept on this farm. Many of these animals had been abandoned, lost, or were sick or injured. Defendant's farm became known as a haven for such animals. Many of the animals had been raised from their infancy and kept strictly as pets.

As a matter of necessity in earlier years Defendant and her husband collected and recycled used materials for their own personal use. To this day this is a habit that Defendant adheres to. Therefore, there exists stacks of fencing material, appliances, boxes, crates, and other material which has a useful and intrinsic value to Defendant.

Within Defendant's house there exists a minimum of modern day conveniences. Her house is heated by a wood stove, her windows are boarded shut to conserve heat, her hot water tank has been disconnected to save electricity. Many of the personal belongings and effects of her children and her deceased husband have been kept and stored by Defendant in the now unused rooms of her house. In her own words this is her "houseful of memories."

A view congruent with that of King County was held by one of Mrs. Primeau's neighbors, and on June 23, 1978, King County Animal Control received a complaint from this neighbor, Marlene Berry. Ms. Berry complained Mrs. Primeau was mistreating many of her animals. Ms. Berry also stated Mrs. Primeau's plumbing was inoperable, and raw sewage from the house drained onto Mrs. Primeau's property.

Shortly before receiving Ms. Berry's complaint, Officer Chuck Wadkins of King County Animal Control had driven by the Primeau property and observed several unlicensed dogs and various mistreated and malnourished animals. Based on a statement by Officer Wadkins, a King County District Court judge issued a search warrant on June 19, 1978, authorizing entry onto the Primeau property to search for animals being cruelly treated and dogs without valid licenses. When King County Animal Control officers executed the warrant, they found 7 ponies and donkeys and 22 dogs, all suffering from malnutrition, and the carcass of an unrecognizable large animal which had been dead for 2 to 4 months. The Animal Control officers seized the animals, and cited Mrs. Primeau for eight counts of cruelty to animals and one count of operating a kennel without a license. The Animal Control officers subsequently warned the King County Building and Land Development Division about several health and safety hazards and potential housing code violations they observed on the Primeau property.

In August 1978, in response to information received from Animal Control and Ms. Berry's complaint, the King County Building and Land Development Division initiated an investigation of Mrs. Primeau's property. Norman Peterson, Supervisor of the Code Enforcement Section of the Building and Land Development Division, drove by the Primeau property and observed several violations of the Uniform Building Code and the Uniform Code for the Abatement of Dangerous Buildings, as adopted in section 2 of King County Ordinance 3647 (1978). Mr. Peterson made no attempt to enter the property or contact Mrs. Primeau personally. Rather, he applied for a search warrant to inspect the Primeau property. After receiving Mr. Peterson's affidavit and Ms. Berry's complaint, a King County Superior Court judge determined probable cause existed to suspect Mrs. Primeau of violating the housing code and dangerous buildings code and issued a warrant to search the Primeau property.

On August 10, 1978, Mr. Peterson, County Building Inspector Karl Korshaven, and two King County Sheriff's deputies executed the warrant to search the Primeau property. The officers knocked on the door of the Primeau residence, announced their purpose, and personally served Mrs. Primeau with the warrant. Mrs. Primeau asked that the inspection be postponed until her attorneys could be present. The officers denied her request and proceeded with the inspection. During the inspection, Mr. Peterson and Inspector Korshaven observed a number of housing code and dangerous buildings code violations.

Based on the observations of Mr. Peterson and Inspector Korshaven, King County filed a civil action against Mrs. Primeau on November 20, 1978. The County sought an order requiring Mrs. Primeau to correct the various housing code and dangerous buildings code violations. In her answer, Mrs. Primeau admitted six violations, admitted two others in part, and denied the remainder.

On September 26, 1979, during the discovery process, King County requested Mrs. Primeau to permit an inspection of her property pursuant to CR 34. After initially acceding to the County's request, Mrs. Primeau refused to allow the inspection. On February 27, 1980, however, the King County Superior Court granted King County's motion to compel discovery and ordered Mrs. Primeau to permit an inspection. During the court ordered inspection, County building inspectors gathered further evidence of housing code and dangerous buildings code violations.

At the commencement of trial, Mrs. Primeau moved to suppress all evidence obtained by Building and Land Development Division officers during the two inspections of the Primeau property. Mrs. Primeau claimed a search warrant could not be obtained until after the person had been asked to consent to a search. Since before obtaining the August 10, 1978, warrant Mr. Peterson did not request consent to an inspection, Mrs. Primeau asserted the warrant was invalid. She further argued that evidence obtained during the subsequent search should have been suppressed under the "fruit of the poisonous tree" doctrine. The King County Superior Court granted Mrs. Primeau's motion to suppress the evidence and entered an order dismissing the case against her. The Court of Appeals affirmed. King Cy. v. Primeau, 30 Wn. App. 664, 637 P.2d 987 (1981). We accepted review.

The ordinance which is the subject of dispute between the parties is King County Ordinance 2909, § 104 (1976). It states:

A. Whenever necessary to make an inspection to enforce or determine compliance with the provisions of any land use or public health ordinance, or whenever a director or his duly authorized inspector has cause to believe that a violation of any land use or public health ordinance has been or is being committed, the inspector may enter any building, structure, property or portion thereof at reasonable times to inspect the same.

B. If such building, structure, property or portion thereof is occupied, the inspector shall present identification credentials, state the reason for the inspection, and demand entry.

C. If such building, structure, property or portion thereof is unoccupied, the inspector shall first make a reasonable effort to locate the owner or other persons having charge or control of the building, structure, property or portion thereof and demand entry. If the inspector is unable to locate the owner or such other persons, and he has reason to believe that conditions therein create an immediate and irreparable land use or health hazard, he shall make entry.

D. It is unlawful for any owner or occupant or any other person having charge, care or control of any building, structure, property or portion thereof to fail or neglect after proper demand has been given to permit prompt entry thereon where the inspector has reason to believe that conditions therein create an immediate and irreparable land use or health hazard.

E. Unless entry is consented to by the owner or person in control of any building, structure, property or portion thereof or conditions are believed to exist which create an immediate and irreparable land use or health hazard, the inspector, prior to entry, shall obtain a search warrant as authorized by the laws of the State of Washington.

Defendant contends the County inspector cannot obtain a warrant under section 104(E) until after the inspector has requested an inspection under section 104(B). We do not share this view. The phrase "[u]nless entry is consented to" in section 104(E) does not create a condition precedent. Rather it gives an option: either gain entry by consent or obtain a warrant. See McCrabb v. Moulton, 124 F.2d 689, 691 (8th Cir. 1942); Griffith v. Cedar Creek Oil & Gas Co., 91 Mont. 553, 558-59, 8 P.2d 1071 (1932).

Plaintiff gives some examples to illustrate the vice of the position of defendant:

Example 1: Store Clerk to Customer: "Unless you pay by credit card, you must pay with cash." Defendant would construe this to mean: "Before you pay with cash, you must pay with a credit card."

Example 2: Parent to Child: "Unless you go to school, you must stay in bed all day." Defendant would construe this to mean: "Before you stay in bed all day, you must go to school."

Example 3: First Pedestrian to Second Pedestrian: "Unless I open the door, you must open it yourself." Defendant would construe this to mean: "Before you open the door yourself, I must open it."

The statutory scheme in section 104 providing for entry by an inspector is: (1) obtain entry by consent; or (2) believe condition exists which creates "an immediate and irreparable land use or health hazard"; or (3) obtain a search warrant. King County properly exercised the third option.

Next, although she does not dispute the existence of probable cause for the issuance of a warrant, defendant maintains there must be prior notice before a search warrant can be obtained. We find nothing in the ordinance or in the cases cited by defendant to justify this position. Neither Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972) nor Sniadach v. Family Fin. Corp., 395 U.S. 337, 23 L. Ed. 2d 349, 89 S. Ct. 1820 (1969), which are cited by defendant, deals with search warrants. Therefore, Fuentes and Sniadach are irrelevant to the question whether search warrants may be served prior to notice and hearing.

State v. Klinker, 85 Wn.2d 509, 537 P.2d 268 (1975) is also inapposite. In discussing the seizure of property the court said:

[D]ue process requires a hearing before property is seized, and that that hearing must either include notice and the opportunity to appear being given the person subjected to the seizure or must involve an ex parte finding by a judicial officer of a right to and a special need for summary seizure or attachment subject to prompt later contest.

(Italics ours.) Klinker, at 513. The thrust of Klinker is the need for a neutral magistrate to determine whether a warrant should issue. This did occur in the case before us.

Neither Camara v. Municipal Court, 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967) nor See v. Seattle, 387 U.S. 541, 18 L. Ed. 2d 943, 87 S. Ct. 1737 (1967), also cited by defendant, provides support for her argument. The thrust of the Camara and See decisions is that a routine administrative inspection must be preceded by a request for entry by the inspector desiring the search. The Camara Court distinguishes routine inspections from inspections instigated by the existence of probable cause of specific health and safety code violations. Camara, at 539-40. A request for entry need not be made before a warrant is issued in a nonroutine inspection. In the words of the Camara Court,

warrants should normally be sought only after entry is refused unless there has been a citizen complaint or there is other satisfactory reason for securing immediate entry.

Camara, at 539-40. This constitutional test has been met by King County.

The Court of Appeals is reversed and this matter is remanded for trial.

Brachtenbach, C.J., Stafford, Williams, Dore, Dim-mick, and Pearson, JJ., and Cunningham, J. Pro Tern., concur.