State v. Groom , 133 Wash. 2d 679 ( 1997 )

Madsen, J.

— The State seeks to prosecute Defendant Larry Groom for criminal trespass, official misconduct, and unlawful search without a warrant under RCW 10.79.040 and .045. The trial court dismissed the charges on a Knapstad motion. State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). The Grant County Superior Court affirmed dismissal of the criminal trespass and official misconduct charges, but reversed as to the unlawful search charge. The Court of Appeals held that none of the charges were properly dismissed, and remanded for trial. Defendant contends that he is immune as a matter of law from prosecution for unlawful search without a warrant. We affirm the Court of Appeals, although on different grounds.

FACTS¹

In 1993, Defendant was the Chief of Police for Soap Lake. On February 1, 1993, just before midnight, Defendant went to Officer Joe Mandoli’s trailer home, 3.3 miles outside Soap Lake’s city limits. He maintains he went to the trailer to suspend Mandoli pending investigation of a complaint that Mandoli had sexually harassed a female suspect.² Defendant had received information that the suspect’s husband had made threats against Mandoli. He did not have a search warrant.

Defendant maintains that when he arrived at the trailer the front sliding glass door of the trailer was ajar, the lights were on inside, and Mandoli’s patrol car was unlocked with police department keys hanging from the turn signal. Mandoli’s coat and briefcase were in the patrol car. The curtain at the door of the trailer was drawn back, and Defendant could see that the trailer was in disarray. A firearm was leaned up against a wall (this later proved to be an air rifle or BB gun). Defendant claims he called out for Mandoli but there was no response.

Defendant did not call for aid or assistance while at the scene. Instead, he left the trailer and the patrol car unlocked, and drove into Soap Lake to the police station where he called Mandoli’s home, receiving no answer. He then picked up Officer Tom Jones and returned to Mandoli’s residence. He was gone from the trailer approximately 8 to 10 minutes.

When they arrived, Defendant approached the trailer while Jones went to the patrol car. Although Defendant claims the door was still open, Jones did not notice the door open. Jones also said he did not hear Defendant express any concern about Mandoli’s welfare. When Jones arrived at the door, Defendant had already opened the door. Jones had not heard Defendant knock or call Mandoli’s name. Both officers entered the trailer. Defendant opened one bedroom door but did not turn on the light, enter the room, or call Mandoli. Defendant did enter the second bedroom, Mandoli’s bedroom, and called Jones inside. He pointed out a gun in its holster under the chair next to the bed and a .22 rifle leaning up against a wall. These weapons were Mandoli’s personal weapons. Jones did not think the position of these guns was unusual. Jones then saw Defendant look under the mattress for several seconds. Defendant found nothing, and set the mattress down. Uncomfortable with the search, Jones returned to the living room, but was called back into the bedroom where Defendant showed him a lighter. Jones left the bedroom again, but was called back again to help remove Mandoli’s uniforms, which Jones took to the patrol car along with a police charger and a department portable radio that was on the kitchen table.

Defendant called Lieutenant Scott Stokoe to meet Defendant at Mandoli’s home. When Stokoe arrived, he told Defendant they were not supposed to be in Mandoli’s residence. Defendant indicated he wanted Stokoe to be a witness to removal of the uniforms and equipment. Stokoe did not hear Defendant mention any concern about Mandoli’s welfare. Before the officers left the trailer, Defendant secured it.

On the way back to the police station, Defendant passed Mandoli. Defendant returned to Mandoli’s residence and then took Mandoli to Soap Lake. On the way, he told Mandoli he had found the trailer open and the lights on and the patrol car unlocked, and had searched the residence. At the police station, Defendant told Mandoli about the complaint against him and the internal investigation. Mandoli was suspended.

Mandoli maintains that when he left his trailer he left the door closed, his personal gun under a magazine by his bed, and the patrol car locked. He claims that when he returned he noticed the closet door open, his gun uncovered, and some personal items such as notebooks, files, and pens missing.

Mandoli filed a complaint with the Grant County Sheriff’s Office. On July 15, 1993, Defendant was charged with first degree criminal trespass, official misconduct, and unlawful search. He moved for dismissal pursuant to State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986). The trial court granted the motion and dismissed all three counts against Defendant. On the State’s appeal, the superior court reinstated the unlawful search count. The Court of Appeals granted both parties’ motions for discretionary review and remanded for trial on all three counts. State v. Groom, 80 Wn. App. 717, 911 P.2d 403, review granted, 129 Wn.2d 1023 (1996). Defendant then petitioned for discretionary review by this court, which was granted. The issues raised in the petition for review concern the unlawful search charge.

ANALYSIS

Defendant moved to dismiss on the ground that the State lacked sufficient evidence to prove its case. Under Knapstad, 107 Wn.2d at 356, such a motion should be initiated by a sworn affidavit "alleging there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt.” Then "[t]he State can defeat the motion by filing an affidavit which specifically denies the material facts alleged in the defendant’s affidavit. If material factual allegations in the motion are denied or disputed by the State, denial of the motion to dismiss is mandatory.” Id. On the other hand, "[i]f the State does not deny the undisputed facts or allege other material facts,” the court must decide "whether the facts which the State relies upon, as a matter of law, establish a prima facie case of guilt.” Id. at 356-57. "Since the court is not to rule on factual questions, no findings of fact should be entered.” Id. at 357.

What facts are material depends upon the elements of the charged crime. Defendant was charged pursuant to RCW 10.79.040 and .045. His is the first reported appellate case involving prosecution under these statutes, which were enacted in 1921. Laws op 1921, ch. 71, §§ 1, 2. RCW 10.79.040 provides:

It shall be unlawful for any policeman or other peace officer to enter and search any private dwelling house or place of residence without the authority of a search warrant issued upon a complaint as by law provided.

RCW 10.79.045 provides:

Any policeman or other peace officer violating the provisions of RCW 10.79.040 shall he guilty of a gross misdemeanor.

"With respect to the entering and search of [a] private dwelling house[ ] or placet ] of residence,” RCW 10.79.040 implements article I, section 7 of the Washington State Constitution. State v. Cyr, 40 Wn.2d 840, 842, 246 P.2d 480 (1952), overruled on other grounds in State v. Ringer, 100 Wn.2d 686, 674 P.2d 1240 (1983); see also State v. Carpenter, 63 Wn.2d 577, 579, 388 P.2d 537 (1964); State v. Sanders, 8 Wn. App. 306, 309, 506 P.2d 892 (1973); State v. Duarte, 4 Wn. App. 825, 833, 484 P.2d 1156 (1971). Constitution article I, section 7 provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Article I, section 7 is more protective of the home than is the Fourth Amendment, and the cases reflect the heightened constitutional protection afforded the home under the state constitution. E.g., State v. Young, 123 Wn.2d 173, 185, 867 P.2d 593 (1994); State v. Berber, 48 Wn. App. 583, 589, 740 P.2d 863, 74 A.L.R.4th 491 (1987) (a person’s home is a highly private place); State v. Solberg, 122 Wn.2d 688, 861 P.2d 460 (1993). It is apparent that, in enacting RCW 10.79.040 and .045, the Legislature intended potential criminal liability to serve at least in part as a deterrent to unconstitutional searches.

The Court of Appeals observed that read literally, the statutes would criminalize all warrantless searches regardless of whether a search was justified by a recognized exception to the warrant requirement. State v. Groom, 80 Wn. App. at 720-21. Drawing from the qualified immunity of police officers from civil suit where they act in good faith in the performance of their official functions, the court held that a police officer could be liable under RCW 10.79.040 only if the search was undertaken in bad faith. Id. at 721-22. The court held the State’s allegations were sufficient to create a triable issue of fact as to whether Defendant searched Mandoli’s home in order to discover any evidence which might be useful in the internal investigation of Mandoli, and thus engaged in a bad faith search.

The difficulty with the Court of Appeals analysis is that it overlooks prior interpretations of RCW 10.79.040. The statute has always been interpreted in light of exceptions to the warrant requirement which have been recognized under article I, section 7. Thus, no violation of the statute occurs where a search is made incident to a lawful arrest, State v. Thomas, 183 Wash. 643, 646, 49 P.2d 28 (1935), a consensual search is made, State v. Smith, 50 Wn.2d 408, 314 P.2d 1024 (1957), and State v. Duarte, 4 Wn. App. 825, 484 P.2d 1156 (1971), or where a search is made under exigent circumstances, State v. Campbell, 15 Wn. App. 98, 547 P.2d 295 (1976) and State v. Sanders, 8 Wn. App. 306, 506 P.2d 892 (1973). Where an exception is recognized, the officer is not required to have a search warrant "as by law provided[,]” and no violation of RCW 10.79.040 occurs. Thus, RCW 10.79.040 is interpreted consistently with article I, section 7, and criminal liability does not arise under RCW 10.79.045 when a police officer conducts a constitutionally valid warrantless search.

Only a violation of RCW 10.79.040 results in criminal liability under RCW 10.79.045. Manifestly, criminal liability under RCW 10.79.040 does not arise based upon a constitutional search.

Additionally, there is no justification for the introduction of a good faith-bad faith inquiry into the determination of criminal liability under RCW 10.79.040 and .045. RCW 10.79.045 plainly says that any violation of RCW 10.79.040 is a gross misdemeanor. A violation of RCW 10.79.040 occurs whenever there has been an unconstitutional search, whether the officer acted in good faith or bad faith.³

The Court of Appeals injection of a "bad faith” element is unmistakably an addition to search and seizure law in this state.3 ⁴ Since both the exclusionary rule and RCW 10.79.040 and .045 may serve to deter unconstitutional behavior, addition of a bad faith component would alter the equation—unconstitutional conduct would trigger the exclusionary rule but would not result in potential liability under RCW 10.79.045. Because RCW 10.79.040 simply does not contain a good or bad faith component, and in light of the interplay between the statute and the constitutional provision, we disapprove addition of a bad faith element.

Defendant also seems to suggest, and the Court of Appeals seemed to agree, that the knowledge of the officer is a relevant consideration. See Supplemental Br. of Pet’r at 13 (discussing qualified immunity under 42 U.S.C. § 1983); Groom, 80 Wn. App. at 722 n.2 (noting that in the civil context, qualified immunity is available unless, among other things, the officer knew or reasonably should have known the action violated the constitution) (citing Hooker v. Woody, 95 Wn.2d 822, 824-25, 631 P.2d 372 (1981)). However, just as the statute does not include a good or bad faith component, it also does not contain a mental element requirement. First, there is no expression of any required mental state in the statutes. Second, while in some cases where a statute criminalizing conduct fails to state a mental element, a court will read a mental element into the statute, this is not such a case.

Whether intent or guilty knowledge or some other mental element is an essential element of a crime is a matter to be determined by the Legislature. State v. Cleppe, 96 Wn.2d 373, 378, 635 P.2d 435 (1981), cert. denied, 456 U.S. 1006 (1982) (citing State v. Henker, 50 Wn.2d 809, 812, 314 P.2d 645 (1957)); see also Staples v. United States, 511 U.S. 600, 605-06, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994). The Legislature may create strict liability crimes. State v. Rivas, 126 Wn.2d 443, 452, 896 P.2d 57 (1995) (citing Cleppe, 96 Wn.2d at 380; State v. Stroh, 91 Wn.2d 580, 583-84, 588 P.2d 1182, 8 A.L.R.4th 760 (1979); Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952)).

Thus, whether a statute defines a strict liability crime is a question of statutory construction focusing on legislative intent. State v. Bash, 130 Wn.2d 594, 604-05, 925 P.2d 978 (1996). The first indicator of legislative intent is the language of the particular statute. Here, RCW 10.79.040 does not provide that a warrantless search is justified based upon the mental state of the officer conducting the search. Either a warrantless search falls within one of the exceptions to the warrant, and thus is a constitutional warrantless search, or it does not. Further, RCW 10.79.045 does not state that only a violation of RCW 10.79.040 with intent, or knowledge, or some other mental state results in criminal liability. Instead it says that any police officer violating RCW 10.79.040 shall be guilty of a gross misdemeanor. RCW 10.79.045. Since a violation of RCW 10.79.040 may occur regardless of the mental state of the officer conducting the search, by the statutes’ plain terms the mental state of the officer is irrelevant to the question of criminal liability.

A second indicator of legislative intent is legislative history. Reading RCW 10.79.040 as a strict liability crime is consistent with legislative intent that RCW 10.79.040 implements article I, section 7. Especially in light of the heightened protection afforded the home under article I, section 7, the flat prohibition of unconstitutional searches in RCW 10.79.040 does not support a looser standard of constitutional compliance than under article I, section 7. Whether an officer intended to violate, or knew or should have known his or her conduct violated article I, section 7 has never been a relevant consideration in determining whether an unconstitutional search has occurred.

Another factor which strongly indicates that the Legislature did not intend a mental element is the seriousness of the harm to the public. See Bash, 130 Wn.2d at 605. The danger of unconstitutional searches of the home simply cannot be overstated.

We conclude that there is no good or bad faith component to RCW 10.79.040 or .045, nor is there any mental element.

We also note that however much members of this court may think that a statute should be rewritten, it is imperative that we not rewrite statutes to express what we think the law should be. We simply have no such authority. State v. Molichi, 132 Wn.2d 80, 87, 936 P.2d 408 (1997); see Graham Thrift Group, Inc. v. Pierce County, Country Park, Inc., 75 Wn. App. 263, 267, 877 P.2d 228 (1994). This is true even if the results appear unduly harsh. Geschwind v. Flanagan, 121 Wn.2d 833, 841, 854 P.2d 1061 (1993).

We next turn to Defendant’s contention that he is immune from suit because he reasonably believed his conduct was lawful under statutory obligations to protect police property and under an emergency exception to the warrant requirement. He also contends this immunity issue should be decided as a preliminary matter of law.

The cases upon which Defendant relies addressing police officer immunity are all cases involving questions of civil liability. We do not agree that the civil qualified immunity standard applies to criminal prosecutions. See O’Shea v. Littleton, 414 U.S. 488, 503, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974); United States v. Dee, 912 F.2d 741, 744 (4th Cir. 1990); United States v. Hastings, 681 F.2d 706, 710-12, 65 A.L.R. Fed. 810 (11th Cir. 1982); United States v. Diggs, 613 F.2d 988, 1001 (D.C. Cir. 1979); United States v. Isaacs, 493 F.2d 1124, 1142-44 (7th Cir. 1974). Further, criminal liability under the statutes may arise only where a police officer conducts an unlawful search. It makes no sense to extend qualified immunity to the only persons the Legislature intended be liable under RCW 10.79.040 and .045. Because we do not agree that the law concerning civil qualified immunity applies in this case, we do not reach defendant’s contention that such immunity must be decided as a preliminary matter of law.

Defendant next contends that the Court of Appeals decision conflicts with application of RCW 10.79.040 as a procedural rule implementing article I, section 7 and providing for the exclusion of evidence where an unlawful search occurs. He maintains that the Washington courts "have consistently chosen the exclusionary rule over criminal convictions as a remedy where police misconduct is alleged.” Supplemental Br. of Pet’r at 7. He reasons that RCW 10.79.040 can therefore be used only to exclude evidence and that it will not support a criminal charge.

We disagree. As noted, this is the first reported case of prosecution under the statute, and accordingly there is no basis for concluding that the courts have "chosen” the exclusionary rule over criminal prosecution. Further, there is no reason why both remedies cannot be available. Most importantly, the Legislature has unambiguously stated that a police officer or any other peace officer who violates RCW 10.79.040 "shall be guilty of a gross misdemeanor.” RCW 10.79.045. Defendant cites no authority for the proposition that reliance on the exclusionary rule negates the Legislature’s clear intent to criminalize violations of RCW 10.79.040.

Defendant also maintains that he cannot be prosecuted for unlawful search because there are no reported cases of prosecution under the statute despite its long existence. He cites no authority for this proposition, and we decline to address it. See RAP 10.3(a)(5); State v. Gentry, 125 Wn.2d 570, 610, 888 P.2d 1105, cert. denied, 516 U.S. 843, 116 S. Ct. 131, 133 L. Ed. 2d 79 (1995).

Defendant next contends that RCW 10.79.040 is void for vagueness because it does not give adequate notice of proscribed conduct in light of the exceptions to the warrant requirement. He contends that the statute fails to incorporate either these exceptions or the concept of qualified immunity. As we have explained, the statute has always been construed to permit constitutionally permissible warrantless searches. And, as discussed above, we reject Defendant’s claim that the statute must incorporate qualified immunity concepts—civil qualified immunity has no place in this criminal prosecution.

A statute is void for vagueness under the Fourteenth Amendment if it does not define the criminal offense with sufficient definiteness so that ordinary people can understand what conduct is prohibited, or if it fails to provide ascertainable standards of guilt to protect against arbitrary enforcement. State v. Thorne, 129 Wn.2d 736, 770, 921 P.2d 514 (1996); City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990). A statute is presumed constitutional and the challenging party bears a heavy burden of proving unconstitutionality beyond a reasonable doubt. Thorne, 129 Wn.2d at 769-70; State v. Myles, 127 Wn.2d 807, 812, 903 P.2d 979 (1995). Where a void for vagueness challenge is brought, a party may make only an "as applied” challenge unless the challenge involves First Amendment rights. Thorne, 129 Wn.2d at 770; Myles, 127 Wn.2d at 811 n.2.

The void for vagueness challenge is brought in this case following a pretrial Knapstad motion. Defendant contends that the facts will show that he entered Mandoli’s residence pursuant to a recognized exception to the warrant requirement. If that turns out to be the case, he entered lawfully under RCW 10.79.040 and his vagueness challenge will be mooted. The State disputes the facts, though, and as a result an as-applied challenge is impossible to evaluate at this stage of the proceedings. In any case, a sufficiently specific prior judicial construction of a statute can save a statute from unconstitutional vagueness, as the statute is then read as the court has interpreted it. State v. Richmond, 102 Wn.2d 242, 245, 683 P.2d 1093 (1984); Wainwright v. Stone, 414 U.S. 21, 94 S. Ct. 190, 38 L. Ed. 2d 179 (1973). Accordingly, the statute provides notice that searches falling within exceptions to the warrant requirement are not proscribed, while warrantless searches not falling within a judicially recognized exception are.

We next turn to the question whether Defendant’s Knapstad’s motion to dismiss the unlawful search charge should have been granted. The State has alleged facts comprising a prima facie case, and therefore the motion to dismiss should not have been granted by the trial court. The State alleges that Defendant went to Mandoli’s residence to discuss the internal investigation concerning the complaint against Mandoli. The State further alleges that rather than enter the unlocked residence and look for Mandoli, as would be appropriate if Defendant believed Mandoli’s welfare were threatened, Defendant drove back to Soap lake and called the residence, taking some 8 to 10 minutes to do so. Further, when Defendant returned with Officer Jones, he expressed no concern about safety or Officer Mandoli’s welfare to Jones. Nor did he express any such concern to Officer Stokoe when he arrived. Instead, Defendant began searching for evidence, looking under the mattress and in the closet in Mandoli’s bedroom while ignoring completely another bedroom in the residence.

Under these circumstances alleged by the State, a trier of fact could conclude that there were no circumstances justifying Defendant’s warrantless entry and search of the residence. The facts as the State alleges them, if proved, are sufficient for the trier of fact to conclude that Defendant unlawfully searched Mandoli’s residence without a warrant in order to find evidence relating to the internal investigation, and took the uniforms and police equipment as part of a plan to terminate or suspend Mandoli.

While Defendant offers a different explanation of events, our role in assessing the propriety of granting a Knapstad motion does not include deciding whose version of events is correct. The issue is whether the State has sufficiently countered Defendant’s claim that there are no material disputed facts and that the undisputed material facts do not establish a prima facie case of guilt.

Finally, it is not for this court to question the wisdom of the Legislature in enacting a criminal statute, provided it is a constitutional enactment, and the Legislature may, as noted, establish strict liability crimes. While the intent of RCW 10.79.040 and .045 is in part deterrence of unlawful searches, it is true that in the over 75 years since the statutes were enacted the exclusionary rule, not the possibility of criminal liability, has protected the community against unconstitutional searches. RCW 10.79.045 has rarely, if ever, been enforced. As a deterrent to police misconduct, it is arguably outdated and unnecessary. The Legislature may wish to consider whether RCW 10.79.045 should remain on the books. To repeat, however, it is simply not up to this court to rewrite legislation.

This matter is remanded for trial on all three counts against Defendant.

Smith, Johnson, and Alexander, JJ., concur.

1 Tlie statement of facts is derived from Defendant’s factual allegations and the facts alleged in the State’s affidavit in response to the Knapstad motion for dismissal.

2 Officer Mandoli was subsequently exonerated.

3 If the Legislature had intended to include a good or bad faith component in RCW 10.79.045, it would have done so, as it has done in numerous other statutes. See, e.g., RCW 9A.16.040(3); RCW 10.31.100(12); RCW 13.32.070(1); RCW 16.52.210; RCW 26.09.300(6); RCW 26.10.220; RCW 26.26.138(6); RCW 26.50.140; RCW 71.05.120(1).

4 On several occasions the court has declined to consider whether under Constitution article I, section 7 there should be a "good faith” exception to the exclusionary rule. State v. Werner, 129 Wn.2d 485, 496, 918 P.2d 916 (1996); State v. Riley, 121 Wn.2d 22, 30, 846 P.2d 1365 (1993); State v. Canady, 116 Wn.2d 853, 857-58, 809 P.2d 203 (1991).