State v. DeWitt

GRANT, Presiding Judge,

concurring in part; dissenting in part.

In this case we hold that police officers responding to a burglary-in-progress may reasonably enter the residence without a warrant to search for suspects and protect the occupants and their property. I most certainly concur in that holding. We also hold that once the officers have secured the premises, they may not reenter unless additional exigent circumstances arise, or they obtain valid consent or a search warrant. I also concur in this holding. However, the majority goes beyond this to uphold a “confirmatory search” based on People v. Duncan, 42 Cal.3d 91, 227 Cal.Rptr. 654, 720 P.2d 2 (Cal.1986). On this point I part ways with the majority. I do not believe that the facts of this case support reliance on Duncan to uphold a “confirmatory search.”

“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Ariz. Const, art. 1, § 8. The Arizona Constitution is even more explicit than its federal counterpart “in preserving the sanctity of homes and in creating a right of privacy.” State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519, 523-24 (1984); see also State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, 549 (1986); State v. Martin, 139 Ariz. 466, 473, 679 P.2d 489, 496 (1984). I concur with the majority that the initial entry by Officer McCaslin was a reasonable response to an emergency situation. I agree with the majority and with the state that a burglary-in-progress is an exigent circumstance which justifies a warrantless entry of the residence to search for suspects and to protect occupants and their property.

The right of the police to enter a dwelling and investigate an emergency is inherent in the very nature of their duties as peace officers. State v. Fisher, 141 Ariz. 227, 237, 686 P.2d 750, 760 (1984), cert. denied, 469 U.S. 1066, 105 S.Ct. 548, 83 L.Ed.2d 436 (1984). Therefore, the initial entry respected defendant’s constitutional rights.

When Officer McCaslin entered the house, he could lawfully take steps reasonably related to the investigation of the burglary and the identification of additional suspects. See State v. Greene, 162 Ariz. 431, 433, 784 P.2d 257, 259 (1989). He observed the suspected drug lab during his protective sweep. At the suppression hearing he testified that he was concerned about the chemicals and wanted “to back out and get some experts in there ... because there is definitely a potential for explosion or fire.” He called his supervisor, Sergeant Saylor, who in turn called the DEB officers. As the majority points out, Officer McCaslin’s subsequent actions were not consistent with his testimony about the danger of fire or explosion.

Defendant contends that the subsequent warrantless entries by Sergeant Saylor and the DEB officers were not justified by any exigencies and therefore violated his constitutional rights. The majority agrees with the defendant that the warrantless entries by Sergeant Saylor and the DEB officers cannot be upheld as reasonable under any exigent circumstances exception to the warrant requirement. I concur in this holding.

On appeal, the state advanced a novel justification for these subsequent warrantless entries of defendant’s home. The state concedes that a search based on exigent circumstances must end when the emergency passes, and that once Officer McCaslin finished his protective sweep of the house the exigent circumstances that supported his warrantless entry had passed. But the state asserts that when Officer McCaslin suspected that he had found a drug lab, he gained a new justification for being present in the defendant’s house. The state further argues that because Sergeant Saylor’s and the DEB officers’ warrantless entries “were only to confirm or refute McCaslin’s suspicions of an illegal drug laboratory, [they] were therefore justified____”

Contrary to the state’s contention, the plain view doctrine did not apply to Officer McCaslin’s observation of the lab equipment in the open closet and thus did not justify his continued presence in defendant’s home. The plain view doctrine can legitimate action beyond the scope of an initial warrantless entry. Arizona v. Hicks, 480 U.S. 321, 325-26, 107 S.Ct. 1149, 1152-53, 94 L.Ed.2d 347 (1987). But the lab equipment was not in plain view because its evidentiary value was not immediately apparent. See Ault, 150 Ariz. at 464, 724 P.2d at 550; State v. Cook, 115 Ariz. 188, 194, 564 P.2d 877, 883 (1977) (holding that officer’s mere suspicion that typewriter was stolen did not justify its seizure); 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 7.5(b), at 129-30 (2d ed. 1987). Officer McCaslin suspected that the lab equipment may have been used to manufacture drugs but the equipment itself was not illegal. His mere suspicion of drug activity, however, did not permit Officer McCaslin to remain in defendant’s home or to ask other officers to enter and search without a warrant. “Once police eliminate the dangers that justify a security sweep—safety of police, destruction of evidence, escape of criminals—they must, barring other exigencies, leave the residence. Were this not the rule, searches begun as minor intrusions on domestic privacy would expand beyond their legitimate purposes.” United States v. Oguns, 921 F.2d 442, 447 (2d Cir.1990).

When Officer McCaslin knew that there were no more burglary suspects but thought he had found a drug lab, his duty was to secure the premises and apply for a search warrant.⁴ Cook, 115 Ariz. at 194, 564 P.2d at 883 (holding that trial court erred in not suppressing evidence seized during warrant-less entry of apartment when officer knew immediately that suspect was not present but he suspected stolen property was in open closet); cf. Fisher, 141 Ariz. at 239, 686 P.2d at 762 (upholding two searches of apartment when officers’ actions during first warrant-less entry were “circumscribed by the exigencies that justified the intrusion”, and the second search was conducted pursuant to a warrant obtained following the first entry). Instead, Officer McCaslin began a narcotics investigation in defendant’s home without a warrant. He brought Sergeant Saylor and the Drug Enforcement Bureau officers into the house to confirm his suspicions.

The case on which the majority relies and cites extensively does not support a “confirmatory search” because the California Supreme Court reaffirmed its condemnation of “confirmatory searches”:

[W]hen an informant gives an officer probable cause to believe a search is justified, the officer must apply for a warrant. Otherwise, a police officer “need not rely solely on lawfully obtained probable cause; he can instead achieve ‘certain cause’ by conducting an unlawful confirmatory search, thus saving himself the time and trouble of obtaining and executing a warrant if he does not find the evidence.”

Duncan, 720 P.2d at 6 (quoting People v. Cook, 583 P.2d 130, 148 (Cal.1978)); see also People v. Superior Court (Shuman), — Cal. App.3d—, 247 Cal.Rptr. 538, 544 (Ct.App.1988) (“Evidence obtained pursuant to a search warrant will be excluded where police had previously conducted an illegal ‘confirmatory’ search.”). Nevertheless, the Duncan court found that a second officer’s warrantless entry, unrelated to the exigent circumstances which justified the first officer’s warrantless entry, did not violate the defendant’s Fourth Amendment rights. 227 Cal. Rptr. at 657-58, 720 P.2d at 6. The court reasoned that even though the second officer’s warrantless entry “was meant only to interpret [the suspected methamphetamine laboratory that] the first officer had already seen,” the second officer’s entry constituted only “a minimal additional intrusion on ,the defendant’s privacy.” Id.

I do not agree with the state and the majority that Duncan is good authority for the proposition that confirmatory searches are constitutionally permissible. Duncan’s denouncement of confirmatory searches conflicts with its holding that the second officer was entitled to enter the defendant’s house without a warrant to confirm the first officer’s suspicions. This inconsistent reasoning undermines Duncan’s authority.

Additionally, I cannot subscribe to Duncan ’s rationalization that it is constitutionally permissible for one officer to call additional officers into someone’s home just “to be certain that unlawful activity [is] afoot” because such an invasion is “far less an intrusion into defendants’ privacy ... than [would occur] if a full-scale search pursuant to a warrant [was] launched, only to reveal the activity was innocent.” Id. at 658, 720 P.2d at 7. Whether police may enter without a warrant does not turn on whether the warrantless search will be less intrusive than one conducted pursuant to a warrant. Rather, except for limited and specific “plain view” circumstances, only exigent circumstances compelling immediate police action will excuse the constitutional requirement that a magistrate or judge must weigh the need to invade an individual’s privacy in order to enforce the law. See Mincey v. Arizona, 437 U.S. 385, 393-94, 98 S.Ct. 2408, 2413-14, 57 L.Ed.2d 290 (1978); McDonald v. United States, 335 U.S. 451, 455-56, 69 S.Ct. 191, 193-94, 93 L.Ed. 153 (1948). The “let’s confirm our suspicions now—we’ll get a warrant later if it’s worth it” approach suggested by the state would justify all kinds of lesser invasions <of one’s home subject only to an officer’s discretion.⁵ Such state conduct is precisely what our state constitution prohibits in its explicit language about preservation of the sanctity of the home. Therefore I do not believe that the majority’s reliance on a California case has any bearing on the defendant’s state constitutional claim. “It is precisely a warrantless entry that constitutes the invasion of the home and infringement of the right of privacy therein. The purpose of that invasion ... is irrelevant to the aggrieved citizen.” Martin, 139 Ariz. at 474, 679 P.2d at 497.

Once Officer McCaslin viewed the items in defendant’s closet but did not seize them under the plain view doctrine, the police were in the same position as though they possessed reliable information showing defendant’s home contained illegal drugs, and they were subject to the same rules of conduct. They were bound to present these facts to a magistrate and obtain a warrant.

Moreover, even if I agreed with the majority concerning Duncan’s reasoning, the present case is factually distinguishable in important ways. First, the officer in Duncan who stumbled on the suspected drug laboratory was “inexperienced in drug manufacturing.” Duncan, 227 Cal.Rptr. at 658, 720 P.2d at 7. In contrast, Officer McCaslin had 19 years police experience, was trained to identify drug labs and narcotics, and had executed numerous search warrants with DPS and the DEA where drug labs had been discovered.

Second, in Duncan the second officer’s actions can be viewed as back-up of the first officer under exigent circumstances, thus justifying the second officer’s warrantless entry. There, it was still unclear whether the drug lab was operating when the first officer called the second officer to assist him. Id. at 655-56, 720 P.2d at 4. The ether smelled so strongly that it made the first officer dizzy; when the second officer entered, he hustled the first officer out of the house because he feared an explosion and exposure to the chemical fumes. Id.; see also State v. Mankel, 27 Ariz.App. 486, 439, 555 P.2d 1124, 1127 (1976) (upholding warrantless entry by second officer to back-up first officer where officers were not certain whether violent crime had been committed inside burglarized residence).

The Duncan court itself warned that the constitutionality of such searches must be justifiable under the exigent circumstances exception and that “such a determination must be made on a case-by-case basis.” 227 Cal.Rptr. at 655, 720 P.2d at 3. In Duncan, unlike this case, there were truly exigent circumstances creating an emergency situation requiring swift action. The house was filled with chemical fumes, there were Bunsen burners visible and a heat lamp operating. 227 Cal.Rptr. at 655-56, 720 P.2d at 4. Confirming the exigent circumstances was the fact that the officers called the fire department and instructed the firefighters to turn off the gas and electricity and to ventilate the residence. Id. Duncan is not a new exception to the warrant requirement called “a confirmatory search”, it is an exigent circumstances exception case.

In the present case, however, Sergeant Saylor and the DEB officers entered defendant’s house only to confirm McCaslin’s suspicions, not to back him up. The glassware and chemicals stored in the closet did not present a crime in progress; the suspected lab was not operating and there were no fumes.

Most importantly, the subsequent warrant-less entries in this case were not just “minimal additional intrusion[s] on the defendant’s privacy.” Duncan, 227 Cal.Rptr. at 658, 720 P.2d at 6. In contrast to Duncan, where the second officer hustled the first officer out of the house, Sergeant Saylor and Officer McCaslin spent two minutes looking into defendant’s bedroom closet from one foot away. Then, while they waited a half an hour for the DEB officers to arrive, two or three officers held the male burglary suspect in defendant’s living room. When the DEB officers arrived, one of them stood on a chair in order to get as close a view as possible at the items stored in defendant’s bedroom closet. Standing on defendant’s chair to view items that were not clearly visible constituted an unlawful search of defendant’s closet. See Hicks, 480 U.S. at 325, 107 S.Ct. at 1152-53 (officer’s moving of stereo equipment to locate serial numbers constituted a “search” which required probable cause).

Defendant’s constitutionally protected privacy interests cannot be trivialized by characterizing these repeated warrantless entries and the continuous police presence in his home as “minimal additional intrusions” on defendant’s privacy. Our constitutional provisions were intended to give our citizens a sense of security in their homes and personal possessions. The Duncan court again warns:' “The varied factual circumstances of these cases teach a clear lesson: there is no absolute rule that can accommodate every warrantless entry into premises housing a drug laboratory. It is manifest that the emergency nature of each situation must be evaluated on its own facts.” 227 Cal.Rptr. at 660, 720 P.2d at 9. “It is impossible to reconcile that sense of security [in one’s own home] with the idea that the police may enter without warrant, inspect the premises, and hold everyone that they find until such time as they determine whether a warrant can be issued and brought to the home.” Bolt, 142 Ariz. at 265, 689 P.2d at 524 (emphasis added).

The exclusionary rule suppresses evidence obtained through a violation of a defendant’s constitutional rights. Ault, 150 Ariz. at 465, 724 P.2d at 551. The “independent source” exception to the rule permits the state to introduce evidence that is obtained pursuant to a search warrant, provided the warrant was based on information legally obtained. Martin, 139 Ariz. at 477, 679 P.2d at 500. For the independent source exception to apply, the state must establish that the illegal entries had no effect in producing the warrant. Murray v. United States, 487 U.S. 538, 542 n. 3, 108 S.Ct. 2529, 2536 n. 3, 101 L.Ed.2d 472 (1988). If the decision to seek the warrant was prompted by what the police observed during their unlawful entries into defendant’s home, or if information obtained during their illegal entries affected the magistrate’s decision to issue the warrant, any evidence seized pursuant to the warrant must be suppressed. Id. at 542, 108 S.Ct. at 2535-36.

The trial court erred in denying defendant’s motion to suppress because Sergeant Saylor’s and the DEB officers’ illegal entries tainted the subsequent warrant. The police decided to apply for the search warrant only after the DEB officers unlawfully entered defendant’s home to confirm the other officers’ suspicions. Detective Hanss’ affidavit for the search warrant sets forth only what the officers observed during their unlawful entry: “several bottles of chemicals and glasswares to include beakers____” It then describes the training and expertise of the DEB officers, not Officer McCaslin, and states their conclusion that the “chemicals and glassware ... are consistent with chemicals and glassware to manufacture the dangerous drug methamphetamine.” The affidavit contains no information obtained independently of the unlawful entries that would support issuance of the warrant. Thus, the information obtained during the unlawful entries of defendant’s home was the sole basis for the magistrate’s decision to issue the warrant, and the evidence seized pursuant to the warrant should have been suppressed. Accord People v. Superior Court (Shuman), 247 Cal.Rptr. 538, 542 (Ct.App.1988) [Rehearing granted July 1, 1988, opinion on rehearing not for publication Nov. 22, 1988.] (suppression is proper where police attempt to secure warrant in reliance on their own illegal search); see also People v. Burr, 70 N.Y.2d 354, 520 N.Y.S.2d 739, 514 N.E.2d 1363, 1367 (N.Y.1987) (where police conduct confirmatory search to ensure that there is probable cause to obtain a warrant, evidence seized under subsequent warrant should be suppressed) (dictum), cert. denied, 485 U.S. 989, 108 S.Ct. 1294, 99 L.Ed.2d 505 (1988). For the reasons stated I believe the evidence should have been suppressed.

4 . Securing the premises entitled the officers to prohibit anyone from entering the home pending arrival of a warrant. "But this stricture includes the police. They also may not cross the threshold absent exigent circumstances.” Martin, 139 Ariz. at 475, 679 P.2d at 498.

5 . Allowing the officers’ subsequent warrantless entries to stand would encourage future warrant-less searches where the police might otherwise obtain a warrant:

The incentives for ... illegal conduct are clear. Obtaining a warrant is inconvenient and time consuming. Even when officers have probable cause to support a warrant application, therefore, they have an incentive first to determine whether it is worthwhile to obtain a warrant. Probable cause is much less than certainly, and many "confirmatory” searches will result in the discovery that no evidence is present, thus saving the police the time and trouble of getting a warrant. If contraband is discovered, however, the officers may later seek a warrant to shield the evidence from the taint of the illegal search. The police thus know in advance that they have little to lose and much to gain by forgoing the bother of obtaining a warrant and undertaking an illegal search.

Murray v. United States, 487 U.S. 533, 546-47, 108 S.Ct. 2529, 2537-38, 101 L.Ed.2d 472 (1988) (Marshall, J., dissenting).