State v. Reid

Swanson, J.

Ronald Reid, a/k/a Roybal, was convicted by a jury of first degree murder while armed with a deadly weapon and a firearm. He appeals seeking a reversal of his conviction on the sole basis that the trial court erroneously denied his motion to suppress certain physical evidence obtained during a search of his residence. We affirm.

On the evening of September 1, 1978, a man was shot to death in a parking lot of a south end Seattle tavern. Two eyewitnesses told the police that from across the street they observed a green car with black racing stripes down the side parked next to the tavern. It was facing them and it was in their lane. Its engine was idling and its lights were off. As they drove across the street to suggest that the driver, a "Mexican-looking" man with dark hair and a mustache, turn on his lights, they saw a "Mexican-looking" woman and the victim, a tall, blond man, exit the tavern and walk toward the parked car. Just as they drove beside the passenger side of the parked car, they saw the woman step away from the victim and saw and heard a single shotgun blast come from the parked car. The victim dropped to the ground and the woman ran to the parked car, got in, and they drove away. The police learned from the bartender of the tavern, who identified the suspects at a lineup and at trial, that the "Mexican-looking" woman, later identified as the defendant's wife, had been attempting to lure the victim outside of the tavern and earlier had told her husband, the defendant, to get the shotgun ready.

That evening, the police also learned that the "Mexican-looking" couple had lived and worked at the Lin Villa Motel. The police went to the motel and were given the suspects' names, Harold and Crucita Roybal (Reid), and their home address.

Just before 10 a.m. the next morning, the police arrived at the Reids' address and saw a green car closely matching the description of the getaway vehicle parked in front of a large, apartment type building.¹ Because the police were uncertain which door led to the Reids' residence, they staked out the car. A short time later, the defendant emerged from the building and got into the green car, but before he could drive away, the police stopped, arrested, handcuffed, and placed him in the patrol car.² The police were still uncertain as to which apartment the defendant had exited and uncertain as to whether the several apartment units had a common entry. After the defendant refused to dispel these uncertainties and refused to tell the police where his wife was or in which apartment unit he resided, the police went to the defendant's car and removed the ignition keys which were attached to what appeared to be residence keys.

The police testified that at that time they fully expected the defendant's wife to be within the apartment. They thought she had probably witnessed her husband's arrest and may have had the shotgun. They knew she had been involved in a shooting, and they, therefore, believed they were in physical danger. Additionally, the police stated that the building was difficult to secure without placing police officers in further peril.

The police then went to one of the doors of the residence which several neighbors had identified as the door from which the defendant had exited and tried one of the keys. As the door opened, the police identified themselves, entered, and demanded that anyone within come out. After entering, the police were still uncertain as to whether they had entered a single residence or a common hallway. They continued to announce their presence as they entered, but no one responded. While looking for the defendant's wife, whom they found hiding behind a door, they noticed, but did not seize, a box of ammunition on the table. The police arrested the defendant's wife and charged both the defendant and his wife with first degree murder.

The police then secured the apartment and impounded the car.³ Later, while searching the residence under authority of a warrant, the police found two Polaroid photographs (one depicting the defendant's wife holding a sawed-off shotgun), a pillowcase, and two 20-gauge shotgun shells.

On the morning after the shooting, a man named Murphy, while jogging in Seward Park, discovered a pillowcase containing a shotgun which experts later testified had been recently fired. Additionally, the neighbor in the upstairs apartment told the police that 2 or 3 weeks before the shooting Reid had tried to sell him a shotgun which looked very similar, if not identical, to the shotgun Murphy had recovered and given to the police.

At trial the defense moved to suppress the physical evidence obtained during the execution of the search warrant arguing that the evidence was the fruit of the illegal seizure of the car keys and that the police violated the "knock and announce" rule. The trial court denied the motion, but subsequently, at a hearing on a motion in limine, reversed that decision with respect to the two photographs. Nevertheless, at the trial the State offered into evidence the photograph of the defendant's wife holding a sawed-off shotgun. The defense only objected to its admission on the basis of insufficient foundation. Having found a sufficient foundation, the trial court admitted the photograph.

Reid now appeals, contending that (1) the seizure of the physical evidence was the fruit of an unconstitutional warrantless seizure of his keys; (2) the warrantless arrest of his wife in their home amounted to a violation of his constitutional rights; (3) the police violated the "knock and announce" rule; (4) the search was conducted pursuant to a "general" warrant violative of the Fourth Amendment; and (5) the warrant did not authorize the seizure of the photographs.

The State contends that the warrantless entry into Reid's car and the warrantless seizure of the keys were justified as incident to a lawful arrest, by exigent circumstances, by hot pursuit, and because the keys were in plain view. Only two of these exceptions to the warrant requirement, incident to a lawful arrest and exigent circumstances, arguably apply under the facts of this case.⁴

The Fourth Amendment provides no barrier to the seizure of the keys under these facts, notwithstanding the fact that the police placed Reid in the patrol car before seizing the keys. New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981). Thus, the crucial inquiry is whether the seizure was permissible under article 1, section 7 of the Washington Constitution. In State v. Ringer, 100 Wn.2d 686, 674 P.2d 1240 (1983), our State Supreme Court concluded that this section of our state constitution "poses an almost absolute bar to warrantless arrests, searches, and seizures, with only limited exceptions . . ." Ringer, at 690. Those exceptions include exigent circumstances and searches incident to lawful arrests.

We find the seizure of the keys not to have been barred by our state constitution. First, the seizure of the keys, innocuous in themselves, unlike the seizure of illicit drugs in Ringer, was a reasonable intrusion limited in scope to the extent necessary to secure the automobile. Second, although there existed probable cause to obtain a warrant to search the car, one could not have been obtained with the celerity demanded by the circumstances, notwithstanding the telephonic warrant provisions of CrR 2.3(c), because (1) Mrs. Reid had not been arrested; (2) the police thought that she had probably witnessed the arrest of her husband; (3) the shotgun had not been surrendered; (4) she had been involved in a shooting less than 24 hours earlier; (5) the physical surroundings made it difficult to secure the premises and, therefore, difficult to insure the arrest of Mrs. Reid; and (6) a forewarned suspect could more easily and readily secrete or destroy the murder weapon.

Even if we assume that the seizure of the keys was unconstitutional, we conclude that the causal link between the seizure of the keys and the seizure of the photographs and shotgun shells was so attenuated that the taint of the seizure of the keys had dissipated. The record clearly reveals that bystanders had identified the door through which the defendant had often entered and exited. The keys were not utilized in the manner of a divining rod to locate the Reids' apartment but rather to facilitate access to their residence⁵ and to confirm from which door the defendant had exited. Consequently, the suppression of the photographs and shotgun shells was not required by the "fruit of the poisonous tree" doctrine. See Nardone v. United States, 308 U.S. 338, 341, 84 L. Ed. 307, 60 S. Ct. 266 (1939).⁶

Reid next contends that the police, by entering his residence without a warrant to arrest his wife, violated both the state and federal constitutions. First, he attempts to assert the rights afforded an arrestee by Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980); second, he asserts that the police violated the "knock and announce" rule, as codified in RCW 10.31.040. Both are premised upon an asserted reasonable expectation of privacy in the apartment.

Initially, we find Reid lacks standing to assert any rights his wife may have had under Payton v. New York, supra. On the other hand, we believe he does have a basis upon which to assert that the warrantless arrest of his wife, while in their temporary residence, amounted to a warrantless search. We find, however, that this warrantless search was not violative of either the state or federal constitutions.

If the exigencies permit, the police may, without a warrant, enter a home to arrest a person, Payton v. New York, supra, or to seize evidence which may be destroyed before a warrant could be obtained. Ringer. The particular facts of this case are laden with exigencies that would have supported a warrantless entry. First, there was a genuine concern for police and public safety based upon their belief that Mrs. Reid had witnessed her husband's arrest from the apartment and that the shotgun had not been recovered, and their knowledge that she had been involved in a shotgun murder. Second, as discussed above, these circumstances did not permit the delay necessary to obtain a warrant. Consequently, the lack of a warrant was no constitutional barrier to the police entry into the residence.

The second analytical step requires inquiry into whether the police properly announced their presence and purpose before entering the apartment.⁷ Ker v. California, 374 U.S. 23, 37, 10 L. Ed. 2d 726, 83 S. Ct. 1623 (1963); State v. Coyle, 95 Wn.2d 1, 621 P.2d 1256 (1980). This rule has been codified in RCW 10.31.040 which provides:

To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other inclosure, if, after notice of his office and purpose, he be refused admittance.

Strict and rigid compliance is not required to the point where these conditions become an empty formality. These conditions are "part of a criteria of reasonableness and subject to certain exceptions . . .", State v. Young, 76 Wn.2d 212, 215, 455 P.2d 595 (1969), including circumstances that justify the police officer's "belief that an escape or the destruction of evidence is being attempted." Ker, at 47.

First, we find that the police entry was reasonable and, therefore, in substantial compliance with the constitutional and statutory requirements of the "knock and announce" rule. The record clearly indicates that the police were uncertain as to whether the door which they unlocked and through which they entered opened into a single residence or a hallway common to several apartments. As soon as the door opened, the police loudly announced their presence and purpose. Further, even after first entering, they remained uncertain as to whether they had entered a residence or common hallway and, therefore, continued to announce their presence. Consequently, the police conduct fulfilled the purposes of the statute by reducing the risk of injury to both occupants and the police, by reducing the risk of property damage, and by protecting the occupant's right to privacy. Coyle, at 5.

Moreover, even if the present facts suggest less than a strict compliance with the "knock and announce" rule, we find the exigent circumstances excused any noncompliance. As discussed above, the police had a genuine concern for their safety, they had a reasonable belief that Mrs. Reid was in the apartment, the apartment was difficult to secure, and, therefore, there was a legitimate risk that Mrs. Reid would escape or attempt to destroy evidence. Hence, the entry in no way violated Mr. Reid's constitutional rights.

Because the police had a right to enter the residence to arrest (or search for) Mrs. Reid, and did so after complying with constitutional and statutory mandates, the police could have seized any incriminating evidence which they inadvertently discovered under the "plain view" doctrine. Washington v. Chrisman, 455 U.S. 1, 70 L. Ed. 2d 778, 102 S. Ct. 812 (1982). Having this right, they were also authorized to list in their affidavit in support of a search warrant any items observed in plain view.

We now discuss whether the warrant and execution thereof were proper. The warrant authorized the police to search Reids' house and automobile for

a shotgun, ammunition for the shotgun, a dark leather or vinyl jacket, a pillowcase or other bedlinen with a pattern of daisies, leaves, and strawberries on it, nitrates, and any other evidence of the homicide . . .

Reid contends that the "any other evidence of the homicide" language empowered the police to conduct a "general" search. We disagree.

A search warrant must describe the items to be seized with such particularity as is reasonable and practical under the circumstances. A warrant is not constitutionally defective when it limits the officers' discretion on what is to be seized. State v. Lingo, 32 Wn. App. 638, 641, 649 P.2d 130 (1982). The warrant here sufficiently limited the searching officers' discretion. The phrase "any other evidence of the homicide" specifically limited the warrant to the crime under investigation. The specific items listed, such as a shotgun and shotgun shells, also provided guidelines for the officers conducting the search. Therefore, these limitations were adequate to prevent a general exploratory search. Lingo, at 642.

While executing the warrant, the police seized two Polaroid photographs. Reid asserts that the seizure of the photographs was not authorized by the scope of the warrant because they were neither specifically described nor "evidence of the homicide."

First, we note that this question was not properly preserved for appeal. As discussed above, the trial court initially granted Reid's motion in limine to suppress both photographs. Nevertheless, at trial the State offered one of them into evidence. The only objection raised to this offer of evidence was one challenging the lack of foundation and not the propriety of its seizure. Consequently, our analysis is limited to whether there was sufficient foundation for its introduction. We conclude that there was.

Even if the scope of our review was not so limited, we would affirm the admission of the photograph.

Evidence not described in a warrant, and not constituting contraband or instrumentalities of crime, may be seized if it will aid in a particular apprehension or conviction, or it has a sufficient nexus with the crime under investigation.

State v. Turner, 18 Wn. App. 727, 729, 571 P.2d 955 (1977). The photograph, which depicted Mrs. Reid holding a shotgun, had a sufficient nexus with the crime under investigation, a shotgun murder. Therefore, its seizure was proper.

Finally, even if the admission of the photograph and shotgun shells was erroneous, that error was harmless beyond a reasonable doubt under both the "contribution test" and the "overwhelming evidence test" discussed in State v. Jones, 101 Wn.2d 113, 125, 677 P.2d 131 (1984). Two eyewitnesses gave detailed descriptions of the shooting, the getaway car, and the perpetrators. The bartender testified that the victim was drinking with the female suspect prior to the murder; that at one point the female suspect told the defendant in Spanish, "Give me the car keys so I can get the shotgun ready"; that the two suspects left about one-half hour later; that the woman returned; and that immediately after luring the victim outside he heard a gunshot. The bartender also identified both the defendant and his wife at a lineup and at trial. Finally, Reid's neighbor testified that several weeks preceding the murder Reid had offered to sell him a shotgun similar to the sawed-off shotgun recovered the day after the murder. Consequently, the effect, if any, that the introduction of the shotgun shells and photograph had was so insignificant when illuminated by the overriding effect of other evidence tying Reid to the murder that, even if the admission of the evidence was error, the error was harmless beyond a reasonable doubt.

Accordingly, the judgment is affirmed.

Andersen, J., concurs.

1 Officer Marberg described the building as "a large building, house, that was located on the northeast comer of 25th Avenue South and South Holgate. We had no idea whether there was a—this building contained one or more apartments."

2 The evidence suggests that the car was not lawfully parked. Officer Marberg testified: "then Mr. Roybal or Mr. Reid came out of the green building. . . . but came out from the direction of the building and got into the car and started to drive off, and patrol units surrounded the car as it entered the street's surface of South Holgate and stopped him."

3 Contrary to the police officers' first impression of an apartment building, it turns out that the building contained only two residences. As an officer who was on the scene testified: "By that time we had determined that that building contained two separate residences, one upstairs and then one downstairs on the bottom portion. The Roybals had been in the downstairs portion."

4 Hot pursuit, like danger to the public and police, is merely one type of exigent circumstance. State v. Counts, 99 Wn.2d 54, 60, 659 P.2d 1087 (1983). Because the police observed the keys from a nonprotected area, a public street, the "open view doctrine," not the "plain view doctrine," applies. See State v. Seagull, 95 Wn.2d 898, 901-02, 632 P.2d 44 (1981). Under this rule, entry into a protected area, the car, to seize the keys must be justified by exigent circumstances. 1 W. LaFave, Search and Seizure § 2.2, at 242-43 (1978).

5 If the entry was otherwise constitutionally permissible, the police would have been justified in making a forced entry. See RCW 10.31.040.

6 The State has not argued on appeal, nor did it attempt to prove at trial, that the challenged evidence would inevitably have been discovered, absent the challenged police actions. Nevertheless, based upon the uncontroverted evidence in the record, the evidence would inevitably have been discovered absent the asserted illegal police conduct. Accordingly, suppression was not required even if the evidence was otherwise tainted by illegality. Nix v. Williams, - U.S. -, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984); State v. Broadnax, 98 Wn.2d 289, 308, 654 P.2d 96 (1982) (Dolliver, J., dissenting).

7 We have assumed, without deciding, that Reid had standing to raise this argument, despite the State's contention that Reid lacked standing because he was not arrested in the apartment and he had no proprietary interest in the premises—the apartment was rented to a friend and not to Reid.