Petition — Washington v. Chrisman

80-1349 FEB 10 1981

ALEXANDer LS

CLERK

DOCKET NO.

Office-Supreme Court, U.S.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF WASHINGTON,

Petitioner,

Vv.

NEIL MARTIN CHRISMAN,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES ON

APPEAL FROM THE SUPREME COURT OF THE

STATE OF WASHINGTON

PETITION FOR WRIT OF CERTIORARI

Presented by:

KENNETH B. MYKLEBUST

Special Deputy Prosecuting Attorney

Counsel of Record

P. O. Box 604

Pullman, Washington 99163

(509) 332-3502

RONALD R. CARPENTER

Prosecuting Attorney

Whitman County Courthouse

P. O.Box 30

Colfax, Washington 99111

(509) 397-3449

QUESTIONS PRESENTED

1. When an individual is validly under

arrest and asks to be given access to an

area, may the arresting officer accompany

the individual into such area without

first obtaining a search warrant author-

izing entry into such area?

y When an officer is standing immedi-

ately outside the premises in the doorway

of the premises and his presence is known

to the occupants, one of the occupants

being an arrestee who has been allowed to

enter the premises; and the officer makes

observations of contraband in plain view

and such observations are apparent to the

occupants of the premises; do "exigent

circumstances” exist which would permit

the officer to enter the premises under

an “exigency exception" to the Fourth

Amendment warrant requirement?

TABLE OF CONTENTS

STATEMENT OF CASE eeeereeeevreetmeeeenereeeeeee 1

APPENDIX A See qv_esAse CVsSEres CO OwVw_sIVvevweet. wees oe 2. ee 2 0

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TABLE OF AUTHORITIES

Carroll v. United States, 267 U.S. 132

69 L.Ed. 543, 45 S.Ct. 280 (1925)...... 8

Chambers v. Maroney 399 U.S. 42, 26

L.Ed.2d 419, 90 S.Ct. 1975 (1970) vesece 8

Colorado v. Bannister, U.S.

L.Ed.2a , LoL 8.Ct. 42, 44 n. 4

TIWOA Sooper os vows cele ee

Moffett v. State, 291 Ala. 382, 281

So.2d 630, 632 (1973), cert. denied

414 U.S. 1161 CRO TE? co o-k 6600s chbdaeberes 5

People v. Green, 141 I11.App.3d 972,

N.E.2d , 40 (1973), cert. denied

417 U.S. 972 (A974) bab ce ostdsboseene@ans 6

State v. Chrisman, 24 Wn.App. 385, 600

Pick ESRO CLOTH) 00 s000000006005 00 ee

State v. Patterson, 192 Neb. 308, 220

Pe eet Pa me yp?) ap Regs

CONSTITUTIONAL PROVISIONS

U.8. Const. amend. TV.cccscesccdgae395,6,9

COURT RULES

Supreme Court Rule 17.....ceececevseeee 4

OPINION OF WASHINGTON STATE

SUPREME COURT

State v. Chrisman, 94 Wn.2d 711, 619

P.2da 971 (1980)

ii

STATEMENT OF CASE

On November 26, 1980, the Washington

State Supreme Court entered judgment in

the above-entitled matter reversing the

Whitman County Superior Court and the

Washington State Court of Appeals. A

Motion for Rehearing (Motion for Recon-

sideration) was timely filed, and denied

by the Washington State Supreme Court on

December 31, 1980.

The case entails an interpretation

of the Fourth Amendment to the United |

States Constitution and its application

to the states through the Fourteenth

Amendment. The case deals with both the

right of a law enforcement officer to ac-

company an arrestee onto premises when the

arrestee voluntarily returns to the pre-

mises and what constitutes "exigent cir-

cumstances" as a matter of constitutional

law. The Washington State Supreme Court

has ruled in effect that if the arrestee

requests to return to his premises, that

the law enforcement officer may not ac-

company the arrestee onto the premises

without first complying with the warrant

requirements of the Fourth Amendment to

the United States Constitution. Also,

the court found as a matter of law that

exigent circumstances did not exist.

Therefore, the court reasoned that since

the officer did not have a right to be

where he was on the premises, that any

of his observations were not covered by

the "plain view" exception to the warrant

requirement and therefore the evidence of

contraband derived thereafter should be

suppressed as fruit of an illegal search

and seizure; that is, that there was no

prior justification for the intrusion onto

the premises by the officer even in light

of the arrest status of the arrestee and

the arrestee's voluntary return to the pre-

mises and the officer's probable cause ob-

servations from outside the premises. The

court held that the arrest status of the

individual did not give the officer, in

the absence of a warrant, the right to

accompany the arrestee and enter the room

where he seized the contraband in plain

view. Additionally, the court held that

even though the officer was standing im-

mediately outside the premises in a door-

way of the premises and his presence was

known to both the occupants, one of the

occupants being an arrestee who had been

allowed to enter the premises, and the

officer made observations of contraband

in plain view and such observations were

apparent to the occupants of the premises,

that there was no showing of an "exigency

exception" to the Fourth Amendment which

would have allowed the officer to enter

the premises.

Supreme Court Rule 17 governing the

consideration for review by certiorari

indicates that when a state court has

decided a federal question of substance

not previously determined by this Court,

or has decided it in a way not in accord

with the applicable decisions of this

Court, or when a state court of last

resort has decided a federal question in

conflict with the decision of another

state court of last resort, then a Writ

of Certiorari would be appropriate. The

issues presented in this case fall within

the provisions of Rule 17 and review by

this Court would be proper.

As to the first question presented

for review it is noted that the authority

of an officer to accompany an arrestee

onto premises involves a substantial

federal question and the decision of the

Washington Supreme Court creates a direct

conflict with other jurisdictions, the

State of Alabama and the State of Illinois.

In addition, the decision involves a ques-

tion of interpretation of the Fourth

Amendment of the United States Constitu-

tion which has not previously been deter-

mined by this court.

The Alabama Supreme Court in Moffett

v. State, 291 Ala. 382, 281 So.2d 630,

632 (1973), cert. denied 414 U.S. 1161

(1974), held that an officer was permis-

sibly in the bedroom and the seizure of

the pistol in plain view was permissible

Since the officer had a right to be where

he was, tacitly approving the officer's

ability to accompany an arrestee to an-

other portion of the premises. Moffett

involved a situation where the defendant

was arrested without a warrant at the

door of his premises and requested of the

officer that he be permitted to go into

the bedroom on the premises where he was

allowed to go but was followed and accom-

panied by the arresting officer. After

entering the bedroom, the officer saw a

pistol in plain view. Additionally in

People v. Green, 141 I11.App.3d 972, 304

N.E.2d 32, 40 (1973), cert. denied 417

U.S. 972 (1974), the Illinois court allow-

ed an officer to accompany a defendant

onto the premises (his YMCA room) when

the defendant asked to be allowed to

voluntarily return to the premises. It

is noted that the Washington Supreme Court

majority opinion cited no direct authority

for its position on this issue (see dis-

senting opinion which cites ample contrary

authority).

Therefore, the Petitioner is asking

that this Court review the Fourth Amend-

ment requirements as to search and seiz-

ure and determine when and how those

rights attach in determining whether or

not an officer may accompany an arrestee

onto premises when the arrestee has re-

quested and been allowed to voluntarily

return to the premises while the arrest

status continues.

Ps to the second question presented

for review, it is a question of substance

which has not specifically been deter-

mined by this Court. However, the deci-

sion of the Washington Supreme Court ap-

pears not to be in accord with the applic-

able decisions of this Court which indi-

cate that exigent circumstances may exist

which would allow warrantless entry when

it is impractical to acquire a warrant

from an impartial magistrate and the of-

ficer otherwise has probable cause justi-

fying a search and seizure; see Colorado

v. Bannister, U.8. P L.Ed.2d P

*

101 S.Ct. 42, 44 n.4 (1980); Chambers v.

Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90

S.Ct. 1975 (1970); and Carroll v. United

States, 267 U.S. 132, 69 L.Ed. 543, 45

S.Ct. 280 (1925). Additionally, the Wash-

ington Supreme Court appeared to have

decided this federal question in conflict

with the decision of another state court

of last resort. The Nebraska State Supreme

Court has ruled in State v. Patterson, 192

Neb. 308, 220 N.W.2d 235, 240 (1974), that

where the information in possession of the

officer leads to the conclusion that a

crime is being committed in the residence

and the officer has evidence which indi-

cates that there is a great likelihood

that the evidence will be destroyed or

removed before a warrant can be obtained,

then exigent circumstances may be said to

exist.

Therefore it is submitted that the

question of whether or not the facts of

the case constitute "exigent circumstances"

which would constitutionally permit a

warrantless entry and seizure of contra-

band viewed by the officer should be

resolved by review of this question by

this Court.

As to both questions presented for

review, the Fourth Amendment to the United

States Constitution states the following:

The right of the people to be

secure in their persons, houses,

papers, and effects, against un-

reasonable searches and seizures,

shall not be violated, and no

Warrants shall issue, but upon

probable cause, supported by

Oath or affirmation, and particu-

larly describing the place to be

searched, and the persons or

things to be seized.

The facts of this particular case

are as follows: On the evening of Janu-

ary 21, 1978, Mr. Overdahl, carrying a

half gallon of gin, walked out of Orton

Hall at Washington State University with

several student friends on their way to

a party (RP p.3, ln. 25-26). At that

moment Officer Daugherty of the Washington

State University Police Department arrived

at the dorm to investigate an unrelated

matter (RP p.3, ln. 5, 13, 19). The

officer noticed the bottle of gin and sus-

pected that Mr. Overdahl, because of his

youthful appearance, was under the age of

twenty-one (RP p.4, ln. 15; RP p.6, ln. 5).

He stopped Mr. Overdahl, detained him, and

requested identification (RP p.5, ln. 18;

RP p.57, ln. 2-4; RP p.5, in. 3). Mr.

Overdahl stated that he would have to go

upstairs to his room to get the identifi-

cation. Officer Daugherty indicated that

since he was under his detention, he

would not allow him to leave without an

officer accompanying him to his room

(RP p.5, ln. 22-26; RP p.35, In. 17-18;

RP p.6, in. 8-12). As they were waiting

for the elevator, the officer asked Mr.

10

Overdahl how old he was. Mr. Overdahl

responded that he was nineteen (RP p.6,

in. 10-12).

Upon arriving on the eleventh floor

of the dormitory, Officer Daugherty fol-

lowed Mr. Overdahl down the hallway to his

room (RP p.7, ln. 12-14; RP p. 59, In. 28).

Mr. Overdahl pushed open the slightly ajar

door and entered an approximately 17° x l1l'

room. The officer stood in the doorway

out in a common public hallway (without

entering the premises) (RP p. 7, ln. 28-30;

RP p.8, ln. 8-13; RP p.21, ln. 26-28;

CP p.18, ln. 10-18; CP p.14, ln. 8-34;

RP p. 19, In. 15-28; RP p.43, In. 5-30;

and RP p.44, ln. 1) and noticed that the

room was occupied by another student,

Neil Chrisman, the respondent herein.

Officer Daugherty testified that Mr. Chris-

man appeared visibly nervous upon seeing

the police officer (RP p.9, lin. 11-12;

ll

RP p.10, In. 11-13; RP p.10, ln. 30; RP

p.12, 1n.8; and RP p.12, ln. 11-14).

After watching the occupants for a

short time, Officer Daugherty observed

seeds and a pipe lying on a desk eight to

ten feet from where he was standing.

Based upon his training and experience he

immediately recognized the items as contra-

band (prior to entering the premises). He

therefore entered the room and proceeded

to examine the seeds and pipe more closely

(RP p.13, ln. 26-27; RP, p.17, ln. 2-6;

and RP p.18, ln. 27-30). After completing

his inspection, he again concluded that

the items were contraband and gave the two

students their Miranda rights (RP p.19,

ln. 28-29; RP p.20, ln. 1-4). Both Mr.

Overdahl and Mr. Chrisman indicated that

they understood their rights and were

willing to waive them (RP p.23, ln. 23-28;

RP p.24, ln. 21-22). The officer asked

12

them if there were any other drugs in the

room and Mr. Chrisman handed him a box

containing three bags of marijuana (Find-

ing of Fact as to Mr. Chrisman No. 18;

Finding of Fact and Motion to Suppress

No. 10).

Officer Daugherty radioed for

assistance and Officer Kenny arrived

shortly thereafter. Officer Kenny in-

formed Mr. Chrisman and Mr. Overdahl

that a search of their room was necessary.

He explained that they had an absolute

right to demana that the police obtain a

search warrant, which would take about two

hours, or they could consent to a search

of their room. He further explained that

their consent must be voluntary and that

they had a right to refuse consent (RP

p.62, ln. 5-25). After conferring in

whispers, Mr. Overdahl and Mr. Chrisman

agreed to the search (RP p.64, ln. 16-30;

RP p.65, In. 1-6). Prior to signing a

13

written consent to search form, Mr. Chris-

man and Mr. Overdahl were again advised of

their Miranda rights. A search of the

room yielded more marijuana and also LSD.

Mr. Chrisman and Mr. Overdahl were

charged by information with one count of

felony possession of marijuana and felony

possession of LSD. Prior to the trial, a

suppression hearing was held and the de-

fendants moved to suppress all evidence

on the basis that all the evidence was

tainted as a result of an illegal search

and seizure. The trial judge denied the

motion. Mr. Chrisman and Mr. Overdahl

were tried without a jury and convicted

as charged. This conviction was appealed

to the Washington State Court of Appeals.

In a published opinion the Court of

Appeals upheld the defendants' convictions

(State v. Chrisman, 24 Wn.App. 385, 600

P.2d 1316 (1979)). The Court of Appeals

14

indicated that the officer's observation

of the contraband in the room and Mr.

Chrisman's reaction to the officer's

presence were such that if the officer had

left the premises immediately after ob-

serving the seeds and pipe in an attempt

to secure a search warrant, the contraband

would likely have been removed during the

interim and additionally because drugs are

readily disposable, there were sufficient

exigent circumstances existing to justify

the warrantless search of the room; the

drugs permissibly having come into the

officer's “plain view". Mr. Chrisman and

Mr. Overdahl then filed a Motion for Re-

consideration which was denied on the 4th

day of December, 1979.

Both defendants then appealed to the

Washington State Supreme Court alleging

that the seizure was the product of a

warrantless search. On March 3l, 1980

15

the Superior Court dismissed the felony

probation and expunged the conviction of

Mr. Overdahl to facilitate his entry into

an advanced Army ROTC program, therefore

this petition only concerns Mr. Chrisman.

The dismissal was upon joint motion of

the petitioner herein and Mr. Overdahl

through his legal counsel.

On November 26, 1980 the Washington

State Supreme Court ruled in respondent

Chrisman's favor and found (see comments

in dissenting opinion) that the officer

could not enter the room without a warrant

even to accompany an arrestee who had

requested to be allowed and had been al-

lowed to voluntarily return to the room in

question and additionally found that at

the time of the officer's entry into the

room that there were no exigent circum-

stances that justified a warrantless

entry, rejecting the application of "plain

16

view" and the applicability of the excep-

tion to the warrant requirement for

exigent circumstances.

Although the Washington State Supreme

Court Opinion indicates exigencies were

not argued, this is an apparent reference

to exigencies other than the observations

made by the officer outside the room,

since the court declined to decide where

the officer was originally located, label-

ing such as "niceties" (page 5 of the

court's opinion). There is no question

that exigencies were argued by the peti-

tioner at every stage of the proceedings

in this matter (State's Trial Brief at

Superior Court, filed the 20th day of

March, 1978, p. 3-6; Trial Court's Find-

ings of Fact, CP p. 23-27; Superior

Court's Memorandum Opinion on exigent cir-

cumstances to justify entry into the room,

CP p.19, ln. 31-32; CP p.20, In. 1-6;

17

State's original brief to appellate court,

p-. 18-20; Court of Appeals Opinion at

p. 390 accepting the State's argument con-

cerning exigent circumstances, State v.

Chrisman, 24 Wn.App. 385, 600 P.2d 1316

(1979); and State's Answer to Defendant's

Motion for Discretionary Review to Wash-

ington State Supreme Court, p. 1-5).

The Petitioner is alleging that the

ruling of the Washington State Supreme

Court is in error, in conflict with the

above cited case authority and presents

issues which have not been previously

ruled on by this Court, and that the

ruling of the Washington State Supreme

Court has erroneously held that an officer

may not accompany an arrestee who has re-

quested and been allowed to voluntarily

return to the premises and that there were

no exigent circumstances to justify the

entry of the officer onto the premises

18

without a warrant. Therefore this matter

should be reviewed by this Court.

Respéctfully submitted,

KENNETH B. MYKLEBUST

Special Deputy Prosecuting

Attorney

‘Counsel of Record

RONALD R. CARPENTER

Prosecuting Attorney

19

APPENDIX A

IN THE COURT OF APPEALS OF THE

STATE OF WASHINGTON

STATE OF WASHINGTON,

Nos. 2959-III

Respondent, and 2991-III

Vv. Division Three

NEIL MARTIN CHRISMAN

and CARL PHILIP

OVERDAHL,

eee ee ee ee ee ee ee ee

Appellants. FILED Oct 4 1979

MITCHELL, J.*--On the evening of

January 21, 1978, Carl Overdahl, carrying

a half gallon of gin, walked out of Orton

Hall at Washington State University on his

way to a party with several of his student

friends. At that moment, Officer Daugherty

of the Washington State University police

department arrived at Orton Hall to in-

vestigate an unrelated matter. Officer

Daugherty noticed the half gallon of gin

*Judge James B. Mitchell is serving as a

judge pro tempore of the Court of Appeals

pursuant to RCW 2.06.150.

20

and suspected that Overdahl was under the

‘age of 21. The officer stopped Overdah!

and asked him for his identification.

Overdahl replied that he did not have his

identification with him and would have to

go upstairs to his room and get it.

Overdahl asked the officer if he would

wait; the policeman said that under the

circumstances, he would have to accompany

Overdahl to his room.

While they were waiting for the ele-

vator, the officer asked the student how

old he was; he said he was 19. Upon

arriving at the eleventh floor, the offi-

cer followed Overdahl down the hallway to

his room. The door was slightly ajar;

Overdahl pushed the door open and entered

the approximately 17 by 11 foot room.

Officer Daugherty leaned against the door-

jamb in the open doorway. At the same

time, he noticed that the room was occu-

21

pied by another student, Neil Chrisman,

who appeared visibly nervous upon seeing

the police officer.

Officer Daugherty watched the two

occupants for a few moments before he

saw a tray on a desk 8 to 10 feet from

where he was standing; the tray contained

seeds. A small pipe lay nearby which his

experience led him to believe was used

for smoking marijuana. At that point,

Officer Daugherty entered the room,

walked over and examined the seeds and

pipe to verify that what he had been

observing was marijuana. For the first

time, he gave both Chrisman and Overdahl

their Miranda rights. They told the

officer they understood their rights

and agreed to waive them.

The officer then asked them if they

had other drugs in the room; Chrisman

handed him a small box containing three

22

plastic baggies of marijuana. Officer

Daugherty then called another police offi-

cer who arrived shortly thereafter. The

officers explained to Overdahl and Chris-

man that a search of their room was neces-

sary and they could either consent or the

officers would have to get a search war-

rant. The explanation was given in con-

siderable detail and after it was over,

the two students conferred in whispers

between themselves for several minutes

before giving their consent. The officers

again gave them their Miranda rights;

both students signed written consent

forms prior to the search of the room.

The search yielded more marijuana and

also LSD.

Chrisman and Overdahl were tried

without a jury and convicted of posses-

sion of more than 40 grams of marijuana.

Neil Chrisman was convicted on a second

23

count of possession of LSD. Prior to

trial, a suppression hearing was held.

The trial judge denied defendants’

motion to suppress. Both defendants

appeal. We affirm.

Overdahl contends that Officer

Daugherty was required to give him his

Miranda rights before asking for proof

of his age since the officer suspected

him of being a minor in possession and

being underage is an element of that

crime. Overdahl further contends that

because the officer elicited the in-

criminating information that he was

underage prior to giving him his Miranda

rights, the officer did not have a justi-

fiable reason for being in the doorway of

the room where he observed the drugs, thus

the drugs should have been suppressed.

We disagree.

The trial judge found that Officer

24

Daugherty had properly placed Overdahl

under arrest for minor in possession and

was therefore entitled to accompany Over-

dahl to his room. An officer may arrest

for a misdemeanor committed in his pres-

ence and the fact that a defendant is

later formally charged with another of-

fense does not invalidate an otherwise

lawful arrest. City of Spokane v.

Badeaux, 20 Wn. App. 731, 734, 581 P.2d

1088 (1978). Overdahl makes no allegation

that the detention was an illegal arrest.

See State v. Byers, 88 Wn.2d 1, 559 P.2d

1334 (1977). As a general rule, incrimin-

ating statements made and evidence then

subsequently seized while a person is in

custody before he has been advised of his

Miranda rights are inadmissible. State

v. Dennis, 16 Wn. App. 417, 558 P.2d 297

(1976); State v. Galloway, 14 Wn. App.

200, 540 P.2d 444 (1975). Cf. State v.

25

Hilliard, 89 Wn.2d 430, 573 P.2d 22

(1977); State v. McKeown, 23 Wn. App.

582, 596 P.2d 1100 (1979). Since Over-

dahl was neither charged with nor tried

for the offense of being a minor in

possession, his statement to the offi-

cer regarding his age was immaterial.

Evidence of his age had no bearing on

the charge for which he was convicted.

We find Overdahl was in lawful custody;

and, therefore, Officer Daugherty's

accompanying Overdahl to his room was

proper and the officer's presence justi-

fiable.

Overdahl argues that Officer Daugh-

erty's entry into his room was an unjusti-

fiable intrusion which does not come

within any exception to the requirements

of the Fourth Amendment. However, since

Overdahl was in custody, Officer Daugherty

had a duty to accompany him to his room.

26

His presence in the doorway was proper.

It is undisputed that Mr. Overdahl pushed

the door open and entered the room. In

order to keep Overdahl within his view,

the officer stood in the doorway looking

into the room. There is no suggestion

that Overdahl attempted to close the door

once he had entered. Prior to entering

the room, the officer saw from his vantage

point in the doorway what he believed

was contraband. Only at that time, did

he cross the threshold and seize the pipe

and marijuana seeds.

The circumstances here bear a close

resemblance to State v. Daugherty, 22 Wn.

App. 442, 591 P.2d 801 (1979), and the

rationale in that case is applicable.

The police suspected that Daugherty had

burglarized a safe. The police went to

Daugherty's home and walked into the

middle of his driveway. One police «

27

officer looking through the open garage

doors into the garage saw an object that

resembled a safe, partially covered by

a tarpaulin. The officers arrested

Daugherty, then entered the garage and

seized the safe. The court held that

Daugherty's driveway was only semi-private

and not a constitutionally protected area.

Therefore, the officer's observation of

the safe from the driveway was not an

intrusion upon a constitutionally protect-

ed area; he inadvertently "saw the safe in

‘open view' and immediately recognized its

significance." State v. Daugherty, supra

at 444. The seizure of the safe "followed

a preintrusion ‘open view' observation, in

contrast to a post-intrusion 'plain view'

observation." State v. Daugherty, supra

at 445. The court held, however, that

since the safe was not the type of evi-

dence which could be readily destroyed,

28

no exigent circumstances existed which

permitted a warrantless seizure.

As in the above case, Officer

Daugherty's observation of the pipe and

seeds was a preintrusion "open view"

observation from the doorway of Overdahl's

room which, like the driveway in State v.

Daugherty, supra, waS a semi-private area.

Unlike the facts in Daugherty, exigent

circumstances existed here. Because the

drugs could have been readily disposed

of while the police officer was trying

to obtain a search warrant, sufficient

exigent circumstances existed to justify

the seizure. The warrantless seizure

of drugs which comes within an officer's

plain view has been upheld as reasonable.

State v. Dickamore, 22 Wn. App. 851, 592

P.2d 681 (1979); State v. Brown, 17 Wn.

App. 587, 564 P.2d 342 (1977); State v.

Campbell, 15 Wn. App. 98, 547 P.2d 295

29

(1976); State v. Campbell, 13 Wn. App.

722, 537 P.2d 1067 (1975).

Overdahl and Chrisman next assert

that Officer Daugherty was required to

knock and announce prior to his entry into

the room. RCW 10.31.040 requires that

police in carrying out searches or arrests

must knock, announce and wait for refusal

before making a forcible entry into a

residence. State v. Edwards, 20 Wn. App.

648, 581 P.2d 154 (1978); State v. Talley,

14 Wn. App. 484, 543 P.2d 348 (1975). The

purpose underlying the knock-and-announce

rule is to prevent unnecessary violence,

physical destruction of property and un-

reasonable intrusions into private resi-

dences. State v. Hilliard, 18 Wn. App.

614, 570 P.2d 160 (1977). However, strict

compliance with the knock-and-announce

rule will be excused "when to knock and

announce would be to perform a useless

30

act, .. . or allow the destruction of

evidence." State vy. Campbell, 15 Wn. App.

98, 101, 547 P.2d 295 (1976). Here,

where the police officer was standing in

an open doorway with the full knowledge

of both occupants, strict compliance

with the knock-and-announce rule would

have been a useless act.

Finally, Overdahl and Chrisman argue

that their consent to search was not

validly given. We find no merit to this

contention. After Officer Daugherty

seized the pipe and marijuana seeds, he

immediately advised Chrisman and Overdahl

of their Miranda rights. Chrisman then

gave the officer additional contraband

after he had been advised of his rights.

His act of giving the officer more drugs

was a testimonial act which required his

being advised of his rights. He was so ad-

vised and waived those rights. Cf. State

31

v. Dennis, 16 Wn. App. 417, 558 P.2d 297

(1976). There is nothing in the record to

suggest coercion. In fact, the officers

called in a resident adviser as a witness

in order to avoid just such an accusation.

Overdahl and Chrisman conferred at some

length about giving their consent to the

search and signed written consent forms

to that effect. Although written consent

is not required, the forms are indicia of

a voluntary consent. See State v. Rodri-

guez, 20 Wn. App. 876, 582 P.2d 904 (1978).

We find both students validly and volun-

tarily consented to the search.

Judgment affirmed.

s/ Mitchell, J.

WE CONCUR:

s/ McInturff, J.

s/ Green, C.J.

32

APPENDIX B

[No. 46750. En Banc. November 26, 1980.]

Tue STATE oF WASHINGTON, Respondent, v. NEIL

MartTIN CHRISMAN, ET AL, Petitioners.

{1) Searches and Seizures —: Warrantless Search — Validity

— In General. A warrantless search is not valid unless it comes

within one of the specific and carefully delineated exceptions to the

Fourth Amendment warrant requirement.

33

712 STATE v. CHRISMAN Nov. 1980

94 Wn.2d 711

(2) Searches and Seizures — Objects in Plain View — Prior

Justification for Intrusion. A search does not fall within the

plain view exception to the warrant requirement unless the State

can show a prior justification for the intrusion into the area where

the incriminating evidence was inadvertently discovered.

{3} Searches and Seizures — Warrant — Purpose — In Gen-

eral. The search warrant requirement of the Fourth Amendment is

designed primarily to protect individuals from unjustifiable intru- .

sions into their dwellings or living quarters.

[4] Searches and Seizures — As Incident to Arrest — Exigent

Circumstances — What Constitutes. The validity of a search

incident to an arrest depends upon the existence of exigent circum-

stances such as a need to seize weapons which could be used in an

assault or to effect an escape or a need to prevent the destruction of

evidence of the crime.

{5} Searches and Seizures — Illegal Search — Effect. Evidence

obtained by virtue of information acquired during an illegal search

is generally not admissible.

BRACHTENBACH, STAFFORD, and Horowitz, JJ., dissent by separate

opinion.

Nature of Action: After arresting a college student for

possessing intoxicating liquor, a police officer accompanied

the student to his dormitory room, observed a pipe and

marijuana seeds, arrested his roommate, and made a war-

rantless search of the room.

Superior Court: The Superior Court for Whitman

County, No. C-1799, Philip H. Faris, J., entered a judg-

ment of guilty against the roommate on July 21, 1978.

Court of Appeals: The court affirmed the judgment at

24 Wn. App. 385, holding that exigent circumstances justi-

fied the police intrusion into the room.

Supreme Court: Holding that the police intrusion into

the room was not justified under the circumstances, the

court reverses the decision of the Court of Appeals.

Aitken, Schauble, Patrick, Neill & Charawell, by Robert

F. Patrick, for petitioner Chrisman.

Stephen Bishop, for petitioner Overdahl.

34

Nov. 1980 STATE v. CHRISMAN 713

94 Wn.2d 711

Ronald:R. Carpenter, Prosecuting Attorney, and Gerald

R. Fuller, Deputy, for respondent.

Do.tiver, J.—Defendants Carl Overdahl and Neil Chris-

man, students at Washington State University, were tried

without a jury and convicted of possession of more than 40

grams of marijuana, a felony. Chrisman was also convicted

of possession of lysergic acid diethylamide (LSD). Both

defendants appealed and the Court of Appeals affirmed

their convictions. State v. Chrisman, 24 Wn. App. 385, 600

P.2d 1316 (1979). They then petitioned this court for

review. The charges against Overdahl, however, were sub-

sequently dismissed, and he withdrew his petition for dis-

cretionary review. We accepted review of Chrisman's

conviction (93 Wn.2d 1009 (1980)), and reverse.

On the evening of January 21, 1978, defendant Overdahl,

carrying a half gallon of gin, walked out of Orton Hall at

Washington State University with several student friends

on their way to a'party. At that moment, Officer Daugherty

of the University police department arrived at the dormi-

tory to investigate an unrelated matter. The officer noticed

the bottle of gin and suspected that Overdahl was under

the age of 21. He stopped Overdahl and requested his

identification. Overdah! stated that he would have to go

upstairs to his room to get the identification. Officer

Daugherty replied that he would have to accompany him to

his room. As they were waiting for the elevator, the officer

asked Overdahl how old he was. Overdahl responded that

he was 19. :

Upon arriving on the 11th floor of the dormitory, Officer

Daugherty followed Overdahl down the hallway to his

room. Overdahl pushed open the slightly ajar door and

entered the approximately 17- by 11-foot room. The officer

stood in the open doorway and noticed that the room was

occupied by another student, defendant Neil Chrisman.

Officer Daugherty testified that Chrisman appeared visibly

nervous upon seeing the police officer.

35

714 STATE v. CHRISMAN Nov. 1980

94 Wn.2d 711

After watching the occupants for a few minutes, Officer

Daugherty observed seeds and a small pipe iying on a desk

8 to 10 feet from where he was standing. He recognized the

pipe as the type used for marijuana, and proceeded to

examine the seeds and the pipe more closely.

Concluding that the seeds were marijuana and that the

pipe smelled of marijuana, Officer Daugherty gave the two

students their Miranda rights. Both Overdahl and Chris-

man indicated they understood their rights and were will-

ing to waive them. The officer then asked them if they had

other drugs in the room and Chrisman handed him a small

box containing three small plastic bags of marijuana.

Officer Daugherty radioed for assistance and Officer

Kenny arrived shortly thereafter. Officer Kenny informed

the defendants that a search of their room was necessary.

He explained that they had an absolute right to demand

that the police obtain a search warrant which would take

about 2 hours, or alternatively they could consent to a

search of their room. He further explained that their con-

sent must be voluntary and that they had a right to refuse

consent. After conferring in whispers, Overdahl and Chris-

man agreed to the search. Prior to signing written consent

to search forms, defendants were again advised of their

rights under Miranda. A search of the room yielded more

marijuana and also LSD.

Chrisman and Overdahl were charged by amended infor-

mation with one count of possession of more than 40 grams

of marijuana. Chrisman was also charged with a second

count of possession of LSD. Prior to trial, a suppression

hearing was held and defendants moved to suppress all

evidence on the basis that the evidence was obtained as a

result of an illegal search and seizure. The trial judge

denied the motion. Defendants were tried without a jury

and convicted as charged.

{1} Chrisman contends that Officer Daugherty's initial

warrantless examination of the seeds and the pipe

amounted to an unconstitutional search and that the evi-

dence seized should have been suppressed. We agree.

36

Nov. 1980 STATE v. CHRISMAN 715

94 Wn.2d 711

[SJearches conducted outside the judicial process, with-

out prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject

only to a few specifically established and well-delineated

exceptions.

(Footnote omitted.) Katz v. United States, 389 U.S. 347,

357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967); State v.

Daugherty, 94 Wn.2d 263, 616 P.2d 649 (1980). Since Offi-

cer Daugherty had no warrant when he entered Chrisman's

and Overdahl's room, the search was proper only if it fell

within one of the “jealously and carefully drawn" excep-

tions to the warrant requirement of the Fourth Amend-

ment. Jones v. United States, 357 U.S. 493, 499, 2 L. Ed.

2d 1514, 78 S. Ct. 1253 (1958); State v. Daugherty, supra.

[2,3] The State asserts that the seizure of the mari-

juana seeds and pipe was permissible under the "plain

view” exception to the warrant requirement. This exception

permits warrantless seizure of incriminating evidence dis-

covered in a search of a given area for other specified items

pursuant to a valid warrant, or discovered inadvertently

after an intrusion otherwise excepted from the warrant

requirement. Coolidge v. New Hampshire, 403 U.S. 443, 29

L. Ed. 2d 564, 91 S. Ct. 2022 (1971); State v. Daugherty,

supra.

The plain view exception will apply only if the following

requirements are met: (1) a prior justification for intrusion;

(2) inadvertent discovery of incriminating evidence; and (3)

immediate knowledge by the officer that he had evidence

before him. State v. Daugherty, supra; State v. Murray, 84

Wn.2d 527, 527 P.2d 1303 (1974), cert. denied, 421 U.S.

1004, 44 L. Ed. 2d 673, 95 S. Ct. 2407 (1975); State v. Dim-

mer, 7 Wn. App. 31, 33, 497 P.2d 613, review denied, 81

Wn.2d 1003 (1972). The burden falls on the State to show

that a warrantless search falls within the plain view excep-

tion to the warrant requirement. See Arkansas v. Sanders,

442 U.S. 753, 61 L. Ed. 2d 235, 99 S. Ct. 2586 (1979); State

v. Daugherty, supra. A greater burden is placed on officials

who enter a home or dwelling without a warrant. The

37

716 STATE v. CHRISMAN Nov. 1980

94 Wn.2d 711

*'physical ‘entry of the home is the chief evil against which

the wording of the Fourth Amendment is directed.'"

Payton v. New York, __ U.S. —, 63 L. Ed. 2d 639, 100 S.

Ct. 1371, 1380 (1980), quoting United States v. United

States District Court, 407 U.S. 297, 313, 32 L. Ed. 2d 752,

92 S. Ct. 2125 (1972).

Some argument is made by defendant that in fact Officer

Daugherty was not in the room at the time he observed the

seeds and pipe but was standing only in the doorway. The

record is in conflict as to whether Officer Daugherty stood

in the doorway and then entered the room or whether,

while in the doorway, he was in fact in the room. We need

not, however, let the result be determined by such niceties.

The police officer was in the room at the time he observed

the seeds and pipe. The question is: Did he have a right to

be there?

We begin by stating the trial court correctly determined

Overdahl had been placed under arrest at the time he was

apprehended outside Orton Hall carrying the bottle of gin.

Overdahl continued to be under arrest when he was accom-

panied to his room by Officer Daugherty. As the State

observes, there was nothing to prevent Officer Daugherty

from accompanying Overdahl to his room. Simply because

Overdahl was under arrest, however, did not give Officer

Daugherty the right to enter the room and, upon seeing the

seeds and pipe, to conduct a search—all without a warrant.

One of the difficulties in this cxse results from the fact

that the focus has been on the marijuana rather than the

alcohol. But, as the State claimed and the trial court con-

cluded, we concur that the entry into the room was con-

nected with the arrest for possession of alcohol by a minor,

and not the possession of marijuana. Once Officer

Daugherty entered the room as he followed up on the alco-

hol arrest, the validity of his observation of the seeds and

pipe and the subsequent search depends on the constitu-

tionality of the original entry.

38

Nov. 1980 STATE v. CHRISMAN 717

94 Wn.2d 711

[4] The United States Supreme Court has consistently

held a contemporaneous search is justified by such exigent

circumstances as,

the need to seize weapons and other things which

might be used to assault an officer or effect an escape,

as well as by the need to prevent the destruction of

evidence of the crime—things which might easily hap-

pen where the weapon or evidence is on the accused's

person or under his immediate control.

Chimel v. California, 395 U.S. 752, 764, 23 L. Ed. 2d 685,

89 S. Ct. 2034 (1969), quoting from Preston v. United

States, 376 U.S. 364, 11 L. Ed. 2d 777, 84 S. Ct. 881 (1964).

This case does not fit under the contemporaneous search

exceptions.

It is clear from the testimony of Officer Daugherty that

the only reason he accompanied Overdahl to the room was

so that Overdahl could get his identification. Officer

Daugherty said at the time he stopped Overdahl he

"believed that I had a minor in possession” and that Over-

dahl could not go to his room alone to get the identification

"because we just don't release people from custody.” The

arrest of Overdahl was for a minor in possession of alcoholic

beverages. There is absolutely no evidence that it was nec-

essary for Officer Daugherty to enter the room to seize a

weapon which might be used in an assault, that the bottle

of gin was about to be jestroyed, or that Overdahl was

going to attempt an esc ‘pe. It was a small room. Officer

Daugherty was standing in the one exit, and it was on the

11th story. It was not necessary for the officer to enter the

room to make certain Overdahl secured his identification.

No exigent circumstances existed to justify this interven-

tion; nor were any claimed by the State.

The circumstances were insufficient to justify an intru-

sion into Chrisman's room, and therefore the first prong of

the plain view doctrine has not been met. Accordingly,

there is no need to determine whether the final two

requirements have been fulfilled as all three elements must

be met before the plain view doctrine applies. See State v.

39

718 STATE v. CHRISMAN Nov. 1980

94 Wn.2d 711

Daugherty, supra. The seeds and the pipe were products of

an unlawful search, and the motion to suppress the evi-

dence should have been granted.

[5] The marijuana and LSD seized after Chrisman and

Overdahl consented to a search of their room also should

have been suppressed. Evidence obtained through exploita-

tion of an illegal search is not admissible. United States v.

Crews, __ U.S. —_, 63 L. Ed. 2d 537, 100 S. Ct. 1244 (1980);

Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441,

83 S. Ct. 407 (1963). Defendants’ consent to search the

room following the seizure was voluntary only if obtained

“by means sufficiently distinguishable to be purged of the

primary taint" rather than “by the exploitation of that ille-

gality" (Wong Sun, at 488), such as when a significant

intervening event or a considerable lapse of time separates

the two. Wong Sun, at 485-91; State v. Byers, 88 Wn.2d 1,

8, 559 P.2d 1334 (1977). See United States v. Crews, supra.

In the present case, the causal chain is short and unbro-

ken. There was no lapse of time or significant intervening

event between the unconstitutional entry into the room and

Chrisman's consent to search. We hold defendant's consent

was the product of an illegal search and thus involuntary.

All of the contraband seized must be excluded.

Reversed.

Urrer, C.J., and Rosecuini, Hicks, and WituiaMs, JJ.,

concur.

BRACHTENBACH, J. (dissenting)—I dissent. The officer had

in custody an admitted minor in possession of alcohol. The

minor initiated the journey to his room to obtain

identification.’

The majority holds that the plain view exception fails

because the officer did not have a prior justification for the

"This is not a case where the police arrested a defendant outside his home and

then took him inside for the purpose of conducting a warrantless search of his

dwelling. Shipley v. California, 395 U.S. 818, 23 L. Ed. 2d 732, 89 S. Ct. 2053

(1969).

40

Nov. 1980 STATE v. CHRISMAN 719

94 Wa.2d 711

intrusion. What the majority fails to explain convincingly is

why the officer was not entitled to keep the arrested person

within his sight. The majority's conclusion does not rest

upon any cited authority, but only upon its bare assertion.

That conclusion is inconsistent with existing precedent,

which indicates the officer was entitled to be where he was.

Given this right, all elements of the plain view doctrine

were satisfied.

State v. Brown, 132 N.J. Super. 180, 333 A.2d 264 (1975),

is precisely on point and contrary to the majority. Defend-

ant was arrested in a motel parking lot on drug charges,

and asked if he could go to his motel room to get his jacket.

The police consented and accompanied defendant to his

room. Upon entry, the police observed in plain view what

they believed to be illegal drugs. The appellate division

held that the drugs were admissible because considerations

of police safety and prevention of a possible escape gave the

police the right to enter defendant's room. The possibility

of escape was admittedly remote in the present case, but

concern for police safety was no less compelling than in

Brown.

Other cases indicate that if a defendant is arrested at his

dwelling and asks for access to some other room, the police

may search that room before or after granting his request.

United States v. Mason, 523 F.2d 1122, 1126 (D.C. Cir.

1975); United States v. Wright, 577 F.2d 378, 381 (6th Cir.

1978); United States v. DeMarsh, 360 F. Supp. 132, 137 n.4

(E.D. Wis. 1973); see Kelder, Criminal Procedure, 30 Syra-

cuse L. Rev. 15, 68 (1979). If Officer Daugherty had the

right to search defendant's room, he obviously had the right

to enter it.

A host of cases hold that if a defendant is arrested at his

dwelling, and is allowed to go to another part of it for some

"The majority correctly notes that the plain view doctrine is applicable only if

the police inadvertently observe what they immediately know is evidence from a

place they are entitled to be. The “inadvertence” and ‘immediate knowledge’

requirements were clearly satisfied in this case.

41

720 STATE v. CHRISMAN Nov. 1980

94 Wn.2d 711

purpose, ‘the police may accompany the defendant there

and any evidence they inadvertently observe is admissible

under the plain view doctrine. See, e.g., United States v. Di

Stefano, 555 F.2d 1094, 1101 (2d Cir. 1977) (officer could

accompany defendant to another room “to maintain a

‘watchful eye’ on her and to assure that she did not destroy

evidence or procure a weapon"); Moffett v. State, 291 Ala.

382, 281 So. 2d 630 (1973), cert. denied, 414 U.S. 1161, 39

L. Ed. 2d 114, 94 S. Ct. 924 (1974); People v. Stevens, 38

Cal. App. 3d 66, 113 Cal. Rptr. 49 (1974); People v. Green,

14 Ill. App. 3d 972, 304 N.E.2d 32 (1973), cert. denied, 417

U.S. 972, 41 L. Ed. 2d 1143, 94 S. Ct. 3179 (1974); People v.

Mann, 61 Misc. 2d 107, 113, 305 N.Y.S.2d 226 (1969) ("cer-

tainly reasonable" for police to accompany defendant to

bedroom and “keep him under continuous surveillance

while he was putting on his clothing"); 2 W. LaFave,

Search and Seizure § 6.4, at 420-21 (1978).

In all of the cases cited above, except Brown, the defend-

ant was allowed to move about after being arrested in his’

dwelling, as contrasted to being arrested outdoors as in the

present case. This is not a difference of constitutional mag-

nitude which distinguishes the cited cases from the present

case. The focus of those cases was not on the locus of arrest,

but rather on the reasonableness of searching the room an

arrestee requests to enter, or the reasonableness of accom-

panying an arrestee when he is permitted to move about his

dwelling. The rationale of those cases (concern for police

safety, avoiding possible destruction of evidence, and dis-

couraging potential escape attempts), which found such

police conduct reasonable, is equally persuasive when an

arrestee outside his dwelling requests to enter it. As the

arrestee moves about of his own volition, whether from one

area of his dwelling to another or from outside his dwelling

to inside it, the right of the police to make plain view seiz-

ures must necessarily expand correspondingly. See Kelder,

supra at 68; United States v. Griffith, 537 F.2d 900, 905

(7th Cir. 1976); United States v. Mason, 523 F.2d 1122,

1125-26 (D.C. Cir. 1975) (by implication). I would hold

42

Nov. 1980 STATE v. CHRISMAN 721

94 Wn.2d 711

that, as a general rule, *[wJhere a person in custody asks to

be given access to an area, he has no basis to object that the

arresting officers" (Mason, supra at 1126) accompany him

to that area and keep him in view.

The officers meticulously observed the defendants’

Miranda rights and advised both defendants of their abso-

lute right to require a search warrant. They were advised

that their consent must be voluntary and that they had a

right to refuse consent. After conferring, the defendants

consented to the search.

I would affirm the decisions of the trial court and the

Court of Appeals. ;

Starrorp and Horowitz, JJ., concur with BRACHTEN-

BACH, J.

43

APPENDIX C

IN THE SUPREME COURT OF THE

STATE OF WASHINGTON

THE STATE OF WASHINGTON,

)

)

Respondent, )

) MANDATE

Vv. )

) No. 46750-1

NEIL MARTIN CHRISMAN and )

CARL PHILIP OVERDAHL, ) WHITMAN County

) No. C=-1799

Petitioners. ) Court of

) Appeals

)

No. 2991-III

The State of Washington to: The Superior

Court of the State of Washington

in and for WHITMAN County

This is to certify that the opinion

of the Supreme Court of the State of

Washington filed on November 26, 1980,

became the decision terminating review

of this court in the above entitled case

on December 31, 1980. This cause is man-

dated to the superior court from which

the appeal was taken for further proceed-

44

ings in accordance with the attached true

copy of the opinion.

Pursuant to Rule of Appeliate

Procedure 14.3, costs are taxed

as follows:

$25.00 in favor of petitioners

and against respondent.

An Order Denying Motion for Recon-

sideration was entered December 31, 1980;

copy attached.

cc:

Aitken, Schauble, Patrick,

Neill & Charawell

Mr. Robert F. Patrick

Mr. Stephen Bishop

Hon. Ronald R. Carpenter

Whitman County Prosecutor

Mr. Gerald R. Fuller, Deputy

Reporter of Decisions

Court of Appeals, Div. III

IN TESTIMONY WHFREOF, I have

hereunto set my hand and

affixed the seal of said Court

at Olympia, this 8th day of

January, A.D. 1981.

/s/ John J. Champagne

JOHN J. CHAMPAGNE

Clerk of the Supreme Court,

State of Washington

Attached

cl

45

THE SUPREME COURT OF WASHINGTON

THE STATE OF WASHINGTON,

No. 46750

Respondent,

Vv. ORDER DENYING

MOTION FOR

NEIL MARTIN CHRISMAN, RECONSIDERATION

ET AL,

Petitioners.

The Court having decided by a vote

of 5 to 3 that the respondent's motion

for reconsideration should be denied,

It is order that the motion be and

it hereby is denied.

Dated this 3lst day of December,

1980.

/s/ Robert F. Utter

Chief Justice

94 Wn.2d 711

46