# Petition — Washington v. Chrisman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982
- **Citation:** 455 U.S. 1

## Text

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
APPENDI Xx B eoeenereerteeeneereeneeneteerereeeeeeeeee 3 3

APPENDIX C oereeeeeneeeneneeneeeeee eoeeteeeee 44

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1954%3A01. Public record. Not legal advice.