Petitioners Brief — Washington v. Chrisman

on

Office-Supreme Court, U.S.

FILED

No. 80-1349 AUGS 1981

i. dab K

won

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

STATE OF WASHINGTON,

PETITIONER,

Vv.

NEIL MARTIN CHRISMAN,

RESPONDENT.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF WASHINGTON

BRIEF OF PETITIONER

RONALD R. CARPENTER

Prosecuting Attorney for

Whitman County, Wast.ington

County Courthouse

P. O. Box 30

Colfax, Washington 99111

(509) 397-3449

Counsel for Petitioner

ALEXANDBR L. STEVAS, |

QUESTIONS PRESENTED

l. 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 open 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 without

a search warrant under an "exigency excep-

tion" to the Fourth Amendment warrant re-

quirement?

2. When an individual is validly under

arrest and asks to be given access to an

area, may the arresting officer in a

reasonably contemporaneous manner accom-

pany the individual into such area without

first obtaining a search warrant authoriz-

ing entry into such area?

TABLE OF CONTENTS

OP IN IONS BELOW Ok ee ee ea ee tee ee rn ee a ie 1

JURISDICTION SS a: £18 “O78 @ @&.¢ & a a 1-2

CONSTITUTIONAL PROVISION INVOLVED

IN REVIEW . . 7 . * . . 7 * . oa * . . 2

STATEMENT OF THE CASE .....+.+-.. 2-14

SUMMARY OF ARGUMENT he a er oe ee es hi 15-19

ARGUMENT

I. ARGUMENT ON FIRST QUESTION

PRESENTED FOR REVIEW .. . . 19-52

II. ARGUMENT ON SECOND QUESTION

PRESENTED FOR REVIEW .. . . 53-70

CONCLUS ION ee 2. 6 76 "8 «6° 6. 6 6 8) 6 8 6 7 0-7 2

TABLE OF AUTHORITIES

CASES

Cady v. Dombrowski, 413 U.S. 433, 37

L.Ed.2d 706, 93 S.Ct. 2523 (1973) 39,40,51

Carroll v. United States, 267 U.S.

° -Ed. P S.Ct. 280

(1925) e o ° . ° . °° . . . . . ° . °3,34,35

Chambers v. Moreney, 399 U.S. 42,

ms L Ed. 419, 426-427,

90 Ss. Ct. 1975 (1970). . « «'« 0 « © 3ae35999

Chimel v. California, 395 U.S. 752,

23 L.Ed.2d 605, 89 S.Ct. 2034

(1969) . * e * . e ° ° * . . ° 66

Colorado v. Bannister, 449 U.S. l,

S.Ct. 9 L.Ed.2d 1 (1980). 35,36,37

Coolidge v. New H shire, 403 U.S.

443, 29 L.Bd.2d sea. 91 S.ct. 2022

(1971) ° .- ¢« @ *- « * e * *- °« @« . 23,24,37

54,69

Gustafson v. Florida, 414 U.S. 260,

36 L.Bd.20 456, 94 S.Ct. 488 (1973) 66

Harris v. United States, 390 U.S. 234,

P Ed. , 1069, 88 S.

ct. 992 (1968) . ° . . . . . ° ° ° 23

Johnson v. United States, 333 U.S. 10,

9” i .Ed. 436, 68 S.Ct. 367 (1948). 28,29

30,44

Katz v. United States, 389 U.S. 347,

é Ed. , 88 S.Ct. 507

(1967) _ . _ >. . 2 aa . . >. _ . . . 24,25

Lewis v. United States, 385 U.S. 206,

’ L » sad, 87 8S Ct

424 (1966) . . . . . . . . . . . . 25

McDonald v. United States, 335 U.S.

’ ’ L.Ed. , 69 S.Ct.

191 (1948) . . e . . ° . . ° - . 44

Michigan v. Summers, U.S...

L.Ed.2a s.Ct. Piven

7 U.S.L.W. “47787 Docket No.

79-1794 (Decided June 22, 1981) . 51,52

ii

Mincey v. Arizona, 437 U.S. 385,

57 L.Ed.2d 290, 98 S.Ct. 2408

ceeee + “eth ie eee © eo 0 6 66 @eaetanree

Moffet v. State, 291 A. 382, 281 So.

2d 630 (1973), cert. denied 414

U.S. 1161, 39 L.Ed.2d 114, 94 S.

Ce. See Chere: 2 © « © «6 6 es. « 566k

Payton v. New York, 445 U.S. 573,

5 L.Ed.2d 639, 100 S.Ct. 1371

(1980) . . . . . . . . . . . . - - 47 ,68

Pennsylvania v. Mimms, 434 U.S. 106,

= ’ L. . 331, 336-337,

96 6.66. 330 (2977) « «© 0 0 0 0 0 636485

People v. Green, 14 I11.App.3d 972,

N.E. (1973), cert. denied

417 U.S. 972, 41 L.Ed.2d 1143,

94 S.Ct. 3179 (1974) . . «. « « « « 58,62

People v. Mann, 61 Misc.2d 107, 113,

355 Bancwcun Bee (2908) 8 « « s.8 8 58

People v. Stevens, 38 Cal.App.3d 66,

3 Cal.mper. 49 (1974) . . « « e 58

State v. Brown, 132 N.J.Super. 180,

A. oho, | ee ae eee

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

P. 1979) « «© e © 0 0 © 48998 ,96

62,63

State v. Patterson, 192 Web. 308,

N.W. , 240 (1974) ... - 37

Terr Vv. Ohio, 392 uU.S.1, 25,26, 20

L.Ed.2d 889, 88 S.Ct. 1868, 440hio

Ops. 2d 383 (1968) a . * 2a « 42

iii

United States v. Chadwick, 433 U.S. l,

6-11, 53 L.Ed.od S38, 97 S.Ct. 2476 44

Re ee Vier end We e's 6

United States v. DeMarsh, 360 F.Supp

, » Re -D.Wis., 1973) .. 57

United States v. DiStefano, 555 F.2d

9 n fe on 6 ete 58

United States v. Griffith, 537 F.2d

+ t S r. ) - 7 . 2 . 59,60

United States v. Jeffers, 342 U.S. 48,

51-52, 56 L.Ed. 59, 72 §.Ct. 93,

(1951) * . hl . > . — >. . * — . > 7 26 ,27

United States v. Lee, 274 U.S. 559,

’ L.Ed. , 1204, 47 S.Ct.

746 (1927) . . . . . . . . . . ¢ . 25

United States v. Mason, 523 F.2d 1122,

Ce Tey 5) . . 7 . . . 57,60

United States v. Peltier, 422 U.S. 53l,

’ Ed. , 384, 95 S.Ct.

2312 (1975). + . . . . . . . . - a 69,70

United States v. Robinson, 414 U.S.

’ -Ed. ’ S.Ct.

467 (1973) . .* - - . . . . . . 66,67,68

United States v. ae 577 F.2d 378,

t Ze . >. . >. i . >. 57

Vale v. Louisiana, 399 U.S. 30, 35,

Ed. , 90 S.Ct. 1969 (1970) 27,28

Warden v. Hayden, 387 U.S. 294, 18 L.Ed.

2d 782, 67 S.ct. 1642 (1967) ... 50

iv

CONSTITUTIONAL PROVISIONS

The Fourth Amendment to the United

States Gonebionesen « - « s 6c& ce 2

MISCELLANEOUS

Search and Seizure, a Treatise on

the Fourth Amendment by Wayne R.

TaFave, West Publishing Company

(S97O) 6 hee et be ahs oi Se See ee ee

OPINIONS BELOW

The opinion of the Washington State

Supreme Court (Pet.App. B, pp. 33-43) is

reported at 94 Wn.2d 711, 619 P.2d 971.

The opinion of the Court of Appeals (Pet.

App. A, pp. 20-32) is reported at 24 Wn.App.

385, 600 P.2d 1316. The opinion of the

Whitman County, Washington Superior Court

(J.A. pp. 45-52) is not reported.

JURISDICTION

The judgment of the Washington State

Supreme Court (Pet.App. B, pp. 33-43) was

entered en banc on November 26, 1980. A

Motion for Reconsideration was filed on

December 10, 1980. On December 31, 1980,

the Washington State Supreme Court entered

an Order Denying Motion for Reconsideration

(Pet.App. C, p. 46). On January 8, 1981

the Washington State Supreme Court entered

its Mandate (Pet.App. C, pp. 44-45). The

Petition for Writ of Certiorari was filed

on February 10, 1981 and was granted on

June 22, 1981. The jurisdiction of this

court rests upon 28 U.S.C. 1257(3) and the

provisions of Supreme Court Rule 17.1(b)

and (c).

CONSTITUTIONAL PROVISION

I L IN

The Constitutional provision involved

in review is the Fourth Amendment to the

United States Constitution which provides

as follows:

The right of the people to be secure

in their person, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated,

and no warrants shall issue, but upon

probable cause, supported by oath or

affirmation, and particularly describ-

ing the place to be searched, and the

persons or things to be seized.

STATEMENT OF THE CASE

On the evening of January 21, 1978,

between approximately 8:50 and 8:55 P.M.

(R.P. 3, R.P. hereinafter refers to Verbatim

Report of Proceedings at Suppression Hearing)

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 (R.P. 3). At that mo-

ment Officer Daugherty of the Washington

State University Police Department arrived

at the dorm to investigate an unrelated

matter (R.P. 3). The officer noticed the

bottle of gin and suspected that Mr. Over-

dahl, because of his youthful appearance,

was under the legal age to possess alcohol,

the age of twenty-one (R.P. 4,6; J.A. 7,8).

The officer knew that a person under twenty-

one years of age could not legally possess

liquor in Washington and also knew that

possessing liquor inside dormitories was

in violation of Washington State University

rules (J.A. 7,9,10). He stopped Mr. Over-

dahl, seized the alcohol, detained him and

requested identification (R.P. 5,57). Mr.

Overdahl did not have any identification

on his person (J.A. 8). Mr. Overdahl stated

that he would have to go upstairs to his

dormitory room to get the identification

(J.A. 8). Officer Daugherty irdicated to

Mr. Overdahl that since Mr. Overdahl was

under police detention, he would not allow

him to leave witiout an officer accompany-

ing him to his room (R.P. 5,6,35; J.A. 9);

because he needed identification (J.A. 19,

21). Mr. Overdahl indicated "0.K." (J.A.

35). As they were waiting for the elevator,

the officer asked Mr. Overdahl how old he

was. Mr. Overdahl responded that he was

nineteen (R.P. 6; J.A. 9.).

Upon arriving on the eleventh floor of

the dormitory, Officer Daugherty followed

Mr. Overdahl down the hallway to Mr. Over-

dahl's room, Room 1141 (R.P. 7,59). The

door to Mr. Overdahl's room was slightly

ajar, open approximately three to four inches

(J.A. 11,12) and Mr. Overdahl pushed it all

the way open (J.A. 12), left it open, and

entered the approximately 17' by 11' room

(J.A. 1). The officer stood in the doorway,

without entering the premises (J.A. 17),

directly under the door frame, looking into

the room. The officer's left shoulder was

leaning against the door frame (he was out

in a common public hallway) (R.P. 7,8,19,21,

43,44; J.A. 47). The officer noticed that

the room was occupied by another student,

Neil Chrisman, the respondent in this action,

hereinafter referred to as defendant (R.P. 9).

The defendant had a box in his hands, admit-

ted at the Suppression Hearing as Ex. 5

(R.P. 10). The defendant did not immediately

see Officer Daugherty, according to Officer

Daugherty (R.P. 10). After approximately

8 to 10 seconds he saw Officer Daugherty

(R.P. 39-40). When the defendant did see

Officer Daugherty, he appeared to Officer

Daugherty to become rather nervous (R.P. 12;

J.A. 13), first looking at Officer Daugherty,

then looking away, then glancing quickly

back (R.P. 12). The defendant then approach-

ed the medicine cabinet in the room, put his

hand toward it, withdrew his hand and walked

over (R.P. 12) to a desk in the corner of

the room. The defendant placed the box he

was carrying on top of some metallic boxes

on the desk (R.P. 13) and moved toward the

center of the room (R.P. 12) and watched

Officer Daugherty (R.P. 13).

After waiting at the doorway and watch-

ing the occupants for a short time, approxi-

mately 30 to 45 seconds (R.P. 53; J.A. 28),

Officer Daugherty observed both seeds in a

shallow black pan and a small ornamental

seashell pipe lying on the desk (R.P. 13),

[theend of the »ipe was blackened (R.P. 52,

53; J.A. 27)] approximately 8 to 10 feet

from where Officer Daugherty was standing

(R.P. 14). The pipe was of a type known by

the officer to be used for smoking marijuana

(R.P. 17; J.A. 47). The light in the room

was such that the officer had no trouble

seeing the seeds from that distance (R.P.

10, 48; J.A. 38). Based upon his training

and experience (R.P. 45) the officer immedi-

ately recognized the items as contraband

(J.A. 23,24,27,28) (prior to entering the

premises). The officer was familiar with

the appearance of marijuana seeds (R.P. 45,

46; J.A. 14,15,23,24). He thereafter enter-

ed the room and proceeded to examine the

seeds and pipe more closely (R.P. 13,17,18).

After completing his inspection, he again

concluded that the items were contraband

and gave the two students their Miranda

rights (R.P. 19,20). [later at the sup-

pression hearing the trial judge commented

that the seeds in question did not appear

to look like seeds of any common commodity,

J.A. 32). There were no plants or animals

in the room that would explain the presence

of the seeds (R.P. 18; J.A. 15,16). Both

Mr. Overdahl and the defendant indicated

that they understood their rights and were

willing to waive them (R.P. 23,24). The

officer asked them if there were any other

drugs in the room and the defendant handed

him the box that Officer Daugherty had ob-

served the defendant place on the desk. The

box contained three bags of marijuana (R.P.

60; J.A. 47).

Officer Daugherty radioed for assist-

ance and Officer Kenny arrived shortly

thereafter, approximately 3 to 5 minutes

(R.P. 26). Officer Kenny informed the de-

fendant and Mr. Overdahl that a search of

their room was necessary (R.P. 27). He

explained that they had an absolute right

to demand that the police obtain a search

warrant, which would take about two hours

(R.P. 28; J.A. 18), or they could consent

to a search of their room. He further ex-

plained that their consent must be voluntary

and that they had a right to refuse con-

sent (R.P. 62). After conferring in whis-

pers for approximately 4 to 10 minutes

(R.P. 64), Mr. Overdahl and the defendant

agreed to the search (R.P. 64,65). Prior

to signing a written consent to search form,

the defendant and Mr. Overdahl were again

advised of their Miranda rights (R.P. 69;

J.A. 43). A search of the room yielded

more marijuana and also LSD (J.A. 48).

The defendant and Mr. Overdahl were

charged by information with one count of

felony possession of marijuana and one

count of felony possession of LSD (J.A. 2).

Prior to the trial, a suppression hearing

was held and the defendants moved to sup-

press all evidence on the basis that all

the evidence was tainted as a result of an

9

illegal search and seizure. The trial judge

denied the motion (J.A. 44-45). The defen-

dant and Mr. Overdahl were tried without a

jury and convicted as charged (J.A. 3).

This conviction was appealed to the Washing-

ton State Court of Appeals, Division III

(J.A. 4). In a published opinion the Court

of Appeals upheld the defendants' convic-

tions (J.A. 4; Pet.App. A, pp. 20-32). The

Court of Appeals indicated that the officer's

observation of the contraband in the room

and the defendant's reaction to the officer's

presence were such that if the officer had

left the premises immediately after observ-

ing 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 suffi-

cient exigent circumstances existing to

justify the warrantless search of the

10

room; the contraband permissibly having

come into view as the product of a pre-

intrusion "open view" observation from

the doorway of the room (Pet.App. A,

pp. 29-30). The defendant and Mr. Over-

dahl then filed with the Court of Appeals

a Motion for Reconsideration which was

denied on the 4th day of December, 1979

(J.A. 4-5).

Both the defendant and Mr. Overdahl

then appealed to the Washington State Su-

preme Court alleging that the seizure was

the product of an illegal warrantless search

(J.A. 5).

On March 31, 1980, the Superior Court

dismissed the felony probation and expunged

the conviction of Mr. Overdahl to facili-

tate his entry into an advanced Army ROTC

program, therefore this case only concerns

the defendant. The dismissal was upon

joint motion of petitioner herein and Mr.

Overdahl through his legal counsel.

1l

On November 26, 1980, the Washington

State Supreme Court ruled in the defendant's

favor (Pet.App. B, pp. 33-40) and found

(see comments in dissenting opinion Pet.App.

B, pp. 40-41) 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 allowed to volun-

tarily return to the room in question (Pet.

App. B, pp. 42-44). Additionally the

Washington State Supreme Court found that

at the time of the officer's entry into

the room, that there were no exigent cir-

cumstances that justified a warrantless

entry, rejecting the application of "plain

view" and the applicability of any excep-

tion to the warrant requirement based on

exigent circumstances (Pet.App. B, p. 39).

Although the Washington State Supreme

Court Opinion indicates exigencies were

not argued (Pet.App.B, p.39), this is an

apparent reference to exigencies other

12

than the observations made by the officer

outside the room. The Washington State

Supreme Court declined to decide where the

officer was originally located inside the

room at the time of his initial observations

of the contraband, labeling such as “nice-

ties". (Pet.App. B, p. 38). There is no

question that exigencies were argued by the

petitioner at every stage of the proceed-

ings in this matter (R.P. 92),; see trial

court's oral opinion (J.A. 32-33); the trial

court's findings of fact and conclusions

of law (J.A. 45); the trial court's memor-

andum opinion which discusses circumstances

to justify entry into the room (J.A. 50);

the State's brief to the Court of Appeals

(J.A. 53-57); the Court of Appeals Opinion

accepting the State's argument concerning

exigent circumstances (Pet. App. A, pp.

28-29); and State's Answer to Defendant's

Motion for Discretionary Review filed with

13

the Washington State Supreme Court (J.A.

58).

On December 19, 1980, the State filed

with the Washington State Supreme Court

a Motion for Reconsideration of its judg-

ment (J.A. 5). On December 31, 1980 the

Washington State Supreme Court entered an

Order Denying Motion for Reconsideration

(Pet.App. C, p. 46). On January 8, 1981

the Washington State Supreme Court entered

its Mandate in the case (Pet.App. C, pp.

44-45). On February 10, 1981 the Petition

for Writ of Certiorari was filed. On June

22, 1981 the Petition for Writ of Certiorari

was granted.

14

SUMMARY OF ARGUMENT

I.

The Fourth Amendment to the United

States Constitution protects people, that

is, a person's reasonable expectation of

privacy in a place, not the place. By Mr.

Overdanl leaving the door to the premises

wide open which afforded the officer an all

encompassing "open view" of the premises

and the contraband in question, Mr. Over-

dahl's action created an appreciable lessen-

ing of the reasonable expectation of privacy

in the premises. The close proximity of the

officer to the contraband from outside the

premises and the defendant's knowledge of

the officer's presence and his nervous re-

action to the officer's observations of the

contraband created exigent circumstances.

That is, it became readily apparent to the

officer that if the officer left and pro-

cured a search warrant prior to the seizure,

15

by the time he returned the contraband would

most likely have been removed or destroyed.

Since the officer did not have any reason-

able non-intrusive method of preventing

removal or destruction of the contraband

during the period he would have had to be

gone to obtain a warrant, it can be said it

was not practical for him to obtain a war-

rant. His entry onto the premises and sub-

sequent seizure of the contraband was there-

fore constitutionally reasonable and should

be approved by this court under the "exigency

exception" to the Fourth Amendment warrant

requirement.

II.

A person properly under arrest has a

diminished expectation of privacy under the

Fourth Amendment to the United States Con-

stitution. An officer in an arrest situ-

ation must be given sufficient latitude to

not only control the arrestee but to pro-

tect himself and prevent potential evidence

16

from being destroyed. Accordingly, this

court has allowed an arresting officer to

not only search the person of an arrestee

but to search the immediate area within

control of the arrestee. A custodial arrest

of a suspect upon probable cause is a rea-

sonable intrusion under the Fourth Amendment

and that intrusion being lawful, a search

incident to the arrest requires no addi-

tional justification. In order to continue

to have legitimate control over the arrested

person, the officer must be authorized to

accompany an arrestee to other areas and

particularly to contemporaneously accompany

an arrestee onto premises when the arrestee

requests to be allowed to return to the

premises for his own convenience and is

permitted to do so. An arrested person

should be afforded reasonable mobility.

The right of a law enforcement of-

ficer incident to an arrest of the person

17

to accompany the arrestee onto premises the

arrestee has voluntarily returned to is not

constitutionally dependent on the officer

articulating some specific danger to him-

self or potential evidence or the prob-

abilities in the particular arrest situa-

tion that weapons are present. To require

such a showing would unduly interfere with

a law enforcement officer's ability to do an

adequate and effective job and interfere

with his abililty to protect himself and

potential evidence. The need to promote a

police officer's safety is not less compel-

ling simply because a person has been ar-

rested for a minor criminal offense.

Therefore Officer Daugherty's con-

temporaneous entry upon the premises to

accompany the arrestee was a constitution-

ally permissible adjunct to the arrest

status of Mr. Overdahl. When the officer

contemporaneously entered the premises and

observed the contraband in "plain view",

18

he had authority to seize the same.

Additionally, the exclusionary rule

should not be applied to the case at bar

since the evidence seized was a product of

the officer's “good faith" search and/or

seizure of evidence.

ARGUMENT

I.

PURSUANT TO THE EXIGENCY EXCEPTION

TO THE WARRANT REQUIREMENT OF THE

FOURTH AMENDMENT THE OFFICER HAD

AUTHORITY TO ENTER THE PREMISES

WITHOUT A WARRANT AND SEIZE THE ITEMS

OF CONTRABAND OBSERVED BY HIM IN

"OPEN VIEW" DUE TO THE EXIGENT CIR-

CUMSTANCES THAT EXISTED WHICH DID NOT

AFFORD THE OFFICER A PRACTICAL OPPOR-

TUNITY TO SECURE A SEARCH WARRANT.

A review of the appropriate portion

of the Statement of the Case, page 13, re-

veals that the Washington State Supreme

Court never decided the issue of whether or

19

not Officer Daugherty was or was not in the

room at the time he originally saw the con-

traband and formed his probable cause to

seize the contraband.

The record of the trial court and the

opinion of the Court of Appeals indicate

that Officer Daugherty was in fact not in

the room (not on the premises) at the time

he made his initial "open view" observations

of the contraband. Instead, he was outside

the room and located in the doorway (R.P.

7,8,21). The trial court in its Memorandum

Opinion (J.A. 47) stated:

Overdahl opened the door, which was

Slightly ajar, left it open and went

inside for his identification. The

officer stood in the doorway, and

watched. Chrisman was in the room.

The officer observed a pipe of a type

known by him to be used for the

smoking of marijuana and seeds which

appeared to him to be marijuana seeds.

He was familiar with marijuana and

marijuana seeds. When Chrisman

became aware of the officer he ap-

peared to become nervous and upset.

The officer then entered the room

and examined the pipe and seeds

closely. (emphasis mine)

20

The Court of Appeals observed in its

opinion:

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 this point,

Officer Daugherty entered the room,

walked over and examined the seeds

and pipe to verify that what he had

observed was marijuana. (emphasis

mine)

State v. Chrisman, 24 Wn.App. 385, 386,

° ctober, 1979. (Pet.App. A,

p. 22).

As the Court of Appeals additionally

observed in State v. Chrisman at 389 (Pet.

App. A, p. 27):

It is undisputed that Mr. Overdahl

pushed the door open and entered

the room. In order to keep Over-

dahl 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.

21

It is the position of the petitioner,

hereinafter referred to as the State, that

at the time Officer Daugherty made the

observations he clearly was not in the

room. Contrary to the statement by respon-

dent on page two of his Brief in Opposi-

tion to Petition for Writ of Certiorari,

the State does not maintain that the officer

was in the room at the time of his initial

observations. The State in fact does not

posit that the officer was both in and

outside the room, but simply is arguing

that although the officer did not initial-

ly join Mr. Overdahl in entering the room,

his subsequent entry was reasonably con-

temporaneous with Mr. Overdahl's entry.

It is noted that Mr. Overdahl entered the

room and left the door to the dorm room

wide open; affording the officer a complete

view of the room and totally exposing any

expectation of privacy that the defendant

22

or Mr. Overdahl had in the room to being

viewed by the officer who was standing in

a public hallway. A discussion of the

officer's entry into the room as an ad-

junct to the arrest status follows herein

in the discussion beginning on page 53

as to the second question presented for

review.

It is the State's position that as to

-the first issue presented for review, the

Washington State Supreme Court improperly

applied a post-intrusion exception to the

warrant rule, that is, "the plain view

doctrine"; see Coolidge v. New Hampshire,

403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022

(1971); to what in actuality was a situa-

tion that called for the application of

both the pre-intrusion doctrine of “open

view", Harris v. United States, 390 U.S.

234, 236, 19 L.Ed.2d 1067, 1069, 88 S.Ct.

992, and the “exigency exception" to the

23

Fourth Amendment warrant requirement.

Although the general rule is that a

search without a warrant is per se un-

reasonable under the Fourth Amendment,

Katz v. United States, 389 U.S. 347, 357,

19 L.Ed.2d 576, 88 S.Ct. 507 (1967), this

court has delineated carefully drawn

exceptions when the exigencies of the

situation make the application of an

exception warranted; Coolidge v. New

Hampshire, supra, 403 U.S. at 455. When one

looks at the totality of the circumstances

facing the officer in the case at bar, it

appears readily apparent that an immediate

warrantless seizure of the items in "open

view" was justified pursuant to the doc-

trine of exigent circumstances.

Such is particularly true in light of

the reduction of expectation of privacy

caused by Mr. Overdahl's rather casual ex-

posure of the premises to Officer Daugherty.

24

It seems superficially technical to argue

that the Fourth Amendment would protect

against the seizure that took place by

Officer Daugherty in the case at bar. The

Fourth Amendment really protects people,

not places, that is, a person's reasonable

expectation of privacy in a place as opposed

to protecting the place. In Katz the court

stated:

For the Fourth Amendment protects

people, not places. What a person

knowingly exposes to the public,

even in his own home or office, is

not a subject of Fourth Amendment

protection. See Lewis v. United

States, 385 US 206, 210, 17 L ed 2d

312, 315, 87 S Ct 424; United States

v. Lee, 274 US 559, 563, 71 L ed 1202

12047, 47 S Ct 746.

Katz v. United States, supra, 389 U.S. 35l,

L.E o o

It should be remembered when consid-

ering the situation that gave rise to the

exigent circumstances which faced the of-

ficer, that the officer did not go to the

room to fulfill his own purposes, but to

25

allow Mr. Overdahl to effectuate a more

timely release from custody by properly

proving his identity. The officer was

attempting to handle the situation in

a “low-key” fashion (J.A. 28-29). The

oftacer did not allow Mr. Overdahl to re-

turn to his room for any purpose other

than to allow Mr. Overdahl to obtain iden-

tity. It was Mr. Overdahl's choice to ex-

pose the privacy of his and the defendant's

room to view of the officer. The officer

was not involved in any sham or pretext to

search.

It is clear that prior to entering the

room the officer had probable cause to

believe, based on his training and experi-

ence, that what he was viewing, in “open

view", was a controlled substance.

This court has recognized that there

are circumstances under which a police

officer may enter a private residence with-

out a warrant and search. In U.S. v.

26

Jeffers, 342 U.S. 48, 51-52, 72 S.Ct. 93,

96 L.Ed. 59 (1951), this court acknowledged

that exigent circumstances may allow the

entry into a private residence to seize

evidence without a warrant. An exigent

circumstance cited by the court in Jeffers

would be the need to prevent the destruc-

tion of evidence. This principle is like-

wise acknowledged, although not applied,

in Vale v. Louisiana, 399 U.S. 30, 35, 26

L.Ed.2d 409, 90 S.Ct. 1969 (1970). Although

this court in Vale v. Louisiana, supra, did

find in the particular factual situation that

there were not exigent circumstances justi-

fying warrantless arrest, the court did ob-

serve, in commenting on the officers' actions:

There is thus no reason, so far as

anything before us appears, to sup-

pose that it was impracticable for

them to obtain a search warrant as

well.

399 U.S. 35, 26 L.Ed.2d 414.

27

In Vale v. Louisiana, supra, the officers

arrested an individual outside his residence

and attempted to use that as justification

for a search of the residence. It is clear

that the officer in the case at bar did not

intend to use the arrest of Mr. Overdahl as

a basis to search Mr. Overdahl's premises.

He only entered the premises and seized the

contraband in question when he was confront-

ed with the exigencies of the moment .

In Johnson v. United States, 333 U.S.

10, 92 L.Ed. 436, 68 S.Ct. 367 (1948), this

court, while generally upholding the re-

quirement of the need for a warrant before

permitting the search of a private premises,

nevertheless acknowledged:

There are exceptional circumstances

in which on balancing the need for

effective law enforcement against

the right of privacy, it may be

contended that a magistrate's war-

rant for a search may be dispensed

with.

333. U.S. at 14, 15, 92 L.Ed. 440-441.

28

It appears the reason this court did

not excuse the acquisition of a warrant in

Johnson v. United States, supra, was that

no reason was shown for not first obtain-

ing a search warrant except the inconven-

ience of the officers and slight delay that

would have been occasioned by obtaining

the same. In Johnson v. United States,

supra, the officers in fact created their

own exigency by unnecessarily acting on the

"open smell" observations which gave them

probable cause in lieu of presenting their

probable cause to an impartial magistrate.

The initial “open smell" observation did

not need to come to the defendant's atten-

tion. In the case at bar, of course, Offi-

cer Daugherty did not consciously put him-

self in that position; his conduct was

reasonable in accompanying the individual

he had under arrest up to the doorway of

the dorm room. It was Mr. Overdahl's con-

29

duct in leaving the door open and allowing

a full “open view" of the premises in con-

junction with the obvious realization there-

after by all parties present that the offi-

cer had seen contraband that created the

exigency. At that juncture the officer

had really no choice but to enter the pre-

mises and seize the items of contraband.

It cannot be realistically suggested that

he could simply have gone to obtain a war-

rant with any reasonable expectation that

the contraband would still be available

upon his return. Clearly, had Officer

Daugherty left, the contraband he had ob-

served would be threatened with removal

or destruction. Common sense tells us that

much. Therefore, the application and

reasoning expressed by this court in Johnson

v. United States, supra, would justify the

dispensing with a magistrate's warrant.

The Court of Appeals in rendering its

decision in the case at bar observed:

30

- . « Officer Daugherty's observation

of the pipe and seeds was a preintru-

sion ‘open view' observation from the

doorway of Overdahl's room which, like

the driveway in State v. Daugherty.

supra, was 4 semi-private area. Un-

e the facts in Daugherty, exigent

circumstances existe ere. Because

the drugs could have been readily

disposed of while the police officer

was trying to obtain a search warrant,

sufficient exigent circumstances ex-

isted to justify the seizure.

24 Wn.App. 390 (Pet.App. A, p. 29).

In order to determine that exigent

circumstances did not exist would require

one to ignore the realities of human

nature and the reasonable probabilities

of everyday life. Officer Daugherty's

observation of the contraband in the room

and the defendant's reaction to Officer

Daugherty's presence were such that it

is reasonably apparent that if Officer

Daugherty had left the premises immedi-

ately after observing the seeds and pipe

and attempted to secure search warrants,

the contraband would likely have been des-

31

troyed during the interim; see the trial

court's oral observation (J.A. 33).

This court has held that where an

officer has probable cause a warrantless

search and/or seizure is authorized if it

is not practical to secure a warrant be-

cause the nature of the circumstances

would jeopardize the continuing availability

of the evidence. When the attending cir-

cumstances make the officer's ability to

control the evidence fleeting and imprac-

ticable, it appears this court has held

that the circumstances are tantamount to

being exigent; see Chambers v. Maroney,

399 U.S. 42, 48-49, 26 L.Ed.2d 419, 426-427,

90 S.Ct. 1975 (1970). Although Chambers v.

Maroney, supra, involved a warrantless search

of an automobile, it appears in effect that

this court has said that in the right cir-

cumstances, the mobility of the automobile

is what verifies the impracticability of

obtaining a warrant. Potential mobility is

32

the aspect of the situation which creates

the exigent circumstance which has led this

and other courts to sanction warrantless

searches where such would not normally be

sanctioned as to a residence. Therefore,

although cases such as Chambers v. Maroney,

supra, and Carroll v. United States, 267

U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280 (1925),

involve warrantless searches of automobiles,

they do appear to underscore the premise

that where it is impracticable to obtain a

warrant and the officer does have probable

cause upon which to base the search and/or

seizure, that such should be sanctioned

pursuant "exigent circumstance”.

In balancing the int rests of the public

to be protected against the commission of

a crime with the interests and rights of an

individual citizen to be free from unreason-

able searches and seizures, it is hard to

imagine that at the time the Fourth Amend-

33

ment was adopted that such conduct as oc-

curred in this case would have been con-

sidered an unreasonable seizure. As this

court observed in Carroll v. United States,

Supra:

The Fourth Amendment does not denounce

all searches or seizures, but only

such as are unreasonable.

267 U.S. 147, 69 L.Ed. 543.

Additionally, in Carroll v. United States,

supra, the court observed:

The 4th Amendment is to be construed

in the light of what was deemed an

unreasonable search and seizure when

it was adopted, and in a manner

which will conserve public interest

as well as the interest and rights

of individual citizens.

267 U.S. 149, 69 L.Ed. 549.

This court additionally noted:

In cases where the securing of a

warrant is reasonabl racticable,

it must be used, ... . (emphasis

mine)

267 U.S. 156, 69 L.Ed. 552.

34

It is in this context that the hold-

ing in Colorado v. Bannister, 449 U.S. l-

101 &.Ct. 42, 66 L.Ed.2d 1 (1980), is

particularly germane and significant. Al-

though in Colorado v. Bannister, supra, this

court again dealt with the warrantless search

of an automobile, in many ways the case is

factually similar to the case at bar. The

officer in Colorado v. Bannister, supra, was

making a routine traffic stop and from the

doorway of the vehicle observed property

appearing to be contraband from a recent

reported theft of auto parts. The officer

arrested two occupants of the vehicle out-

side the vehicle and entered the vehicle

to seize the items without a warrant; that

is, the items that had been seen in “open

view". The court observed that under the

judicial philosophy expressed in Carroll

v. U.S., supra, and Chambers v. Maroney,

supra, the circumstances provided not only

35

probable cause to arrest but probable cause

to seize the incriminating items without

first obtaining a warrant. The court, in

footnote 2, 101 S.Ct. 43, noted:

As the reason for the stop was wholly

unconnected with the reason for the

subsequent seizure, it would be especi-

ally unreasonable to require a detour

to a magistrate before the unantici-

pated evidence could be lawfully

seized.

It is important to again note in the

case at bar that Officer Daugherty's purpose

for being present near the doorway of the

defendant's and Mr. Overdahl's room was

totally unconnected with the ultimate sei-

zure. It is clear that the officer did not

anticipate that he would be seeing the

contraband. There is obviously no indi-

cation that the officer's actions in accom-

panying Mr. Overdahl to the room were any

type of pretext; in fact it could not have

been because the officer had no reason to

believe there were drugs in the room, he

36

was simply accompanying Mr. Overdahl back

to his room after Mr. Overdahl suggested

that he retrieve his I.D. from his room.

As to pretext, see footnote 4, Colorado v.

Bannister, supra, 101 S.Ct. 44.

Seé also State v. Patterson, 192 Neb.

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

the Nebraska State Supreme Court ruled

that where information in possession of

the officer leads to the conclusion that

a crime is being committed in the resi-

dence and the officer has evidence which

indicates that there is a great likeli-

hood that the evidence will be destroyed

or removed before a warrant can be ob-

tained, then exigent circumstances may

be said to exist.

In Coolidge v. New Hampshire, 403 U.S.

443, 460-461, 29 L.Ed.2d 564, 579, 91 S.Ct.

2022 (1971), there were several important

factors that caused the court to find that

37

no exigent circumstances existed. The

defendant in question was separated from

the automobile that was sought to be

searched under exigent circumstances and

had no possibility of access to it.

There was no evidence that the items to

be seized were contraband nor readily dis-

posable. The defendant's wife and their

baby were required to spend the night

elsewhere. Two guards were placed on

the premises to avoid anyone gaining en-

trance to the premises and tampering with

potential evidence. Also, the officers

had sufficient forewarning of the situation

with attending probable cause that they

could have, had they made the effort,

practically obtained a warrant. The case

is clearly distinguishable from the situ-

ation in the case at bar.

The practicality of obtaining a war-

rant should not be viewed in an artificial

38

light. In the case at bar it was neither

realistic nor practical for the officer

to have obtained a warrant. This court

has indicated in Cady v. Dombrowski, 413

U.S. 433, 37 L.Ed.2d 706, 93 S.Ct. 2523

(1973), that reasonableness is not judged

entirely on the fact that a “less intrusive"

means of seizing evidence could have been

used. This court has observed:

While perhaps in a metropolitan area

the responsibility to the general

public might have been discharged

by the posting of a police guard

during the night, what might be

normal police procedure in such an

area may be neither normal nor pos-

sible in Kewaskum, Wisconsin. The

fact that the protection of the

public might, in the abstract, have

been accomplished by “less intrusive"

means does not, by itself, render

the search unreasonable. Cf.

Chambers v Maroney, supra.

413 U.S. 447, 37 L.Ed.2d 718.

This court in Cady v. Dombrowski,

supra, acknowledged that a warrant is not

necessary where evidence could easily be

39

moved or destroyed before a warrant could

be secured.

A study of Cady v. Dombrowski, supra,

makes it clear that there are no “hard and

fast" rules as to when a recognized excep-

tion to the warrant requirement will apply.

The question of when a warrant is required

must be answered by examining the facts of

each individual case that comes under the

scrutiny of the court. The ultimate stan-

dard set forth in the Fourth Amendment is

a standard of reasonableness. This court

observed in Cady v. Dombrowski, supra,

in making reference to the general rule

allowing for a warrantless search:

While these general principles are

easily stated, the decisions of this

Court dealing with the constitution-

ality of warrantless searches, es-

pecially when those searches are of

vehicles, suggest that this branch

of the law is something less than a

seamless web.

413 U.S. 440, 37 L.Ed.2d 714.

40

The defendant in his Brief in Opposi-

tion to Petition for Writ of Certiorari at

page 10 relied on Mincey v. Arizona, 437

U.S. 385, 57 L.Ed.2d 290, 98 S.Ct. 2408

(1978). Mincey v. Arizona, supra, is clear-

ly distinguishable factually from the case

at bar. In that case the state tried to

justify an extensive and complete four day

search of the entire apartment where a

homicide had taken place without showing

that such a search was justified either by

exigent circumstances or some other specif-

ically established and well delineated ex-

ception to the warrant requirement. There

was no showing of exigencies or even a

pretense that exigencies existed. This

court noted:

The Arizona Supreme Court did not

hold that the search of the peti-

tioner's apartment fell within any

of the exceptions to the warrant

requirement previously recognized

by this court, but rather that the

search of the homicide should be

recognized as an additional ex-

ception.

41

437 U.S. 390, 57 L.Ed.2d 299.

It is clear that in Mincey v. Arizona,

supra, this court simply decided that it was

not going to create a "homicide scene"

exception to the warrant requirement. It

is interesting to note that in Mincey v.

Arizona, supra, this court did recognize

that officers may need to make a warrant-

less entry and search of a premise when

there is some exigent circunstance. The

officers in Mincey v. Arizona , supra,

ran afoul of the constitution when they

wanted to expand their initial search to

a four day complete search of the apart-

ment. The court noted that:

But a warrantless search must be

‘strictly circumscribed by the

emergencies which justify initi-

ation,' Terry v. Ohio, 392 U.S.1l

at 25-26, 20 L.Ed.od 989, 88 S.Ct.

1868, 44 OhioOps 244383, and it simply

cannot be contended that this search

was justifed by any emergency

threatening life or limb.

437 U.S. 393, 57 L.Ed.2d 300.

42

It is clear in the case at bar that

had Officer Daugherty subsequent to his

entry on premises and seizure of the con-

traband in open view gone on to conduct a

full search of the dorm room prior to

obtatetnn ‘se search warrant or obtaining

consent from the occupants, that a situ-

ation proscribed by Mincey v. Arizona,

supra, would then be present. This writer

appreciates that an exigent circumstance

does not exist simply because it would be

easier for the officer to proceed without

a warrant. It is submitted, however, that

in the case at bar there were no realistic

or practical alternatives to the officer

entering the premises and seizing the

contraband. In this regard, as observed

in Mincey v. Arizona, supra:

The investigation of crime would

always be simplified if warrants

were unnecessary. But the Fourth

Amendment reflects the view of

those who wrote the Bill of Rights

43

that the privacy of a person's

home and property may not be total-

ly sacrificed in the name of maxi-

mum simplicity in enforcement of

the criminal law. See United States

v Chadwick, 433 US 1, 6-11, 53 L Ed

’ S Ct 2476. For this

reason, warrants are generally

required to search a person's home

or his person unless ‘the exigencies

of the situation’ make the needs of

law enforcement so compelling that

the warrantless search is objective-

ly reasonable under the Fourth Amend-

ment. McDonald v United States,

335 us 451, 456, 93 L Ed 153, 69

S Ct 191; Johnson v United States,

333 US 10, as ’ LE ’

S Ct 367.

437 U.S. 436-437, 57 L.Ed.2d 301.

Also, this court observed:

Except for the fact that the offense

under investigation was a homicide,

there were no exigent circumstances

in this case, as, indeed, the Arizona

Supreme Court recognized. 115 Ariz,

at 482, 566 P2d, at 283. There was

no indication that evidence would be

lost, destroyed, or removed during

the time required to obtain a search

warrant. Indeed, the police guard

at the apartment minimized that pos-

sibility. And there is no suggestion

that a search warrant could not easily

and conveniently have been obtained.

437 U.S. 394, 57 L.Ed.2d 301.

44

In Mincey v. Arizona, supra, at 437

U.S. 394, 57 L.Ed.2d 30, this court dis-

cussed the presence of exigent circumstances

which would justify a warrantless search or

seizure. The court in affect indicated

that exigent circumstances would be deemed

to exist if it was shown that evidence would

be lost, destroyed or removed during the

time required to obtain a search warrant.

The defendant in his Brief in Opposition to

Petition for Writ of Certiorari, argues that

there were no exigent circumstances existing

in the case at bar because a guard could

have been posted on the dorm room and alle-

viated the existence of exigencies during

the time that would have been required to

obtain a search warrant. Of course Mincey

is distinguishable from the case at bar

because in that case the officers did not

already have an "open view" of the evidence

they wished to seize. It seems a strained

45

analysis to suggest that that which has

already been voluntarily exposed to view of

the officers cannot be seized without the

procurement of a warrant when the occupants

are aware of the officer's presence and re-

main on the premises.

The defendant's suggestion, in his

Brief in Opposition to Petition for Writ of

Certiorari, that the posting of a guard

could effectively eliminate exigencies

pending the time necessary for procurement

of a warrant when placed under close and

logical scrutiny, would create a "Catch 22"

situation for the officer involved in the

case at bar. In order to do a reasonable

job as a law enforcement officer, Officer

Daugherty had to do something reasonably

calculated to secure the status of the

contraband; that is, to keep it from being

jeopardized during his absence if he were

going to leave to obtain a warrant. How

46

would he have gone about effectively utiliz-

ing a guard to either remove the occupants

of the premises, control the activities of

the occupants of the premises, or to re-

quire the continuing invasion of their

privacy by requiring the door to the dorm

room to remain open pending the procure-

ment of a warrant if exigencies did not

exist for the guard to either enter the

premises or otherwise take active control

of the activities on the premises or of the

people on the premises; see Payton v.

New York, 445 U.S. 573, 63 L.Ed.2d 639,

100 S.Ct. 1371 (1980). In order to preserve

the situation and eliminate the existence of

exigencies, the very privacy which the Fourth

Amendment purports to protect would have to

be totally violated in order for the officer

to effectively control the situation.

To constitutionally accomplish such would

require in itself a showing of "exigent

circumstances".

47

One wonders what privacy interest or

expectation of privacy interest would really

remain to be protected by the Fourth Amend-

ment during the period during which by neces-

sity the normal expectation of privacy of

the occupants would be totally supplanted

in order to create a reasonable time during

which a magistrate could review the probable

cause to issue a warrant. In this case the

period required would have been approximately

two hours (R.P. 38; J.A. 18). The officer

in the case at bar already had the contraband

in question in “open view", was in close

proximity to the same and had been allowed

by one of the occupants of the room to be

both in close proximity and have it in view.

To effectively control the situation at the

minimal the officer would have to do some-

thing that would continue to expose the ob-

ject of his seizure to close and continuing

scrutiny. In such a setting, how can any-

48

thing more than a bare minimal legitimate

expectation of privacy remain to be protect-

ed or actually be protected by requiring the

acquisition of a warrant prior to any

seizure. Although the enigma and dilemma

created by the defendant's suggestion of

posting a guard is a fascinating one for

legal technicians to "toy with", it is a

suggestion that has very little practical

utility in everyday life and does really

nothing to prevent unreasonable searches

and seizures since effective and meaning-

ful implementation of the suggestion by

its very nature would destroy instead of

preserve any privacy right.

It appears the distinction between

allowing the officer to enter the premises

and seize the contraband in "open view" or

to seize the persons and remove them from

the premises and then secure the premises

while waiting the acquisition of the search

warrant or to require their privacy to

49

continue to be exposed by requiring the

dorm room door to remain open or to control

their activities inside the premises, is of

little constitutional significance. To

say that implementation of any of these

approaches would result in more or less of

a constitutionally significant action than

implementation of the other remaining op-

tions in light of the situation where the

contraband is in open view and exposed to

the officer's view, would be at best a

highly technical application of the pro-

visions of the Fourth Amendment. In

Warden v. Hayden, 387 U.S. 294, 18 L.Ed.2d

782, 87 S.Ct. 1642 (1967), this court

spent a significant portion of the opinion

explaining that the exigent circumstances

doctrine could apply to mere evidence as

well as the apprehension of a fleeing sus-

pect. Therefore it does not appear of any

controlling significance that the police

officer in the case at bar seized evidence

50

rather than seized a person.

It appears that the least intrusive

means of ultimately seizing the contraband

in question was for the officer to enter

the premises and immediately seize the

same as opposed to attempting to fashion

some method that would have required an

ongoing invasion of privacy to the occu-

pants of the prémises during the approxi-

mate two hour period it would have taken

to obtain a warrant. However, this court

should not adopt a philosophy that sanctions

only the least intrusive method for effec-

tuating a seizure. This court should permit

any reasonable method of search and seizure;

see discussion on Cady v. Dombrowski, supra,

at pages 39-40 herein. This court has per-

mitted seizures otherwise covered by the

Fourth Amendment which constituted less of

an intrusion where the circumstances ren-

dered such reasonable; see Michigan v.

51

Summers, U.S. P L.Ed.2d ’

S.Ct. _, 49 U.S.L.W. 4776, Docket No. 79-

1794 (Decided June 22, 1981).

It is clear then by a reasonable

analysis and application of the two con-

cepts of “exigent circumstances" and “rea-

sonable expectation of privacy" that the

officer's actions in this case were justi-

fied by the circumstances and did not amount

to an unreasonable violation of a legitimate

constitutional expectation of privacy. The

seizure was not constitutionally “unreason-

able". The officer, who had probable cause,

simply did not have a practical opportunity

to obtain a warrant prior to the seizure of

the contraband in question.

52

II.

AN OFFICER MAY MAKE A CONTEMPORANEOUS

ENTRY INTO PREMISES TO ACCOMPANY AN

INDIVIDUAL WHO IS UNDER ARREST STATUS

WHEN THAT INDIVIDUAL REQUESTS AND IS

GIVEN PERMISSION TO RETURN TO SAID

PREMISES SINCE SUCH AN ENTRY BY THE

OFFICER IS NECESSARY IN AN ARREST

SITUATION AND THEREFORE NOT AN UN-

REASONABLE SEARCH OR SEIZURE UNDER THE

FOURTH AMENDMENT TO THE UNITED STATES

CONSTITUTION.

In addition to the officer having

authority to enter the premises pursuant

to "exigent circumstances", it is the

State's position that the officer had

authority to contemporaneously enter the

premises with the arrestee and thereafter

then being on the premises to make the sei-

zure of the contraband pursuant to the

“plain view doctrine".

It is clear that Officer Daugherty,

at the time he allowed Mr. Overdahl to

return to his room, had Mr. Overdahl in

53

custody and under arrest. Concerning Mr.

Overdahl's arrest status, the Washington

State Supreme Court observed:

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 accompanied to

his room by Officer Daugherty. As

the State observes, there was

nothing to prevent Officex Daugherty

from accompanying Overdahl to his

room.

State v. Chrisman, 94 Wn.2d 711, 716

(Pet.App. B, p. 38); see also the Court

of Appeals Opinion (Pet.App. A, pp. 24-26)

The Washington State Supreme Court in

this case held that the "plain view doc-

trine" did not apply since the State did not

satisfy the first prong of that doctrine

which required a showing that there was "a

prior justification for intrusion"; see

Coolidge v. New Hampshire, 403 U.S. 433,

29 L.Ed.2d 564, 91 S.Ct. 2022 (1971). In

the majority opinion the Washington State

Supreme Court reasoned that the arrest

54

status of Mr. Overdahl, although accompan-

‘ed with a request by him to return to his

premises to secure identification, cid not

afford the officer a reasonable basis to

accompany him ontothe premises. The mejor-

ity would require that the officer secure a

warrant, and/or presumably consent, prior

to his entry on the premise.

It is the State's position that it

was reasonable tor the officer to accom-

pany Mr. Overdahl on the premises even

though his entry on the premises was not

simultaneous but rather contemporaneous

with the entry of Mr. Overdahl. Only ap-

proximately 30 to 45 seconds elapsed from

Officer Daugherty's arrival at the door of

Mr. Overdahl and the defendant's dorm room

and the officer's entry onto the premises.

Although there are general policy reasons

for always allowing an officer to accompany

an arrestee who has been permitted to volun-

55

tarily return to his premises which will be

discussed later in this argument, it is

noted that there are some particular factors

that additionally add to the reasonableness

of the officer's conduct in this particular

situation.

First of all, when Mr. Overdahl enter-

ed the dorm room, bothhis and the defendant's

reasonable expectation of privacy was sub-

stantially reduced by Mr. Overdahl's leaving

the door to the premises wide open and ex-

posing the approximately 11 by 17 room and

its contents and occupants to a fairly full

view of the officer. Additionally, the re-

cord indicates that although the officer

could fairly well keep Mr. Overdahl in

sight, he could not entirely determine what

he was doing or what items he had access to

while Mr. Overdahl was attempting to locate

his identification (J.A. 22).

Although the Washington State Supreme

56

Court in this matter appears to interpret

the United States Constitution as prohibit-

ing the entry of Officer Daugherty onto the

premises pursuant to accompanying the ar-

restee, it cites no convincing authority

for said proposition. It is the State's

position that the United States Constitution

does not prohibit a police officer from

accompanying an arrestee to his premises,

room, dwelling or other location when such

a person, legally in custody, asks to be

given access to such an area. See State v.

Brown, 132 N.J.Super. 180, 333 A.2d 264

(1975). For authority from courts of other

jurisdictionsin analogous situations, see

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). It appears clear that once

the officer has a defendant in his control

57

the officer is authorized to accompany the

defendant to other areas. See United States

v. Distefano, 555 F.2d 1094, 1101 (2nd Cir.,

1977); Moffett v. State, 291 A. 382, 281

So2d 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 I11.App.3d

972, 304 N.E.2d 32 (1973), cert. demied, 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).

Not to allow officers to accompany an

arrestee is to conversely and indirectly

encourage officers not to allow an arrestee

to move freely to other areas for fear the

officer may later be “second guessed" by a

reviewing court and advised that the Fourth

Amendment would require a search warrant to

allow the officer to accompany the mobile

arrestee. Such a position would appear to

58

encourage a situation that would discourage

allowing arrestees reasonable mobility. In

the case at har the arrestee asked to be

able to return to his room. It is submit-

ted that our system of law should encourage

officers to allow an arrestee as much rea-

sonable freedom of movement as possible,

provided it does not otherwise interfere

with the officer's ability to control his

arrestee and perform his functions, as well

as protecting himself and his fellow offi-

cers and society.

In this case Officer Daugherty simply

tried to allow the arrested suspect suf-

ficient mobility to produce identification

in an attempt to expedite the suspect's

release. The officer must have correspond-

ing authority to accompany his arrestee,

with the "plain view doctrine" expanding

to correspond with the necessities of the

situation. See United States v. Griffith,

59

537 F.2d 900, 905 (7th Cir., 1976); United

States v. Mason, 523 F.2d 1122, 1125-1126

(D.C. Cir., 1975) (by implication); see

particularly a detailed discussion con-

tained at pages 420-424, Sec. 6.4, Vol. 2

of Search and Seizure, A Treatise on the

Fourth Amendment, by Wayne R. LaFave, West

Publishing Company (1978).

It is noted that allowing Mr. Overdahl

to return to his eleventh floor dorm room

to retrieve his ID to more smoothly effec-

tuate his ultimate release was a matter of

personal convenience to Mr. Overdahl. It

appears there is very little distinction

between allowing Mr. Overdahl to return for

his ID and the analogous situation of

allowing him to return for another item of

personal property, such as a coat or other

articles of clothing; see State v. Brown,

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

It does not appear that this Court

60

has ever. in any definitive fashion deter-

mined the precise issue presented for

review in this case. However, the Wash-

ington State Supreme Court's ruling in

this matter seems to be at least philo-

sophically in conflict with the courts of

other state jurisdictions. 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 permissibly 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 approv-

ing the officer's ability to accompany an

arrestee to another portion of the premises.

Moffett v. State, supra, involved a situation

where the defendant was arrested without a

warrant at the door of his premises and re-

quested of the officer that he be permit-

ted to go into the bedroom on the premises

61

where he was allowed to go but was followed

and accompanied by the arresting officer.

After entering the bedroom, the officer saw

a pistol in plain view. Additionally, in

People v. Green, 141 I1l.App.3d 972, 304

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

972 (1974), the Illinois court allowed 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 submitted that the Washington

State court in its analysis of why it was

not necessary for Officer Daugherty to ac-

company Mr. Overdahl onto the premises sets

an artificial standard for determining that

necessity. The Washington State Supreme

Court stated:

There is absolutely no evidence

that it was necessary 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 destroyed, or

that Overdahl was going to attempt

62

to escape. It was a small room.

Officer Daugherty was standing in

the one exit, and it was on the llth

story. It was not necessary for the

officer to enter the room to make

certain Overdahl secured his iden-

tification.

94 Wn.2d 717, Pet.App. B, p. 39.

It is submitted that the point of

view expressed by the Washington State

Supreme Court is unrealistic if a law en-

forcement officer is expected to do a com-

petent job. What an arrestee may or may

not do in any given situation to jeopar-

dize evidence or the safety of an officer

or others is simply too unpredictable.

What the Washington State Supreme Court

seems to be suggesting is that the of-

ficer is not allowed to place reasonable

restrictions and supervision on the move-

ment of an arrestee unless he can articu-

late some specific danger to himself or

potential evidence. The problem with this

approach is that too often by the time an

officer would realize the danger to the

63

evidence or his person, it would be too late

to do anything effective about it. An of-

ficer, in order to do an effective job and

protect himself, must be permitted some

reasonable constitutional latitude to take

precautionary measures in the exercise of

his function, particularly as such relates

to the supervision, control and custody of

an arrested individual. Human nature being

what it is and the seeming increase in our

society of bizarre behavior in response to

an arrest even for minor violation; e.g.

minor traffic citations; makes it imperative

that the courts do what they can to afford

officers reasonable latitudes in controlling

arrested persons. It is difficult to say

with any degree of certainty that the need

for police safety is less compelling simply

because the person is under arrest for a

minor crimianl offense; see Pennsylvania v.

Mimms, 434 U.S. 106, 109-110, 54 L.Ed.2d

64

331, 336-337, 98 S.Ct. 330 (1977). Surely

permitting an officer to accompany the

arrestee onto premises that the arrestee

has voluntarily returned to is no more of

an intrusion upon the arrested person's

right to be secure from unreasonable

searches and seizures than say for example,

a custodial search pursuant to a traffic

arrest.

By analogy, this court has in the past

afforded officers broad authority to search

the person of an arrested individual to

prevent the destruction of evidence and to

protect the officer without requiring the

officer to define with specificity or other-

wise articulate any particular circumstances

in the situation which justified the search.

In short this court has allowed an arresting

officer to not only search the person but

to search the immediate area within the

control of the arrestee, not only to

cl

65

avoid the destruction of evidence but to

protect the officer. Chimel v. California,

395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034

(1969); United States v. Robinson, 414 U.S.

218, 38 L.Ed.2d 427, 94 S.Ct. 467 (1973);

and Gustafson v. Florida, 414 U.S. 260,

38 L.Ed.2d 456, 94 S.Ct. 488 (1973). It

makes little sense to say just because Mr.

Overdahl was arrested outside his premises

and was allowed to return to his premises

that the officer should not be allowed to

accompany him onto the premises to effectu-

ate the officer's continuing protection.

The officer obviously had no way of knowing

whether Mr. Overdahl would attempt to

escape or would have an opportunity to pro-

cure a weapon (or an item that could be used

as a weapon against the officer) from his

premises. It is not the likelihood of Mr.

Overdahl doing such a thing that seems con-

stitutionally significant, but rather the

66

fact that common experience teaches us that

such is a probability that a law enforcement

officer cannot afford to ignore. Officers

must be afforded a reasonable opportunity to

protect themselves.

This court in United States v.

Robinson, supra, stated:

A police officer's determination as

to how and where to search the person

of a suspect whom he has arrested is

necessarily a quick ad hoc judgment

which the Fourth Amendment does not

require to be broken down in each

instance into an analysis of each

step in the search. The authority

to search the person incident to a

lawful custodial arrest, while based

upon the need to disarm and to dis-

cover evidence, does not depend on

what a court ma ater decide was

the probability in a particular

arrest situation at weapons or

evidence would in fact be oun upon

the person of the suspect. A cus-

todial arrest of a suspect based on

probable cause is a reasonable in-

trusion under the Fourth Amendment;

that intrusion being lawful, a search

incident to the arrest requires no

additional justification. It is the

fact of the lawful arrest which es-

tablishes the authority to search,

and we hold that in the case of a

lawful custodial arrest a full search

of the person is not only an excep-

67

tion to the warrant requirement of

the Fourth Amendment, but is also a

‘reasonable’ search under that Amend-

ment. (emphasis mine)

It is submitted that Payton v. New York,

445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371

(1980), which was cited by the Washington

State Supreme Court in its opinion in this

matter, is not particularly helpful because

it is distinguishable in that it deals

with an entry into a private residence for

the purposes of effectuating an arrest as

opposed to dealing with the question of an

officer's authority over an arrestee who is

allowed to return to his premises once the

arrestee is in custody.

It appears then that Officer Daugherty's

entry upon the premises was constitutionally

permissible as an adjunct to the arrest

status of Mr. Overdahl who had voluntarily

returned to the premises in question.

Since the officer had authority to

68

enter the premises, he had authority to

seize the contraband in “plain view"; see

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

29 L.Ed.2d 564, 91 S.Ct. 2022 (1971).

Even if this court should conclude that

the conduct of Officer Daugherty in enter-

ing the premises and seizing the contraband

was tantamount to an unreasonable search

and seizure, it is submitted that the ex-

Clusionary rule should not be applied to

the case at bar. The evidence seized is

the product of an officer's "good faith"

search and/or seizure. This court stated

in United States v. Peltier, 422 U.S. 53l,

542, 45 L.Ed.2d 374, 384, 95 S.Ct. 2312

(1975):

If the purpose of the exclusionary

rule is to deter unlawful police

conduct, then evidence obtained

from a search should be suppressed

only if it can be said that the law

enforcement officer had knowledge

or may properly be charged with

knowledge, that the search was un-

constitutional under the Fourth

Amendment. Admittedly this uniform

treatment of roving border patrol

69

searches by the federal judiciary

was overturned by this Court’s

decision in Almeida-Sanchez. But

in light of this history and of what

we perceive to be the purpose of

the exclusionary rule, we conclude

that nothing in the Fourth Amendment,

or in the exclusionary rule fashioned

to implement it, requires that the

evidence here be suppressed, even

if we assume that the respondent's

Fourth Amendment rights.were violated

by the search of his car. (emphasis

mine)

CONCLUSION

It is submitted that the original

seizure of the contraband by Officer

Daugherty was permissible pursuant to the

"exigency exception" to the warrant require-

ment of the Fourth Amendment. It was addi-

tionally permissible as a “plain view"

seizure which followed the officer's per-

missible entry onto the arrestee's premises

to accompany the arrestee. The search and

seizure by Officer Daugherty was also a

“good faith" search and seizure to which

70

the exclusionary rule should be not be ap-

plied. The subsequent consent to search

given by the defendant to the officers was

not obtained through exploitation of the

defendant's Fourth Amendment rights nor

was it otherwise the product of an illegal

search and seizure and therefore was valid.

Consequently, both the evidence originally

seized by Officer Daugherty when he first

entered the room and the evidence seized

as a product of the search and seizure

conducted on th authority of the properly

obtained consent to search given by the

defendant to the officers were improperly

suppressed by the Washington State Supreme

Court.

The judgment of the Washington State

Supreme Court, insofar as it suppressed the

evidence and reversed the conviction of the

defendant, NEIL MARTIN CHRISMAN, the respon-

dent herein, should be reversed; the deci-

sions of the trial court and the Washington

71

State Court of Appeals should be affirmed

and reinstated.

Respectfully submitted,

Pfr? PF. apd

RONALD R. CARPENTER

Counsel for Petitioner

72