# Petitioners Brief — Washington v. Chrisman

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## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1954%3A04. Public record. Not legal advice.