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Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 72997-2
Title of Case: State of Washington V James Ross Thompson
File Date: 06/24/2004
Oral Argument Date: 06/10/2003
SOURCE OF APPEAL
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Appeal from Superior Court,
County
JUSTICES
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Authored by Bobbe J Bridge
Concurring: Faith Ireland
Barbara A. Madsen
Charles W. Johnson
Gerry L Alexander
Susan Owens
Dissenting: Richard B. Sanders
Tom Chambers
Mary Fairhurst
COUNSEL OF RECORD
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Counsel for Petitioner(s)
Rita Joan Griffith
Attorney at Law
1305 NE 45th St Ste 205
Seattle, WA 98105-4523
Counsel for Respondent(s)
Kathleen Proctor
Pierce County Prosecuting Atty Ofc
Rm 946
930 Tacoma Ave S
Tacoma, WA 98402-2102
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent, NO. 72997-2
v.
EN BANC
JAMES ROSS THOMPSON,
Petitioner. Filed June 24, 2004
BRIDGE, J.--James Ross Thompson seeks review of his conviction for
unlawful manufacture of a controlled substance. Thompson asks this court
to review three issues: (1) whether police could forcibly enter his home to
execute a civil arrest warrant; (2) whether the 'community caretaking
function' allowed police to enter his home when there was no reason to
believe someone was in danger or presented danger in the home; and (3)
whether police were required to obtain his consent before searching the
boathouse on the property. We conclude that when serving a civil arrest
warrant, police may not forcibly enter into a home, and that in this case,
a police officer's entry into Thompson's home to retrieve a guest's jacket
was not justified by the community caretaking function. However, when
applying the 'common authority' standard, Thompson fails to qualify as a co-
occupant and therefore his consent was not necessary to search the
boathouse.
I
Thompson lived on his parents' property on Fox Island. He resided in
a 22-foot travel trailer, owned by his parents, while his parents lived in
a house on the property. Also on the property was a boathouse that had
housed a boat owned by the elder Thompsons.
In June of 2000, Thompson's father, John, wanted Thompson removed from
his property because John suspected that Thompson was involved in illicit
drug activity. John contacted the Pierce County Sheriff's Office and
reported that Thompson had an outstanding warrant for his arrest. Deputy
Larson from the sheriff's office testified that he confirmed such warrant
existed and it was for Thompson's failure to pay child support.
On June 5, 2000, Deputies Larson and Myron went to the trailer where
Thompson was living to arrest him on the outstanding warrant. Upon arrival
at the travel trailer, Deputy Larson announced, '{T}his is the sheriff{'}s
office, I have a warrant for James{'} arrest.' Clerk's Papers (CP) at 38;
Report of Proceedings (RP) at 58. The deputies then heard movement and
scuffling inside the trailer, and after waiting approximately 10 seconds,
the deputies opened the door of the trailer. The deputies immediately saw
Thompson and ordered him out of the trailer and to put his hands onto the
trailer. Thompson was then handcuffed by Deputy Myron.
The deputies also observed that there was another individual inside
the trailer and ordered him to come out also. Sund was patted down to make
sure he was unarmed and told to leave the area. Before leaving, Sund told
the deputies that he needed his jacket from inside the trailer. Deputy
Larson entered the trailer to retrieve Sund's jacket and to make sure that
no one else was inside. While inside the trailer, Deputy Larson observed
that the oven was open and in it 'was a container that had white
crystalline residue cooked onto it.' RP at 41. He also testified that he
smelled a strong chemical similar to paint thinner. Id. at 42. Based on
his experience and training, Deputy Larson was concerned that the odor he
detected was methamphetamine related so he quickly left the trailer.
After leaving the trailer, Deputy Larson placed Thompson in the back
of the patrol car and Deputy Myron read Thompson his Miranda1 rights.
Based on the odor observed in the trailer, Deputy Larson went toward the
elder Thompsons' home to look for Sund and to inform John Thompson of his
son's arrest. Deputy Larson acknowledged that he wanted to arrest Sund
because he was in the trailer where the deputy observed the suspicious
items.
The elder Thompsons informed Deputy Larson that no one had come to the
house. John Thompson then asked Deputy Larson to search the attached
garage. Deputy Larson did not find anyone in the garage and asked John
about the detached boathouse. The elder Thompson said that the boathouse
was his, that James used it, and answered ''Please do,'' when Deputy Larson
asked for permission to look inside. RP at 45.
Deputy Larson did not find Sund in the boathouse, but he did find
items that were consistent with a methamphetamine lab in a living area on
the second floor. After this observation, Deputy Larson asked the elder
Thompsons to sign a consent form for a search of the boathouse, which they
both did. Deputy Larson did not seek Thompson's consent either before or
after the search.
At some point during his time on the property, Deputy Larson called
for a team of methamphetamine lab investigators. Deputy Harms, a
clandestine lab investigator, responded to the call. After conferring with
Deputy Larson, Deputy Harms entered the trailer to make sure that the oven
was turned off. Deputy Harms then inspected a burn barrel and a couple of
burn piles outside the trailer that contained material consistent with the
production of methamphetamine. He also checked the safety of a corroded
propane tank that was located in front of the trailer. Finally, Deputy
Harms looked inside the boathouse and observed the same items found by
Deputy Larson earlier. After determining that the property appeared to be
a methamphetamine lab but that it was a 'fairly safe environment,' Deputy
Harms secured the premises. RP at 79-80. Deputy Harms returned the next
day with a search warrant to process the evidence.
Thompson was charged with one count of unlawful manufacture of a
controlled substance, methamphetamine. See former RCW 69.50.401(a)(1)(ii)
(1998).2 He sought to suppress the evidence obtained following his arrest.
Pierce County Superior Court denied his motion to suppress evidence found
in the trailer but concluded that Thompson's consent was necessary before
the search of the boathouse. Despite finding the search of the boathouse
invalid, the trial court convicted Thompson as charged following a bench
trial on stipulated evidence.
In a published decision, Division Two of the Court of Appeals affirmed
Thompson's conviction. State v. Thompson, 112 Wn. App. 787, 51 P.3d 143
(2002). Regarding the issue of forcible entry on a civil warrant, the
Court of Appeals concluded that the knock and wait statute (RCW 10.31.040)
could be applied to the service of such warrant because the deputies
involved could not determine whether the warrant was for a criminal or
civil matter, and thus, the officers had not acted unreasonably under the
circumstances. Thompson, 112 Wn. App. at 795 ('{W}e decline to require
officers at the scene of an arrest to anticipate the nature of any
resulting court proceeding.').
With regard to the retrieval of Sund's jacket from the trailer, the
Court of Appeals held that it was a valid exercise of the officer's
community caretaking function. Thompson, 112 Wn. App. at 797. Finally,
the Court of Appeals concluded that the officers did not need to obtain the
consent of Thompson to search the boathouse because the boathouse was a
place 'where one cohabitant might receive a visitor without the other
cohabitant's consent.' Id. at 802.
II
Knock and Wait Statute
Thompson argues that police officers should not be permitted, under
the authority of RCW 10.31.040 (the 'knock and wait' statute), to forcibly
enter a private dwelling to serve a civil arrest warrant in a civil
contempt procedure. We agree.
The 'knock and wait' statute provides:
To make an arrest in criminal actions, the officer may break open any outer
or inner door, or windows of a dwelling house or other building, or any
other inclosure, if, after notice of his office and purpose, he be refused
admittance.
RCW 10.31.040 (emphasis added).
The interpretation of a statute is a question of law, which is
reviewed de novo by this court. State v. Tarabochia, 150 Wn.2d 59, 63, 74
P.3d 642 (2003). This court's primary duty in interpreting any statute is
to discern and implement the intent of the legislature. State v. J.P., 149
Wn.2d 444, 450, 69 P.3d 318 (2003). If the statute's meaning is plain on
its face, we are to give effect to that plain meaning as an expression of
legislative intent. Tarabochia, 150 Wn.2d at 63. When the plain language
is unambiguous--that is, when the statutory language has but one meaning--
the legislative intent is clear, and the statute will not be interpreted
otherwise. J.P., 149 Wn.2d at 450. Further, we cannot ''add words or
clauses to an unambiguous statute when the legislature has chosen not to
include that language.'' Id. (quoting State v. Delgado, 148 Wn.2d 723,
727, 63 P.3d 792 (2003)).
The plain language of RCW 10.31.040 is clear. Its unambiguous language
does not encompass the enforcement of civil arrest warrants. Because we
cannot add words or clauses to an unambiguous statute, we are prohibited
from reading into the statute 'civil actions.' Thus, we presume that the
legislature intended to exclude 'civil actions' from RCW 10.31.040.
Therefore, we hold that RCW 10.31.040 does not allow forcible entry into
dwellings to execute civil warrants.
In the present case, there was a bench warrant for Thompson's arrest for
failure to appear at a show cause hearing regarding his failure to pay
child support. This warrant was issued under RCW 26.18.050, which provides
that a civil bench warrant may be issued in such circumstances. RCW
26.18.050(3). In light of our holding today, the deputies erred in
forcibly opening the trailer door when executing the civil warrant. The
'knock and wait' statute does not encompass the execution of civil arrest
warrants.
Community Caretaking Function
It has long been held that warrantless searches are per se unreasonable
under the Fourth Amendment of the United States Constitution. State v.
Kinzy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000). However, there are
exceptions to this warrant requirement. Id. The State bears the burden of
showing a warrantless search falls within one of these exceptions. Id.
The community caretaking function, which is divorced from the criminal
investigation, is one such exception to the warrant requirement. Id. at
385. This exception allows for the limited invasion of constitutionally
protected privacy rights when it is necessary for police officers to render
aid or assistance or when making routine checks on health and safety. Id.
at 386. Such invasion is allowed only if (1) the police officer
subjectively believed that someone likely needed assistance for health or
safety concerns; (2) a reasonable person in the same situation would
similarly believe that there was need for assistance; and (3) there was a
reasonable basis to associate the need for assistance with the place being
searched. Id. at 386-87. 'Whether an encounter made for noncriminal
noninvestigatory purposes is reasonable depends on a balancing of the
individual's interest in freedom from police interference against the
public's interest in having the police perform a 'community caretaking
function.'' Kalmas v. Wagner, 133 Wn.2d 210, 216-17, 943 P.2d 1369 (1997).
The State argues that Deputy Larson was properly exercising the community
caretaking function when he entered the trailer to retrieve Sund's jacket.
The State contends that if Sund were to enter the trailer on his own to
retrieve his jacket, there was a risk that Sund could destroy evidence,
retrieve a weapon, or even steal items that belonged to Thompson. Resp't's
Suppl. Br. at 9. This argument is not persuasive.
When Deputy Larson entered the trailer to retrieve Sund's jacket, there is
no evidence in the record to indicate that Deputy Larson believed Sund was
armed, his jacket contained a weapon, or that Sund would have entered the
trailer to destroy evidence. Absent such beliefs, a reasonable person
would conclude that there was no immediate need for assistance for health
or safety concerns. Further, the need to retrieve Sund's jacket from the
trailer does not outweigh Thompson's privacy interest in the trailer.
Thus, Deputy Larson was not properly using the community caretaking
function when he retrieved Sund's jacket from the trailer.
The State fails to meet its burden of proving that retrieval of Sund's
jacket was a proper use of the community caretaking function as an
exception to the warrant requirement. Therefore, evidence obtained from
this entry into the trailer should have been suppressed.
Consent to Search
Another exception to the warrant requirement is consent to search. State
v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1998). It is the State's
burden to establish that a consent to search was lawfully given. Id. In
order to meet this burden, three requirements must be met: (1) the consent
must be voluntary, (2) the person consenting must have the authority to
consent, and (3) the search must not exceed the scope of the consent. Id.
Here there is no question that the consent to search the boathouse given by
Thompson's father was voluntary; nor is there any argument that the search
that followed entry exceeded the scope of the consent. Thus, the sole
issue in determining the validity of the consent here is the requirement
for the person consenting to have the authority to consent.
In United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 39 L. Ed. 2d
242 (1974), the Supreme Court held that consent of an individual who
possesses 'common authority' over the area being searched is valid even
though another person with whom that authority is shared is absent from the
premises and therefore unable to consent. This court adopted the Matlock
common authority standard in State v. Mathe, 102 Wn.2d 537, 688 P.2d 859
(1984). To establish lawful consent by virtue of common authority: (1) a
consenting party must be able to permit the search in his own right and (2)
it must be reasonable to find that the defendant has assumed the risk that
a co-occupant might permit a search. Id. at 543-44. The Mathe court
further elaborated on this standard by stating that the two elements are
closely intertwined. Id. at 544 n.1. 'If a person {consenting to the
search} has joint control over an area, it may be proper to presume that
the defendant reasonably assumes the risk that the joint control may be
authorized to allow a search.' Id.
In Mathe, the defendant and his girl friend rented two bedrooms from a
landlord's home. Id. at 539. The landlord consented to the police search
of his house in which the defendant--a burglary suspect--and his girl
friend were found in one of the bedrooms. Id. The bedroom was exclusively
used by the defendant, and the defendant paid rent for the use of the
bedroom. Id. at 541. The landlord neither used nor had possessions stored
in that room. Id. This court found that in those circumstances the
landlord could not consent to a search because the tenant was in undisputed
sole possession of the premises. Id. at 544. Therefore, the landlord
could not be deemed a co-occupant under the common authority standard and
he was not able to permit a search in his own right.
The consent rule enunciated in Matlock, and adopted by Mathe, applies to
the validity of the consent of one holding common authority with an absent,
nonconsenting individual. However, in State v. Leach this court held that
if 'the cohabitant be present and able to object, the police must also
obtain the cohabitant's consent.' 113 Wn.2d 735, 744, 782 P.2d 1035 (1989)
(emphasis added). In Leach, the defendant and his girl friend ran a travel
agency together. Although the defendant was the owner and operator of the
agency, his girl friend had a key to the office, performed minor tasks for
the agency, her name appeared on the lease of the premises, and her name
also appeared on business cards as an 'owner.' The girl friend informed
the police that the defendant was responsible for the rash of burglaries
that occurred in the complex where the travel agency was located. She
escorted the police into the agency's office using her key. The defendant
was present when police arrived and was placed under arrest. During their
search, the police discovered stolen property linked to the reported
burglaries. This court held that the search was improper because the
police should have obtained the defendant's consent since he possessed at
least equal control over the premises and was present at the time of the
search. Id.
This issue was further examined in Walker where the nephew of a married
couple was caught with a bag of marijuana at school. The nephew told
police that he lived with his aunt and uncle and obtained the marijuana
from their home. 136 Wn.2d at 679. He also told police that more
marijuana could be found in the home. Id. The aunt signed a consent form
to search the home and accompanied police to her home. Id. at 680. Before
the police entered the home, the uncle arrived. Id. at 680-81. Without
obtaining his consent, the police entered the home and found additional
marijuana. Id. at 681. This court held that while the consent was valid
against the aunt, it was not valid against the uncle since he was a co-
occupant, with equal control over the premises, and had not given his
consent. Id. at 686.
Given the evidence at hand, under the common authority standard as
enunciated in Matlock and Mathe we conclude that Thompson was not a co-
occupant of the boathouse with equal control over those premises and, that
unlike the circumstances in both Leach and Walker, his consent was not
required to validate the search.
To qualify as a co-occupant, it must be shown that Thompson had equal
control over the premises with his parents, i.e., that he would have been
able to permit the search in his own right. To be able to permit a search
in his own right, it must be established that Thompson had joint access or
control of the boathouse for most purposes. See Matlock, 415 U.S. at 172
n.7. The record does not support such a conclusion. The boathouse was on
property owned by Thompson's parents. Thompson was living on another part
of his parents' property in a travel trailer that was also owned by them.
RP at 11, 45. He did not pay rent to his parents, and as testimony proved,
he neither occupied the boathouse nor was it available to him for his
exclusive use. RP at 16-17, 45. Although his parents allowed Thompson to
store items in the boathouse, his parents did as well, and there is no
evidence in the record to show that Thompson was ever in exclusive control
of the boathouse. Thompson's use of the boathouse was clearly dependent
upon the permission of the owners, i.e., his parents. Thus, while Thompson
and his parents each had access to the boathouse, his right to access, as a
nonoccupying nonowner, was subordinate to his parents. Therefore, under
the common authority standard, Thompson does not qualify as a co-occupant
who had equal access and control over the boathouse.
By contrast, it is clear that the parties in Leach and Walker were co-
occupants since they possessed equal control and access over the searched
premises. Although in Leach the defendant was the employer of the girl
friend and was the sole owner of the travel agency, the couple held her out
to be 'co-owner' of the premises and she was a signatory to the lease of
the searched premises. Therefore, to an observer, the defendant and his
girl friend had joint control and access over the searched premises. In
Walker, joint control and access was apparent because the husband and wife
defendants were owners of the searched home and the room being searched was
their joint bedroom. Here, however, Thompson does not enjoy such status.
Thompson, an adult son, was living on a portion of his parents' property
rent free. This type of relationship does not equate to Thompson
possessing joint control over all his parents' property. As stated above,
his access to the boathouse was contingent upon his parents' permission.
Because he lacked the authority to do so, Thompson could not have permitted
the search in his own right.3 Therefore, we find that Thompson did not
possess common authority over the boathouse and that his consent was not
necessary to the validity of the search.
Suppression of Evidence
Following the elder Thompsons' consent, Deputy Harms entered the
boathouse and conducted an initial scan of the premises for officer safety.
RP at 77. In plain view, he observed the following: small jars containing
different types of liquid; coffee filters; mason jars containing coffee
filters and 'white powder'; electric hot plates; tubing; rock salt; pie
plates with white residue; bottles of liquid ammonia; glassware; starting
fluid; empty HCl gas generator; five-gallon buckets containing unknown
fluid, one with a syringe floating in it; bag containing 'rough'
pseudoephedrine tablets; and an empty bottle of isopropyl alcohol. RP at
78. Based on his experience, Deputy Harms suspected that the boathouse was
being used as a methamphetamine lab, discontinued further observation, and
sought a search warrant. Id. at 79.
Deputy Harms also observed certain items in open view in other parts
of the property. 'The mere observation of that which is there to be seen
does not necessarily constitute a search.' State v. Seagull, 95 Wn.2d 898,
901, 632 P.2d 44 (1981). It is clear that the police with legitimate
business may enter areas of curtilage which are impliedly open. In so
doing, the police are free to use their senses. Id. Here, Deputy Harms
observed a propane tank with a bluish corrosion on the valve near the front
of Thompson's trailer. Deputy Harms testified that such a corrosion
indicates the tank had been illegally used to store anhydrous ammonia,
which is a necessary chemical used in the production of methamphetamine.
Deputy Harms also found charred blister packs from pseudoephedrine
packaging in a burn barrel located on the property near the trailer.
Deputy Harms further observed other burn piles on the property which
contained stripped lithium battery pieces and some empty bottles of
pseudoephedrine that had the bottoms removed. Both lithium metal and
pseudoephedrine are main ingredients in methamphetamine production. Deputy
Harms was able to view all of these items from a lawful vantage point.
The items discovered in the boathouse following a lawful consent to search
by Thompson's father together with the items found in open view on the
property clearly established probable cause for the search warrant
independent of items discovered in Thompson's trailer. Therefore, the
evidence obtained through the valid search warrant should not have been
suppressed at trial. See State v. Coates, 107 Wn.2d 882, 888, 735 P.2d 64
(1987) (excluding tainted evidence, independently found evidence
established probable cause for the search warrant).
III
Thompson's conviction was based, at least in part, on evidence found within
the trailer--evidence we here conclude is inadmissible. This
constitutional error may be considered harmless if we are convinced beyond
a reasonable doubt that any reasonable trier of fact would have reached the
same result despite the error. State v. Brown, 140 Wn.2d 456, 468-69, 998
P.2d 321 (2000). To make this determination, we utilize the 'overwhelming
untainted evidence' test. State v. Smith, 148 Wn.2d 122, 139, 59 P.3d 74
(2002). Under this test, we consider the untainted evidence admitted at
trial to determine if it is so overwhelming that it necessarily leads to a
finding of guilt. Id.
In this case, evidence from the boathouse which should have been considered
by the trial court was not admitted. Therefore, there is no other
untainted evidence upon which we can rely on to conclude that Thompson's
conviction should be affirmed. Therefore, it is impossible for us to find
that the error in this case was harmless.
Because the introduction of the evidence found in the trailer does not
constitute harmless error, we vacate Thompson's conviction for unlawful
manufacture of a controlled substance and remand for a new trial consistent
with this opinion.
WE CONCUR:
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
2 This statute was recently amended. However, the substance of the
statute is intact. Laws of 2003, ch. 53, sec. 331.
3 Since it is clear that Thompson cannot permit a search of the
boathouse in his own right, it is unnecessary to examine the second prong
of the common authority standard.
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