State v. Thompson

¶1(dissenting) — I fully agree with the majority insofar as it reverses the Court of Appeals and holds (1) Washington’s knock and wait statute, RCW 10.31.040, unambiguously limits itself to “criminal actions,” thereby prohibiting a police officer from forcing open a Washington resident’s home under authority of a civil arrest warrant, and (2) Deputy Sheriff Terrill Larson’s entrance into James Thompson’s4 trailer to retrieve a guest’s jacket did not fall within the community caretaking function exception to the warrant requirement of the fourth amendment5 to the federal constitution or article I, section 7 of our state constitution.6See majority at 800-03. Based on these conclusions alone, the discussion should end and the majority should remand for dismissal, as all evidence subsequently obtained in the investigation was gathered as a result of Deputy Larson’s unlawful search.

¶2But instead the majority unnecessarily continues its analysis, diverting from its principled application of constitutional jurisprudence to hold the police did not need James’ consent to search the boathouse located on his *810father’s property (John Thompson), even though James was present and able to object to his father’s consent. The majority exacerbates its error by completely ignoring the “fruit of the poisonous tree” doctrine and engaging in a harmless error analysis, which until today has been a doctrine limited to constitutional errors committed at trial, such as erroneous jury instructions and confrontation clause violations. But even if the evidence obtained from the boathouse was not the fruit of Deputy Larson’s unlawful search, his failure to obtain James’ consent prior to searching the boathouse mandated he procure advance judicial approval before initiating his search. I would remand for dismissal.

¶3I. Fruit of the Poisonous Tree

¶4Despite the majority’s reluctance to discuss the issue, I believe proper application of the “fruit of the poisonous tree” doctrine prohibits admission of any evidence acquired at the Thompson residence. Axiomatic in search and seizure jurisprudence is the unavoidable consequence that a court must suppress “ ‘all subsequently uncovered evidence [because such evidence] becomes fruit of the poisonous tree.’ ” State v. Kinzy, 141 Wn.2d 373, 393, 5 P.3d 668 (2000) (quoting State v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999)). In determining whether specific evidence is or is not fruit of a tree poisoned by police misconduct, the question is not whether

all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

¶5Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) (emphasis added) (quoting John MacArthur Maguire, Evidence of Guilt 221 (1959)), quoted in State v. Hicks, 76 Wn.2d 80, 81, 455 P.2d 943 (1969).

¶6*811Here the majority rightfully acknowledges Deputy Larson’s search of James’ trailer was unlawful because he intruded into that home without benefit of a warrant or a proper exception thereto. Majority at 802-03. Certainly there is no dispute the evidence seized directly from the trailer must be suppressed. See id. at 803. However the majority disregards these well-settled principles to engage in a harmless error analysis, citing State v. Smith, 148 Wn.2d 122, 59 P.3d 74 (2002), and State v. Brown, 140 Wn.2d 456, 998 P.2d 321 (2000), to support its conclusion. Majority at 808-09. Neither of those cases involved unconstitutional searches or seizures, but rather involved errors which occurred at trial. See Smith, 148 Wn.2d at 130, 138-39 (holding defendant’s confrontation rights violated and constitutional error not harmless); Brown, 140 Wn.2d at 468-69 (erroneous jury instruction violated due process, but error was harmless). Indeed, search and seizure law has its own vehicle for admitting untainted evidence, namely the independent source doctrine and inevitable discovery doctrine. E.g., State v. Smith, 113 Wn. App. 846, 855-56, 55 P.3d 686 (2002), review denied, 149 Wn.2d 1014 (2003) (unlawful intrusion into defendant’s property violated constitutional rights, but evidence nonetheless admissible as it was discovered from a source independent of police error).

¶7Even if the majority were to engage in such an independent source or inevitable discovery analysis rather than its harmless error inquiry, such an argument would fail because of the inexorable causal chain resulting from Deputy Larson’s unconstitutional search. The sole purpose of Deputy Larson’s trip to the Thompson residence was to arrest James for failing to pay child support and attend a show cause hearing. Clerk’s Papers (CP) at 82 (finding of fact (FF) 3).7 This was done at the request of James’ father, *812John. CP at 81-82 (FF 2-3). Once Deputy Larson had arrested James and placed him in the patrol car, there was no reason to remain on the Thompson property. But Larson’s unlawful search resulted in the discovery of “a container that had white crystalline residue cooked onto it.” Verbatim Report of Proceedings (VRP) (Feb. 27, 2001) at 41. Using his detective skills, Deputy Larson concluded the residue was methamphetamine, prompting him to speak with James’ father. Id. at 42-43. The purpose of that conversation was twofold, as affirmed by Deputy Larson’s testimony at the suppression hearing: first, Deputy Larson “wanted to let [John] Thompson know that [he] did what [John] asked,” and second, which was “the main purpose, was to go up and try to find out where Mr. [Eric] Sund had gone.” Id. at 43-44. Larson testified he wanted to find Sund, who was present in the trailer that was subject to the unlawful search, “[b]ecause there was methamphetamine residue and items inside the trailer that he was in, and I was going to grab him and arrest him also.” Id. at 44 (emphasis added). And it was this desire to hunt down Eric Sund that prompted Deputy Larson to search the boathouse where the other incriminating evidence was found.

¶8This is far more than a mere “but for” relationship that is insufficient to bring certain evidence within the realm of the “fruit of the poisonous tree.” Cf. Wong Sun, 371 U.S. at 488. Rather Deputy Larson discovered the evidence in the boathouse by exploiting his unconstitutional search of the trailer, precisely the type of conduct envisioned by Wong Sunthat requires suppression of the evidence found.

¶9Indeed the case cited by the majority as justification for holding the search of the trailer unlawful is directly on point. See Kinzy, 141 Wn.2d 373. There defendant Kinzy, a 16-year-old female, was walking down the street with some older friends, one of whom the police recognized as someone associated with narcotics. Id. at 378. Police officers initially *813stopped to inquire about Kinzy’s safety because she appeared too young to be walking with that crowd. Id.After Kinzy walked away from the officers the police restrained Kinzy by grabbing her arm and subsequently frisked her for weapons. Id. at 378, 380. While performing the Terry8 stop the officer noticed “flecks of rock cocaine” on Kinzy’s coat, prompting a field test which confirmed the identity of the controlled substance as cocaine. Id. at 378. After the field test Kinzy freely admitted more cocaine was stored in her bra. Id. at 379. The police then properly informed Kinzy of her Miranda9 rights and arrested her, resulting in the seizure of the cocaine stored in Kinzy’s bra. Id. at 379. Though the initial stop to investigate Kinzy’s safety properly fell within the community caretaking function, we held the officers violated Kinzy’s constitutional right to be free from unreasonable seizures once they grabbed her arm and began frisking her for weapons. Id. at 389-91. This holding led us to conclude all evidence discovered by the police as a result of the unconstitutional seizure was “fruit of the poisonous tree” and therefore constitutionally banned from admission. Id. at 393. We held:

In this case, evidence of cocaine was discovered only after (1) seizure of Petitioner, (2) the pat-down frisk of Petitioner, (3) the seizure of cocaine flecks, and (4) Petitioner’s admission that she had more cocaine in her “bra.” Petitioner correctly claims before this Court that her seizure by Respondent was unconstitutional, and thus the subsequently discovered cocaine became the “fruit of the poisonous tree.”

¶10Id.(emphasis added).10 It is no argument to say John Thompson’s purported consent dissipated the taint caused *814by the unlawful search of the trailer, just as it was no argument that the police saw the flecks of cocaine in plain view11 on Kinzy’s coat or discovered the additional cocaine in Kinzy’s bra pursuant to a search incident to an otherwise lawful arrest.12See id. at 383-84. To the contrary, Deputy Larson’s unconstitutional invasion of James’ trailer instigated his pursuit of Eric Sund which resulted in the search of the boathouse. By exploiting his unlawful discovery in the trailer, Deputy Larson remained at the Thompson residence for a time much longer than was initially necessary to complete the task at hand: arresting James Thompson pursuant to a civil arrest warrant.

¶11Consistent with the majority’s holding, Judge Armstrong dissented in the Court of Appeals decision below, concluding that the majority erred by holding the community care-taking function justified Deputy Larson’s intrusion into James’ trailer. See State v. Thompson, 112 Wn. App. 787, 803-05, 51 P.3d 143 (2002) (Armstrong, J., dissenting). The majority of that court did not discuss the fruit of the poisonous tree doctrine because it found no constitutional infirmity with Deputy Larson’s search. Id. at 796-97. That this majority elects to overturn that holding compels the conclusion reached by Judge Armstrong, with which I agree: “[B]ecause everything that followed was based upon what the officer learned from the entry, all the evidence of drug manufacturing should have been suppressed.” Id. at 805 (Armstrong, J., dissenting) (citing Wong Sun, 371 U.S. at 484-85; State v. White, 97 Wn.2d 92, 111-12, 640 P.2d 1061 (1982)). That should end this case.

¶12*815II. Consent

¶13Notwithstanding the obligation to suppress all evidence from the boathouse pursuant to the taint caused by the unlawful search of the trailer, the majority further errs by upholding the boathouse search in its own right, as James’ additional consent was necessary to justify the police’s failure to procure a warrant prior to the search.

¶14I begin with the fundamental and well-settled presumption that all warrantless searches are per se unreasonable under both the Fourth Amendment and article I, section 7. Kyllo v. United States, 533 U.S. 27, 31, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001); Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002); State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980). And only when the State affirmatively demonstrates its warrantless intrusion meets one of the exceptions to this constitutional requirement may we uphold the search. Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984); Duncan, 146 Wn.2d at 171. The claimed exception here is consent, which vitiates the warrant requirement only if properly obtained by the State. State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1998). However we must never abandon the principle that proving consent “is no easy task because ‘[t]he exceptions to the requirement of a warrant, including consent, are “jealously and carefully drawn.” ’ ” State v. Ferrier, 136 Wn.2d 103, 111, 960 P.2d 927 (1998) (quoting State v. Hendrickson, 129 Wn.2d 61, 72, 917 P.2d 563 (1996) (quoting State v. Bradley, 105 Wn.2d 898, 902, 719 P.2d 546 (1986))). Proof of consent occurs only upon an affirmative showing three factors exist: (1) consent is voluntarily given, (2) the person who consented to the search had authority to do so, and (3) the search does not exceed the scope of the consent. Walker, 136 Wn.2d 682. The first and third requirements are undisputedly met, thus necessitating sole consideration of the second prong—whether John Thompson had unilateral authority to consent to the warrantless search.

¶15*816Where two or more persons contemporaneously occupy a home, consent from one binds the other and the police may lawfully search the premises so long as the nonconsenting co-occupant is absent from the scene. United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); State v. Leach, 113 Wn.2d 735, 782 P.2d 1035 (1989). But this court unequivocally held in Leachthat when more than one co-occupant is present and able to object to another’s consent, the State must attain consent from each and every present co-occupant to escape the warrant requirement. 113 Wn.2d at 744.

¶16Leachis on all fours, despite the majority’s claim to the contrary. There defendant Leach owned and operated a travel agency at which his live-in girl friend worked. Id. at 737. Suspicious that Leach had engaged in several earlier burglaries, the girl friend escorted police to the agency, unlocked the door, and granted police consent to search the premises. Id.Though Leach was present when the police arrived, the police did not ask for his consent to search the office. Id. at 737-38. We held the girl friend’s consent insufficient to escape the presumption of unreasonableness, stating:

Where the police have obtained consent to search from an individual possessing, at best, equal control over the premises, that consent remains valid against a cohabitant, who also possesses equal control, only while the cohabitant is absent. However, should the cohabitant be present and able to object, the police must also obtain the cohabitant’s consent. Any other rule exhalts [sic] expediency over an individual’s Fourth Amendment guaranties. Accordingly, we refuse to beat a path to the door of exceptions.

¶17Id. at 744 (emphasis added). Undeniably the consent given by Leach’s girl friend would have been sufficient had Leach, the other co-occupant, been absent when the search was conducted. Matlock, 415 U.S. at 171; see also Leach, 113 Wn.2d at 739. But Leach’s presence at the scene invalidated the warrantless search because the police failed to obtain his consent. Leach, 113 Wn.2d at 744 (“Thus, when con*817fronted with Mr. Leach’s presence, not having obtained a warrant, the officer should have requested Mr. Leach’s consent, as well.”). Similarly in Walkerthe Court of Appeals upheld the trial court’s suppression of evidence obtained in a search executed through consent given by the defendant’s wife (who was a codefendant), even though this court eventually ruled over my dissent such evidence was admissible against the wife. See State v. Walker, 86 Wn. App. 857, 863, 941 P.2d 1 (1997), rev’d on other grounds, 136 Wn.2d 678, 965 P.2d 1079 (1998). Though the State did not seek review of the Court of Appeals’ affirmance of the trial court’s suppression order to the husband, this court indicated agreement with that portion of the holding by stating, “It follows from [Leach] that because Ellen and Gus [Walker] were cohabitants and both present during the search, Ellen’s consent to the search was invalid as to Gus.” Walker, 136 Wn.2d at 684.

¶18Here it is undisputed James was present at the home when James’ father permitted Deputy Larson to search the boathouse on the property. Yet the majority holds James’ consent was unnecessary to authorize this search because, in the majority’s view, James did not have “joint access or control of the boathouse for most purposes.” Majority at 805-06. To the contrary we must accept as a verity13 the trial court’s finding that James “share [d] the use of the boathouse with his parents who live in the main house on the property.” CP at 84 (FF 13). Indeed James’ mother testified at the suppression hearing that James was the only person to use the boathouse for over a year prior to the search in question, as the family used the boathouse to store a tractor that only James used. See VBP (Feb. 27, 2001) at 23-24. James’ mother further affirmed her son had permission to use the boathouse because “it was part of the property.” Id. at 16. There is no evidence in the record indicating James’ access to the boathouse was restricted in any way, and it is James’ unfettered access to the boathouse *818which brings him within the realm of a co-occupant. See Matlock, 415 U.S. at 171 n.7.

¶19However the majority disregards these facts because the record does not disclose “[James] Thompson was ever in exclusive control of the boathouse.” Majority at 806 (emphasis added). I cannot disagree with this factual assertion, as James’ parents undoubtedly possessed the authority to use the boathouse. But this detail is wholly irrelevant. Not one case cited by the majority requires a person to possess “exclusive authority over property in order to have “common authority” to grant the police consent to search.14 In fact, the term “common authority” implies just the opposite—that there is mutual authority over the property— which is precisely what the United States Supreme Court stated in Matlockwhen describing the term:

¶20Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

¶21Matlock, 415 U.S. at 171 n.7 (emphasis added) (citations omitted), quoted in City of Seattle v. McCready, 124 Wn.2d 300, 306, 877 P.2d 686 (1994), and Leach, 113 Wn.2d at 739. Had James’ father possessed exclusive authority, then I would be inclined to agree that James was not a co-occupant and his consent would be unnecessary. See State v. Mathe, 102 Wn.2d 537, 544, 688 P.2d 859 (1984) (landlord did not have authority to consent to police search of tenant’s *819property “when the tenant is in exclusive possession of the property”).

¶22But the record discloses it was James who continuously used the boathouse without need of additional permission each time. I posit the majority would have no problem upholding a consensual search were the roles reversed and the police obtained James’ consent to search the boathouse to find evidence against his father who was, hypothetically speaking, absent from the scene. I too would uphold such a search pursuant to Matlockbecause James possessed the right to permit such a search due to his continuous and unfettered use of the boathouse over the previous year. In the instant case, however, it is this right James possessed himself which compels the police to procure his consent to search the boathouse as he was present at the scene and able to object.

¶23The majority’s further justifications for holding James’ consent unnecessary are equally unpersuasive. The majority first relies on the fact “[t]he boathouse was on property owned by [James] Thompson’s parents.” Majority at 806. Mere ownership is not a requisite element to finding common authority, and citation to both Matlockand Matheprovide all the support to rebut the majoritys proposition. Matlock, 415 U.S. at 170-71 (cotenant who did not own property could grant consent); Mathe, 102 Wn.2d at 543-44 (landlord could not give valid consent against tenants, even though he owned the property, because it was the tenants who exclusively used the apartment).

¶24The majority further justifies its holding by pointing to evidence in the record detailing “[James] Thompson was living on another part of his parents’ property in a travel trailer that was also owned by them.” Majority at 806. True enough, but under this logic James’ mother and father would also lack common authority because the main house in which they lived was separate from the boathouse. Yet the majority finds those two held common authority over the boathouse (and properly so). I do not see how geographical proximity to a person’s living quarters becomes a *820relevant factor in determining whether or not a person has authority to consent to a search of a piece of property, and the majority provides no authority to persuade me otherwise. Were it a relevant factor—as opposed to “joint access or control for most purposes” as stated in Matlock, 415 U.S. at 171 n.7—then courts would hold the neighbor whose bedroom is 200 feet from a shack on the outer skirts of a person’s property would have greater authority to consent to a search of the shack than the owner of the shack who uses it daily, merely because the latter’s bedroom is 300 feet away. Such is absurd.

¶25The final justification proffered by the majority is James’ nonpayment of rent to his parents. Majority at 806. Were this a proper consideration then no 18-year-old living at home during his or her break from college in the summer months could give the police consent to search his parents’ living room. The young adult, despite his or her majority age, would be incapable of granting consent merely because no rental funds are transferred to mom and dad. Yet this runs in counterdistinction to a line of cases, including one from our own Court of Appeals, which allow minors to validly consent to a police search given the right circumstances. See State v. Jones, 22 Wn. App. 447, 451-52, 591 P.2d 796 (1979) (upholding a 13-year-old’s consent to enter the home, where police saw incriminating evidence in plain view);15see also Davis v. United States, 327 F.2d 301, 304 (9th Cir. 1964) (eight-year-old validly consented to police entry into home); Doyle v. State, 633 P.2d 306, 309 (Alaska Ct. App. 1981) (consent of defendant’s son who was between ages of 11 to 14 sufficient to justify warrantless entry into defendant’s apartment); People v. Holmes, 180 Ill. App. 3d 870, 536 N.E.2d 1005, 1007, 129 Ill. Dec. 955 (1989) (defendant’s 11-year-old daughter validly consented to permit search of backyard where police found controlled substances growing in plain view, though court granted new *821trial because of juror bias); State v. Lotion, 527 N.W.2d 840, 843-44 (Minn. Ct. App. 1995) (reversing trial court’s suppression of evidence, holding defendant’s 10-year-old daughter validly consented to police entry into apartment). Certainly these young adolescents were not submitting monthly payments in exchange for a roof over their heads.16 Indeed, not one of those cases discussed or considered whether the minor paid rent. While this court has yet to tackle the issue of a minor’s ability to give consent (and I reserve judgment on that issue until it is properly presented), I do not foresee an inquiry into the minor’s ability to pay rent will govern the disposition of the matter once it arrives at the Temple of Justice’s doorstep. As such, the majority’s reliance on James’ failure to pay rent to his parents is improper.

¶26Rather I would simply follow the test laid out hy the United States Supreme Court in Matlockand adopted by this court in Mathe: whether James had “joint access or control [of the boathouse] for most purposes.” Matlock, 415 U.S. at 171 n.7; see also Mathe, 102 Wn.2d at 543. The evidence here shows James was the only member of his family who had used the boathouse for the previous year, as the family used it to store the tractor exclusively used by James. Because he had “joint access” to the boathouse, Matlock, 415 U.S. at 171 n.7, he was a co-occupant of the boathouse. And under Leachhis presence at the scene required the police to obtain his consent before searching that property. Leach, 113 Wn.2d at 744. The police’s failure to do so signals the State’s failure to overcome the presumption of unreasonability.

¶27CONCLUSION

¶28As Leachexplained, “ ‘Where the police have ample opportunity to obtain a warrant, we do not look kindly on *822their failure to do so.’ ” 113 Wn.2d at 744 (quoting United States v. Impink, 728 F.2d 1228, 1231 (9th Cir. 1984)). Despite the fact James Thompson was restrained in handcuffs and posed no threat to destroy any evidence the police might have subsequently found in the boathouse, the police did not take the necessary steps to seek advance approval from a judicial officer before entering James’ private affairs. Yet the majority excuses the State’s failure to seek advance judicial approval, regressing from our holding in Leachto impose new considerations of rent, ownership, and geographical proximity. I find this to be an abdication of our judicial duty to uphold privacy over law enforcement convenience, individual liberty over investigatory expediency, and independence over government oppression. Moreover this abdication is wholly unnecessary due to the taint caused by the unlawful search of James’ trailer—a search not one member of this court finds consistent with the protections afforded by the Fourth Amendment and article I, section 7. Finally, the majority’s interjection of the harmless error analysis into search and seizure jurisprudence is an unprecedented and unsupportable step which adds confusion and disarray to well-settled law.

¶29The warrant requirement may be an inconvenience to the State, but it is a necessary and constitutionally required inconvenience that the judiciary must fervently protect, as affirmed by the Supreme Court over 30 years ago:

“It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”

¶30*823Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) (emphasis added) (quoting Boyd v. United States, 116 U.S. 616, 635, 6 S. Ct. 524, 29 L. Ed. 746 (1886)). Every inch this court yields to government encroachment is one more inch of privacy and liberty the Washington citizens must yield in consequence.

¶31For these reasons, I dissent.

¶32Chambers and Fairhurst, JJ., concur with Sanders, J.