Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 65931-1
Title of Case: State of Washington
v.
Grant Myron Richards
File Date: 09/10/98
Oral Argument Date: 05/26/98
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
King County;
91-1-00457-5
JUSTICES
--------
Authored by Charles Z. Smith
Concurring: Barbara Durham
James M. Dolliver
Richard P. Guy
Philip A. Talmadge
Dissenting: Gerry L. Alexander
Charles W. Johnson
Barbara A. Madsen
Richard B. Sanders
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Christopher Gibson
Nielsen Broman & Assoc. Pllc
810 3rd Ave Ste 320
Seattle, WA 98104
Counsel for Respondent(s)
Shannon D. Anderson
W. 554 King Cty Crthouse
516 3rd Ave
Seattle, WA 98104
Prosecuting Atty King County
King County Prosecutor/Appellate Unit
1850 Key Tower
700 Fifth Avenue
Seattle, WA 98104
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
STATE OF WASHINGTON, ) Number 65931-1
)
Respondent )
)
v. ) En Banc
)
GRANT MYRON RICHARDS, )
)
Petitioner )
) Filed September 10, 1998
)
SMITH, J. Petitioner Grant Myron Richards seeks review of a
decision of the Court of Appeals, Division I, which affirmed a decision of the King County Superior Court denying his motion to suppress evidence,
ruling that police officers executing a valid search warrant were not
required to wait for Petitioner to grant or deny them entry into his
apartment because all the requirements of RCW 10.31.040, the "knock and
wait" rule, were satisfied. We granted review. We affirm.
QUESTION PRESENTED
The question presented in this case is whether plainclothes police
officers executing a valid search warrant violated the "knock and wait" or
"knock and announce" rule, codified in RCW 10.31.040, absent exigent
circumstances, by not waiting for Petitioner to grant or deny them entry
into his apartment after they announced their presence, identity and
purpose while entering an open sliding glass doorway.
STATEMENT OF FACTS
At about 5:55 p.m. on April 4, 1990, members of the Multi-Eastside
Agency Narcotics Task Force, in association with the Mercer Island Police
Department, executed a valid narcotics search warrant at the apartment
residence of Petitioner Grant Myron Richards at 13012 - 117th Place
Northeast, number F-4, Kirkland, King County, Washington.1 With guns
drawn, Detectives Peter Erickson2 and {FNU} Herst3 approached a sliding
glass door on the west side of the apartment.4 They had information this
was the entrance most frequently used by Petitioner.5 Both detectives were
dressed in jeans and T-shirts and had long hair and beards.6 They did not
display any identifiable symbol of their status as police officers.7 Upon
reaching the sliding glass door, the detectives found it open,8 the
curtains open,9 and the sliding screen door closed.10 Through the screen
door, Detective Erickson could see Petitioner Richards and another man
inside the apartment.11 Petitioner was kneeling on the floor adjusting a
video cassette recorder with his back to the door.12 Detective Erickson
shouted, "Hey, Grant," and Petitioner turned and looked at him.13
Detective Erickson then slid open the screen door, shouted "Police. We
have a search warrant" and walked through the open door into the apartment.14
Uniformed police officers, who had been standing against the wall beside
the screen door to conceal their presence from the apartment's occupants,15
immediately followed the two plainclothes detectives into the apartment
after announcing their identity and purpose.16
Petitioner Richards was advised of his "Miranda" rights, but waived
them.17 He said he understood his rights and voluntarily agreed to speak
with Detective Erickson.18 Petitioner subsequently directed the police
officers to cocaine he had hidden in his apartment.19 In addition to
various drug packaging and paraphernalia, police officers recovered seven
bindles of cocaine.20 Also discovered in the apartment were other
controlled substances Petitioner claimed were for his personal use.21
On August 20, 1991 the King County Prosecuting Attorney filed an
Amended Information in the King County Superior Court charging Petitioner
with one count of possession with intent to manufacture or deliver cocaine.22
The charge for Violation of the Uniform Controlled Substances Act read:
That the defendant GRANT MYRON RICHARDS in King County,
Washington on or about April 4, 1990, unlawfully and
feloniously did possess with intent to manufacture or
deliver cocaine, a controlled substance and narcotic drug,
and did know it was a controlled substance.{23}
Petitioner made a motion to suppress the cocaine and other evidence,
claiming Detective Erickson failed to comply with the "knock and wait" rule
before entering his apartment to execute the search warrant.24 The motion
was denied prior to trial on August 21, 1991.25 The Honorable Nancy Ann
Holman then in findings of fact and conclusions of law concluded the police
officers had complied with RCW 10.31.040:
The purpose of the knock and announce
rule is different in cases involving closed doors and open
doors. In this case, there is an area of visibility which
is not present in a closed door situation. The open glass
door gave the defendant an opportunity to see the police
officers. Thus their presence was known to him prior to
their entry. . . . As he was entering the apartment, and
after his presence was made known, Detective Erickson
announced "Police, search warrant," which informed the
defendant of their presence, identity and purpose. . . .
Under the circumstances presented, the officers did not need
to wait for defendant to permit or deny entrance into the
apartment. The context in which this happened required the
police to act quickly.{26}
After a trial on stipulated facts on August 21, 1991, in which
Petitioner Richards was found "guilty" of the crime of violation of the
Uniform Controlled Substances Act as charged,27 he appealed to the Court of
Appeals, Division I.28 The Court of Appeals, in an unpublished opinion,29
remanded the case to the trial court for clarification of its findings on
the question whether Detective Erickson had said "Police. We have a search
warrant" before or after entering Petitioner's apartment.30 This Court
denied review of that decision of the Court of Appeals.31
On remand, the trial court, the Honorable Nancy Ann Holman, on
October 4, 1991 entered supplemental findings of fact and conclusions of
law confirming that Detective Erickson announced his presence, identity and
purpose before entering Petitioner's apartment:
The purpose of the knock and announce rule is different
in cases involving closed doors and open doors. In this
case, there is an area of visibility which is not present
in a closed door situation. The open glass door gave the
defendant an opportunity to see the police officers. Thus
their presence was known to him prior to their entry. . . .
Prior to entering the apartment, and after his presence was
made known, Detective Erickson announced "Police, search
warrant," which informed the defendant of their presence,
identity, and purpose. . . . The officers entered
immediately after announcing their presence and purpose.
Since the defendant turned around and made eye contact with
them prior to their entry, he knew who they were and why
they were there. Thus they did not need to wait for him to
permit or deny entrance into the apartment. The context in
which this happened required the police to act quickly.{32}
After a hearing on Petitioner Richards' second appeal, the Court of
Appeals again affirmed his conviction on August 11, 1997.33 In a published
decision the Court of Appeals, Chief Judge Faye Kennedy writing, agreed
with the trial court's conclusion and stated that "waiting for {Petitioner}
Richards to grant or deny entry under the circumstances of this case would
have served none of the purposes of the knock and announce rule."34
Petitioner then sought review by this Court, which was granted on
March 4, 1998.
DISCUSSION
Petitioner Grant Myron Richards contends the plainclothes police
officers, while attempting to serve a search warrant upon his residence,
violated the "knock and wait" rule (1) by not waiting to be granted or
denied entry by the occupant, Petitioner, as required by the "knock and
wait" rule codified in RCW 10.31.040;35 (2) by initiating a ruse to gain
entry;36 and (3) by not meeting the requisite "virtual certainty" standard
requiring that occupants of premises be aware of the identity and purpose
of plainclothes police officers executing a search warrant.37
The "knock and wait" rule in RCW 10.31.040 states:
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.{38}
The federal statute containing the "knock and wait" rule, 18 U.S.C.
sec. 3109, is substantially similar to RCW 10.31.040.39 The rule stated in
the Washington statute is applicable not only to searches and arrests when
force is used to gain entry, but at any time police officers enter premises
without valid permission.40
This Court in State v. Coyle concluded that, in order to comply
with the "knock and wait" rule, police officers prior to a nonconsensual
entry must (1) announce their identity, (2) announce their purpose, (3)
demand admittance, (4) announce the purpose of their demand, and (5) be
explicitly or implicitly denied admittance. Under Coyle these requirements
must be satisfied even if the officers enter through an open door.41 In
that case this Court determined police officers did not comply with the
requirements of RCW 10.31.040. The facts in Coyle are distinguishable
from the facts in this case. In opinions from the United States Court of
Appeals for the Ninth Circuit, the "knock and wait" rule has been
interpreted to include only the requirement that prior to nonconsensual
entry police officers must (1) knock, (2) announce their identity, (3)
announce their purpose, and (4) allow a brief waiting period before
entering. This is often linked to whether the officers are refused
admittance.42
The language of RCW 10.31.040 is consistent with the less demanding
interpretation of the "knock and wait" rule announced by the United States
Court of Appeals for the Ninth Circuit in decisions relating to 18 U.S.C.
sec. 3109; and is consistent with recent decisions by the Washington Court
of Appeals relating to RCW 10.31.040. But this Court in Coyle provided a
more expansive interpretation of the statute. The requirement of a demand
for admittance and an explicit or implicit denial of admittance have been
merged into a "waiting period," often linked to whether the police officers
are refused admittance.
The United States Court of Appeals for the Ninth Circuit in United
States v. Bustamante-Gamez stated:
{B}oth the cases and the literature have concentrated
solely upon the "announcement" portion of section 3109;
little attention has been devoted to the issue of when
"refusal of admittance" is necessary. Such case law as
there is, however, suggests that this requirement, like the
rule of announcement in general, is a flexible one which is
not to be applied mechanically. See generally United
States v. Pratter, 7 Cir. 1972, 465 F.2d 227, 231-233 nn.
10-13 (collecting cases). For example, in McClure v.
United States, 9 Cir., 1964, 332 F.2d 19, we held that a
refusal of admittance is generally to be implied, and that
the test is whether "the circumstances were such as would
convince a reasonable man that permission to enter had been
refused." Id. at 22. . . .
. . . .
The simple fact is that a homeowner has no right to
prevent officers armed with a warrant or proper grounds to
make a warrantless entry from entering his home. At the
most, the "refusal of admittance" requirement gives him a
few moments to decide whether or not he will open the door
himself. See, e.g., United States v. Woodring, 9 Cir.,
1971, 444 F.2d 749 (permitting entry after a one-minute
wait following announcement).{43}
This Court in Coyle concluded that police officers must not only
announce their identity and purpose, but must also demand admittance and be
explicitly or implicitly denied admittance. Since Coyle, the Washington
Court of Appeals, Division I, has at least in one case in 1985 determined
that a statement by a police officer identified as such and who announces
that the officer possesses a search warrant constitutes an implicit demand
for admission into the residence.44
The announcement portion of RCW 10.031.040 is not at issue in this
case because the supplemental findings of the trial court confirmed that
the two lead detectives announced their identity and purpose before
entering Petitioner's apartment.45 But the waiting period is at issue.
Petitioner argues that the waiting period could not end until the police
officers requested permission to enter his residence and the request was
either granted or denied. The remedy for an unexcused failure to comply
with the "knock and wait" rule is suppression of the evidence obtained
after the entry.46
In interpreting RCW 10.31.040, this Court adheres to the purposes
for which the statute was enacted.47 To determine whether police officers
have complied with the "knock and wait" rule, the Court must decide whether
prior to the nonconsensual entry the officers complied with the purposes of
the rule, which are (1) to reduce the potential for violence to both
occupants and police arising from an unannounced entry; (2) to prevent
unnecessary destruction of property; and (3) to protect the occupants'
right to privacy.48 Strict compliance with the rule is required unless the
State can demonstrate that one of the two exceptions to the rule applies:
exigent circumstances or futility of compliance.49
Petitioner Richards argues that the police officers did not comply
with two of the "knock and wait" rule requirements announced by this Court
in Coyle. He claims there was no demand by the police officers to be
admitted to his apartment and he had no opportunity to grant or deny them
admittance. Respondent State counters that Detective Erickson's
announcement, "Hey, Grant, Police. We have a search warrant" provided
sufficient notice of the officers' identity and purpose and therefore the
officers did not need to specifically request entry or be granted or denied
admittance. Under this Court's decision in Coyle, a court must examine
whether police officers' actions effectuated the purpose of the "knock and
wait" rule in determining whether a demand for entry and a grant or denial
of admittance are required.
In this case, the Court of Appeals concluded that the police
officers were not required to wait for an implicit or explicit refusal of
admittance because all purposes of the rule had been satisfied before they
entered.50 The supplemental findings of the trial court confirmed that the
detectives announced their identity and purpose before entering
Petitioner's apartment.51 Detective Erickson took adequate steps to prevent
violence which might have arisen from an unannounced entry. His statement
announced an intention to enter the apartment so that their entry would not
surprise the occupants. There was no evidence in this case that the
occupants feared an intruder or there was a likelihood the occupants would
resist entrance to the apartment by the police officers.52
Failure to demand admittance did not increase the likelihood of
physical destruction of property because the sliding glass door was open
and only a sliding screen door remained in a closed position. Petitioner's
expectation of privacy was significantly reduced because the police
officers had a valid search warrant and could see him through the open
sliding glass door with curtains open. Once the officers have satisfied
the probable cause and warrant requirements, the occupant's right of
privacy is limited because police are authorized to enter the premises with
or without consent of the occupant.53
In this case, the police officers in clear view observed Petitioner
adjusting a video cassette recorder. As the officers proceeded to enter the
apartment, Petitioner was afforded reasonable warning by Detective
Erickson's immediate prior and almost simultaneous announcement of
Petitioner's name and the officers' identity and purpose. Petitioner's
privacy was not impermissibly disturbed.54
Entry upon private property to execute a search warrant must be
lawful. A lawful entry, being conditioned upon an announcement of identity
and purpose and a demand for admittance, must be "reasonable" and subject
to certain generally recognized exceptions.55 Whether an officer waited a
reasonable time before entering a residence is a factual determination to
be made by the trial court and depends upon the circumstances of the case.56
In this case, the detectives acted reasonably when they immediately
entered Petitioner's apartment after announcing their identity and purpose.
Shouting of Petitioner's name by Detective Erickson was equivalent to a
knock because the detectives had a clear and unobstructed view of the
apartment's occupants through the sliding screen door. Yelling "Hey,
Grant" to get Petitioner's attention was as good a notice as a knock on the
door would have been. When Petitioner turned to face the detectives
standing in full view at his open glass door and made eye contact with
them, Detective Erickson immediately identified himself and the other
detective as police officers and announced the purpose of their entry by
stating, "Police. We have a search warrant." The announcement of a search
warrant constituted an implicit demand for entry.57
Although the detectives did not wait for Petitioner to grant or
deny them permission to enter the apartment before sliding open the screen
door and entering the apartment, waiting would have served none of the
purposes of the "knock and wait" rule. An occupant, confronted with a
valid search warrant, has no right to refuse admission to police officers
because no interest served by the "knock and wait" rule would be furthered
by requiring the officers to stand at an open sliding glass doorway for a
few seconds to determine whether the occupant would permit their entry.58
Petitioner claims the detectives' entry into his apartment violated
the first purpose of the "knock and wait" rule, preventing violence,
because the detectives intended to gain admittance to Petitioner's
residence by the ruse of disguising themselves as drug buyers.59 According
to Petitioner, the physical appearance of the detectives with long hair
and beards, jeans and T-shirts, lacking any visible identification of their
office, appearing suddenly at Petitioner's screen door with guns drawn,
increased the likelihood that Petitioner would react in a violent manner
because he was under attack.60 In an attempt to draw similarities between
this case and State v. Ellis,61 Petitioner relies on the fact the uniformed
officers were not immediately visible to him and because the detectives'
capacity as legitimate law enforcement officers was not readily
identifiable because of their clothing and physical appearance.62
In Ellis, plainclothes officers executing a valid search warrant at
4:00 a.m. initially tried to gain entry by the ruse of claiming to be an
acquaintance of the defendant named "Louie."63 The Court of Appeals in
this case, referring to Ellis, stated:
When the defendant {in Ellis} realized that he had been
tricked into opening the door, he tried to shut it again,
but the officers forced the door open while simultaneously
announcing their true identity. The Ellis court observed
that because the uniformed officers in that case were not
reasonably visible to one looking out the door, because the
plain-clothes detective who announced the officers' true
identity did not clearly display his badge, and because the
officers forced entry while simultaneously announcing their
true identity and purpose, the defendant was faced with a
situation resembling that in State v. Bresolin, 13 Wn. App.
386, 534 P.2d 1394 (1975), in which robbers entered a house
falsely claiming to be federal agents. Ellis, 21 Wn. App.
at 127. The Ellis court noted that the circumstances of
the confrontation made it understandable that the
defendant, upon discovering that he had been tricked into
opening the door, would instinctively close the door in an
effort to protect himself. Id. The Ellis court observed
that forceful entry simultaneous with identification is
dangerous when the only visible officers are in plain
clothes, especially during late night hours. Ellis, 21
Wn.App. at 127-28.{64}
Petitioner's case is distinguishable from Ellis. As the United
States Supreme Court has stated, each case must be evaluated on its own
facts.65 In this case, the officers did not attempt to enter Petitioner's
apartment by a ruse, as in Ellis.66 Although there was some indication of
an intended ruse presented to the Court of Appeals in the first hearing,67
the intended ruse was abandoned prior to its initiation. In addition, a
ruse is outlawed only if force or violence is used.68 In this case there
was not only no ruse, but there was no use of force or violence.
The defendant in Ellis had reason not to believe the announcement
of the true identity of the police officers in their undercover attire
because the officers had already attempted to get him to open his door by
claiming to be an acquaintance. In this case Petitioner Richards had no
reason not to believe Detective Erickson's announcement of identity and
purpose. Although the detectives' attire and physical appearance in this
case and in Ellis did not lend to immediate realization of their true
identity as police officers, the detectives in this case did in fact
immediately inform Petitioner of their true identity and purpose moments
before entering his apartment. The purposes of the "knock and wait" rule
were satisfied in this case at the point of entry through the open sliding
glass door. The detectives were not then required to wait for an answer.
Petitioner knew the police officers were present prior to their entry
because Detective Erickson shouted through the open sliding glass doorway
the name "Grant" to get Petitioner's attention and immediately identified
himself and Detective Herst as police officers who were there with a search
warrant.
Petitioner argues that the opinion of the Court of Appeals in
this case is in conflict with State v. Coyle.69 He claims that Coyle holds
that noncompliance with the "knock and wait" rule may not be excused as a
useless act unless the police officers are "virtually certain" the
occupants are aware of their presence and purpose prior to their entry.70
Petitioner asserts the officers could not be certain that he knew they were
in fact police officers.
Petitioner's arguments based on Coyle are not persuasive. The
Coyle decision applies to "no-knock" entry where there has been no
compliance with the "knock and wait" rule. Under the facts of this case,
Petitioner Richards saw and heard the detectives announce their identity
and purpose immediately before they entered. Stricter compliance with the
"knock and wait" rule was not required because the detectives were
"virtually certain" Petitioner was aware of their presence and purpose.71
Petitioner's reliance on the "virtual certainty" standard in Coyle is also
not persuasive because recent United States Supreme Court decisions have
concluded that "virtual certainty" is not the standard for entry of
premises under the Fourth Amendment. In this case the Court of Appeals
concluded that the "knock and wait" rule is a flexible rule that gives way
when police officers have a reasonable belief that strict compliance would
be futile.72 There was sufficient reason to believe waiting would be
futile.
It is logical to conclude under the facts of this case that the
detectives reasonably believed Petitioner Richards knew they were police
officers and that they entered his apartment to serve a search warrant.
SUMMARY AND CONCLUSIONS
Service of a search warrant implicitly constitutes demand for
admission to premises. To wait for grant or denial of admission after an
occupant has been made aware of a police officer's presence and purpose
would serve no logical purpose. The police officer is already authorized
by the search warrant to enter the premises without permission from the
occupant.
In this case, the purposes of the "knock and wait" rule, RCW
10.31.040, were satisfied because there was no unannounced entry, there was
no danger of violence or property damage, and entry through an open sliding
glass door by moving a sliding screen door did not invade the occupant's
privacy because the police officers gave a reasonable warning identifying
themselves and announcing their purpose. Under these circumstances, it
would serve no purpose to require the officers to wait for a response to a
demand or request for admittance.
The police officers in this case complied with the requirements of
the "knock and wait" rule stated in RCW 10.31.040. The Court of Appeals
correctly determined the trial court did not commit error in denying
Petitioner's motion to suppress cocaine found in his apartment by police
officers who entered with a search warrant after announcing their identity
and purpose.
We affirm the decision of the Court of Appeals, Division I, which
affirmed a decision of the King County Superior Court denying Petitioner
Grant Myron Richards' motion to suppress evidence (cocaine) in which he
claimed violation by police officers of the "knock and wait" rule.
FOOTNOTES
1 Clerk's Papers at 16-17.
2 Id. at 16.
3 Id. at 7.
4 Id. at 27 (Court of Appeals, Division I, unpublished opinion in the
first appeal, State v. Richards, 75 Wn. App. 1001 (1994), review denied,
126 Wn.2d 1002 (1995)).
5 Id.
6 Id.
7 State v. Richards, 87 Wn. App. 285, 288, 941 P.2d 710 (1997).
8 Id.
9 Clerk's Papers at 8.
10 Id.
11 Id.
12 Clerk's Papers at 27.
13 Richards, 87 Wn. App. at 288.
14 Id. The record does not contain the search warrant. Neither party
raises a question concerning its content or purpose.
15 Clerk's Papers at 8.
16 Id. at 17.
17 Id.
18 Clerk's Papers at 23.
19 Id. at 17.
20 Id. at 17-18.
21 Id. at 18-19.
22 Id. at 5.
23 Id.
24 Id. at 7-10.
25 Id.
26 Id. at 7-10.
27 Id. at 11.
28 Id. at 24.
29 Id. at 26-32. (State v. Richards, 75 Wn. App. 1001 (1994), review
denied, 125 Wn.2d 1002 (1995)).
30 Id. at 31.
31 126 Wn.2d 1002.
32 Clerk's Papers at 36-39 (emphasis added).
33 State v. Richards, 87 Wn. App. 285, 288, 941 P.2d 710 (1997).
34 Id. at 293.
35 Pet. for Review at 1.
36 Id
37 Id.
38 RCW 10.31.040.
39 18 U.S.C. 3109 states: "The officer may break open any outer or
inner door or window of a house, or any part of a house, or anything
therein, to execute a search warrant, if, after notice of his authority and
purpose, he is refused admittance or when necessary to liberate himself or
a person aiding him in the execution of the warrant."
40 State v. Coyle, 95 Wn.2d 1, 5, 621 P.2d 1256 (1980).
41 Id. at 6.
42 Cases from the United States Court of Appeals for the Ninth Circuit
interpreting the "knock and wait" rule include: United States v. Ramirez,
91 F.3d 1297, 1300 (9th Cir. 1996); United States v. Bustamante-Gamez, 488
F.2d 4, 10-11 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S. Ct. 1993,
40 L. Ed. 2d 559 (1974);
Recent Washington Court of Appeals cases interpreting the "knock and
wait" rule include: State v. Alldredge, 73 Wn. App. 171, 868 P.2d 183
(1994); State v. Lehman, 40 Wn. App. 400, 404, 698 P.2d 606, review denied,
104 Wn.2d 1009 (1985); State v. Schmidt, 48 Wn. App. 639, 643, 740 P.2d
351, review denied, 109 Wn.2d 1013 (1987); State v. Hillard, 18 Wn. App.
614, 616, 570 P.2d 160 (1977).
43 United States v. Bustamante-Gamez, 488 F.2d 4, 10-11 (9th Cir. 1973),
cert. denied, 416 U.S. 970, 94 S. Ct. 1993, 40 L. Ed. 2d 559 (1974).
44 See State v. Lehman, 40 Wn. App. 400, 404, 698 P.2d 606, review denied,
104 Wn.2d 1009 (1985).
45 Clerk's Papers at 36-39.
46 Coyle, 95 Wn.2d at 14.
47 Id. at 5.
48 See Coyle, 95 Wn.2d at 5.
49 Id. at 9-11.
50 Richards, 87 Wn. App. at 288.
51 Clerk's Papers at 36-39.
52 Id. at 17-18 (Petitioner Richards submitted peaceably to the police
officers and voluntarily disclosed the location of seven bindles of
cocaine).
53 State v. Myers, 102 Wn.2d 548, 554-55, 689 P.2d 38 (1984).
54 State v. Rose, 128 Wn.2d 388, 394, 909 P.2d 280 (1996) (there is no
expectation of privacy in what can be seen through uncurtained windows)
quoting State v. Manly, 85 Wn.2d 120, 124, 530 P.2d 306, cert. denied, 423
U.S. 855, 96 S. Ct. 104, 46 L. Ed. 2d 81 (1975).
55 State v. Young,76 Wn.2d 212, 215, 455 P.2d 595 (1969).
56 Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 1421-22, 137 L.
Ed. 2d 615 (1997).
57 See State v. Schmidt, 48 Wn. App. 639, 642, 740 P.2d 351, review
denied, 109 Wn.2d 1013 (1987); Lehman, 40 Wn. App. at 404.
58 See United States v. Kemp, 12 F.3d 1140 1142 (D.C. Cir. 1994).
59 Pet. for Review at 11. Petitioner has not established that the
physical appearance of the detectives constituted a disguise as "drug
buyers."
60 Id.
61 State v. Ellis, 21 Wn. App. 123, 584 P.2d 428 (1978).
62 Pet. for Review at 11.
63 Id. at 125
64 Richards, 87 Wn. App. at 291.
65 See Richards, 117 S. Ct. at 1421.
66 Ellis, 21 Wn. App. at 125-29. (Entry by ruse is permissible if no
force is used.)
67 Clerk's Papers at 27. (Court of Appeals, Division I, unpublished
opinion in the first appeal is noted at State v. Richards, 75 Wn. App. 1001
(1994), review denied, 126 Wn.2d 1002 (1995)).
68 Ellis, 21 Wn. App. at 125.
69 95 Wn.2d 1, 621 P.2d 1256 (1980).
70 Pet. for Review at 10.
71 Coyle, 95 Wn.2d at 11.
72 Richards, 117 S. Ct. 1416.
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 65931-1
Title of Case: State of Washington
v.
Grant Myron Richards
File Date: 09/10/98
Oral Argument Date: 05/26/98
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
King County;
91-1-00457-5
JUSTICES
--------
Authored by Charles Z. Smith
Concurring: Barbara Durham
James M. Dolliver
Richard P. Guy
Philip A. Talmadge
Dissenting: Gerry L. Alexander
Charles W. Johnson
Barbara A. Madsen
Richard B. Sanders
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Christopher Gibson
Nielsen Broman & Assoc. Pllc
810 3rd Ave Ste 320
Seattle, WA 98104
Counsel for Respondent(s)
Shannon D. Anderson
W. 554 King Cty Crthouse
516 3rd Ave
Seattle, WA 98104
Prosecuting Atty King County
King County Prosecutor/Appellate Unit
1850 Key Tower
700 Fifth Avenue
Seattle, WA 98104
State v. Richards
Majority by Smith, J.
Dissent by Alexander, J.
No. 65931-1
ALEXANDER, J. (dissenting) -- At the outset of its opinion, the
majority identifies the issue before us as whether plainclothes police
officers executing a search warrant violated Washington's knock and
announce statute, RCW 10.31.040, by entering an occupant's apartment after announcing their presence, identity, and purpose, but without waiting for
the occupant to grant or deny them entry into the apartment. Majority op.
at 2. It answers that question by concluding that the statute was not
violated because waiting for the occupant of the apartment to grant or deny
entry in such circumstances would "serve no logical purpose." Majority op.
at 22. It, therefore, affirms the decision of the Court of Appeals
upholding the trial court's denial of Richards' motion to suppress the
fruits of the search.
I submit that the majority not only decides the case incorrectly, it
incorrectly states the issue. In my view, the pertinent question is
whether plainclothes police officers executing a search warrant violated
RCW 10.31.040 when they entered an apartment as, or immediately after, they
announced their presence, identity, and purpose and without pausing
sufficiently so that they could be "virtually certain" that the occupant of
the apartment was aware of their presence, identity, and purpose prior to
their entry. To that question, I would answer no and, thus, would reverse
the Court of Appeals. Accordingly, I dissent.
In State v. Coyle, 95 Wn.2d 1, 621 P.2d 1256 (1980), this court held
in a unanimous opinion that in order for the police to comply with the
provisions of RCW 10.31.040, they must, prior to any nonconsensual entry
into a dwelling house, announce their identity, demand admittance, announce
the purpose of their demand, and be explicitly or implicitly denied
admittance. See Coyle, 95 Wn.2d at 6. Strict compliance with the statute
is not, however, necessary where exigent circumstances are present or where
compliance with the statute is a useless gesture. See Coyle, 95 Wn.2d at 9-
11. Because there has been no suggestion by the State that any exigent
circumstances were present that justified noncompliance with the statute,
the focus of this case has properly been on whether or not compliance with
the statute was a useless gesture and, therefore, unnecessary.
In Coyle, we indicated that the useless gesture exception to the
requirements of RCW 10.31.040 is applicable only in instances where it is
shown that the police are "virtually certain" that the occupant is aware of
their presence, identity, and purpose prior to their entry. See Coyle, 95
Wn.2d at 11. The majority concludes that the police officers were
"virtually certain" that Richards was aware of their presence and purpose
before they entered his apartment. See Majority op. at 21. This
conclusion is difficult to understand in light of the trial court's failure
to make a specific finding that the police were "virtually certain" that
Richards had the requisite awareness.1 Furthermore, such a finding, even
if it had been made, finds no support in the evidence that was before the
trial court. The record reveals, rather, that when the officers of the
narcotics task force went to Richards' apartment they not only did not
knock and request permission to enter, they presented themselves in a way
that would not convey to the ordinary person that they were officers of the
law who wished to execute a search warrant. Indeed, it is unrefuted that
when Officers Erickson and Herst approached Richards' sliding screen door,
their guns were drawn and they were dressed in jeans and T-shirts. The
officers each had long hair and beards and neither displayed a police
badge. This is not the stereotypical vision of a police officer.2 One of
the detectives, Peter Erickson, observed Richards from a vantage point
outside the sliding screen door and said, "Hey, Grant," an act which
apparently caused Richards to turn around and look at him. Clerk's Papers
(CP) at 26. There was no indication, however, that this statement conveyed
to Richards that Erickson was a police officer bent on serving a search
warrant.
Although Erickson did -- as, or immediately before, he opened the
screen door and walked into Richards' apartment -- say, "Police, search
warrant," CP at 26, it can hardly be said that the authority, purpose, and
identity of the officers who entered the dwelling were conveyed to Richards
before they entered, much less that the officers could be "virtually
certain" that Richards possessed such an awareness before the entry
occurred.
As its secondary, but more fundamental, basis for upholding the search
here, the majority seemingly abandons the "virtual certainty" test we set
forth in Coyle. In doing so it says that "{p}etitioner's reliance on the
`virtual certainty' standard in Coyle is also not persuasive because recent
United States Supreme Court decisions have concluded that `virtual
certainty' is not the standard for entry of premises under the Fourth
Amendment." Majority op. at 21-22. If this statement is meant to suggest
that the majority is overruling Coyle, it should say so. More importantly,
though, there is absolutely no basis for the court to forsake our holding
in Coyle. I reach that decision because the decision of the United States
Supreme Court upon which the majority purports to rely, Richards v.
Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997), simply
does not compel a departure from the standard we set forth in Coyle.
In Coyle we were merely called upon to interpret the requirements of a
Washington statute, RCW 10.31.040. As the majority notes, we chose to
expansively interpret its provisions. Majority op. at 11. In Richards, on
the other hand, the United States Supreme Court was reviewing a decision of
the Wisconsin Supreme Court in which the latter court had held, in effect,
that the police of that state are never required to knock and announce
their presence when executing a search warrant in a felony drug case.
Although the Supreme Court rejected Wisconsin's blanket exemption to the
common law knock and announce requirement, it concluded that the Fourth
Amendment was not offended by a "no knock" entry in cases where the police
had a "reasonable suspicion" that knocking and announcing would be
dangerous or futile. See Richards, 117 S. Ct. at 1421.
The fact that the United States Supreme Court has, in a Fourth
Amendment context, given its imprimatur to this less rigorous standard for
judging the validity of a no-knock entry, does not mean that a state cannot
establish a standard that is more rigorous in its protection of individual
rights. Unfortunately, the majority's decision --which, in my view, goes a
long way toward rendering Washington's long-standing knock and announce
statute3 a nullity in many factual circumstances -- is far-reaching. The
majority essentially concludes, without citation to authority, that a state
legislature, by statute, cannot grant its citizens rights greater than the
threshold rights provided by the United States Constitution. Such a
decision is not only contrary to the principle of federalism, but it runs
counter to the many cases in which we have held that Washington has
afforded its citizens greater rights under its state constitution than its
citizens would have under the United States Constitution. See, e.g., State
v. Boland, 115 Wn.2d 571, 800 P.2d 1112 (1990); State v. Young, 123 Wn.2d
173, 867 P.2d 593 (1994). I see no reason why the same principle does not
apply to a statutory recognition of privacy rights.
In the final analysis the majority's decision drastically reduces the
protections provided by RCW 10.31.040. I am not suggesting that police
officers who have announced their identity and purpose before entry must
wait to enter until they have been explicitly or implicitly denied entry if
to do so would be a useless gesture, I am simply saying that under RCW
10.31.040, as we have construed it in Coyle, the officers must be
"virtually certain" that their identity and purpose is known to the
occupant before they enter. In instances such as we have here, where the
officers bore no visible indication of their authority and only announced
their purpose and identity either as they entered, or immediately prior to
their entry, it cannot be said there was such certainty. I, therefore,
would reverse the Court of Appeals.
FOOTNOTES
1 The closest the trial court came to making such a finding is its
finding of fact III in which it indicates that one of the officers
announced his identity and purpose before entering.
2 I am not at all critical of the fact that the police officers were
attired in this way. Obviously, a police officer's duties may require the
officer to wear a variety of clothing if he or she is engaged in undercover
activities. While an officer of the law is no less an officer incognito,
it is reasonable to assume that the attire is worn so that persons coming
into contact with the undercover officer will not be aware that the person
is a police officer.
3 RCW 10.31.040 was first enacted in 1881. Code 1881 1170.