Opinion
No. 26103-4-III.
July 15, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 06-1-01589-8, Vic L. VanderSchoor and Cameron Mitchell, JJ., entered May 3 and 8, 2007.
Reversed and remanded by unpublished opinion per Kulik, J., concurred in by Schultheis, C.J., and Korsmo, J.
An arrest warrant does not give police the authority to perform a general search of a hotel suite. The warrant allows police to enter the suite and find and arrest the suspect. Here, police went to Zora Pena's hotel suite with an arrest warrant. After arresting Ms. Pena, an officer walked to a back bedroom and contacted Clayton Douglas Sibbett. Once Ms. Pena was identified, the police had no further justification to search the back areas of the hotel suite. Because the search of the back bedroom was beyond the scope of a lawful protective sweep, any evidence seized should have been suppressed. We reverse and remand.
FACTS
On December 24, 2006, Kennewick Police Officers Franklin W. McLain and Chris Bennett were dispatched to the Clover Island Inn, located in Kennewick, in response to a report of a suspicious person in front of the hotel. A woman, later identified as Zora Pena, was in the lobby. Officer McLain spoke with Ms. Pena, who acted startled, grabbed items from a vending machine, and walked to the elevator.
The officers confirmed Ms. Pena was staying in room number 410 and that she had an outstanding warrant for her arrest. Based on the warrant, the officers went to room number 410, knocked on the door, but received no answer. Officer Bennett heard noises in the room. Officer McLain asked the front desk to call the room and ask the occupants to open the door. Less than one minute after the call, Ms. Pena opened the door. Ms. Pena stepped backward. The officers stepped inside the room. Officer Bennett confirmed Ms. Pena's identity and placed her under arrest.
Officer McLain observed several syringes on the coffee table in the front room. Ms. Pena stated her cousin, Clay, was in the bedroom. Officer McLain walked down the hallway and looked around the corner. Clayton Douglas Sibbett was standing in the doorway of the bedroom, wearing boxer shorts. Officer McLain asked Mr. Sibbett to come to the front room and asked him for identification. Mr. Sibbett walked to his coat, which was on the couch, but could not find his wallet. Mr. Sibbett asked if he could go back into the bedroom to look for his wallet.
Officer McLain asked if there was anyone else in the room and Mr. Sibbett stated there was no one else that he knew of, but that he just woke up. Officer McLain followed Mr. Sibbett into the bedroom. Officer McLain saw four syringes on the bedside table. He observed the bedroom door led to another door, and asked Mr. Sibbett if anyone was in that room. Mr. Sibbett stated the room was the bathroom and he did not know if anyone was in there. Officer McLain checked and found no one in the bathroom.
As he was exiting the bathroom, Officer McLain walked toward the bedside table and the bed, and "noticed there were several bags, clear plastic baggies and black stuff right there underneath the bed." Report of Proceedings (RP) (Feb. 22, 2007) at 12. He also observed a black canvas bag in the same location. Officer McLain placed Mr. Sibbett under arrest. He searched the bedroom incident to arrest, and "found several baggies of what appeared to be a white crystal powder" under the bed, and "also a green leafy substance . . . in Mr. Sibbett's wallet." RP (Feb. 22, 2007) at 14.
Mr. Sibbett was charged with one count of possession with intent to manufacture or deliver a controlled substance, methamphetamine, in violation of RCW 69.50.401(2)(b). Mr. Sibbett moved to suppress the evidence found during the search of the hotel bedroom.
At the hearing on the motion to suppress Officer McLain and Officer Bennett testified. In addition to the facts set forth above, the officers testified as follows: Officer Bennett testified the officers were dispatched to the Clover Island Inn at approximately 1:44 am. The officers identified Ms. Pena when the desk clerk, Dorothy Wray, "said she obtained [identification] for the room and that was the name listed under room 410." RP (Feb. 22, 2007) at 19. The officers then ran the warrant check. Officer McLain testified that once Ms. Pena told the officers Mr. Sibbett was in the bedroom, Officer McLain told Mr. Sibbett to come out several times, but he got no response. Officer McLain then moved to the hallway and observed Mr. Sibbett standing in the doorway of the bedroom. Officer McLain testified he could tell Mr. Sibbett had been sleeping. He further testified it "[l]ook[ed] like somebody had been sleeping on the bed." RP (Feb. 22, 2007) at 11-12.
In an oral ruling, the court denied the motion to suppress. Subsequently, the court entered written findings of fact and conclusions of law on the motion. Mr. Sibbett proceeded to a bench trial on stipulated facts, and was found guilty as charged. Mr. Sibbett appealed.
ANALYSIS
The issue is whether the trial court erred by denying Mr. Sibbett's motion to suppress. He contends the warrantless seizure of his person and the search of the bedroom violated his rights under the Fourth Amendment and article I, section 7 of the Washington Constitution. Additionally, Mr. Sibbett contends the officers violated article I, section 7 by running a warrant check on Ms. Pena, and he assigns error to several findings of fact entered by the trial court. Because we resolve this case on the warrantless search of the bedroom, we need not reach the warrant check issue. Additionally, although Mr. Sibbett correctly assigns error to several findings of fact entered by the trial court, we need not address these issues because the challenged findings do not bear on the validity of the warrantless search.
Only Mr. Sibbett's Fourth Amendment claims are analyzed here. Mr. Sibbett's main contention is that the officers' conduct exceeded the scope of a "protective sweep" conducted incident to Ms. Pena's arrest. See Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). Washington courts have only analyzed the scope of a "protective sweep" under the Fourth Amendment. Additionally, Mr. Sibbett does not discuss state constitutional grounds independently of federal constitutional grounds. See State v. Olivas, 122 Wn.2d 73, 81-82, 856 P.2d 1076 (1993) (declining to consider independent state constitutional grounds where the appellant did not analyze the separate development or structure of the federal and state constitutional provisions).
This court applies a two-step review of the trial court's denial of a motion to suppress. See State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006). First, the trial court's findings of fact are reviewed under the substantial evidence standard. Id. (citing State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), overruled on other grounds by Brendlin v. California, ___ U.S. ___, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007)). "Substantial evidence is `evidence sufficient to persuade a fair-minded, rational person of the truth of the finding.'" Id. (quoting Mendez, 137 Wn.2d at 214). Furthermore, "[u]nchallenged findings of fact are verities on appeal." Id. (citing State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003)). Second, this court reviews the trial court's conclusions of law de novo. Id. (citing Mendez, 137 Wn.2d at 214).
Under the Fourth Amendment, "[a] challenge to a search and seizure requires that the accused have a legitimate expectation of privacy in the place searched or the item seized." State v. Boot, 81 Wn. App. 546, 550, 915 P.2d 592 (1996) (citing State v. Jones, 68 Wn. App. 843, 847, 845 P.2d 1358 (1993)). Furthermore, "[t]hat legitimate expectation of privacy exists if the `individual has manifested an actual, subjective expectation of privacy in the area searched or item seized and society recognizes the individual's expectation of privacy as reasonable.'" Id. (quoting State v. Gocken, 71 Wn. App. 267, 279, 857 P.2d 1074 (1993)). The defendant bears the burden of establishing a legitimate expectation of privacy. Id. at 550-51 (citing Jones, 68 Wn. App. at 847).
Mr. Sibbett contends that as a guest of Ms. Pena's, he possessed a legitimate or reasonable expectation of privacy in the hotel room. "[F]or purposes of the Fourth Amendment, the constitutional protections afforded homes are extended to other residential premises such as rented hotel rooms." State v. Ramirez, 49 Wn. App. 814, 817, 746 P.2d 344 (1987); accord State v. Davis, 86 Wn. App. 414, 419, 937 P.2d 1110 (1997). Accordingly, under the Fourth Amendment, the occupant of a hotel room has a legitimate or reasonable expectation of privacy in the premises. See Ramirez, 49 Wn. App. at 818. Similarly, an overnight guest has a reasonable expectation of privacy in the home where he or she is staying. See Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990). In recognizing such a privacy interest, the Supreme Court reasoned:
From the overnight guest's perspective, he seeks shelter in another's home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend.
Id. at 99.
Here, although the hotel suite was rented by Ms. Pena, Mr. Sibbett was more than just legitimately on the premises or a casual visitor. Cf. Jones, 68 Wn. App. at 847-52. The record shows Mr. Sibbett was an overnight guest. The officers were dispatched to the hotel at approximately 1:44 am. When Officer McLain first saw Mr. Sibbett, he was wearing boxer shorts, and Officer McLain testified he could tell Mr. Sibbett had been sleeping. Officer McLain also testified it "[l]ook[ed] like somebody had been sleeping on the bed." RP (Feb. 22, 2007) at 11-12. Accordingly, as an overnight guest, Mr. Sibbett had a legitimate expectation of privacy in the premises.
The Fourth Amendment prohibits unreasonable searches. U.S. Const. amend. IV. The question here is whether the officers' entry into the back bedroom was valid as a "protective sweep." Because the officers acted without a valid search warrant, the burden of establishing the search was reasonable falls on the State. See State v. Hopkins, 113 Wn. App. 954, 958, 55 P.3d 691 (2002). The State first contends the entry into the bedroom was valid as a "protective sweep," incident to Ms. Pena's arrest.
"`[A]n arrest warrant, by itself, provides authority for the police to enter a person's residence to effectuate his or her arrest.'" State v. Hatchie, 161 Wn.2d 390, 396, 166 P.3d 698 (2007) (alteration in original) (quoting Hopkins, 113 Wn. App. at 958). Furthermore, "[w]hile making a lawful arrest, officers may conduct a reasonable `protective sweep' of the premises for security purposes." Hopkins, 113 Wn. App. at 959. "The scope of such a `sweep' is limited to a cursory visual inspection of places where a person may be hiding." Id. (citing Maryland v. Buie, 494 U.S. 325, 335, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990)). An officer need not justify his actions in searching the area that immediately adjoins the place of the arrest. But if the sweep extends beyond the immediately adjoining area, "`there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.'" Hopkins, 113 Wn. App. at 959-60 (quoting Buie, 494 U.S. at 334).
Here, the officers lawfully entered the hotel room to arrest Ms. Pena pursuant to a felony arrest warrant. The arrest occurred in the entrance of the front room of the hotel room suite. Although the bedroom is separated from the front room by a hallway, this small space was immediately adjoining the place of the arrest. Accordingly, the officers could properly conduct a "protective sweep" of the bedroom for security purposes.
The only evidence in the record as to the distance from the front room to the hallway is provided by Officer McLain's testimony at the suppression hearing. Officer McLain testified after he arrested Mr. Sibbett, "I sat him on the chair probably five or six feet to the entryway door and probably another six to eight feet to the bed, to the door stand." RP (Feb. 22, 2007) at 13-14.
The problem here, however, was the scope of the search by Officer McLain. Officer McLain moved to the hallway after he told Mr. Sibbett to come out several times and got no response. Mr. Sibbett appeared at the doorway of the bedroom. Officer McLain then requested identification from Mr. Sibbett. When Mr. Sibbett could not locate his wallet in the front room, Mr. Sibbett asked if he could go back into the bedroom to look for his wallet. Officer McLain then followed Mr. Sibbett back into the bedroom.
Asking Mr. Sibbett for identification, and returning to the bedroom while he searched for his wallet exceeded the scope of a "protective sweep." Officer McLain's actions were not limited to "a cursory visual inspection of places where a person may be hiding." Hopkins, 113 Wn. App. at 959.
The State argues because there was unsecured property in the hotel room, the officers could have reasonably identified Mr. Sibbett to see if Ms. Pena was comfortable having her property turned over to him as she was taken to jail. However, in addition to being outside the scope of a "protective sweep," nothing in the record establishes that this was the officers' intent.
Mr. Sibbett argues that once the officers arrested Ms. Pena, they had no further justification to search the bedroom, citing State v. Boyer, 124 Wn. App. 593, 102 P.3d 833 (2004). In Boyer, the court stated "[t]he [protective] sweep is limited to a cursory inspection of places a person may be found and must last no longer than necessary to dispel the reasonable suspicion of danger or to complete the arrest, whichever occurs sooner." Id. at 601 (emphasis added) (citing Buie, 494 U.S. at 335-36).
Because this statement in Boyer is dicta, it gives no guidance for applying this standard. Here, the officers placed Ms. Pena under arrest, and she indicated her cousin, Clay, was in the bedroom. It appears from the record these events happened close in time. Accordingly, once the officers learned another person was on the premises, they had authority to conduct a "protective sweep" in order to complete the arrest. However, the evidence does not support the trial court's findings that the scope of the sweep was authorized.
In the alternative to the "protective sweep" argument, the State contends the officers had grounds to detain Mr. Sibbett under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). This argument is unpersuasive. "A Terry investigative stop only authorizes police officers to briefly detain a person for questioning without grounds for arrest if they reasonably suspect, based on `specific, objective facts' that the person detained is engaged in criminal activity or a traffic violation." State v. Day, 161 Wn.2d 889, 896, 168 P.3d 1265 (2007) (citing State v. Duncan, 146 Wn.2d 166, 172-74, 43 P.3d 513 (2002)). Here, at the time Officer McLain asked Mr. Sibbett for identification, there was no indication Mr. Sibbett was engaged in criminal activity. Officer McLain's observation of several syringes on the coffee table in the front room is not enough to reasonably suspect Mr. Sibbett, who was asleep in the bedroom, was engaged in criminal activity.
The search of the bedroom was beyond the scope of a lawful "protective sweep." Accordingly, the evidence seized as a result of this search should have been suppressed.
We reverse and remand.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KORSMO, J., SCHULTHEIS, C.J., concur.