Appeal from SUPERIOR COURT SPOKANE COUNTY. Superior Court No: 93-1-00300-6. Date filed in Superior Court: 7/5/94. Superior Court Judge signing: ROBERT WHALEY.
Author: Philip J. Thompson, Concurring: Dennis J. Sweeney & John A. Schultheis
THOMPSON, J.-- Kevin Leon Schimpf appeals his conviction for possession of marijuana with intent to manufacture, RCW 69.50.401(a). He contends officers unlawfully failed to "knock and wait" before entering his fenced backyard as they executed an arrest warrant, and the trial court should have suppressed evidence seized from the backyard. We affirm the conviction.
Early in the morning of July 13, 1992, Deputies Eric Werner and Raymond Harding went to Mr. Schimpf's Spokane home to execute two misdemeanor warrants for Mr. Schimpfs arrest. Deputy Werner walked down the driveway so he could watch the rear door. Deputy Harding went toward the front door.
The backyard of the house was enclosed by a four- or five-foot-high fence. A fence gate, low enough for the deputy to see into the backyard, was attached to a corner of the house. Standing outside the gate, Deputy Werner saw a marijuana plant in a pot in the backyard. He saw dogs
in the yard, but no people. The deputy opened the unlocked gate, walked into the backyard, and seized the marijuana plant.
The gate was two feet, two inches from a window on the rear of the house, and ten feet, nine inches from a side window. Both windows were open, and the trial court found that a knock and verbal announcement by Deputy Werner at the gate would have been audible inside the house.
Mr. Schimpf was charged with possession of marijuana with intent to manufacture, RCW 69.50.401(a). He moved to suppress the evidence. After two separate evidentiary hearings, the trial court concluded that, while the backyard was the curtilage of Mr. Schimpf's home, the "knock and wait" rule did not apply to the deputy's entry through the unlocked gate. The court declined to suppress the evidence, and entered a guilty verdict on stipulated facts.
Mr. Schimpf contends on appeal that the trial court erred in declining to suppress evidence seized as a result of Deputy Werner's unannounced entry into the backyard of Mr. Schimpfs home. RCW 10.31.040 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."
This statute is a codification of the common law "knock and wait" rule, which requires that officers knock, announce their identity and purpose, and wait a reasonable period before entering premises without permission. State v. Coyle, 95 Wash. 2d 1, 5-6, 621 P.2d 1256 (1980); State v. Alldredge, 73 Wash. App. 171, 174-78, 868 P.2d 183 (1994). Compliance with the common law rule is "among the factors to be considered in assessing the reasonableness of a search or seizure" under the Fourth Amendment. Wilson v. Arkansas, 514 U.S. , 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995);see Coyle, 95 Wash. 2d at 6-7. The purposes of the rule and the statute are (1) to reduce the potential for
violence in an unannounced entry by police; (2) to prevent unnecessary damage to property; and (3) to protect occupants' privacy. Coyle, 95 Wash. 2d at 12; Alldredge, 73 Wash. App. at 176-77. The remedy for violation of the rule or the statute is suppression of the evidence. Coyle, 95 Wash. 2d at 14; see State v. Hastings, ...