Appeal from Superior Court of Grays Harbor County. Docket No: 93-1-00428-4. Date filed: 10/24/94. Judge signing: Hon. F. M. McCauley.
Authored by John E. Turner. Concurring: David H. Armstrong, Elaine M. Houghton.
The opinion of the court was delivered by: Turner
TURNER, J. - Michael Dykstra was charged with possession of marijuana after police escorted him home from a drunk driving arrest, insisted on accompanying him to his back porch and waiting there until he entered the house, and then, from their vantage point on the porch, observed marijuana on his kitchen counter. The court suppressed all evidence seized from the warrantless search of Dykstra's home. The State now appeals the suppression order. We affirm.
In early October 1993, McCleary Police Officer John Adams received a tip from an informant that Michael Dykstra was growing marijuana in his residence. At around 2 a.m. on October 23, 1993, Officer Adams thought Dykstra was driving while intoxicated and stopped him in his driveway. When Officer Adams called for back-up, the Police Chief, Ersal May, was contacted at home and responded. Dykstra was transported from his driveway to the police station for BAC testing and booking. He submitted to breath tests at 3:07 a.m. and 3:09 a.m., and scored a blood alcohol level of .20 on each test.
After citing Dykstra for driving while intoxicated, Officer Adams and Chief May told him they would be taking him home. Dykstra testified that he told the police he did not need a ride home, and that he asked for permission to call his friend Rick to come and get him. They denied him permission. Instead, at approximately 3:30 a.m., Officer Adams and Police Chief May took Dykstra home, intending to release him to the "custody" of his residence. *fn1 But, they did not merely drop him off. Instead, they exited their vehicles and insisted on accompanying him inside his residence. Chief May told Dykstra: "I know you have marijuana in your house and I am not leaving until you go in the house." Dykstra replied: "you have no right to go in my house. You're uninvited." Dykstra employed several tactics to avoid entry, including stating that he would simply sleep on the back porch. He also attempted to go next door to the neighbors, but the officers stopped him. He even urinated in the driveway rather than go in the house.
When the officers continued to insist that they would not leave until he went inside, Dykstra finally agreed to go in. Officer Adams and Chief May accompanied him onto the three to four foot wide back porch. Dykstra attempted to keep the door as closed as possible so they could not see inside when he entered; nevertheless, from their vantage point on the porch, both Officer Adams and Chief May testified that they observed what appeared to be a bag of marijuana across the room on the kitchen counter.
Dykstra claims that Chief May then jerked the door open and entered without permission. Chief May disputes this, saying that Dykstra left the door wide open and invited them in. When asked if there was any more marijuana in the house, Dykstra walked into a bedroom, removed eight marijuana plants drying on a rope suspended from the ceiling and turned them over to the officers. Some time later, Chief May produced a "permission to search" form, which Dykstra signed at 3:51 a.m. Dykstra claims that he signed it out of fatigue, anger and frustration, unaware of its contents.
During their search of the residence, officers found additional marijuana and paraphernalia. About 45 minutes after entering the premises, they arrested Dykstra for possession of marijuana in excess of 40 grams and transported him back to the police station, where they informed him of his Miranda *fn2 rights.
Dykstra moved for suppression of evidence seized during the warrantless intrusion into his home. The court granted the motion and entered the following Conclusions of law:
2. The procedures followed by the officers during the stop and arrest of the defendant on DWI charges were proper until the point of transport of the defendant back to his residence.
3. The officers exceeded their caretaking functions, based upon the actions of Dykstra at the time of release, when they accompanied him outside their vehicles, to the door of his residence, and insisted on accompanying him inside his residence.
4. The actions of the officers exceeded the scope of an "open view" by forcing an unnecessary and artificial vantage point.
5. Dykstra's constitutional rights, specifically the right under the Washington State Constitution, Article I, Section 7 to be free from unreasonable searches and seizures, was violated in this case.
6. All materials seized and statements attributed to Dykstra regarding marijuana or drug usage are derived from the initial illegal search and seizure, and therefore must be excluded. In light of the trial court's order suppressing critical evidence, the case was ...