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State v. Barros

April 14, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
JOSEPH ANTHONY BARROS, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-08396-8. Date filed: 06/29/95.

Authored by William W. Baker. Concurring: Walter E. Webster, C. Kenneth Grosse.

The opinion of the court was delivered by: Baker

BAKER, C.J. In an emergency situation, the police must act quickly and may act in ways that necessarily affect constitutional rights. We hold that the emergency situation that faced the police officers in this case justified the warrantless search of Joseph Barros' apartment and the limited questioning of Barros. As such, the trial court did not err by admitting the evidence obtained in that search and the statements made by Barros. We further hold that the predicate offenses to unlawful possession of a firearm under the 1994 version of the statute include juvenile offenses, and accordingly affirm Barros' conviction for unlawful possession of a firearm.

FACTS

Police officers responded to two early morning 911 calls regarding activity at an apartment complex. One 911 caller reported that a subject was throwing garbage off his balcony, and the other said that the subject was also firing a gun. The officers were greeted by one of the 911 callers who excitedly told them that he had heard a gunshot from the building behind him, and pointed the officers in the direction of Barros' building.

When Barros answered the door, the officers noted that he was unclothed and appeared to be under the influence of something. The officers were concerned about the presence of a gun. One officer asked if there was anyone else in the apartment, and Barros responded that his wife and baby were inside. *fn1 When the officers indicated that they needed to check on the other occupants of the apartment, Barros refused to let them in. The officers forced their way into the apartment and a scuffle ensued. Barros was pressed to the floor and eventually handcuffed.

Once inside the apartment, Barros directed the officers to "go ahead and search." *fn2 While one officer continued to subdue Barros the other asked if he had any guns. Barros responded by stating "to your right." *fn3 The officer found a shotgun in the living room closet. *fn4 No Miranda *fn5 warnings were given.

I

Barros argues that the warrantless search of his home was not justified by the emergency exception to the warrant requirement and that the trial court erred in admitting the fruits of an unreasonable search: the shotgun and his statements regarding its location.

Under both the federal constitution and our state constitution, warrantless searches are per se unreasonable. *fn6 There are, however, several well-established exceptions to the warrant requirement. *fn7 A warrantless search may be constitutional if it is in response to an immediate emergency, or part of the police function of protecting and assisting the public. *fn8 The need to avoid serious injury, or to protect or preserve life, may justify entry that would otherwise be illegal absent an emergency or exigency. *fn9

If an officer has a good faith belief that someone's health or safety may be endangered, "public policy does not demand that the officer delay any attempt to determine if assistance is needed" while a warrant is obtained. *fn10 As long as the warrantless search is undertaken in good faith and is not motivated by an intent to search for evidence of crime, but rather is conducted in order to check on an individual's health or safety, it is a valid exception to the warrant requirement. *fn11

Gocken articulated a 3-part test to establish whether a warrantless entry is merely pretext to investigate a crime: (1) the officer's subjective belief that someone likely needed assistance for health or safety reasons, (2) the objective reasonableness of the belief that there was a need for assistance, and (3) a reasonable basis to associate the need for assistance with the place searched. *fn12 We address each of these elements in turn.

We defer to the trial Judge's determination that the officers' motivation in entering the apartment was to engage in a safety check. *fn13

This was neither impeached nor attacked on cross examination, and the circumstances warrant a Conclusion that the ...


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