Appeal from Superior Court of King County. Docket No: 95-1-07288-3. Date filed: 01/19/96. Judge signing: Hon. James A. Noe Jr.
PER CURIAM. Carlos Ibarra-Bucanegra appeals his conviction of second degree rape. He contends the trial court erred by denying his motion to suppress evidence because the State failed to show either that he consented to the police officers' warrantless entry into his home or that an emergency justified the entry. We agree the State failed to establish Ibarra-Bucanegra voluntarily consented to the entry. But because an emergency justified the officers' entry, we affirm.
Two uniformed police officers went to Ibarra-Bucanegra's apartment in response to a dispatch advising that a neighbor had reported hearing "banging and screaming from the adjoining apartment." Report of Proceedings 1/11/96 at 50. Officer Voellger arrived first, and waited in the parking lot for several minutes before Officer Gordon arrived. Voellger neither heard nor saw anything unusual during her wait. She informed Gordon she had been to Ibarra-Bucanegra's apartment the night before due to a nonviolent argument between Ibarra-Bucanegra and the victim. The officers knocked on Ibarra-Bucanegra's door and waited about 2 minutes. They heard no noises from the apartment. Gordon testified he observed nothing from outside the apartment that indicated an emergency was present.
Ibarra-Bucanegra answered the door. He was nude and had an erection. The officers told him they had a report of a disturbance in the apartment and asked him if there was any problem. Ibarra-Bucanegra said there was no problem. Gordon testified he told Ibarra-Bucanegra that "given the nature of the call . . . we just needed to make sure that there was nobody inside that was hurt . . .". Report of Proceedings 1/11/96 at 14. Voellger testified she told Ibarra-Bucanegra "we got a call that there's a problem here; we need to come and check it out." Id. at 54.
Ibarra-Bucanegra looked down and explained he was naked. Gordon said he would come in with Ibarra-Bucanegra, that he could put some clothes on, and that Voellger would then come in. Ibarra-Bucanegra stepped back and let Gordon inside. Voellger testified she did not recall asking Ibarra-Bucanegra for permission to enter, "but I think it was something we just maybe kind of walked in" after Ibarra-Bucanegra opened the door for Gordon to enter. Id. at 55. She said that in domestic violence calls, officers are permitted to enter a house if they think there is a victim inside or a crime has been committed. They went into the dining room and Ibarra-Bucanegra got dressed.
The victim was also in the dining room. She was crying and had her head down. Her face was swollen and she had a split lip. She told Voellger that Ibarra-Bucanegra had forced her to have sex with him. Officers also found the victim's torn bra lying on the floor. As a result of their discoveries, Gordon arrested Ibarra-Bucanegra.
Ibarra-Bucanegra testified he heard knocking on the door and opened it slightly. Officers told him someone had reported fighting in his apartment. He told the officers there was no fighting and, because he was nude, closed the door. As he walked back through the dining room, he heard the officers behind him. They entered his apartment and arrested him.
The trial court denied Ibarra-Bucanegra's motion to suppress the evidence officers found inside the apartment. The court concluded that Ibarra-Bucanegra impliedly consented to the entry. The court also concluded the officers were justified in entering based on a reasonable belief that an emergency existed.
Ibarra-Bucanegra did not consent to the officers' entry.
Where the State relies on consent to justify the warrantless police entry into a private residence, it bears the burden of proving by clear and convincing evidence that consent was in fact freely and voluntarily given. *fn1 Whether consent was voluntary is a factual question determined by considering the totality of the circumstances. *fn2 We review a court's CrR 3.6 findings and Conclusions under the substantial evidence test. *fn3
Although Washington courts have long recognized the concept of "implied consent," upon which the court relied here, *fn4 we must be careful of its use as justification for the warrantless entry into a private home. The Ninth Circuit has emphasized that "judicial concern to protect the sanctity of the home is so elevated that free and voluntary consent cannot be found by a showing of mere acquiescence to a claim of lawful authority." *fn5 Our courts apply the same rule. *fn6
As a result, courts are often faced with the delicate task of determining whether a resident's conduct constitutes an implicit invitation to enter or merely acquiescence to authority. This is just such a case. Relying on State v. Raines, the trial court held that Ibarra-Bucanegra's affirmative conduct in opening the door and admitting the officers upon their request, rather than refusing their admission, constituted implied consent. We find Raines distinguishable and reach a contrary result.
In Raines, officers' responded to a report of domestic violence involving Raines and the woman occupant. Officers knew from past incidents that Raines was violent and that the woman had given inconsistent stories. When they arrived, officers heard nothing, but saw a man peering out a window of the apartment. The woman met them at the door and denied there was a problem. *fn7 One of the officers asked the woman if they could enter. She did not object, "but stepped back, as if gesturing to the officers to enter." *fn8 This court held that by failing to object and stepping aside, the woman did more than simply acquiesce; she implicitly consented to the officers' entry.
In Ibarra-Bucanegra's case, the officers did not ask if they could enter. Rather, they told Ibarra-Bucanegra that, because of the nature of the call, they "needed" to come inside to see if there was a problem or if anyone was hurt. Voellger testified domestic violence complaints justified entry to determine the welfare of occupants. Gordon testified that when Ibarra-Bucanegra indicated reluctance to the officers' entry, he said he would go in first while Ibarra-Bucanegra got dressed. These circumstances indicate not a request for entry but rather a declaration that the officers intended to enter to see if anyone was injured inside. Ibarra-Bucanegra's response was nothing more than silence and compliance in the face of a show of authority, not a voluntary consent to enter. *fn9
Other relevant factors indicate Ibarra-Bucanegra did not consent to the officers' entry. Before entering, officers neither read Ibarra-Bucanegra his rights under Miranda nor informed him he had a right to refuse their entry. *fn10 We conclude ...