Boisselle was charged and convicted of second degree murder
and unlawful possession of a firearm. On appeal, Boisselle
contends that the trial court erred by denying his motion to
suppress and by refusing to instruct the jury concerning
justifiable homicide in resistance of a felony. Boisselle
also contends that the prosecutor committed flagrant
misconduct during rebuttal closing argument, thus depriving
him of a fair trial. Finding no error, we affirm.
2014, Michael Boisselle encountered Brandon Zomalt, an old
acquaintance. Zomalt told Boisselle that he was homeless, had
nowhere to sleep, and that he needed assistance obtaining a
food handler's permit in order to secure a job. Boisselle
offered to let Zomalt stay with him in his duplex unit.
Boisselle's assistance, Zomalt received his food
handler's permit and began working at a nearby
restaurant. However, Zomalt was fired after one week for
fighting at work. Zomalt was addicted to alcohol and
methamphetamine. He also had a history of violence. Several
people, including Zomalt's mother and two of his former
girlfriends, had been granted protection orders against him.
After losing his job, Zomalt drank throughout the day.
Boisselle did not feel safe around Zomalt and avoided him
asked Zomalt to move out in the beginning of August. Zomalt
apologized for his behavior and asked for another chance.
Boisselle agreed to let Zomalt stay, but Zomalt's
behavior thereafter worsened. Boisselle believed that Zomalt
was following him when he left the duplex. One night,
Boisselle woke up to discover Zomalt beside the bed, staring
at him. When Boisselle asked Zomalt what he was doing, Zomalt
stated that he wanted to ask Boisselle something but changed
morning, after Boisselle and Zomalt began to argue, Boisselle
left the duplex to go to a nearby store. Zomalt followed
Boisselle to the store, yelling at him the entire way.
Boisselle tried to avoid Zomalt when he returned home.
Boisselle went to his bedroom on the second floor of the
duplex while Zomalt sat on the couch downstairs, consuming
alcohol. Later that night, still in his bedroom, Boisselle
told Zomalt that he could not stay at the duplex any longer.
Zomalt refused to leave. Boisselle threatened to call the
police. Zomalt again refused to leave, prompting Boisselle to
grab his jacket and walk downstairs. Before he could leave,
Zomalt pulled out a gun and pointed it at Boisselle.
Boisselle went back upstairs to his bedroom.
could look over the living room from the upstairs railing.
Later, from that vantage point, he saw Zomalt sitting on the
couch with the gun placed on the arm of the couch. Boisselle
went downstairs and into the kitchen, where he pretended to
get something to drink. Upon leaving the kitchen, Boisselle
grabbed the gun from the arm of the couch.
trial, Boisselle testified about what happened next:
Q After you grabbed the gun, what did [Zomalt] do?
A He stood up, turned and started coming in my direction.
Q And what did you think he was going to do at that point?
A I thought he was going to come and grab that gun from me.
I grabbed the gun, he reacted, turned, and he was coming
Q What did you do?
A I turned and I fired a few times.
Q Now, how far away were you when you were firing these
A From the love seat to the stairs. I don't know exactly
that distance, but I know that it's not a very far
distance at all.
Q And at that time he was coming at you?
September 1, 2014, South Sound 911 dispatch received an
anonymous telephone call from an individual who reported that
"somebody by the name of Mike" stated that he shot
someone at 13008 Military Road East, No. B (the duplex).
Shortly thereafter, the Puyallup Police Department anonymous
tip line received a telephone call from an individual who
reported that "Mike" had "shot someone"
and "possibly killed him, and it was in
self-defense." Deputies Ryan Olivarez and Fredrick
Wiggins were dispatched to the scene, arriving at 6:50 p.m.
Sergeant Christopher Adamson arrived shortly thereafter, at
approximately 7:13 p.m. Sergeant Erik Clarkson arrived at the
scene at 7:17 p.m.
and Wiggins knocked on the door of the duplex but received no
response. There was, however, a dog inside that was barking
aggressively.The deputies walked around the outside of
the duplex and attempted to look inside, but all of the
windows were closed and covered with blinds. There was a
light on in the upstairs western bedroom. The deputies
smelled a foul odor coming from the house and the garage.
Olivarez thought that "something about it just seemed
off" and was concerned with "trying to figure out
if someone, need[ed] help." Olivarez and Wiggins then
contacted the neighbors in order to gather more information.
Two neighbors informed the deputies that they had not seen
anyone coming or going from the duplex for about "four
or five days."
listened to the anonymous telephone call made to the Puyallup
tip line. Because the anonymous caller provided few details,
Adamson was worried "about whether someone was dead or
dying in the house." When he arrived, Adamson searched
for evidence to substantiate the anonymous telephone calls.
Adamson smelled a faint odor coming from the garage that he
believed was decaying flesh. Adamson spoke with a neighbor,
who told him that a sex offender named Boisselle lived in the
duplex. Adamson confirmed that information through the sex
offender registry. However, several entries in the computer
aided dispatch log indicated that Boisselle did not live at
the duplex anymore and that his current location was unknown.
directed Olivarez to identify and contact the owner of the
duplex. Olivarez contacted the owner and learned that he had
rented the duplex to a woman who had stopped paying rent. The
owner believed that there was a man named Michael living in
the duplex who may be the son of the woman, but the owner had
been unable to get Michael to pay rent. As a result, the
owner was forced to file for bankruptcy and no longer owned
the house. Based on the owner's statements, Adamson did
not believe that the owner could give valid consent for the
police to enter the duplex.
checked the license plates of the two vehicles parked in the
driveway of the duplex through the Department of Licensing
and learned that Lola Patterson was the registered owner of
both vehicles. Wiggins drove to Patterson's last known
address and spoke with her personally. Wiggins learned that
Patterson was Michael's mother and that Patterson had not
seen or heard from Michael in about three days. Adamson
believed that this information "just adds to the concern
that we have somebody that is potentially down in the
apartment or the duplex" because he could not
"account for Mike, or whoever the victim is."
arriving at the duplex, Clarkson also noticed a "really
bad odor" that "might be rotting garbage, or
something like that" coming from the garage. Clarkson
walked around the duplex and attempted to look inside, but
the windows were covered. The dog inside the duplex followed
Clarkson around, barking and growling. When Clarkson reached
the sliding door at the back of the duplex, the dog
aggressively charged at the sliding door and pushed the
blinds out of the way. Clarkson looked through the sliding
door and could see overturned furniture, which he interpreted
as "signs of [a] struggle" and an indication that
"something bad could have happened in there."
Clarkson and Adamson agreed to contact animal control in case
entry into the duplex was necessary. Adamson believed that he
had an obligation to force entry into the duplex to determine
whether someone was dead or dying and for the abandoned
noticed a man standing across the street who seemed
interested in the activities of the police. Clarkson went to
talk to the man, who identified himself as Christopher
Williamson. Williamson stated that he was a friend of Zomalt
and that Zomalt had been staying in the duplex with Michael.
Williamson had not seen or heard from Zomalt for several
weeks. Clarkson ended his conversation with Williamson at
around 7:50 p.m., roughly one hour and ten minutes after the
first deputy arrived at the duplex.
his conversation with Williamson, Clarkson received a call
from Auburn Police Detective Faini. Faini told Clarkson that
Auburn police were investigating a possible missing person
and homicide case and that it may be related to
Clarkson's welfare check. Faini told Clarkson that the
Auburn investigation concerned a roadside carpet burning
incident and that he would be interested to know if there was
any torn up carpet in the duplex. Faini told Clarkson that
the possible victim's name was Zomalt.
then contacted Adamson. Clarkson told Adamson that Zomalt was
associated by DNA evidence with a roadside burning incident
in Auburn. Adamson told Clarkson that he was able to look
through the sliding door and see that carpet had been ripped
up from the floor.
and Clarkson did not believe that they had enough time or
information to get a search warrant. Clarkson testified,
A I don't even know how you would write that, two
anonymous tips come in, and torn up carpet. I have no idea
what crime, or if any crime we are dealing with, it just
doesn't look good....
Q What is it in your mind that you thought you were dealing
with at that point?
A Dealing with a suspicious welfare check and possibly
someone that's down inside, has been hurt or dead, we
don't know. So at that point I'm thinking the bottom
line is you can't walk away from this. You have got a
duty to do something.
person apparently able to consent to a police entry of the
unit and believing that they did not have a sufficient basis
to obtain a search warrant, Adamson and Clarkson made a joint
decision to force entry into the duplex. Clarkson broke
through the front door. An animal control officer secured the
dog. The officers then performed a security sweep of the
duplex, looking for anyone who was hurt. Adamson and Clarkson
searched the second floor of the duplex while Wiggins and
Olivarez searched the first floor. The officers checked all
of the rooms, looking in closets and other large spaces for a
person or a body but ignoring drawers and other areas where a
person could not fit.
Clarkson believed that the smell was coming from inside of
the garage and was consistent with a dead body. Once all of
the rooms inside the duplex had been checked, deputies
Wiggins and Olivarez forced entry into the garage from inside
of the duplex. Once inside the garage, all four officers
could see a large, rolled up carpet with a shoe sticking out
and maggots pouring out of the bottom. Sergeant Clarkson
opened the garage door using the automatic door opener and
all four officers went around to the outside of the garage
for a clear view of the carpet. From outside of the house,
the officers saw an arm hanging out of the front end of the
carpet. Clarkson told the other officers that "this is a
crime scene now, " and that "it's time we have
to seal this off." None of the officers collected
evidence or touched the carpet.
contends that the trial court erred by denying his motion to
suppress the evidence obtained as a result of the warrantless
search of the duplex. We disagree.
United States Constitution prohibits unreasonable searches
and seizures. U.S. Const, amend. IV. "The Fourth
Amendment does not prohibit 'reasonable' warrantless
searches and seizures. The analysis under the Fourth
Amendment focuses on whether the police have acted reasonably
under the circumstances." State v. Morse, 156
Wn.2d 1, 9, 123 P.3d 832 (2005). A warrantless search based
on an officer's reasonable belief that he or she has the
authority to do so may mean that the search itself is
reasonable under the Fourth Amendment. Morse, 156
Wn.2d at 9-10.
I, section 7 of the Washington Constitution is more
protective than the Fourth Amendment, particularly where
warrantless searches are concerned. State v. Smith,
177 Wn.2d 533, 539, 303 P.3d 1047 (2013) (citing
Morse, 156 Wn.2d at 9-10). Article I, section 7
provides that "[n]o person shall be disturbed in his
private affairs, or his home invaded, without authority of
law." "Thus, where the Fourth Amendment precludes
only 'unreasonable' searches and seizures without a
warrant, article I, section 7 prohibits any disturbance of an
individual's private affairs 'without authority of
law."' State v. Valdez, 167 Wn.2d 761, 772,
224 P.3d 751 (2009). "This language not only prohibits
unreasonable searches, but also provides no quarter for ones
that, in the context of the Fourth Amendment, would be deemed
reasonable searches and thus
constitutional."Valdez, 167 Wn.2d at 772.
search conducted pursuant to a police officer's community
caretaking function is one exception to the warrant
requirement. State v. Thompson, 151 Wn.2d 793, 802,
92 P.3d 228 (2004). The community caretaking function was
first announced by the United States Supreme Court in
Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37
L.Ed.2d 706 (1973). In that case, addressing the Fourth
Amendment to the United States Constitution, the Court
Local police officers, unlike federal officers, frequently
investigate vehicle accidents in which there is no claim of
criminal liability and engage in what, for want of a better
term, may be described as community caretaking functions,
totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a
Cady, 413 U.S. at 441.
Supreme Court first cited to Cady in State v.
Houser, 95 Wn.2d 143, 151, 622 P.2d 1218 (1980), a case
involving the impoundment of an automobile. "Subsequent
Washington cases have expanded the community caretaking
function exception to encompass not only the 'search and
seizure' of automobiles, but also situations involving
either emergency aid or routine checks on health and
safety." State v. Kinzy, 141 Wn.2d 373, 386, 5
P.3d 668 (2000) (footnote omitted).
review a trial court's decision on a CrR 3.6 motion to
suppress to determine whether the court's findings are
supported by substantial evidence and whether those findings,
in turn, support the conclusions of law. State v.
Cole, 122 Wn.App. 319, 322-23, 93 P.3d 209 (2004).
Unchallenged findings of fact are verities on appeal.
State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594
(2003). We review conclusions of law de novo. Cole,
122 Wn.App. at 323. We may affirm the trial court's
ruling on any basis supported by the record and the law.
State v. Kelley, 64 Wn.App. 755, 764, 828 P.2d 1106
first consider whether the trial court was wrong to deny
Boisselle's motion to suppress in light of the framework
presented in Smith, 177 Wn.2d 533, the most recent
Washington Supreme Court case in which a majority of the
court considered the community caretaking function exception
to the warrant requirement.
involved a warrantless check of a motel registry and
subsequent entry into the room of an overnight guest with an
outstanding warrant. 177 Wn.2d at 537. As the police officers
were arresting the defendant, they observed an adult female
present in the motel room who was badly injured and sobbing.
The officers searched the room and discovered that the
woman's daughter was also present in the room. The woman
told the officers that Smith had beaten her and had sexually
assaulted her daughter. Smith, 177 Wn.2d at 537.
justice plurality of the Supreme Court concluded that the
warrantless search of the motel room fell under the
officers' community caretaking function.
The undisputed facts of this case make it clear that a
warrantless, limited intrusion into the motel room was
justified by the emergency exception to the warrant
requirement, also known as the "save life"
exception, a subset of the community caretaking exception to
the warrant requirement. Washington courts have held on many
occasions that law enforcement may make a warrantless search
of a residence if (1) it has a reasonable belief that
assistance is immediately required to protect life or
property, (2) the search is not primarily motivated by an