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State v. Witkowski

Court of Appeals of Washington, Division 2

April 24, 2018

TINA DEE BERVEN, Respondent.

          JOHANSON, J.

         Pursuant to a warrant, police found firearms and ammunition in a locked gun safe during a search of Tina Berven and William Witkowski's[1] residence. The superior court suppressed this evidence, ruling that the search exceeded the warrant's scope, and we granted discretionary review. The State argues that under the Fourth Amendment of the United States Constitution, the superior court erred when it concluded that the locked gun safe's contents were outside the warrant's scope. We agree with the State because the warrant authorized a search for firearms and because firearms were likely to be found in the locked gun safe. We also decline the Respondents' request to affirm on the alternative basis that the Washington Constitution's greater privacy protections under article I, section 7 include that a premises search warrant must expressly authorize the search of locked containers likely to hold the search's object. Accordingly, we reverse the superior court's ruling suppressing the evidence.


         I. Search Warrant and Addendum

         On October 27, 2015, Deputy Martin Zurfluh obtained a search warrant to search the Respondents' property, including their residence, for evidence of possession of stolen property and utility theft. The search warrant was limited to a stolen power meter and its accessories. An arrest warrant for Witkowski was also issued.

         On October 29, officers executed the search and arrest warrants. After this search, Deputy Zurfluh requested an addendum to the search warrant. In his affidavit, Deputy Zurfluh explained that after entering the Respondents' residence, police found drug paraphernalia, ammunition, one locked gun safe, one unlocked gun safe, a rifle case, and surveillance cameras. Deputy Zurfluh knew that the Respondents were felons and were prohibited from possessing firearms or ammunition.

         The search warrant addendum authorized police to search at the Respondents' street address for evidence of unlawful possession of a firearm, identity theft, unlawful possession of a controlled substance, and unlawful use of drug paraphernalia. The warrant addendum defined the area to be searched for this evidence as the main residence, a shed, and any vehicles and outbuildings at the street address.

         The addendum authorized the seizure of evidence including,

1. [f]irearms, firearms parts, and accessories, including but not limited to rifles, shotguns, handguns, ammunition, scopes, cases, cleaning kits, and holsters.
. . . .
4. Surveillance Systems used or intended to be used in the furtherance of any of the above listed crimes.
. . . .
6. Any item used as a container for item 4.

         Clerk's Papers (CP) at 68 (emphasis added). Notably, the addendum did not identify either of the gun safes as items to be seized, although Deputy Zurfluh stated in his affidavit as part of his description of the initial search that officers had found two gun safes in the residence.

         When executing the warrant addendum, officers opened the locked gun safe. They found firearms inside.

         Following the second search, the State charged Respondents with numerous counts including first degree unlawful possession of a firearm. Witkowski was additionally charged with seven counts of possession of a stolen firearm.

         II. Suppression Motions and Hearing

         The Respondents moved to suppress all evidence found as a result of the search. At the suppression hearing, Deputy Zurfluh testified that the locked gun safe was located in the kitchen and that it was about the size of a refrigerator. Deputy Zurfluh suspected that there were firearms in the safe because he had found ammunition in the home. In Deputy Zurfluh's experience, tall, upright safes were typically gun safes.

         Deputy Zurfluh further testified that when officers opened the locked gun safe, they found 11 loaded rifles and shotguns with their serial numbers filed off, a handgun, a police scanner, a large quantity of cash, ammunition, and cameras. The unlocked gun safe was empty.[2]

         The superior court suppressed the "evidence found inside the gun safes" under the Fourth Amendment. CP at 100. The superior court ruled that the addendum to the warrant "did not include the gun[] safes or containers for firearms" and that gun safes are not "personal effects, " so that "[t]he search of the safe[s] did not fall within the scope of the search warrant." CP at 99-100. The superior court later denied the State's motions for reconsideration.

         The State filed motions for discretionary review in both Respondents' cases. We granted the State's motions for discretionary review and consolidated the cases.


         I. Standard of Review

         We review de novo conclusions of law related to the suppression of evidence. State v. Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009). We also review de novo whether a search violated the Fourth Amendment to the United States Constitution because it exceeded a warrant's scope and whether article I, section 7 of the Washington Constitution has been violated. State v. Rankin, 151 Wn.2d 689, 694, 92 P.3d 202 (2004); see State v. Figeroa Martines, 184 Wn.2d 83, 90, 94, 355 P.3d 1111 (2015).

         II. The Fourth Amendment

         The State argues that the superior court erred under the Fourth Amendment when it suppressed evidence found inside the locked safe based on its determination that the search of the safe fell outside the warrant addendum's scope. We agree.

         A. Principles of Law

         The Fourth Amendment provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

         U.S. Const. amend. IV. When police execute a search warrant under a valid warrant, the search must be strictly within the scope of the warrant. Figeroa Martines, 184 Wn.2d at 94. We evaluate warrants in a commonsense, practical manner, not in a hypertechnical sense. State v. Perrone, 119 Wn.2d 538, 549, 834 P.2d 611 (1992).

         B. Within the Scope of the Warrant

         The State argues that the locked gun safe was within the warrant's scope because under the Fourth Amendment, when the warrant authorized the search of the premises for evidence of firearms, it authorized the search of the locked gun safe. The Respondents argue that the search exceeded the warrant's scope because the warrant excluded the locked gun safe by negative implication and because Deputy Zurfluh was aware of the locked gun safe but did not include it in the search warrant. We agree with the State.[3]

         1. Principles of Law: Scope of the Warrant

         "A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search." United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). "Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found." Ross, 456 U.S. at 821. Similarly, one leading treatise summarizes the law as follows:

A search made under authority of a search warrant may extend to the entire area covered by the warrant's ...

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