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State v. Harris

Court of Appeals of Washington, Division 1

July 22, 2019

THE STATE OF WASHINGTON, Respondent,
v.
MATTHEW ALEX HARRIS, Appellant.

          Hazelrigg-Hernandez, J.

         The community caretaking exception permits law enforcement officers to invade an individual's privacy when the officers have a reasonable, objective belief that the person requires assistance. Officers searched the vehicle Matthew Harris occupied after discovering him and the driver sleeping inside. The officers knew there was an opioid crisis in the community, but had no other basis to conclude an emergency existed as to these two individuals. Generalized suspicions based on community-wide concerns are insufficient to justify an invasion of privacy. Reversed and remanded.

         FACTS

         In the middle of the day in December 2016, a civilian flagged down Kent Police Department Officers Ferguson and Birkhofer. The civilian said there were two people passed out in a car and asked the officers to check on them. The officers found the driver and the defendant, Matthew Harris, either asleep or unconscious. The officers offered conflicting testimony regarding how long they observed the occupants of the vehicle before making contact. Both officers testified that they looked through the window and observed that the occupants were not awake. The occupants were slumped over in their seats and, based on their training and experience, the officers suspected the occupants had used heroin. The officers initiated contact because of concerns that the occupants had potentially overdosed on heroin. The officers did not observe anything else inside the vehicle that suggested drug use or any other crime. Before contacting the occupants of the vehicle, the officers did not make any attempt to rouse them. The officers opened the doors to the vehicle and woke up the occupants. After they opened the doors, the officers observed drug paraphernalia consistent with the use of heroin.

         The officers arrested Harris for possession of drug paraphernalia. Based on evidence found during and subsequent to the arrest, Harris was later charged with and convicted of possession of stolen property, identity theft, and making a false statement to a public servant.

         DISCUSSION

         I. The community caretaking tests under Kinzy and Smith are essentially the same

         Warrantless searches are per se unreasonable unless one of the narrow exceptions to the warrant requirement applies. State v. Kinzy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000). The State bears the burden of showing a warrantless search falls within one of the exceptions, Id.

         The community caretaking exception to the warrant requirement encompasses both situations requiring emergency aid and routine checks on health and safety, Id. at 386, Whether a community caretaking encounter is reasonable depends on balancing the individual's privacy interest against the public's interest in having the police perform the caretaking function. Id. at 387. Circumstances requiring emergency aid involve greater urgency and justify a greater intrusion. Id., at 386. But the court must cautiously apply the community caretaking exception when weighing the public's interest, because of "'a real risk of abuse in allowing even well-intentioned stops to assist.'" Id. at 388, (quoting State v. DeArman, 54 Wn.App. 621, 626, 774 P.2d 1247 (1989)).

         Until State v. Smith, Washington had a clear test for evaluating whether the community caretaking exception applied. 177 Wn.2d 533, 303 P.3d 1047 (2013). Previous cases had consistently articulated a three part test adopted by our Supreme Court in Kinzy. Under Kinzy, the exception applies "when[:] '(1) the officer subjectively believed that someone likely needed assistance for health or safety reasons; (2) a reasonable person in the same situation would similarly believe that there was a need for assistance; and (3) there was a reasonable basis to associate the need for assistance with the place searched.'" 141 Wn.2d at 386-87. In State v. Schulz, our Supreme Court codified three additional factors: (4) an imminent threat of substantial injury to persons or property; (5) a belief that specific persons or property were in need of immediate help for health or safety reasons; and (6) that the claimed emergency is not a mere pretext for an evidentiary search. 170 Wn. 2d 746, 754, 248 P.3d 484 (2011).[1]

         In Smith, the plurality of a divided court appeared to rely on a "save life" exception as a subset of the community caretaking exception. 177 Wn.2d at 541. The test articulated by the Smith plurality requires that: (1) the officer has a reasonable belief that assistance is immediately required to protect life or property; (2) the search is not primarily motivated by an intent to arrest and seize evidence; and (3) the officer has probable cause to associate the emergency with the place to be searched. 177 Wn.2d at 541 (citing 12 Royce A. Ferguson, Jr., Washington Practice: Criminal Practice and Procedure § 2734, at 649-51 (3d ed. 2004) (collecting cases analyzing warrantless searches under the "save life" exception)).

         We recently addressed the community caretaking exception in State v. Boisselle, 3 Wn.App. 2d. 266, 415 P.3d 621, review granted, 191 Wn.2d 1004 (2018). In Boiselle, we applied both the Smith and Kinzy tests and determined that the result would be the same in either case. Id. at 280 and 286. Upon further consideration, we hold that it is unnecessary to apply the test twice.

         The two formulations apply essentially the same test. The first two factors of the Kinzy test, the officer's subjective belief of the need for assistance, and that a reasonable personal would also believe there was a need for assistance, coupled with the fourth and fifth factors added by Schulz. requiring an immediate threat to a specific person or property, are roughly equivalent to the first factor of the Smith test, that the officer has a reasonable belief that assistance is immediately required. The second factor in the Smith test, that the search is not primarily motivated by an intent to arrest or seek evidence, matches the sixth factor added by Schultz. The third factor in each test, the basis to associate the need for assistance with the place being searched, appears to arise out of language from the same case, State v. Nichols. See State v. Lynd, 54 Wn.App. 18, 21, 771 P.2d 770 (1989) (citing Nichols, 20 Wn.App. at 466).

         Whichever formulation of the test we apply, Harris argues only that there was no reasonable, objective belief that he was ...


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