Court of Appeals Division III 

State of Washington
Opinion Information Sheet


Docket Number: 26010-1
Title of Case: State of Washington v. Tana Loy Smith
File Date: 04/24/2008


SOURCE OF APPEAL
----------------
Appeal from Benton Superior Court
Docket No: 06-1-01037-3
Judgment or order under review
Date filed: 01/17/2007
Judge signing: Honorable Carrie L Runge


JUDGES
------
Authored by Philip James Thompson
Concurring: Dennis J. Sweeney
Kevin M. Korsmo


COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
Lila Jane Silverstein
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3647

Counsel for Respondent(s)
Andrew Kelvin Miller
Benton County Prosecutors Office
7122 W Okanogan Pl Bldg A
Kennewick, WA, 99336-2359




IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 26010-1-III
)
Respondent, )
) Division Three
v. )
)
TANA LOY SMITH, )
) PUBLISHED OPINION
Appellant. )
)

Thompson, J.* -- Law enforcement officers drew their guns and ordered

occupants out of a car that had arrived at a residence where police were about to serve a

search warrant. The officers had no reasonable articulable suspicion occupant Tana Loy

Smith had committed or was about to commit a crime or that she was a threat to anyone's

safety. As a result of the detention, police found methamphetamine in the car. We

conclude that the seizure violated Ms. Smith's Fourth Amendment rights and reverse the

trial court's denial of her suppression motion and the conviction upon which the evidence

* Judge Philip J. Thompson is serving as judge pro tempore of the Court of
Appeals pursuant to RCW 2.06.150.

is based.
On the afternoon of April 5, 2006, City of Richland Police Detective Curtis Smith1

led a team of officers to a location around the corner of a residence for which they had

obtained a warrant to search. As Detective Smith was set to execute the warrant, a sport

utility vehicle (SUV) pulled into the driveway. Two men got out of the car and went to

the door. Two women, Marcy Northey and Tana Loy Smith, remained inside the car.

The SUV was not listed in the search warrant. Nor were any women named in the

warrant. The purpose of the SUV visitors' presence was not known to the officers.

A detective conducting a presearch surveillance of the residence reported the

presence of the visitors to Detective Smith, who later recounted, "I kind of had to change

my tactical plan on the fly to incorporate these new bodies into the warrant." Report of

Proceedings (Jan. 17, 2007) (RP) at 7. He therefore "reassign[ed] [the detective] and a

couple other officers to take control of the SUV and the occupants." Id.

As Detective Smith and his team came around the corner to conduct the knock-and-

announce, three or four officers simultaneously contacted the two women in the SUV.

Ms. Smith and Ms. Northey were ordered out of the car at gunpoint and forced to the

ground. Detective Smith later justified the detention of the women by stating, "if I flow

past them with my main body of entry, my main entry element, it opens up our back side

and we don't know what these people are doing there." Id. at 25.

1 Although Detective Smith shares the common surname with Ms. Smith, we have
been provided no information that they are related.

Detective Smith testified that after securing the house, he "shifted into an

investigation mode and went back outside to the second scene," where the other officers

were holding the women. Id. at 10. As Detective Smith questioned Ms. Northey, he

noted that "she was having difficulty staying on task." Id. at 13. He also "checked [her]

pulse and noted an elevated pulse rate," characteristics he attributed to methamphetamine

use. Id. He noted that Ms. Smith was grinding her teeth, her pupils were dilated, she had

attention difficulty, and an abnormally high body temperature. He further testified that

both women smelled of methamphetamine.

When the detective retrieved Ms. Northey's purse from the SUV to examine her

identification, he detected the odor of methamphetamine, saw a prescription bottle with

its label scratched off, and saw smoking devices. Both Ms. Smith and Ms. Northey

eventually confessed to having smoked methamphetamine. The pipes tested positive for

methamphetamine.

The State charged Ms. Smith with possession of methamphetamine. Ms. Smith

moved to suppress all of the evidence discovered during what she characterizes was an

unconstitutional seizure, which lacked individualized suspicion of danger or wrongdoing.

The State argued that Ms. Smith's detention was justified under Michigan v. Summers,

452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981) and State v. King, 89 Wn. App.

612, 949 P.2d 856 (1998), which hold that officers may lawfully detain the occupants of

a home during execution of a search warrant.

At the suppression hearing, the trial court orally found:

As a result of Detective Smith and the other officers being on the
entry team, those officers certainly had concern for their safety with
individuals to the rear of them. The females, then, were also asked to exit
the vehicle. . . .
. . . .
. . . [I]t's clear then that the officers had a search warrant allowing
them to search this residence. The individuals named in the search warrant
are males. And, apparently, vehicles located at that residence. This SUV
apparently was not named in the search warrant. However, because of the
timing of the arrival of this SUV to a location where a proper search
warrant was had for this residence, because of the concerns for officer
safety, the Court finds that under the King case . . . it was appropriate in
this particular instance for the officers to command and take control of the
scene. They had the right to do that.
The Fourth Amendment's key principal is always what is reasonable
under the circumstances. Certainly, once the officers have a search warrant
in hand, that search warrant allows them to take command of the scene.
And that includes the situation where a SUV unknown to the officers
suddenly arrives, pulls up into the driveway adjacent to the ingress and
egress points of the this [sic] house that the officers have a lawful warrant
to search.

RP at 32-34.

The trial court denied the motion to suppress holding that because the initial

detention was justified the scope of the stop was expanded by the circumstances that

presented themselves to the detective. The court did not enter written findings of fact and

conclusions of law. Ms. Smith was convicted after a bench trial on stipulated facts. This

timely appeal follows.

On a motion to suppress, we generally review factual findings for substantial

evidence and conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970

P.2d 722 (1999), overruled on other grounds by Brendlin v. California, ___ U.S. ___,

127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007). No findings of fact or conclusions of law

were entered here as required by CrR 3.6(b). Failure to enter findings and conclusions is

error, but it is harmless if the trial court's oral findings are sufficient to permit appellate

review. State v. Johnson, 75 Wn. App. 692, 698 n.3, 879 P.2d 984 (1994). The error is

harmless here.

The trial court made an oral ruling in which the undisputed evidence was

recounted and legal conclusions were made. The parties do not dispute the essential

facts. Because the issues here are strictly of a legal nature, formal findings and

conclusions are less crucial. See State v. Tagas, 121 Wn. App. 872, 875-76, 90 P.3d

1088 (2004).

The issue here is clear: whether police may lawfully seize at gunpoint and detain

for investigation the two occupants of a car who appeared in the driveway of a residence

at which officers are preparing to execute a search warrant when neither the vehicle nor

any woman was named. We hold that they may not.

The Fourth Amendment to the United States Constitution, made applicable to the

states by the Fourteenth Amendment, guarantees the "right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures."

U.S. Const. amend. IV; Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081

(1961). A warrantless seizure is presumed unreasonable under the Fourth Amendment.

State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980).

The presumption of unreasonableness may be rebutted by a showing that one of

the "few 'jealously and carefully drawn exceptions' to the warrant requirement" applies

to the case under consideration. Id. (internal quotation marks omitted) (quoting Arkansas

v. Sanders, 442 U.S. 753, 759, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979)). "The State

bears the burden of showing a seizure without a warrant falls within one of these

exceptions." State v. Kinzy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000).

The most fundamental of the exceptions to the warrant requirement is the

detention of a person that an officer has probable cause to believe has committed a crime.

King, 89 Wn. App. at 618 (citing County of Riverside v. McLaughlin, 500 U.S. 44, 56,

111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991)). A second, narrower exception is an

investigative Terry stop, based upon less evidence than is needed for probable cause to

make an arrest, which permits the police to briefly seize an individual for questioning

based on specific and articulable objective facts that give rise to a reasonable suspicion

that the individual has been or is about to be involved in a crime. Id. (citing Terry v.

Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)); State v. Armenta, 134

Wn.2d 1, 10, 948 P.2d 1280 (1997).

Neither of these exceptions applies here. The officer expressly testified that he did

not know why the women were present. He could not, therefore, and did not, have

probable cause or reasonable suspicion that these women were involved in criminal

activity.

"A third, still narrower application is that even without probable cause or

reasonable suspicion of criminal activity, it is reasonable for an officer executing a search

warrant at a residence to briefly detain occupants of that residence, to ensure officer

safety and an orderly completion of the search." King, 89 Wn. App. at 618-19 (emphasis

added) (citing Summers, 452 U.S. at 702-03, 705). This is the exception under which the

State justifies the detention here.

As Ms. Smith correctly points out, however, this exception is limited in its

application to occupants of the residence being searched. The State cites no authority to

justify the detention of persons outside of a residence in which the search is to be

conducted. And we decline to extend the holding in Summers.

The State relies on State v. Galloway, 14 Wn. App. 200, 202, 540 P.2d 444 (1975),

where police detained and frisked a person who entered the residence in which a search

was being conducted. Galloway holds that police may conduct a limited search for

weapons to protect themselves during the execution of a warrant. Id. Police must,

however, have a reasonable suspicion that the person is armed. Ybarra v. Illinois, 444

U.S. 85, 92-94, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979); accord Galloway, 14 Wn. App.

at 202.

"[W]hile an occupant may be detained during the execution of a residential search

warrant, this limited exception to the probable cause requirement does not extend to those

merely present on the premises." State v. Broadnax, 98 Wn.2d 289, 304, 654 P.2d 96

(1982), overruled on other grounds by Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct.

2130, 124 L. Ed. 2d 334 (1993). The court went on to explain: "'[M]ere presence' is not

enough; there must be 'presence plus' to justify the detention or search of an individual,

other than an occupant, at the scene of a valid execution of a search warrant." Id. at 301.

The "plus" consists of independent factors, other than arrival at the scene, tying the

person to the illegal activities being investigated or raising a reasonable suspicion that the

person is armed and dangerous. Id. at 296, 300-01.

Detective Smith was examined concerning the threat that Ms. Smith posed:

Q. But you had no individualized suspicion, either in terms of the evidence
or when they were taken out of vehicle, that Miss Smith was -- had been
involved in criminal activity or was about to commit a crime. Fairly said?
A. I had no idea what she was doing there.
Q. Or was armed and presently dangerous?
A. I had no way of knowing whether she was armed and presently
dangerous.

RP at 23.

This court has held that when a person comes into the residence in which a search

is being conducted, any detention must be justified by specific and articulable facts that

create an objective, reasonable belief that the suspect is armed and dangerous and may

not be based on a generalized suspicion that people present during narcotic searches are

often armed. State v. Lennon, 94 Wn. App. 573, 580-81, 976 P.2d 121 (1999). There are

no facts to show an individualized suspicion that Ms. Smith posed a threat to officer
safety.2

The State relies on State v. Howard, 7 Wn. App. 668, 502 P.2d 1043 (1972), a

case that predated the presence-plus requirement announced by our Supreme Court in

2 Detective Smith testified that another officer had reported that Ms. Northey made
"furtive movements," which was described as an effort to hide something. RP at 11. The
detective testified that such movements did not raise a suspicion as to Ms. Smith that a
crime was afoot or that she was armed and dangerous. Moreover, the decision to seize
and detain the women was made prior to any such movements.

Broadnax.3 To the extent it is inconsistent with Broadnax, it is not binding authority.

Less intrusive action on the part of the officers could have achieved the desired

result. Notably, the detective had recorded the comings and goings of other visitors and

had not detained anyone else.

3 In Howard, the defendant stopped his car near the door at the rear of a residence
that was being searched at 10 p.m. on a warrant based on controlled drug buys. Mr.
Howard was seen bending down, trying to hide something in his car. Mr. Howard was
recognized by the officer as a suspected drug dealer and user and the officer knew that
Mr. Howard carried a concealed knife. The appellate court held that because the officer
had a duty to ascertain that the vehicle's occupants would not interfere with the search
and what business the occupants had at the address, the officer had the right to make a
reasonable frisk for weapons and to inspect the interior of the vehicle with a flashlight.
The court held: "A realistic appraisal of the risk to a police officer under the
circumstances of this case demands this extension of the right to frisk." Howard, 7 Wn.
App. at 675.

Because the officers had no reasonable articulable suspicion that Ms. Smith had

committed or was about to commit a crime or that she was a threat to anyone's safety, the

seizure violated Ms. Smith's Fourth Amendment rights. All "evidence obtained as a

result of an unlawful seizure is inadmissible." State v. Reichenbach, 153 Wn.2d 126,

135, 101 P.3d 80 (2004).

Reversed.

___________________________________
Thompson, J. Pro Tem.

WE CONCUR:

___________________________________
Sweeney, J.

___________________________________
Korsmo, J.