Court of Appeals Division III 

State of Washington
Opinion Information Sheet


Docket Number: 26900-1
Title of Case: State of Washington v. Roger Hinshaw
File Date: 04/16/2009


SOURCE OF APPEAL
----------------
Appeal from Grant Superior Court
Docket No: 07-1-00039-1
Judgment or order under review
Date filed: 01/14/2008
Judge signing: Honorable Evan E Sperline


JUDGES
------
Authored by John A. Schultheis
Concurring: Kevin M. Korsmo
Teresa C. Kulik


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

Counsel for Petitioner(s)
David L. Donnan
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635


Gregory Charles Link
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635

Counsel for Respondent(s)
D Angus Lee
Grant County Prosecuting Attorney
Po Box 37 Law And Justice Center
Ephrata, WA, 98823-0037




IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 26900-1-III
)
Respondent, )
) Division Three
v. )
)
ROGER HINSHAW, )
) PUBLISHED OPINION
Petitioner. )
)

Schultheis, C.J. -- A warrantless entry inside a home is presumptively

unreasonable under the Fourth Amendment to the United States Constitution and article I,

section 7 of the Washington Constitution. Absent exigent circumstances that threshold

may not reasonably be crossed without a warrant. Here, Roger Hinshaw argues that the

trial court erred in concluding that police demonstrated exigent circumstances justified

their warrantless entry into his home. We agree and reverse.

FACTS

On February 28, 2006, at 9:39 p.m., dispatch advised Moses Lake police officers

of a person driving a car on a bike path. Shortly thereafter, an officer spoke with the

No. 26900-1-III
State v. Hinshaw

person who reported the incident. She described the car and stated that she heard the car

hit something on the bike path and a tire blow out.

At 9:57 p.m., an officer contacted Mr. Hinshaw, who was riding a bicycle close to

the bike path. Mr. Hinshaw stated that he had been a passenger in the suspect car, but

had not been driving. Mr. Hinshaw was released from further questioning. Officers then

searched the area for a car that matched the description given by the witness. At 10:31

p.m., officers found the car parked at Mr. Hinshaw's house with a flat front tire.

Officers knocked on the front door of Mr. Hinshaw's house. Mr. Hinshaw initially

spoke with the officers through a closed door. Mr. Hinshaw then opened the door, but

left the screen door shut. Mr. Hinshaw was cooperative with officers. He confirmed his

identity and admitted to drinking at a bar that evening. Officers could smell the odor of

alcohol through the screen door.

Officers concluded that Mr. Hinshaw was intoxicated. Concerned that Mr.

Hinshaw's blood-alcohol level was dissipating, Officer Ramon Lopez opened the screen

door, reached inside Mr. Hinshaw's house, and grabbed Mr. Hinshaw's arm, advising

him that he was under arrest. Mr. Hinshaw stepped back from the door and officers

followed him inside his house. Officer Lopez never let go of Mr. Hinshaw's arm and

followed him inside where he arrested him. Mr. Hinshaw refused to take a breath

test.

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No. 26900-1-III
State v. Hinshaw

The State charged Mr. Hinshaw with the misdemeanor offenses of driving while

under the influence of intoxicants (DUI), first degree negligent driving, and hit and run.

Before trial, Mr. Hinshaw moved to suppress evidence obtained as a result of the officers'

warrantless entry into his home. The district court denied the motion, finding that DUI is

a "grave offense" and the potential dissipation of blood-alcohol evidence permitted the

officers to enter Mr. Hinshaw's home. Clerk's Papers (CP) at 29. Mr. Hinshaw was

convicted by a jury of all charges.

The superior court affirmed the district court's ruling. It also found that DUI is a

grave offense and the risk of losing blood-alcohol evidence was a sufficient exigency

justifying the warrantless entry. This court granted Mr. Hinshaw's motion for

discretionary review.

ANALYSIS

Mr. Hinshaw asserts that the lower courts erred in determining that exigent

circumstances justified the officers' warrantless entry into his home. He does not dispute

that the officers had probable cause to arrest him for his charged crimes. Therefore, the

issue we must decide is whether the police met their burden to prove that exigent

circumstances excused their failure to obtain a warrant before entering Mr. Hinshaw's

home.

We review findings of fact on a motion to suppress under the substantial evidence

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No. 26900-1-III
State v. Hinshaw

standard. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), overruled on other

grounds by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132

(2007). Substantial evidence is evidence sufficient to persuade a fair-minded, rational

person of the truth of the finding. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313

(1994). We review de novo conclusions of law in an order pertaining to suppression of

evidence. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996). Thus, whether

exigent circumstances were present here is a legal question we review de novo.

Mr. Hinshaw first contends that the Washington Constitution imposes an absolute

ban on warrantless home arrests for misdemeanors. To support his position, Mr.

Hinshaw points to language in State v. Hatchie, 161 Wn.2d 390, 399, 166 P.3d 698

(2007) that provides, "but for [an arrest] warrant, police entry into a private home to

make a misdemeanor arrest is per se invalid." Based on this language, Mr. Hinshaw

asserts that no exigency justifies a warrantless home arrest for a misdemeanor.

Mr. Hinshaw's argument is not persuasive. Immediately after stating that a

warrantless entry for a misdemeanor arrest is per se invalid, the Hatchie court noted that

in such a situation the "'presumption of unreasonableness is difficult to rebut, and the

government usually should be allowed to make such arrests only with a warrant issued

upon probable cause by a neutral and detached magistrate.'" Hatchie, 161 Wn.2d at 399

(emphasis added) (quoting Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S. Ct. 2091, 80 L.

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No. 26900-1-III
State v. Hinshaw

Ed. 2d 732 (1984)). In view of this language, the court is simply stating that it is the rare

situation where a warrantless home entry for a minor offense would be justified. We

conclude that Hatchie does not stand for an absolute ban on such entries.

Next, Mr. Hinshaw argues that even if we reject his argument that the entry here

was per se invalid under Hatchie, it cannot be justified under a Fourth Amendment

analysis because police failed to establish that immediate action was required to deal with

an emergency. To support his argument, he points to the lack of evidence pertaining to

the length of the alleged delay in obtaining a warrant or the degree to which Mr.

Hinshaw's blood-alcohol level would have changed during that undefined period of time.

Accordingly, he assigns error to the trial court's findings that (1) the potential loss of

blood-alcohol evidence justified the arrest, and (2) the process of obtaining a warrant is

not "instantaneous" -- that "[s]ome time--under the circumstances, precious time in an

evidentiary sense--would have been lost to the warrant process." CP at 321.

All warrantless entries of a home are presumptively unreasonable. Payton v. New

York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Bessette, 105 Wn.

App. 793, 798, 21 P.3d 318 (2001). We have held that absent exigent circumstances,
both the Fourth Amendment1 and article 1, section 7 of the Washington State

1 The Fourth Amendment provides in part, "The right of the people to be secure in
their persons [and] houses . . . against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause, supported by oath or
affirmation." U.S. Const. amend. IV.

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No. 26900-1-III
State v. Hinshaw

Constitution2 prohibit the warrantless entry into a person's home to make an arrest. State

v. Ramirez, 49 Wn. App. 814, 818, 746 P.2d 344 (1987) (citing Payton, 445 U.S. at 587-

88). "Freedom from intrusion into the home or dwelling is the archetype of the privacy

protection secured by the Fourth Amendment." Dorman v. United States, 140 U.S. App.

D.C. 313, 317, 435 F.2d 385 (1970).

"Exigent circumstances" involve a true emergency, i.e., "an immediate major

crisis," requiring swift action to prevent imminent danger to life, forestall the imminent

escape of a suspect, or the destruction of evidence. Id. at 319; Michigan v. Tyler, 436

U.S. 499, 509-10, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978). "The idea underlying the

exigent circumstances exception to the requirement of a search warrant is that police do

not have adequate time to get a warrant." Bessette, 105 Wn. App. at 798. The police

bear the heavy burden of showing that exigent circumstances necessitated immediate

police action. Johnson, 128 Wn.2d at 447; Welsh, 466 U.S. at 749-50. They must show

why it was impractical, or unsafe, to take the time to get a warrant. State v. Wolters, 133

Wn. App. 297, 303, 135 P.3d 562 (2006). "When an officer undertakes to act as his own

magistrate, he ought to be in a position to justify it by pointing to some real immediate

and serious consequence if he postponed action to get a warrant." McDonald v. United

2 Article 1, section 7 provides, "No person shall be disturbed in his private affairs,
or his home invaded, without authority of law." Const. art. I, ยง 7.

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No. 26900-1-III
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States, 335 U.S. 451, 460, 69 S. Ct. 191, 93 L. Ed. 153 (1948).

In evaluating exigency, we apply the following factors: (1) the gravity of the

offense, particularly whether it is violent; (2) whether the suspect is reasonably believed

to be armed; (3) whether police have reasonably trustworthy information that the suspect

is guilty; (4) there is strong reason to believe that the suspect is on the premises; (5) the

suspect is likely to escape if not swiftly apprehended; (6) the entry is made peacefully;

(7) the police are in hot pursuit; (8) the suspect is fleeing; (9) the officers or public are in

danger; (10) the suspect has access to a vehicle; and (11) there is a risk that the police

will lose evidence. State v. Terrovona, 105 Wn.2d 632, 644, 716 P.2d 295 (1986). Not

all factors must be met in order to find exigent circumstances; however, the

circumstances must show that the officer needed to act quickly. State v. Cardenas, 146

Wn.2d 400, 408, 47 P.3d 127, 57 P.3d 1156 (2002).

Here, the State argues that the State established that DUI is a grave offense and

that the potential destruction of blood-alcohol evidence justified the warrantless entry into

Mr. Hinshaw's home. It also argues that "because DUI is always and necessarily

accompanied by the exigent circumstance of destruction of evidence (since blood-alcohol

content is in a constant state of change), exigent circumstances may exist in every DUI

case provided that DUI is a sufficiently grave offense." Br. of Resp't at 12.

We disagree. The police here presented no evidence of a major crisis demanding

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No. 26900-1-III
State v. Hinshaw

immediate entry into Mr. Hinshaw's home. The record shows that police had probable

cause to believe Mr. Hinshaw had become intoxicated and had driven home where he

remained. The reckless operation of the car and consequent threat to public safety had

ended. There was no suggestion that Mr. Hinshaw was armed or dangerous. He posed

no threat, imminent or otherwise, to the safety of the officers or the public. His car was

essentially disabled and police had last seen him on a bicycle. He was not fleeing or

seeking to escape. Finally, the circumstances here did not involve violence or threats of

violence. His offense had not harmed anyone, he had merely damaged property.

Furthermore, police failed to make any showing that destruction of evidence was

imminent, or that the arresting officer could not have obtained a warrant before the

alcohol dissipated. The evidence offered by the State consisted solely of Officer Lopez's

testimony that, "Mr. Hinshaw admitted that he was drinking at a local establishment . . . I

didn't want to lose the alcohol evidence." CP at 46. He offered no evidence about the

length of time necessary to obtain a warrant or the time required to secure the evidence.

In short, police made no showing that a delay of any length would have resulted in the

imminent destruction of evidence. Without evidence of some real immediate and serious

consequence resulting from a delay in obtaining a warrant, the State failed to carry its

burden to prove exigency.

While no Washington case addresses our particular facts, a recent Oregon case

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No. 26900-1-III
State v. Hinshaw

supports our conclusion. In State v. Kruse, 220 Or. App. 38, 184 P.3d 1182 (2008),

officers had probable cause to believe the defendant had committed a DUI and other

alcohol related offenses. When officers went to the defendant's house, she refused to

speak to them. Officers entered her home without a warrant. At the suppression hearing,

an officer testified that he did not know the "'exact time'" required to obtain a warrant

but that it would have been "'very lengthy.'" Kruse, 220 Or. App. at 41. The trial court

found that the dissipation of alcohol constituted an exigent circumstance justifying the

warrantless entry into a private home.

The Oregon Court of Appeals reversed the trial court, finding that "[t]he state

failed to prove that a warrant, including a telephonic warrant, could not have been

obtained within a reasonable time." Id. at 43. It ultimately held that "the potential

destruction of evidence may justify a warrantless entry into a suspect's home 'if the state

proves that the arresting officers could not have obtained a warrant before the alcohol in

the suspect's body dissipated.'" Id. at 42 (quoting State v. Roberts, 75 Or. App. 292,

296, 706 P.2d 564 (1985)).

This is precisely what the State failed to prove here -- that a warrant could not be

obtained before the evidence dissipated. Without evidence of any exigency justifying the

warrantless entry, we need not address whether DUI is a grave offense. It is well settled

that no exigency is created simply because there is probable cause to believe that a

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No. 26900-1-III
State v. Hinshaw

serious crime has been committed. Welsh, 466 U.S. at 753; Payton, 445 U.S. at 589

(requiring exigent circumstances for warrantless home entry in a murder case); City of

Seattle v. Altschuler, 53 Wn. App. 317, 766 P.2d 518 (1989).

CONCLUSION

The State failed to carry its burden to prove exigency. We hold that the

warrantless entry into Mr. Hinshaw's home to arrest him was unreasonable under

article I, section 7 of our constitution. Accordingly, the trial court erred in failing to

suppress evidence obtained by virtue of the entry. We therefore reverse.

__________________________________
Schultheis, C.J.

WE CONCUR:

___________________________________
Kulik, J.

___________________________________
Korsmo, J.