    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                      <=j   (-"o

STATE OF WASHINGTON,
                                                          No. 70898-8-1               § ™o
                      Respondent,
                                                          DIVISION ONE                °~' •?=:Tr
               v.

                                                          UNPUBLISHED OPINION,^,
CHENG S. SAEPHAN,                                                                    CO
                                                                                     oc


                      Appellant.                          FILED: December 15, 2014


      Appelwick, J. — Saephan appeals the denial of his motion to suppress

methamphetamine found on his person during a search incident to arrest.             Officers

apprehended Saephan in his home after his sister reported that he threatened to kill his

family members. Saephan argues that the emergency aid exception did not justify the

officers' entry into the home. The State maintains that the emergency aid exception

applies on these facts. It argues in the alternative that exigent circumstances justified the

entry. Saephan further asserts that the trial court failed to enter written findings of fact

and conclusions of law after his suppression hearing. We affirm.

                                          FACTS


       On May 10, 2013, Fey Saephan called 911 to report that her brother, Cheng

Saephan, was threatening to kill her and their family.1 Fey told the dispatcher that she

was in fear of Saephan, whom she reported was in the basement smoking

methamphetamine and was known to carry knives.

       Officer Eric Beseler was dispatched to the Saephan residence. This was Officer

Beseler's third time responding to a domestic violence call involving Saephan.


       1 For the sake of clarity, we refer to the appellant by his last name and his sister
by her first name. No disrespect is intended.
No. 70898-8-1/2




       During the first incident, Officer Beseler arrested Saephan for violating a court

order protecting his father.    According to Officer Beseler, Saephan had taken an

"aggressive posture" with his father.

      The second incident occurred on May 9, 2013. Fey reported that Saephan was

acting erratically, smoking methamphetamine, speaking in gibberish, shouting, and

swiping at the air with a knife. When Officer Beseler arrived, Saephan was in the shower

talking to himself. Officer Beseler removed Saephan from the shower. Saephan said

that President Barack Obama said to call him "Lightning Bolt." Otherwise, he mostly

spoke in gibberish.    Medical personnel decided to transfer Saephan to Harborview

Medical Center for a mental health evaluation and possible involuntary commitment.

       The third incident occurred the next day, when Saephan returned to the home he

shared with Fey, their two brothers, and their parents. Saephan was upset with his family

for calling the police and having him committed. He threatened to kill them and told them

they were all going to hell. Saephan also threatened to kill Fey's unborn baby. Fey called

the police again.

       According to the dispatch, there were five people in the house and Saephan was

in the basement. Officer Beseler arrived at 12:44 p.m., three minutes after the dispatch.

Officer Beseler believed that Saephan and his family members were still inside the house

when he arrived. He was aware of Saephan's reported methamphetamine use, mental

instability, prior aggressive behavior, and possession of a knife. As a result, he was

concerned about officer safety, the family members' safety, and Saephan's health. He

waited for additional backup.
No. 70898-8-1/3




       Officer Richard Bourns arrived at 12:51 p.m. He exited his car and walked toward

the house. Officer Bourns could see Officer Beseler speaking with Fey. He could not

hear their conversation, because he stopped about 15 feet away to keep a wide view of

the scene. He observed that Officer Beseler talked to Fey for about 30 seconds and that

Fey looked concerned.

       Based on his conversation with Fey, the dispatch information, and his prior

contacts with Saephan, Officer Beseler determined that Saephan needed to be taken into

custody and was most likely in the basement of the house. The basement could be

accessed by an exterior lower-level door. The officers approached the door, and Officer

Beseler pushed it open. Neither officer could see anyone in the immediately accessible

area, but they could tell that there were additional rooms in the basement. Officer Beseler

called out Saephan's name and ordered him to come out with his hands up.

       Saephan eventually walked out of a basement room with his hands up. He then

stopped about 20 feet away from the officers and appeared confused. From that distance,

the officers could not tell whether Saephan had access to weapons or other areas of the

house. The officers were concerned about other family members who were in the house

at the time.

       Officer Beseler asked Saephan to step toward them. Saephan did not comply.

The officers stepped inside the doorway. Officer Beseler again asked Saephan to come

closer. Saephan again did not comply. Officer Bourns further entered the basement and

grabbed Saephan's arm. Officer Beseler grabbed Saephan's other arm and the two

officers escorted Saephan out of the house.
No. 70898-8-1/4




       Officer Beseler handcuffed and arrested Saephan for the reported threats he made

to his family members. Officer Bourns conducted a search incident to arrest and found a

bag of suspected methamphetamine.

       The State charged Saephan with harassment-domestic violence and possession

of methamphetamine in violation of the Uniform Controlled Substances Act, chapter 69.50

RCW.


       Saephan moved to suppress evidence of the methamphetamine. He argued that

the officers unlawfully entered his home without a warrant and in the absence of exigent

circumstances. The State asserted that the officers acted lawfully under the emergency

aid doctrine.


       At the CrR 3.6 hearing, the court orally denied Saephan's motion:

       I find that the evidence preponderates in favor of the view that, in fact,
       Officer Beseler did know about specific threats from Ms. Saephan prior to
       entering into the house . . . and, therefore, there was probable cause to
       enter the house and arrest Mr. Saephan.

       The court later entered the following conclusions of law:

       1. At the time the officers entered the basement of this residence, they had
           probable cause to arrest the Defendant based on the totality of the
           reasonably trustworthy information available to them.

       2. The emergency doctrine validated this brief entry into the basement of
          the Saephan home without a warrant to arrest the Defendant. Given the
          totality of the information available to the officers, they were clearly
          motivated by the need to render aid or assistance inside the home. The
          entry into the home was not a pretext for conducting an evidentiary
           search, as in fact no search was conducted inside the home.           The
           officers complied with their duty to ensure conditions at the residence
           returned to normal and that the home was safe for all residents.

       3. The baggie of suspected methamphetamine is admissible. Itwas found
          in the Defendant's pocket during a search incident to his a [sic] lawful
           arrest, after the Defendant had been located during a valid entry into the
           Saephan home.
No. 70898-8-1/5




       The   jury acquitted   Saephan of harassment.            It found   him guilty of

methamphetamine possession. He appeals his conviction. .

                                      DISCUSSION

  I.   Motion to Suppress

       Saephan argues that the trial court erred in denying his motion to suppress,

because the officers' warrantless entry into his home violated his rights under the federal

and state constitutions.   He asserts that the emergency aid exception did not apply,

because the officers entered his home with the intent to arrest him, not to render aid. The

State argues that the emergency aid exception justified the officers' entry.        In the

alternative, the State asserts that the officers' entry was justified by the exigent

circumstances doctrine.


       When reviewing the trial court's denial of a motion to suppress, we ask whether

substantial evidence supports the challenged findings of facts and whether the findings

support the trial court's conclusions of law. State v. Gibson, 152 Wn. App. 945, 951, 219

P.3d 964 (2009). Substantial evidence is evidence sufficient to persuade a rational, fair-

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

(1994). Unchallenged findings of fact become verities on appeal. Gibson. 152 Wn. App.

at 951. We review conclusions of law de novo. State v. Hinton. 179 Wn.2d 862, 867,

319P.3d9(2014).

       The Fourth Amendment to the United States Constitution and article I, section 7 of

the Washington Constitution protect against unreasonable searches and seizures. State

v. Williams. 102 Wn.2d 733, 736, 689 P.2d 1065 (1984). Warrantless searches and

seizures are unconstitutional unless covered by an exception to the warrant requirement.
No. 70898-8-1/6




State v.Gatewood. 163 Wn.2d 534, 539, 182 P.3d 426 (2008). Exceptions to the warrant

requirement are "'jealously and carefully drawn.'" State v. Reichenbach. 153 Wn.2d 126,

131, 101 P.3d 80 (2004) (internal quotes omitted) (quoting State v. Hendrickson. 129

Wn.2d 61,72, 917 P.2d 563 (1996)). Under the Washington State Constitution, "the home

enjoys a special protection." State v. Schultz. 170 Wn.2d 746, 753, 248 P.3d 484 (2011).

Absent consent or exigent circumstances, the federal and state constitutions prohibit

warrantless entry into the home to make an arrest, even if probable cause exists to make

the arrest. Pavton v. New York. 445 U.S. 573, 587-88, 100 S. Ct. 1371, 63 L. Ed. 2d 639

(1980); State v. Holeman. 103 Wn.2d 426, 427, 693 P.2d 89 (1985); State v. Ramirez. 49

Wn. App. 814, 818, 746 P.2d 344 (1987).

       One exception to the warrant requirement is the emergency aid exception.

Schultz. 170 Wn.2d at 754. It "'allows for the limited invasion of constitutionally protected

privacy rights when it is necessary for police officers to render aid or assistance."' jd.

(quoting State v. Thompson. 152 Wn.2d 793, 802, 92 P.3d 228 (2004)). To prove the

emergency aid exception, the State must demonstrate that (1) the police officer

subjectively believed that someone likely needed assistance for health or safety

concerns; (2) a reasonable person in the same situation would similarly believe that there

was need for assistance; and (3) there was a reasonable basis to associate the need for

assistance with the place being searched.2 Id. at 754, 759.


         2 In Schultz. the Supreme Court noted that "the Court of Appeals has suggested
three more factors." jd. at 754. It is presently unclear whether all six factors must be met
for the emergency aid exception to apply. Compare id. at 755 (stating "We agree" after
listing the three additional factors); 760 n. 5 ("[T]he failure to meet any factor is fatal to the
lawfulness of the State's exercise of authority.") wjth State v. Smith. 177 Wn.2d 533, 541 -
42, 303 P.3d 1047 (2013) (applying only the original three factors in upholding a search

                                                    6
No. 70898-8-1/7




      Another exception to the warrant requirement is the "exigent circumstances"

doctrine. State v. Cardenas. 146 Wn.2d 400, 405, 47 P.3d 127, 57 P.3d 1156 (2002).

The rationale behind this exception is to "permit a warrantless search where the

circumstances are such that obtaining a warrant is not practical because the delay

inherent in securing a warrant would compromise officer safety, facilitate escape or permit

the destruction of evidence." State v. Audlev. 77 Wn. App. 897, 907, 894 P.2d 1359

(1995).   Danger to the arresting officer or to the public can constitute an exigent

circumstance. State v. Counts. 99 Wn.2d 54, 60, 659 P.2d 1087 (1983).

      The distinction between the two doctrines is not always clear. See, e.g., State v.

Raines. 55 Wn. App. 459, 463-65, 778 P.2d 538 (1989) (applying the emergency aid

factors, but using the heading "Exigent Circumstances" and concluding that "exigent

circumstances" justified entry); State v. Bakke. 44 Wn. App. 830, 832, 839-40, 723 P.2d

534 (1986) (stating that the question presented is whether the entry fell "within the

emergency exception," but holding that "exigent circumstances" justified the entry).

Earlier Washington cases suggested that the emergency aid exception is a subset of the

exigent circumstances doctrine. See, e.g.. State v. Loewen. 97 Wn.2d 562, 567-68, 647

P.2d 489 (1982); State v. Sanders. 8 Wn. App. 306, 310, 506 P.2d 892 (1973). More

recent cases analyze the emergency aid exception under the separate "community

caretaking" category. See, e.g.. State v. Kinzv. 141 Wn.2d 373, 387, 5 P.3d 668 (2000);

see also State v. Smith. 165 Wn.2d 511, 519, 199 P.3d 386 (2009).




under this exception). However, because we find that the emergency aid exception does
not apply on these facts, see infra, we need not address this disparity.

                                                7
No. 70898-8-1/8




       We believe that the latter is the correct approach. Admittedly, the two doctrines

have overlapping rationales, and it is conceivable that a particular emergency could

trigger both.   See State v. Muir. 67 Wn. App. 149, 153-54, 835 P.2d 1049 (1992)

(discussing State v. Campbell. 15 Wn. App. 98, 547 P.2d 295 (1976)).         Importantly,

however, the exceptions have distinct purposes. The exigent circumstances exception is

triggered by a general law enforcement emergency, such as a fleeing felon or destruction

of evidence. Muir. 67 Wn. App. at 152-53. The emergency aid exception, while also

rooted in exigency, is narrower. Sanders. 8 Wn. App. at 310. It allows officers to render

aid and assistance to a person whom they reasonably believe is in distress and need of

assistance. See id.


       Saephan argues that the emergency aid doctrine did not authorize the officers to

enter his home, because they did so to arrest him for harassment—not to render aid. We

agree that the emergency aid exception is inappropriate on these facts. When faced with

a need for assistance, the officers did not immediately locate the targets of Saephan's

threats and remove them from the residence for their safety. Instead, the officers went

directly to Saephan's likely position and apprehended him.       This approach quickly

neutralized the threat. But, it was inconsistent with community caretaking and rendering

aid to distressed persons.     Instead, it resembled a response to a law enforcement

emergency. This illustrates the distinction between the emergency aid exception and

exigent circumstances. In light of the differing purposes for these exceptions, we hold

that the trial court erred in concluding that the emergency aid exception justified the

officers' warrantless entry.




                                               8
No. 70898-8-1/9




       However, the State argues that the officers' entry was also justified by the exigent

circumstances doctrine. This court may affirm the trial court on any grounds established

by the pleadings and supported by the record. Truck Ins. Exch. v. VanPort Homes. Inc..

147 Wn.2d 751, 766, 58 P.3d 276 (2002). When reviewing a warrantless entry under the

exigent circumstances doctrine, we evaluate whether the totality of the circumstances

justifies the intrusion. Smith. 165 Wn.2d at 518. Six factors guide our analysis:

       "(1) the gravity or violent nature of the offense with which the suspect is to be
       charged; (2) whether the suspect is reasonably believed to be armed; (3) whether
       there is reasonably trustworthy information that the suspect is guilty; (4) there is
       strong reason to believe that the suspect is on the premises; (5) a likelihood that
       the suspect will escape if not swiftly apprehended; and (6) the entry [can be] made
       peaceably."

Id. (alteration in original) (quoting Cardenas. 146 Wn.2d at 402). Because we examine

the totality of the situation, circumstances may be "exigent" even if they do not satisfy all

six factors. ]d.

       For example, in State v. Machado. 54 Wn. App. 771, 777, 775 P.2d 997 (1989),

the court found exigent circumstances where five of the six factors were present. There,

officers entered a third party's apartment without a warrant, found Machado inside, and

arrested him for robbery. Id. at 772, 774. The trial court denied Machado's motion to

suppress. Id. at 774. It noted that robbery was a grave offense and there was reason to

believe Machado was armed, based on a witness's report that Machado had a gun. jd.

at 773, 776-77. In addition, there was evidence that Machado had committed the robbery

and was inside the apartment. Id. at 773, 777. And, the officers entered peaceably. Id.

at 777. The court also reasoned that "the arrest was not a preplanned operation, but was

part of an ongoing field investigation." Id. The court of appeals upheld the denial of
No. 70898-8-1/10




Machado's motion. Id. It observed that the fifth factor, likelihood of escape, was arguably

missing from the facts before it. ]cL However, it found that this absence did not preclude

application of the exception: "Under the circumstances [the officers] properly chose to

defuse the potentially dangerous situation by entering immediately." kL

       Exigent circumstances likewise justified the officers' entry into Saephan's home.

Saephan was reported to have committed a grave, violent offense—the threat to kill his

family members. See, e.g.. State v. Mclntvre. 39 Wn. App. 1, 2, 5, 691 P.2d 587 (1984)

(threat to kill police officer is grave offense); see also Ramirez. 49 Wn. App. at 819 (noting

that federal law limits entry under exigent circumstances to felony arrests); RCW

9A.46.020(2)(b)(ii) (threat to kill is class C felony).   Based on the dispatch report and

Officer Beseler's experience, Saephan was reasonably believed to be armed with a knife

and there was reasonably trustworthy information that Saephan was guilty of making the

threat. In addition, Officers Beseler and Bourns arrived soon after dispatch reported that

Saephan was in his basement room (three and ten minutes later, respectively). The

officers thus had strong reason to believe that Saephan was on the premises. And finally,

the officers entered peaceably.

       As in Machado. there is no evidence that Saephan was likely to escape if not swiftly

apprehended. See 54 Wn. App. at 777. The Machado court recognized that the officers

possibly could have kept the apartment under surveillance while they sought a warrant.

Id. However, the court found that waiting for a warrant was impractical due to the early

morning hour and shortage of police manpower. ]d




                                                 10
No. 70898-8-1/11




         The record before us does not support the same rationales. But, Officers Beseler

and Bourns were confronted with an ongoing threat of harm. They reasonably believed

that both the source of the threat and its targets were inside the home. They responded

to this threat of harm as part of their ongoing field investigation—not as a preplanned

operation. Thus, Officers Beseler and Bourns "properly chose to defuse the potentially

dangerous situation by entering immediately," rather than waiting for a warrant. See id.

Under these conditions, we conclude that exigent circumstances justified the officers'

entry.

 II.     Findings and Conclusions

         Saephan asserts that the trial court failed to enter written findings of fact and

conclusions of law after his suppression hearing.

         CrR 3.6 provides that the trial court shall enter written findings of fact and

conclusions of law at the conclusion of an evidentiary hearing. CrR 3.6(b). The purpose

of requiring written findings and conclusions is to ensure efficient and accurate appellate

review. State v. Cannon. 130 Wn.2d 313, 329, 922 P.2d 1293 (1996). "Although the

practice of submitting late findings and conclusions is disfavored, they may be 'submitted

and entered even while an appeal is pending' if the defendant is not prejudiced by the

belated entry of findings." ]± at 329-30 (quoting State v. McGary. 37 Wn. App. 856, 861,

683P.2d 1125(1984)).

         When Saephan filed his opening brief, the trial court had not yet entered its findings

and conclusions. However, the court subsequently entered findings and conclusions on

April 18, 2014. Saephan did not file a reply brief.




                                                   11
No. 70898-8-1/12




      The State asserts that Saephan was not prejudiced by the late filing. Indeed,

Saephan does not argue prejudice. We find no error in the delayed entry of the findings

and conclusions.


      We affirm.




WE CONCUR:




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