IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,
                                                  No. 78464-1-1
                     Appellant,
                                                  DIVISION ONE
              V.
                                                  UNPUBLISHED OPINION
 JEFFREY ALLEN BEACH,

                     Respondent.                  FILED: August 5, 2019


      APPELWICK, C.J. — The State charged Beach with possession of a stolen
vehicle. Beach moved to suppress evidence that resulted from law enforcement's

warrantless entry into the house where they arrested Beach. Finding that the

community caretaking exception did not apply, the trial court granted the motion to

suppress evidence and dismissed the case. We affirm.

                                     FACTS

      Around 7:00 a.m. on November 27, 2017, a person called 911 to report a

young child walking by himself near a major intersection. Officer Jason Nixon

responded to the 911 report, and took custody of the child from the person who

had found him. Although it was between 30 and 40 degrees outside, the child was

shoeless, in pajamas, and carrying a blanket. Officer Nixon decided to drive

around the neighborhood to look for the child's home.

       About three blocks from where he picked up the child, the officer saw a

house with its front door open. The officer decided to run the license plate of the
No. 78464-1-1/2


car in the driveway. He learned that the car had been reported stolen and called

for backup. At that point, the officer's interest in determining whether the child lived

at the house was "secondary to figuring out if this was a home invasion robbery."

After backup officers arrived, they surrounded the house, with one or two officers

going to the back of the house in case someone tried to exit from the back door.

       Officer Nixon, Officer Thomas Riener, and Sergeant Robert Constant went

to the front door. They knocked loudly "on the outside of the house" and

announced themselves for approximately 30 seconds. When there was no

answer, they drew their guns and entered the house, yelling, "This is the Kent

Police Department. Come out with your hands up."

       Jeffrey Beach and his girlfriend Tara Hall emerged from a rear bedroom.

They said that they had been sleeping. After identifying Beach and Hall, the

officers learned that they each had outstanding warrants. The officers arrested

Beach and Hall. While searching Beach upon arrest, the police found a key fob to

the car in the driveway.

       The officers also found out that Hall had been staying at the house for three

days. The owners of the house had asked her to watch their child, the same child

that was found blocks away.

       The State charged Beach with one count of possession of a stolen vehicle.

Beach moved to suppress any evidence resulting from the warrantless search.

The State argued that the warrantless search was valid under the community

caretaking exception because there was real and immediate danger of an ongoing

home invasion. The trial court conducted a hearing pursuant to CrR 3.6. After


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hearing testimony by Officers Nixon and Riener and Sergeant Constant, the court

found that the State had not established that the officers were acting within the

scope of their community caretaking function, and suppressed the evidence.

Beach moved to dismiss. The State deferred to the court, and the court granted

the motion. The State appeals.

                                   DISCUSSION

       The State argues that the trial court erred in finding that the community

caretaking exception did not apply and suppressing the evidence. It contends that

the court erred in finding that the entry was objectively unreasonable.1

  I.   Standard of Review

       An appellate court reviews findings of fact related to a motion to suppress

under the substantial evidence standard. State v. Levy, 156 Wn.2d 709, 733, 132

P.3d 1076 (2006). Substantial evidence is evidence sufficient to persuade a fair-

minded, rational person of the truth of the finding.        Id.   This court reviews

conclusions of law pertaining to suppression of evidence de novo. Id.

 II.   Warrantless Search

       The United States Constitution prohibits unreasonable searches and

seizures. U.S. CONST. amend. IV. Article I, section 7 in our state constitution is

often more protective than the Fourth Amendment, particularly where warrantless

       1 The State also argues that the trial court erred in finding that the officers'
subjective intent was to investigate criminal activity. And, it asserts that, because
the police knew of the stolen car, they had "mixed motives" in their search, but that
the car was "subordinate to community caretaking, and mixed motive searches are
constitutionally permissible." Because our analysis resolves on whether the entry
was objectively reasonable, we do not reach the issue of subjective intent of the
officers.

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No. 78464-1-1/4


searches are concerned. State v. Smith, 177 Wn.2d 533, 539, 303 P.3d 1047

(2013).       Under our state constitution, warrantless searches are per se

unreasonable unless one of the narrow exceptions to the warrant requirement

applies. Id. The burden of proof is on the State to show that a warrantless search

or seizure falls within one of the exceptions to the warrant requirement. State v.

Morse, 156 Wn.2d 1,7, 123 P.3d 832(2005).

   A. Community Caretaking Exception

      The community caretaking function exception encompasses situations

involving emergency aid, and also routine checks on health and safety. State v.

Kinzv, 141 Wn.2d 373, 386,5 P.3d 668(2000). Compared with routine checks on

health and safety, the emergency aid function involves circumstances of greater

urgency and searches resulting in greater intrusion. Id.

          The State asserts that the trial court analyzed the search under the "health

and safety check" factors. Beach disagrees, and asserts that the trial court

analyzed the validity of the search under the emergency aid component of the

community caretaking exception. Ultimately, the State asserts that, under either

analysis, the facts of this case fall under the community caretaking exception. And,

Beach asserts that, under either analysis, the State's warrantless search was

outside the scope of the community caretaking function, and asks this court to

affirm.

          The parties present the same test for determining whether officers

conducted a health and safety check. The State must show that "(1) the officer

subjectively believed someone needed health or safety assistance, (2) a


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No. 78464-1-1/5


reasonable person in the same situation would 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." State v. Weller, 185 Wn. App. 913, 924-25,

344 P.3d 695(2015). Under the health and safety check test, the State must also

show that the encounter under this exception was reasonable, which depends on

a balancing of the individual's interest in freedom from police interference against

the public's interest in having the police perform a community caretaking function.

Id. at 925. When weighing the public's interest, this court must cautiously apply

the community caretaking function exception because of the potential for abuse.

Id.

         The State and Beach do not agree on which test the court applies in

analyzing the emergency aid exception. The State cites the test our Supreme

Court articulated in Smith:

         [L]aw enforcement may make a warrantless search of a residence if
         (1) it 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) there is probable
         cause to associate the emergency with the place to be searched.

177 Wn.2d at 541. In contrast, Beach relies on the six part test the court approved

in State v. Schultz, 170 Wn.2d 746, 754-55, 248 P.3d 484 (2011):

       [T]he government must show that "(1) the 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." The Court of Appeals has suggested three
        more factors: (4) there is an imminent threat of substantial injury to
        persons or property;(5) state agents must believe a specific person
        or persons or property is in need of immediate help for health or


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No. 78464-1-1/6

       safety reasons; and (6)the claimed emergency is not a mere pretext
       for an evidentiary search. We agree.

(citations omitted)(quoting Kinzv, 141 Wn.2d at 386-87).

       We do not have to resolve the issue of which test should be applied,

because whether the officers had an objectively reasonable belief that assistance

was required is a factor in each of the tests.2 That factor is dispositive here.

   B. Reasonable Belief of Need for Assistance

       The State must show that "a reasonable person in the same situation would

believe that there was a need for assistance."3 Weller, 185 Wn. App. at 924-25.

       The State asserts that "an objective officer would not have been satisfied

that no emergency existed prior to the discovery of Beach and Hall." And, the

State argues that the facts here are similar to those in State v. Menz, 75 Wn. App.

351, 880 P.2d 48 (1994). In Menz, there was a 911 call reporting domestic

violence in progress at a specific address. Id. at 352. When officers responded to

the call, they found the front door to the home open. Id. at 353. They could not

see into the home, but the lights were on and they could hear a television playing

       2  This court has previously split over whether the same test should be
applied if the issue involves an emergency or a routine check on health and safety.
See State v. Boisselle, 3 Wn. App. 2d 266, 297-98, 299, 415 P.3d 621 (2018)
(Spearman, J., concurring), review granted, 191 Wn.2d 1004, 424 P.3d 1210
(2018). Recently, discussing Smith, Kinzv, and Schultz, this court expressed,"The
two formulations apply essentially the same test." State v. Harris, No. 77987-7-1,
slip op. at 4-5 (Wash. Ct. App. Jul. 22, 2019), http://www.courts.wa.gov/
opinions/pdf/779877.pdf. Like here, Harris resolves on whether the officers had a
reasonable, objective basis to believe there was an immediate need for assistance.
Id. at 5.
        3 Again, this is required under the health and safety check exception under
Weller, as well as the emergency aid analysis under Schultz. Weller, 185 Wn.
App. at 924-25; Schultz, 170 Wn.2d at 754. Similarly, Smith requires that the
officer "has a reasonable belief that assistance is immediately required to protect
life or property." 177 Wn.2d at 541

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No. 78464-1-1/7


inside. Id. The court highlighted that the officers were responding to a report of

domestic violence. Id. at 354. It concluded that a "reasonable person facing this

combination of circumstances would have thought that someone inside needed

assistance, and the officers were [within the emergency exception when they

entered." Id.

      In Menz, the court distinguished the facts from those in State v. Swenson,

59 Wn. App. 586, 799 P.2d 1188 (1990), stating,

      The only peculiar circumstance in that case was that the front door
      was open at 2:30 a.m. There was no indication that anyone was
      home, no indication that anyone was being hurt, and no indication
      that a crime was taking place. In contrast, the police in this case
      were told that domestic violence was occurring. They had reason to
      believe people were home because the front door was open on a
      winter night, the lights were on, and the TV was playing.

Id. at 355. The Swenson court observed, "There was no report of injured

individuals or of persons acting inappropriately in the vicinity of Swenson's

residence. .. .[The police] had no indication of forced entry, nor did they have any

reason to suspect that individuals, injured or not, were in the residence." 59 Wn.

App. at 590. The court held that the facts would not justify a reasonable officer in

the same circumstances to believe an emergency existed. Id.

       Conceding that this case lacks the 911 call of Menz, the State nonetheless

argues that "the additional circumstances in this case — the lost child and stolen

vehicle — at the very least equal a nebulous 911 call." But, before the officers

entered the home, there was no connection between the child and the residence.

A stolen vehicle in the driveway is a foundation for a criminal investigation, but

does not compel a reasonable person to believe that someone inside the adjacent


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No. 78464-1-1/8


house needs health or safety assistance, or emergency aid. As in Swenson, the

front door was open, but there was no report of anyone injured or acting

inappropriately relating to the house, there was no indication of forced entry, and

there was also no indication that anyone was even in the home. This case is more

similar to Swenson, in which the court held that the warrantless entry was not

objectively reasonable, than it is to Menz.

       In Schultz, the State Supreme Court recited the facts "most favorable to the

State":

      The police received a phone call from a resident of an apartment
      complex about a yelling man and woman. The responding officers
      stood outside and overheard a man and woman talking loudly. The
      officers heard a man say that he wanted to be left alone and needed
      his space. The officers knocked on the door. Schultz opened it,
      appearing agitated and flustered. Officer Malone asked Schultz
      about the male occupant of the apartment. Schultz told her no one
      was there but, when confronted with the fact the officers heard
      voices, summoned Robertson from a nearby bedroom. When
      Robertson appeared, the officers entered Schultz's apartment based
      upon her acquiescence only.
170 Wn.2d at 760. The court stated, "We have no reason to doubt the officers

subjectively believed that entry was necessary or that they acted in good faith." Id.

But, it held, "At the moment the officers crossed the threshold to Schultz's

apartment, they did not have enough facts to justify an entry based upon the

emergency aid exception to the warrant requirement." Id.

          The State asserts that this case is distinguishable from Schultz. The State

points out that, in Schultz, "the parties to the argument.. . were accounted for, no

injuries were observed at the door, and no request for help was made."




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No. 78464-1-1/9


       Here, there was a 911 report about a child wandering blocks away. When

Nixon stopped his police car outside of the residence, the child did not indicate that

he had any connection to the house. No connection between the child and the

house was established until after the officers entered. Any concern for the child

was not an ongoing emergency that would merit the officers going into the home.

      And here, the officers did not know of any requests for help from the house

before they entered. They did not know anyone was unaccounted for and saw no

evidence anyone had been injured. The officers did not see any broken windows,

signs of forced entry, or other evidence of a break-in. Once in the doorway, Officer

Nixon did not see anything in disarray inside the home that would indicate a

struggle or ongoing emergency. When the officers went into the home, the house

was in "fine condition." The officers here had less objective reason to enter the

house than the officers in Shultz.

       In a caretaking situation, the admissibility of the evidence discovered

depends on a balancing of the individual's interest in freedom from police

interference against the public's interest in having the police perform a community

caretaking function. Kinzy, 141 Wn.2d at 387. When weighing these interests,

"the balance ought to be struck on the side of privacy." Id. at 392(quoting United

States v. Dunbar, 470 F. Supp. 704, 708,(D. Conn.), affd, 610 F.2d 807 (2d Cir.
                                                                              \
1979)).

       Here, the trial court ruled,

       [T]he context may be considered, and should be considered. The
       fact that a child was wandering unaccompanied in cold weather
       without covering on his feet, the fact that there was an open door in


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No. 78464-1-1/10

      the cul de sac [sic], the fact that there was a car that apparently was
      stolen in the driveway, all of those are appropriately considered, but
      are they sufficient in fact to meet the State's burden regarding the
      exception? And the court answers in the negative.

             The record reflects several possible scenarios for a door being
      open and a child wandering through the streets. Oversleeping.
      Somebody overdosing. Errant babysitting. And then, of course,
      there is that possibility of a home invasion.

              Regarding the home invasion possibility, yes, there was a
      suspected stolen car in the driveway. However, there was no 911
      call as there was in Schultz. There was no evidence of forced entry.
      There was no visible damage to the door. And under these
      circumstances, the court rules that the State' has failed to meet its
      burden to show an imminent threat of substantial injury to persons or
      property or that there was a need for immediate help or safety such
      that the community caretaking exception should be properly applied.

              In this particular fact pattern, there was no specific person
      identified as needing help. We don't have any loud voices. The
      neighbor left without incident. There was no 911 call. None of those
      kinds of things that we talk about in Schultz and in some other cases
      were presented in this case.

              Further and finally, the record shows that a primary goal of the
      entry into the house was to gather evidence associated with a
      suspected stolen vehicle. The lead officer after 8:00 approximately
      was the auto theft specialist. The wandering child was safely seated
      in the police car. Again, no record of forced entry, no neighborhood
      concern, no 911 call. The exception does not apply.

      This Court must cautiously apply the community caretaking function

exception because of a real risk of abuse in allowing even well-intentioned stops

to assist. Kinzy, 141 Wn.2d at 388. Substantial evidence supports the trial court's

finding that a reasonable person would not have believed that there was a need

for immediate assistance. Thus, the trial court did not err in concluding that the




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No. 78464-1-1/11


community caretaking exception to the warrant requirement did not apply and

suppressing the evidence.4

      We affirm.



WE CONCUR:



  41141A i    deg"-




       4 Because we find that the State has not carried its burden as to objective
reasonability, neither prong of the community caretaking function test can be met.

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