      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,                 )
                                         )       DIVISION ONE
                     Appellant,          )
                                         )       No. 74633-2-1
              v.                         )
                                         )       UNPUBLISHED OPINION
JEFFREY ISAAC SCHENCK,                   )
                                                                                    co
                                         )
                     Respondent.         )       FILED: February 21, 2017
                                         )

       DWYER, J. — The State of Washington appeals from an order dismissing a

charge of unlawful possession of a firearm in the first degree against Jeffrey

Schenck. The State contends that the trial court erred by ruling that the warrant

authorizing a search of Schenck's residence for evidence of his son's crimes and

the seizure of locked containers located therein did not authorize the police to

search a locked cabinet discovered in his bedroom. We agree.

       Pursuant to our Supreme Court's decision in State v. Fioeroa Martines,

184 Wn.2d 83, 355 P.3d 1111 (2015), a warrant authorizing seizure of an item

also authorizes a search of that item when such a search is necessary to

determine the item's evidentiary significance. Accordingly, the warrant here at

issue authorized the police to search the locked cabinet because such a search

was necessary to determine the evidentiary significance of the items contained
No. 74633-2-1/2


therein. The trial court thus erred by granting Schenck's suppression motion and

dismissing the charge against him. We reverse.

                                              1

       Schenck shared a multi-bedroom residence with Jeremy Schenck, his

son.1 In early 2015, law enforcement officers investigated several crimes

believed to have been committed by Jeremy. The investigation culminated in

warrants being issued for Jeremy's arrest. Upon execution of the warrants, the

investigating officers discovered evidence of criminal activity on Jeremy's person,

in his car, and on his cell phone.

       Based on this evidence, a request was made and a warrant was obtained

authorizing a search of the Schenck residence for evidence of seven crimes:

unlawful possession of a controlled substance, unlawful possession of drug

paraphernalia, mail theft, identity theft in the second degree, forgery, and

unlawful possession of stolen property in the second and third degree. The

warrant authorized law enforcement officers to:

       Seize, if located, the following property or person(s):
       Any illegally possessed controlled substances, narcotic
       paraphernalia, mail, access devices, payment instruments, financial
       documents, pawn slips, records, papers of ownership, receipts,
       scales, ledgers, proceeds, locked containers, and items used for
       the sale and transport of illegal drugs.

(Emphasis added.)

       Upon execution of the warrant, the investigating officers entered the

residence and searched the rooms within. While in a room determined to be



         1 Jeffrey Schenck and Jeremy Schenck share a last name. Our references to Schenck
refer to Jeffrey Schenck.


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No. 74633-2-1/3


Schenck's bedroom, the officers encountered a locked metal cabinet in a closet.

An officer breached the lock on the cabinet and discovered several firearms

inside.

          Because Schenck was barred from possessing firearms due to a prior

felony conviction, he was arrested a few days later. Upon his arrest, Schenck

made several statements to the arresting officers, avowing that he intended to

have his right to possess firearms restored, claiming that the bedroom in which

the firearms were found was not his bedroom, and disclaiming ownership of the

firearms. Nevertheless, Schenck was charged with one count of unlawful

possession of a firearm in the first degree, in violation of RCW 9.41.040(1).2

          Prior to trial, the State indicated that it planned to present evidence of the

firearms located in the locked cabinet and Schenck's statements to the arresting

officers. Schenck moved to suppress this evidence, claiming that the warrant

authorized only seizing—not searching—locked containers. Because the warrant

did not authorize a search of the cabinet, Schenck argued, obtaining another

search warrant was a necessary predicate to a lawful search of the locked

cabinet in his bedroom. Thus, Schenck argued, the officers' search of the

cabinet was, in fact, an unlawful warrantless search and any evidence garnered

therefrom was required to be excluded from trial. The trial court granted

Schenck's motion. The State moved for reconsideration, which the trial court



          2 RCW 9.41.040 reads, in pertinent part:
          (1)(a) A person, whether an adult or juvenile, is guilty of the crime of unlawful
          possession of a firearm in the first degree, if the person owns, has in his or her
          possession, or has in his or her control any firearm after having previously been
          convicted or found not guilty by reason of insanity in this state or elsewhere of
          any serious offense as defined in this chapter.


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No. 74633-2-1/4


denied. Schenck then moved to dismiss the State's case, a motion the trial court

granted.

                                         II

      The State contends that the trial court erred by ruling that the search

warrant, which authorized the seizure of locked containers, did not also authorize

a search of those containers, once seized. We agree.

       Our analysis is controlled by State v. Figeroa Martines, 184 Wn.2d 83. In

that case, Figeroa Martines was suspected of driving under the influence and a

warrant was issued authorizing the seizure of a sample of his blood. Fiqeroa

Martines, 184 Wn.2d at 88. The warrant did not expressly authorize a search of

the blood sample, once seized. Figeroa Martines, 184 Wn.2d at 88.

       In proceedings before this court, Figeroa Martines argued that an

additional search warrant was required for the police to lawfully test the blood

sample. State v. Fiqeroa Martines, 182 Wn. App. 519, 523, 331 P.3d 105 (2014).

This was so, he argued, because testing the blood constituted a search not

authorized by the warrant authorizing seizure of a sample of his blood. Fiqeroa

Martines, 182 Wn. App. at 523. In response, the State contended that the

warrant authorized the test of the blood sample because, once lawfully seized

pursuant to the warrant, Figeroa Martines no longer had a constitutionally

protected privacy interest in the blood sample. Figeroa Martines, 182 Wn. App.

at 523-24. We agreed with Figeroa Martines. In so ruling, we focused on the

wording of the warrant, noting that it "authorized a competent health care

authority to extract a blood sample and ensure its safekeeping. The warrant did




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No. 74633-2-1/5


not say anything about testing of the blood sample." Ficieroa Martines, 182 Wn.

App. at 522. Indeed, "[a]s written, the warrant did not authorize testing at all."

Figeroa Martines, 182 Wn. App. at 531. Thus, we held that "the testing of blood

is itself a search," Ficeroa Martines, 182 Wn. App. at 530, and was an illegal

warrantless search because it was not authorized by the warrant issued. Figeroa

Martines, 182 Wn. App. at 531-32.

       Our Supreme Court reversed, ruling that a warrant authorizing seizure of

blood for the purpose of DUI testing also authorized a search of the blood sample

because such a search was necessary to determine the evidentiary value of the

blood sample:

              The warrant in this case authorized the "extract[ion]" of a
       blood sample from Martines, indicating probable cause existed to
       believe his blood contained evidence of DUI. . . . The purpose of
       the warrant was to draw a sample of blood from Martines to obtain
       evidence of DUI. It is not sensible to read the warrant in a way that
       stops short of obtaining that evidence. A warrant authorizing a
       blood draw necessarily authorizes blood testing, consistent with
       and confined to the finding of probable cause. The only way for the
       State to obtain evidence of DUI from a blood sample is to test the
       blood sample for intoxicants. See State v. Grenning, 142 Wn. App.
       518, 532, 174 P.3d 706 (2008) ("[I]t is generally understood that a
       lawful seizure of apparent evidence of a crime using a valid search
       warrant includes a right to test or examine the seized materials to
       ascertain their evidentiary value."), aff'd, 169 Wn.2d 47, 234 P.3d
       169 (2010).
              The court erred in concluding the warrant was fatally
       deficient. The warrant in this case was supported by probable
       cause to believe Martines's blood contained evidence of DUI. We
       apply a cornmonsense reading to the warrant and conclude it
       authorized not merely the drawing and storing of a blood sample
       but also the toxicology tests performed to detect the presence of
       drugs or alcohol.

Figeroa Martines, 184 Wn.2d at 93 (alterations in original).




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No. 74633-2-1/6


      When applying the holding of Figeroa Martines to this case, the result is

clear. The magistrate herein issued a warrant authorizing a search of the

Schenck residence for evidence of Jeremy's crimes. This authorization included

the seizure of locked containers found therein. Just as the untested blood

sample had no evidentiary significance, so did the locked container—in and of

itself—lack evidentiary significance. Only by testing the blood or opening the

container could the evidentiary significance of the item authorized to be seized

be determined. Opening the cabinet was necessary to "'ascertain the0

evidentiary value" of whatever was found inside. Figeroa Martines, 184 Wn.2d

at 93 (quoting Grenning, 142 Wn. App. at 532). Because a seizure of the locked

cabinet was authorized by the warrant, so was the opening of the container

authorized. The trial court erred by ruling otherwise.

                                         Ill

       Both the state and federal constitutions require that the police "execute a

search warrant strictly within the bounds set by the warrant." Figeroa Martines,

184 Wn.2d at 94 (quoting State v. Kelley, 52 Wn. App. 581, 585, 762 P.2d 20

(1988) (citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388, 394, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971))). The bounds of the

warrant are defined by the issuing magistrate, who, "alone, is clothed with the

power to authorize an intrusion into a constitutionally protected area and a •

seizure of evidence found therein." State v. Daugherty, 22 Wn. App. 442, 446,

591 P.2d 801 (1979) (citing McDonald v. United States, 335 U.S. 451, 455-56, 69




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No. 74633-2-1/7


S. Ct. 191, 93 L. Ed. 153 (1948)), aff'd, 94 Wn.2d 263 (1980). This arrangement

is no mere formality:

       The presence of a search warrant serves a high function. Absent
       some grave emergency, the Fourth Amendment has interposed a
       magistrate between the citizen and the police. This was done not
       to shield criminals nor to make the home a safe haven for illegal
       activities. It was done so that an objective mind might weigh the
       need to invade that privacy in order to enforce the law. The right of
       privacy was deemed too precious to entrust to the discretion of
       those whose job is the detection of crime and the arrest of
       criminals. . . . And so the Constitution requires a magistrate to pass
       on the desires of the police before they violate the privacy of the
       home.

McDonald, 335 U.S. at 455-56.

        Our Supreme Court has instructed that the purposes underlying the

particularity requirement applicable to search warrants include "'prevention of

general searches" and "prevention of the seizure of objects on the mistaken

assumption that they fall within the issuing magistrate's authorization." State v.

Besola, 184 Wn.2d 605, 610, 359 P.3d 799 (2015) (quoting State v. Perrone, 119

Wn.2d 538, 545, 834 P.2d 611 (1992)).3 The lawful authority to intrude into a

protected area pursuant to a warrant arises not from any subjective belief held by

an officer executing the warrant but, rather, from the objective determination by a

magistrate that a search or seizure is warranted—a determination that inheres in

the warrant, as worded. Thus, "the scope of a search conducted pursuant to a

warrant is defined objectively by the terms of the warrant and the evidence

sought, not by the subjective motivations of an officer." United States v.

Williams, 592 F.3d 511, 522 (4th Cir. 2010).


        3 The purposes also include "'prevention of the issuance of warrants on loose, vague, or
doubtful bases of fact." Besola, 184 Wn.2d at 610 (quoting Perrone, 119 Wn.2d at 545).
No. 74633-2-1/8


         Here, the trial court reviewed the officers' search of the locked cabinet and

concluded:

        1. Because law enforcement officers believed, based upon their
        investigation, that the [locked cabinet] belonged to the defendant at
        the time they searched the room and because they subjectively
        believed the [locked cabinet] would contain firearms, officers had a
        duty to obtain a separate warrant to breach the [locked cabinet] and
        search it.
        2. All firearms seized from the locked cabinet were thus seized
        without lawful authority and are hereby suppressed.

        To the contrary, the opening of the locked cabinet was a warranted

search. The magistrate issued a warrant that authorized a search of the

residence. The warrant further authorized the seizure of locked containers

located within the residence. Pursuant to Figeroa Martines, the warrant thus

authorized a search of locked containers found within the residence. And, based

on the wording of the warrant, "locked containers" clearly encompassed the

locked cabinet found therein.

        By searching the locked cabinet, the officers executed the "'search

warrant strictly within the bounds set by the warrant."4 Figeroa Martines, 184

Wn.2d at 94 (quoting Kelley, 52 Wn. App. at 585). Accordingly, the search of the

locked cabinet was lawful.


         4 The difficulty with the trial court's analysis is illustrated by a simple hypothetical: what if,
in addition to firearms, the police, in searching the cabinet, had also discovered a ledger setting
forth financial information related to Jeremy's purchase or sale of illegal drugs? Pursuant to the
trial court's analysis, in a subsequent prosecution of Jeremy, the absence of a second warrant
(authorizing a search of the locked container) would necessitate suppression of the ledger.
         But such a result would be illogical and unjust. After all, the officers' motivation for
obtaining the warrant was, in large part, to search for evidence of such drug dealing. And the
magistrate—in the warrant issued—specifically authorized the search for (and seizure of) such
ledgers.
         In the end, whether the search was lawful depends on the authority warranted, not on the
type of contraband discovered. If, pursuant to the warrant issued, the police could lawfully search
the cabinet and seize such a ledger, so could they lawfully search the cabinet even if no such
ledger was found.


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No. 74633-2-1/9


                                               IV

        The State next asserts that the firearms located within the cabinet were

lawfully seized pursuant to the plain view doctrine. We take no position on this

assertion.

        The State concedes that the trial court did not rule on this issue. We do

not know whether additional findings of fact would have been made by the trial

court were it to have ruled on this issue. We do not know whether the trial court

would have considered the testimony and evidence at the hearing sufficient to

decide the issue. The parties are free to litigate this issue on remand. 5

        Reversed and remanded for further proceedings.




We concur:



                                                       aeAkrcQ.Q.,




       5 To the extent that the trial court's order excluding certain statements made by Schenck
was predicated on its ruling regarding the search of the cabinet, that order is reversed as well.
       Given our resolution of the foregoing issues, the remaining issues raised by the State
need not be addressed.


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