     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                       ]
                                                    No. 70730-2-1
                      Respondent,          )
                                                    DIVISION ONE
                                                                                         r^j
                 v.                        ]                                            c.-j       (


                                                    UNPUBLISHED OPINION
MICHAEL AARON D'ANGELO,                    ]                                            c5

                                                    FILED: November 3, 2014              i
                                                                                        CO     :
                      Appellant.

                                                                                        CO

          Trickey, J. — Michael D'Angelo appeals the trial court's decision denyingJbis

motion to suppress evidence of an illegal drug found on him after police officers entered

his apartment without a warrant. The trial court concluded that the police officers were

justified in entering D'Angelo's apartment under the emergency aid exception to

warrantless searches. D'Angelo contends that the emergency aid exception did not

justify the officers' warrantless intrusion because the State failed to prove two of the six
criteria set forth in State v. Schultz, 170 Wn.2d 746, 248 P.3d 484 (2001). However, the

undisputed findings and the record both demonstrate that these factors were met. We

affirm.

                                           FACTS

          In the early hours of February 14, 2013, Bellevue Police Officers Amanda Jensen

and Dirk Graham responded to unit 3 of an apartment complex after a neighbor residing

in unit 2 called 911.1 The 911 caller reported that she heard a female voice in unit 3

coughing, crying, and loudly saying, "Let me go."2 When Officers Jensen and Graham




1 Report of Proceedings (RP) at 11-13, 30, 46-48.
2 RP at 11-12.
No. 70730-2-1/2


arrived, they listened outside the door of unit 3 for a while, but did not hear anything.3

The officers then contacted the 911 caller, who reiterated what she had previously

reported and stated that she was concerned for the female in the neighboring

apartment.4 The officers returned to unit 3 and knocked on the door repeatedly.5

Again, no one answered.6 Officer Jensen testified that she was concerned because she

believed someone was still inside the apartment and could be in danger or injured.7

            The officers eventually heard a man inside the apartment—later identified as

D'Angelo—yelling at them, telling them to leave the premises, and insisting that the

officers would not enter without a warrant.8           D'Angelo sounded agitated and

aggressive.9 Officer Jensen announced themselves as police officers and informed

D'Angelo thatthey needed to enter and check on the welfare ofthe people inside.10
            At some point, Officer Jensen could hear a female voice whining, whimpering,

and crying.11 The female voice was later identified as Raquel Walsh.12 The officers
then heard Walsh request that D'Angelo open the door.13              D'Angelo, however,

continued to direct Walsh to refrain from opening the door.14 Finally, Walsh opened the

door slightly ajar.15 The officers were only able to view part of her face.16 Officer


3 RP   at   13,   48.
4 RP   at   13,   48.
5 RP   at   13,   48.
6 RP   at   13,   48.
7 RP   at   14,   26.
8 RP   at   13,   49.
9RPat15.
10 RP at 14.
11 RPat16.
12 RP at 50.
13 RP at 16-17.
14 RP at 17.
15 RP at 17.
16 RP at 17.
No. 70730-2-1 / 3


Jensen pushed the door open to allow her to see inside the apartment.17 Officer Jensen

saw Walsh and D'Angelo standing just inside the threshold of the door.18 Although

Walsh did not appear injured, she looked upset and fearful.19

       Officer Graham then asked D'Angelo to step out of the apartment so the officers

could separate him and Walsh.20 The officers were still standing outside the apartment

at this point and were unable to determine whether additional people were inside the

apartment or if there were weapons involved.21 Officer Jensen believed Walsh needed

help and was concerned that D'Angelo was unwilling to cooperate.22

       D'Angelo refused to step outside the apartment to speak to Officer Graham and

began to back into the apartment and shut the door.23 When Officer Graham noticed

D'Angelo reach into his pockets, the officers entered the apartment and seized

D'Angelo in an effort to prevent him from closing the door.24 D'Angelo ended up pulling

the officers back into the apartment.25     After arresting D'Angelo, Officer Graham

searched him and discovered oxycodone in his pocket.26

       The State charged D'Angelo with one count of possession of oxycodone, in

violation of the Uniform Controlled Substances Act, chapter 69.50 RCW.27 D'Angelo

subsequently brought a motion to suppress the evidence of oxycodone pursuant to CrR




17 RP at 17-18.
18 RP at 17.
19 RP at 34.
20 RP at 17, 51.
21 RPat18.
22 RP at 17-18.
23 RP at 18.
24 RP at 19, 52-53.
25 RP at 19.
26 RP at 58.
27 Clerk's Papers (CP) at 1.
No. 70730-2-1/4



3.6.28 Officer Jensen, Officer Graham, and Walsh testified at the suppression hearing.29

         The trial court denied D'Angelo's motion to suppress, ruling that the officers'

entry into D'Angelo's apartment was justified under the emergency aid exception to the

warrant requirement.30 The trial court concluded, in part, that "it was reasonable for

officers to enter the residence to ensure that the parties were safe."31

         D'Angelo waived his right to a jury trial and requested a bench trial on stipulated

facts.32 The trial court found him guilty as charged.33

         D'Angelo appeals.

                                         ANALYSIS


         D'Angelo contends that the trial court applied an erroneous and incomplete legal

standard when concluding that the emergency exception justified a warrantless search.

In so contending, he argues that the trial court failed to "substantively" apply all of the

six factors required under State v. Schultz, 170 Wn.2d 746, 248 P.3d 484 (2011), for the

emergency aid exception to apply.34 We disagree. Although the trial court did not

explicitly address two of the factors articulated in Schultz, the record and unchallenged

findings of facts establish that these factors were met. Accordingly, we affirm.

         We review a trial court's decision on a CrR 3.6 suppression motion to determine

whether substantial evidence supports the court's findings of facts and whether those

findings, in turn, support the court's conclusions of law. State v. Cole, 122 Wn. App.

319, 322-23, 93 P.3d 209 (2004). Because D'Angelo does not challenge the findings of

28 CP at 6.
29RPat6, 44, 71.
30 CP   at   31-37.
31 CP   at   35.
32 CP   at   19-22.
33 CP   at   23-30.
34 Br. of Appellant at 6.
No. 70730-2-1 / 5


fact from the CrR 3.6 hearing, they are verities on appeal. State v. Hill, 123 Wn.2d 641,

644, 870 P.2d 313 (1994). We review conclusions of law de novo. Cole, 122 Wn. App.

at 323.


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

of the Washington State Constitution prohibit an unreasonable search and seizure.

State v. Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984). Under the Washington

State Constitution, "the home enjoys a special protection." Schultz, 170 Wn.2d at 753.

Despite these protections against warrantless searches, "'there are a few jealously and

carefully drawn exceptions to the warrant requirement.'" Schultz, 170 Wn.2d at 753-54

(internal quotation marks omitted) (quoting State v. Reichenbach, 153 Wn.2d 126, 131,

101 P.3d 80 (2004)). The emergency aid exception to the warrant requirement is one

exception. See Schultz, 170 Wn.2d at 753-54. It "'allows for the limited invasion of

constitutionally protected privacy rights when it is necessary for police officers to render

aid or assistance.'" Schultz, 170 Wn.2d at 754 (quoting State v. Thompson, 151 Wn.2d

793, 802, 92 P.3d 228 (2004)).

          The State has the burden of establishing the facts justifying the emergency aid

exception to the warrant requirement. Schultz, 170 Wn.2d at 759. The determination of

whether the emergency aid exception justifies a warrantless entry is based on the facts

of each case. Schultz, 170 Wn.2d at 755.

          In Schultz, a case on which D'Angelo principally relies, the Washington Supreme

Court discussed the then-established factors required to prove the emergency aid

exception. 170 Wn.2d at 754. These factors are

          "(1) the [police] officer subjectively believed that someone likely needed
          assistance for health or safety concerns; (2) a reasonable person in the
No. 70730-2-1 / 6


      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."

Schultz, 170 Wn.2d at 754 (internal quotation marks omitted) (quoting State v. Kinzv,

141 Wn.2d 373, 386-87, 5 P.3d 668 (2000)).          The Supreme Court adopted three

additional factors gleaned from the Court of Appeals case law:

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

Schultz, 170 Wn.2d at 754, 760. All six factors must be met in order for the emergency

aid exception to apply. Schultz, 170 Wn.2d at 760 n.5.

       Furthermore, the Schultz court recognized the unique challenges police officers

face when responding to a domestic violence situation:

       Domestic violence presents unique challenges for law enforcement.
       Domestic violence situations can be volatile and quickly escalate into
      significant injury. Domestic violence often, if not usually, occurs within the
      privacy of a home. Our legislature has recognized that the risk of repeated
      and escalating acts of violence is greater in the domestic context. RCW
       10.99.040(2)(a). The legislature has sought to provide "maximum
       protection" to victims of domestic violence through a policy of early
       intervention. RCW 10.99.010.

170 Wn.2d at 755. The court continued to state that a survey of cases indicates that

      the fact that police are responding to a situation that likely involves
      domestic violence may be an important factor in evaluating both the
      subjective belief of the officer that someone likely needs assistance and in
      assessing the reasonableness of the officer's belief that there is an
       imminent threat of injury.

Schultz, 170Wn.2dat756.

       D'Angelo contends that the State failed to meet its burden of proving that Walsh

faced an imminent threat of substantial injury (Schultz factor four) and that the officers
No. 70730-2-1 / 7


believed that Walsh was in need of immediate help for health or safety reasons (Schultz

factor five). In support of his argument, D'Angelo attempts to analogize the facts in this

case to those in Schultz. In Schultz, police officers received a telephone report from a

resident of an apartment complex who had called "about a yelling man and female."

170 Wn.2d at 750. When the officers arrived at the apartment, they stood outside and

heard a man and woman talking with raised voices inside. Schultz, 170 Wn.2d at 750.

The officers heard a man state that he wanted to be left alone and needed his space.

Schultz, 170 Wn.2d at 750-51. According to the officers' version of events, Patricia Sue

Schultz answered the door when the officers knocked on the door, appearing agitated

and flustered.      Schultz, 170 Wn.2d at 751.     She denied anyone else was inside.

Schultz, 170 Wn.2d at 751. One of the officers told Schultz that she had heard a male

voice inside. Schultz, 170 Wn.2d at 751. Schultz called for Sam Robertson, who then

appeared from a nearby room. Schultz, 170 Wn.2d at 751. Schultz stepped back and

opened the door wide, and one of the officers followed her inside. Schultz, 170 Wn.2d

at 751.

          Applying the law to the facts, the Schultz court concluded that the warrantless

entry and subsequent search were unlawful and that the motion to suppress was

erroneously denied. 170 Wn.2d at 761. The court emphasized that the facts favorable

to the State were insufficient to conclude that exigent circumstances existed. Schultz,

170 Wn.2d at 760. At the moment the officers crossed the threshold they did not have

enough facts to justify an entry on the grounds of the emergency aid exception.

Schultz, 170 Wn.2d at 760. The court added that "[cjertainly other facts such as past

police responses to the residence, reports of threats, or any other specific information to



                                              7
No. 70730-2-1 / 8


support a reasonable belief that domestic violence had occurred or was likely to occur,

or that the circumstances were volatile and could likely escalate into domestic violence,

may have justified entry." Schultz, 170 Wn.2d at 761.

       The circumstances that were absent in Schultz are present in this case. Here,

D'Angelo's neighbor heard a woman in distress who was shouting, "[L]et me go."35 The

officers contacted the 911 caller to confirm the reliability of her call after they heard no

sounds from inside D'Angelo's apartment. Unlike in Schultz, here, the officers initially

heard no sounds coming from the apartment, increasing their concern that the woman

inside could be in danger or injured if they did not intervene.         And where Schultz

appeared agitated and flustered, here, Walsh appeared frightened and upset, while

D'Angelo continued to behave aggressively and in an agitated manner. Moreover, the

officers' limited view of the apartment and its occupants was not sufficient to mollify their

concern about Walsh's safety.

       In all, D'Angelo's aggressive behavior throughout the confrontation, in

conjunction with Walsh's fearful demeanor and crying, denoted a volatile situation that

could escalate at any moment. See Schultz, 170 Wn.2d at 761. Thus, the officers were

justified in entering the apartment to ensure that D'Angelo posed no present or

continuing threat to Walsh. We conclude that the officers reasonably believed that a

situation involving domestic violence was occurring or would occur in the near future

and that immediate intervention was necessary to deal with the imminent threat of

substantial injury to Walsh.




35 RP at 11-12.


                                              8
No. 70730-2-1 / 9


       In both its oral ruling and written decision, the trial court did not address factors

four and five of Schultz.36 D'Angelo contends that the court's failure to do so mandates

reversal of his conviction.37 But although the trial court did not explicitly address Schultz

factors four and five, the unchallenged facts and the record support the conclusion that

the officers believed there was an imminent threat of substantial injury to Walsh and that

Walsh was in immediate need of help for her health and safety.

       Affirmed.




                                                   ^T/1 ic/K eY ^
WE CONCUR:




     <U0ud\t //.




36 RP at 139-147; CP at 35-37.
37 D'Angelo appears to argue that the standard of review for applying an incorrect or incomplete
legal standard is for abuse of discretion. This is not the correct standard of review used by
courts when reviewing CrR 3.6 decisions. Rather, as noted above, this court reviews
conclusions of law de novo.
