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Washington v. Allyn3/7/1985
Robert Allyn appeals his conviction of possession of a controlled substance, marijuana. He challenges the court's denial of his motions to (1) suppress the marijuana; (2) change venue, excuse certain jurors for cause and sequester the jury; and (3) grant a continuance. We affirm.
Allyn was arrested after a search of his residence by federal agents from the Bureau of Alcohol, Tobacco and Firearms and officers from the Wenatchee Police Department. The search was conducted at 8 a.m. on January 7, 1983, pursuant to a warrant which authorized entry without compliance with the knock and announce statute, RCW 10.31.040. The warrant was based primarily on the reported observations of Robert Nelson III, an undercover
law enforcement officer who had contacts with Allyn and Michael Burns between November 1982 and January 1983. The officers forcibly entered the residence from both the front and back doors. Their search revealed marijuana throughout the house. Firearms and counterfeit controlled substances were also seized.
Allyn challenges the issuance of the search warrant on several bases which are primarily directed to the validity of advance authorization to enter without complying with the knock and announce statute, RCW 10.31.040. Noncompliance with that statute is justified by exigent circumstances; i.e., facts which cause a genuine concern for the officer's safety or that contraband will be destroyed before it can be seized. State v. Jeter, 30 Wash. App. 360, 634 P.2d 312 (1981). The validity of advance authorization for noncompliance with this statute based on exigent circumstances has been a subject of dispute. Compare State v. Spargo, 30 Wash. App. 949, 639 P.2d 782 (1982) and State v. Jeter, supra (exigent circumstances can only be justified with facts found at the scene) with 2 W. LaFave, Search and Seizure § 4.8(g) (1978) (the preferred procedure is to present the facts to a magistrate). We need not, however, address this issue because we agree with the trial court's conclusion following the suppression hearing that notwithstanding the advance authorization, there was independent justification for the officers' failure to knock and announce.
State v. Coyle, 95 Wash. 2d 1, 10, 621 P.2d 1256 (1980) states exigent circumstances may arise in two types of settings:
(1) police have specific prior information that a suspect has resolved to act in a manner which would create an exigency, or he has made specific preparations to act in
such a manner; . . . (2) police are "confronted with some sort of contemporaneous sound or activity alerting them" to the possible presence of an exigent circumstance.
(Citations omitted.) The court's findings at the suppression hearing are not challenged and are thus verities. State v. Christian, 95 Wash. 2d 655, 628 P.2d 806 (1981). Those findings state:
4. That during December, 1982 and the early part of January, 1983, the said Nelson, III, also observed in the defendant's residence numerous firearms, including but not limited to, a Ruger .22 caliber rifle, two M-1 rifles, a .270 caliber rifle, a .22 caliber rifle and a Ruger .44 caliber pistol.
5. That on December 20, 1982, while in the defendant's residence, the defendant told Nelson, III, that "a lot of pigs should be shot" and that Officer Ron Crist should have his "fingernails pulled out".
6. That on December 27, 1982, while in the defendant's residence, a co-
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