IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. CHENG S. SAEPHAN, Appellant. <=j (-"o 

# No.70898-8-1 § TMo DIVISION ONE °~' •?=:Tr 

### UNPUBLISHED OPINION,^,

c FILED: December 15, 2014 CO o 

### 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 tokill his 

### family members. Saephan argues that the emergency aidexception did notjustify the officers' entry into the home. The State maintains that the emergency aid exception 

### applieson thesefacts. Itargues inthealternativethatexigentcircumstancesjustifiedthe entry. Saephan further asserts that thetrial courtfailed to enterwritten 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 theirfamily.1 Feytold 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 Beselerwas dispatched to the Saephan residence. This was Officer Beseler's third time responding to a domestic violence callinvolving Saephan.


### 1For the sake ofclarity, we refer to the appellant by his last name and his sister by her firstname. Nodisrespect 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 OfficerBeselerarrived, Saephan was inthe 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 Centerfor a mental health evaluation and possible involuntary commitment. 

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

### sharedwith Fey, their twobrothers, and theirparents. Saephanwas upsetwith hisfamily for calling the police and having him committed. Hethreatened to kill them and told them they were all going to hell. Saephan alsothreatenedtokill Fey's unborn baby. Fey called the police again. 

### According to the dispatch, there were five people inthe house and Saephan was inthe basement. Officer Beseler arrived at 12:44 p.m., three minutes afterthe dispatch. 

### OfficerBeselerbelieved thatSaephan and his familymembers were stillinsidethe house when he arrived. He was aware ofSaephan'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 heartheir conversation, because he stopped about 15 feet away to keep a wide view of the scene. He observed that Officer Beselertalked to Fey for about 30 seconds and that Fey looked concerned. Based on his conversation with Fey, the dispatch information, and his prior contactswith Saephan, OfficerBeselerdetermined thatSaephan needed to betaken 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 Beselerpushed itopen. Neither officer could see anyone inthe immediately accessible 

### area, buttheycould tellthattherewere additional rooms inthebasement. OfficerBeseler 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 about20feetawayfromtheofficers and appeared confused. Fromthatdistance, the officers could not tell whether Saephan had access to weapons or otherareas ofthe house. The officers were concerned aboutotherfamily members who were inthe house
at the time. Officer Beseler asked Saephan to step toward them. Saephan did not comply. 

### The officers stepped inside the doorway. Officer Beseleragain asked Saephan to come 

### closer. Saephan again did not comply. Officer Bourns further enteredthe basementand grabbed Saephan's arm. Officer Beseler grabbed Saephan's other arm and the two officers escorted Saephan out ofthe house.No. 70898-8-1/4
OfficerBeselerhandcuffed and arrested Saephanforthe reported threats he made to his family members. Officer Bourns conducted a search incidentto arrest and found a bag ofsuspected methamphetamine. The State charged Saephan with harassment-domestic violence and possession ofmethamphetamine inviolation ofthe Uniform Controlled SubstancesAct, chapter69.50 RCW. Saephan moved to suppress evidence ofthe methamphetamine. He argued that the officers unlawfully entered his home without a warrant and inthe absence ofexigent circumstances. The State asserted that the officers acted lawfully under the emergency aid doctrine. Atthe 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 enterthe house and arrest Mr. Saephan. The court later entered the following conclusions of law: 1. Atthe time the officers entered the basementofthis 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 intothe basement of the Saephan homewithout a warrantto arrestthe Defendant. Given the totality of the information available to the officers, they were clearly 

### motivated bythe need to renderaid orassistance 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 ofsuspected methamphetamine isadmissible. Itwasfound in the Defendant's pocket during a search incident to his a [sic] lawful arrest, afterthe Defendanthad been located during a valid entry intothe 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 underthe federal and state constitutions. He asserts that the emergency aid exception did not apply, because the officers entered his home with the intentto arrest him, notto renderaid. 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 offacts and whether the findings supportthe trial court's conclusions of law. State v. Gibson, 152Wn. App. 945, 951, 219 P.3d 964 (2009). Substantial evidence is evidence sufficientto persuade a rational, fairminded person of the finding's truth. State v. Hill. 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Unchallenged findings offact become verities on appeal. Gibson. 152Wn. App. at 951. We review conclusions of law de novo. State v. Hinton. 179 Wn.2d 862, 867, 319P.3d9(2014). The Fourth Amendmentto the United States Constitution and article I, section 7 of theWashington Constitution protectagainst 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
Statev.Gatewood. 163Wn.2d 534, 539, 182 P.3d426 (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)). UndertheWashington State Constitution, "thehome enjoys a special protection." State v. Schultz. 170Wn.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 ifprobable 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. 170Wn.2d at754. It"'allows for the limited invasion ofconstitutionally 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 inthe same situation would similarly believethatthere
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.

2In Schultz. the Supreme Court noted that "the Court ofAppeals has suggested three more factors." jd. at754. It is presently unclearwhetherall six factors must be met 

### for the emergency aid exception to apply. Compare id. at 755 (stating "We agree" after listingthethree additional factors); 760 n. 5 ("[T]hefailure to meetany factor is fatal to the lawfulness ofthe State's exercise of authority.") wjthStatev. Smith. 177 Wn.2d 533, 541- 

### 42, 303 P.3d 1047 (2013) (applying onlythe originalthree factors in upholding a search

6No. 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 inherentinsecuring awarrantwouldcompromiseofficersafety, facilitateescapeor 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). EarlierWashington cases suggested thatthe emergency aid exception is a subsetofthe 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).

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

7No. 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 distinctpurposes. The exigentcircumstances exception is triggered by a general lawenforcementemergency, such as a fleeing felon ordestruction 

### 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. Itallows 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 enterhis home, because they did so to arresthim for harassment—notto renderaid. We agree thatthe 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, itwas inconsistentwith 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 ofthe differing purposes for these exceptions, we hold that the trial court erred in concluding that the emergency aid exception justified the officers' warrantless entry.

8No. 70898-8-1/9 

### However, the State argues thatthe officers' entry was alsojustified bythe exigent circumstances doctrine. This court may affirm the trial court on any grounds established bythe pleadings and supported bythe record. Truck Ins. Exch. v. VanPort Homes. Inc.. 147 Wn.2d 751, 766, 58 P.3d 276 (2002). When reviewing a warrantless entry underthe exigent circumstances doctrine, we evaluate whether the totality ofthe circumstances 

### justifies the intrusion. Smith. 165 Wn.2d at 518. Sixfactors guide our analysis: "(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whetherthe 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 suspectwill escape ifnot swiftlyapprehended; and (6) the entry [can be] made peaceably." Id. (alteration in original) (quoting Cardenas. 146 Wn.2d at 402). Because we examine the totality ofthe situation, circumstances may be "exigent" even ifthey do not satisfy all six factors. ]d. For example, in State v. Machado. 54 Wn. App. 771, 777, 775 P.2d 997 (1989), the courtfound exigent circumstances where five ofthe 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. at774. Itnoted 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. at773, 776-77. Inaddition, therewas evidencethat Machado had committedthe robbery and was inside the apartment. Id. at 773, 777. And, the officers entered peaceably. Id. at 777. The court also reasoned that "the arrestwas not a preplanned operation, butwas 

### part of an ongoing field investigation." Id. The court of appeals upheld the denial ofNo. 70898-8-1/10


### Machado's motion. Id. Itobservedthatthefifth factor, likelihood ofescape, was arguably missing from the facts before it. ]cL However, itfound thatthis 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) (threatto kill police officeris grave offense); see also Ramirez. 49Wn. 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 

### OfficerBeseler'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 Beselerand 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 believethatSaephanwas on the premises. Andfinally, the officers entered peaceably. As inMachado. there is no evidencethatSaephanwas likely to escape ifnot swiftly 

### apprehended. See 54 Wn. App. at 777. The Machado court recognized thatthe officers possibly could have kept the apartment under surveillance while they sought a warrant. Id. However, the courtfound that waiting for a warrant was impractical due to the early morning hour and shortage ofpolice manpower. ]d

10No. 70898-8-1/11
The record before us does not supportthe same rationales. But, Officers Beseler 

### and Bourns were confronted with an ongoing threat of harm. They reasonably believed that both the source ofthe 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 atthe conclusion ofan 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' ifthe defendant is not prejudiced by the 

### belated entry of findings." ]± at 329-30 (quoting Statev. McGary. 37 Wn. App. 856, 861, 683P.2d 1125(1984)). 

### When Saephanfiled hisopening brief,thetrial court had not yetentered its findings and conclusions. However, the court subsequently entered findings and conclusions on April 18, 2014. Saephan did not file a reply brief.

11No. 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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