On January 22, 2009, the Washington Supreme Court found (in State v. Smith) that "exigent circumstances" existed when police searched a home without a warrant and therefore the search was valid. However, the court did not address the police assertion that "protective sweep" and "community caretaking" were legitimate reasons for a warrantless search of that house. The ACLU-WA had maintained in an amicus brief that the latter two rationales could not justify the warrantless search of the home.
The case stems from a November 2004 search of a house occupied by Brent Richard Smith and Kimberly Breuer. Near the house, law enforcement officers found a stolen truck filled with anhydrous ammonia, a volatile substance used in making methamphetamines. They saw two people, as well as a gun case, through the windows of the house, knocked on the door, and spoke to Smith and Breuer. At that point they entered the house—without either a warrant or consent from Smith and Breuer—and conducted what they called a "protective sweep" of the house. Once inside, they found a portable meth lab and arrested both individuals.
The ACLU urged the court not to allow "protective sweep" and "community caretaking" as justifications for the search. A protective sweep is a quick and limited search of premises conducted to protect the safety of law enforcement officers and others; it is incident to an arrest. Since the officers didn’t believe that they were in imminent danger, and since Smith and Breuer were not under arrest when the search occurred, the rationale isn’t valid.
"Community caretaking" is when law enforcement provides emergency aid or makes routine checks on health and safety. For this to be valid, officers would have had to believe that someone in the house needed assistance. However, in this case, officers were investigating a crime, not rendering aid.
The court determined that the warrantless search was justified by "exigent circumstances," a long-accepted principle that takes into account such factors as the gravity of the offense with which the suspect was to be charged, the likelihood that the suspect would escape if not swiftly apprehended, and the probability that the search could be made peaceably. While the appeals court had ruled that the protective sweep and community caretaking functions applied in this case, the high court found it had no need to address this issue.
The amicus brief was written by cooperating attorney Lila Silverstein of the Washington Appellate Project and ACLU-WA staff attorney Nancy Talner.