February 13, 1997

GIVING A LIFT ABOVE THE LAW

BY ANDREW BERGH
Special to the Journal

"Thanks for the thought, officer, but I'd rather get a lift home from a friend."

Who knows, you too might speak these words if you suffered the ignominy of an arrest and were later offered a ride home by the same police who arrested you.

But suppose the cops won't take no for an answer. And after they take you home, suppose the police won't leave your property until you enter your house. Then, as the police watch you enter your home, suppose they see -- oops! -- that baggie of marijuana you carelessly left on your kitchen counter. Can the officers legally enter your home without a warrant and search for additional drugs?

As usual, I'm not just talking hypothetically. In State v. Dykstra, it was a Grays Harbor County man who found parting ways with the police so difficult. In that case, the issue facing our state appeals court was whether the police had exceeded their "caretaking function" -- and thus violated the defendant's constitutional rights -- through their mandatory door-to-door escort.

The Dykstra case involves a drug bust that took place in McCleary, a burgeoning town in Grays Harbor County with over 1,500 inhabitants. In early October 1993, officer John Adams, a member of the local police force, received a hot tip from an informant that Michael Dykstra was growing marijuana at his home. While on patrol later that month, Adams stopped Dykstra in his driveway around 2 a.m. because he thought Dykstra was driving while intoxicated.

When Adams asked for back-up, the dispatcher called Ersal May, the local chief of police. Apparently wanting some fresh air, Chief May decided to respond. Once the chief arrived, Dykstra was placed under arrest and taken to the police station for breath tests and booking. Dykstra proved to be a good test-taker, as he twice scored a .20 blood alcohol level -- two times the legal limit.

After citing him for DWI, May and Adams told Dykstra they would take him home. Dykstra said thanks but no thanks, and asked permission for a friend to come and get him. The officers declined, instead driving Dykstra home themselves around 3:30 a.m.

The escort service didn't end at Dykstra's driveway, however. After exiting their patrol cars, May and Adams insisted on accompanying Dykstra inside his house. (According to Dykstra, the police chief said, "I know you have marijuana in your house and I am not leaving until you go in your house.") Although Dykstra told them they had no right to enter his home and were "uninvited," the officers refused to leave.

At this point, there was a short standoff. When Dykstra told them he'd sleep on his back porch, May and Adams stayed put. When Dykstra tried to go next door to his neighbors, the officers wouldn't let him. And when Dykstra urinated in his driveway instead of using his own bathroom, the police still wouldn't budge. Dykstra finally threw in the towel shortly before 4 a.m., after May and Adams kept insisting they wouldn't leave until he entered his home.

After the officers had accompanied Dykstra to his back porch, as he entered his house he tried to keep the door as shut as possible so they couldn't see inside. The ploy failed, as May and Adams later testified that from their vantage point on the porch, they saw what appeared to be a bag of marijuana across the room on the kitchen counter. (It's rare, you know, when police don't have the eyes of a hawk.) At this point the officers followed Dykstra inside and searched his home. Eight marijuana plants later, Dykstra found himself under arrest for the second time in three hours.

Dykstra soon faced felony drug charges in Grays Harbor County Superior Court. The case collapsed, however, when critical evidence, including the marijuana plants, was suppressed by the trial court. The state appealed.

If you need a refresher course in the Fourth Amendment, the police generally can't enter a home without a search warrant. Under the "open view" exception, however, there simply is no search when officers see something from a "legitimate non-intrusive vantage point." The state thus argued that May and Adams didn't need a search warrant since the bag of marijuana on Dykstra's kitchen counter was in plain view and justified the subsequent entry.

By a 3-0 margin, the appeals court disagreed. Although May and Adams had certain caretaking functions, the bounds of reasonableness were exceeded, the court said, when they drove Dykstra home, refused to leave, and accompanied him to his back porch against his will. As a consequence, since the officers had no right to be on Dykstra's back porch, they couldn't use the open view doctrine to justify their actions, the court ultimately ruled.

This is not to say, of course, that you should never accept a free ride home from the police. To play it safe, though, you should probably keep your contraband out of plain view.

Previous columns:

• A LURID TALE OF ENTICEMENT, 01-30-1997
• STANDING UP FOR THE RIGHTS OF FALLEN AIRLINE TRAVELERS, 01-17-1997
• DO-IT-YOURSELFER TREATS KNEE PAIN THE HARD WAY, 01-10-1997
• CAN ONE BE LIABLE FOR NOT STOPPING A SUICIDAL ACT?, 12-19-1996
• WHEN THE HARSHEST PENALTY DOESN'T SEEM SEVERE ENOUGH, 11-21-1996
• A BOY'S WRONGFUL DEATH, A DAD'S RIGHTFUL SETTLEMENT?, 11-07-1996
• THE $2.6 MILLION QUESTION, 08-30-1996
• THE CASE AGAINST SELLING BEER TO MINORS, 08-01-1996