198651MAJ
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     DO NOT CITE.  SEE RAP 10.4(h).

                          Court of Appeals Division III
                               State of Washington

                            Opinion Information Sheet

Docket Number:       19865-1-III
Title of Case:       State of Washington
                     v.
                     Kirk Sarchet
File Date:           06/20/2002


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of Benton County
Docket No:      001009201
Judgment or order under review
Date filed:     11/03/2000
Judge signing:  Hon. Carolyn A. Brown


                                     JUDGES
                                     ------
Authored by Frank L. Kurtz
Concurring: Stephen M. Brown
            Dennis J. Sweeney


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Antonio Salazar
            Attorney At Law
            810 3rd Ave Ste 308
            Seattle, WA  98104

            Russell R. Abrutyn
            Salazar Law Offices
            Ste 529
            3250 W Big Beaver Rd
            Troy, MI  48084

Counsel for Respondent(s)
            Andrew K. Miller
            Benton County Prosecutor
            #e
            7320 W Quinault
            Kennewick, WA  99336

            Terry J. Bloor
            Benton Co Pros Office
            7320 W Quinault
            Kennewick, WA  98336

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             ) No. 19865-1-III
                                                 )
               Respondent,                       ) Division Three
                                                 ) Panel Eight
          v.                                     )
                                                 )
KIRK LEROY SARCHET,                              ) UNPUBLISHED OPINION
                                                 )
               Appellant.                        ) FILED June 20, 2002

     KURTZ, J. - Kirk Sarchet appeals his conviction, on stipulated facts,
of manufacturing methamphetamine.  He contends that the superior court
erred when it denied his motion to suppress evidence the police seized from
his apartment.  Mr. Sarchet argues that the initial police entry into his
apartment to effectuate his arrest on an outstanding arrest warrant was
illegal; i.e., it was based upon a search warrant that was overly broad and
not supported by probable cause.  We affirm.
     At the suppression hearing, Detective Rick Runge of the Tri-City Metro
Drug Task Force testified that he and the prosecutor had discussed whether
to request a search warrant for controlled substances at Mr. Sarchet's
apartment.  They concluded that the State lacked probable cause for such a
warrant.  However, at some point, Garfield County advised Detective Runge
that it was seeking Mr. Sarchet on an arrest warrant for assault and
eluding a police officer.  Detective Runge decided to request a search
warrant authorizing the police to search Mr. Sarchet's apartment and his
person.
     Detective Runge filled in a form affidavit that the Task Force used
for requesting warrants to search premises for controlled substances.  In
addition to the form's boilerplate language which concerned searches for
controlled substances, Detective Runge stated that Garfield County had
faxed him a copy of the arrest warrant for Mr. Sarchet.  He therefore
requested 'a search warrant to enter and search the residence located at
619 N. Tweedt, Apt. #205 {Mr. Sarchet's residence} . . .; {and} the person
of Kirk L. Sarchet, DOB: 12-03-58.'  Clerk's Papers (CP) at 50-51.  The
form part of the affidavit also requested a warrant 'to seize all
controlled substances there found.'  CP at 51.
     On October 27, 2000, the magistrate issued a search warrant based upon
Detective Runge's affidavit.  The court used a form warrant - presumably
supplied by the Task Force - that authorized searches of premises that are
believed to contain evidence of violations of the Controlled Substances
Act.  In addition to the boilerplate language, the warrant also named Mr.
Sarchet as a subject of the search.
     Detective Runge later explained that 'the Tri-City Metro Drug Task
Force very seldom does a warrant for a person.  We cut tapes for our
affidavits and the secretary will type them up.  The search warrant itself
that {the judge} signed was for the person of Kirk Sarchet, but for the
record I failed to observe the boiler plate . . . .'  Report of Proceedings
(RP) at 6.
     Prior to executing the search warrant, Detective Runge obtained a key
to the apartment from Mr. Sarchet's landlord.  He also briefed the officers
who were to join him in the search, that their purpose was to enter and
arrest Mr. Sarchet.  They knocked at the apartment door and announced their
purpose, but no one answered.  The officers then attempted to enter using
the key, but the lock had been changed.  They then made a forced entry and
located Mr. Sarchet inside in the hallway.  They also observed in plain
view in the living room propane torches and glass pipes, which are used to
smoke methamphetamine.  Officer Terry Boehmler testified that, for officer
safety reasons, he conducted a 'protective sweep' of the premises for any
other individuals who might be there.  RP at 22.  In a back bedroom, he
observed a jar with a clear liquid in it, and the remains of what appeared
to be lithium batteries.  Both he and Detective Runge noted the strong
smell of solvents as soon as they entered the apartment.
     Based upon the items that the officers saw in plain view, and upon the
odor of solvents on the premises, Detective Runge prepared an affidavit for
a second search warrant authorizing them to return to Mr. Sarchet's
apartment and search for evidence of controlled substance violations.
Superior Court Judge Dennis Yule signed the warrant on October 31, 2000,
and the officers who executed it found evidence of a methamphetamine lab on
the premises.  The State subsequently charged Mr. Sarchet with
manufacturing methamphetamine.
     Mr. Sarchet unsuccessfully moved to suppress the evidence seized in
the search of his residence.  The superior court found that the officers'
intention was to search the premises for Mr. Sarchet, not for evidence of
controlled substances.  It also found that the October 27 search warrant
'mistakenly allowed the police to search the apartment for controlled
substances.'  CP at 18.  But, the court concluded that '{t}he police were
authorized to enter the defendant's apartment on October 27, 2000 by the
arrest warrant issued from Garfield County.'  CP at 18.  The inference from
the court's holding is that it severed the portion of the warrant that
authorized the officers' entry into Mr. Sarchet's apartment for the purpose
of arresting him on the Garfield County warrant.  And, having done so, it
viewed the remaining portion, which authorized entry to search for drugs
and was not supported by probable cause, as not invalidating the entire
warrant.
     Mr. Sarchet argues that the first search warrant was invalid because
it authorized a search for controlled substances without probable cause.
According to Mr. Sarchet, Detective Runge did not communicate to the
issuing magistrate that he wanted authorization to enter the residence to
arrest Mr. Sarchet on the outstanding warrant.  We disagree.  Detective
Runge clearly stated in his affidavit that he had a faxed copy of the
Garfield County arrest warrant for Mr. Sarchet.  And, he asked for
authority to search Mr. Sarchet.
     Nevertheless, Mr. Sarchet argues that the State cannot rely on the
existence of an arrest warrant because the arrest warrant is not part of
the record here.  Mr. Sarchet ignores Detective Runge's affidavit, in which
he told the magistrate that Garfield County had issued an arrest warrant
for Mr. Sarchet and, also, that he had received from Garfield County a
faxed copy of that warrant.  Detective Runge's assertions supported
issuance of the search warrant.1
     The remaining question is whether the court properly severed the valid
portion of the warrant, which authorized the search and seizure of Mr.
Sarchet's person, from the invalid portion, which authorized a search for
controlled substances.  'Under the severability doctrine, 'infirmity of
part of a warrant requires the suppression of evidence seized pursuant to
that part of the warrant' but does not require suppression of anything
seized pursuant to valid parts of the warrant.'  State v. Perrone, 119
Wn.2d 538, 556, 834 P.2d 611 (1992) (quoting United States v. Fitzgerald,
724 F.2d 633, 637 (8th Cir. 1983)).  The ''question of whether this kind of
surgery might be performed might also depend to some extent upon the facts
of each case, e.g., how was the warrant executed?''
2 Wayne R. LaFave, Search and Seizure sec. 4.6(f) at 582 (3d ed. 1996)
(quoting People v. Mangialino, 75 Misc. 2d 698, 706, 348 N.Y.S.2d 327
(1973)).
     Here, the police limited their execution of the first search warrant
to the arrest of Mr. Sarchet.  They secured the residence and applied for a
second search warrant before they returned to search for evidence of
violations of the Controlled Substances Act.  These facts support the
superior court's decision to sever the invalid portion of the first warrant
(that which authorized a search for contraband) and uphold the valid
portion (that which authorized entry into Mr. Sarchet's residence for the
limited purpose of arresting him pursuant to an arrest warrant).
     Consequently, we hold that the first warrant properly authorized the
officers to enter Mr. Sarchet's apartment to arrest him.  And, the evidence
they saw in plain view at that time provided probable cause for the court
to issue the second warrant.
     Affirmed.

     A majority of the panel has determined that this opinion will not be
printed in the Washington Appellate Reports but it will be filed for public
record pursuant to
RCW 2.06.040.

                    Kurtz, J.
WE CONCUR:

Brown, C.J.

Sweeney, J.

     1 This case presents an anomaly in that it involves the police asking
for a search warrant to go into Mr. Sarchet's residence to arrest him
pursuant to an arrest warrant.  An arrest warrant, by itself, provides
authority for the police to enter a person's residence to effectuate his
arrest - no separate search warrant is needed.  See Payton v. New York, 445
U.S. 573, 603, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) ('{A}n arrest
warrant founded on probable cause implicitly carries with it the limited
authority to enter a dwelling in which the suspect lives when there is
reason to believe the suspect is within.').  See also
RCW 10.31.040, which provides that '{t}o make an arrest in criminal
actions, the officer may break open any outer or inner door, or windows of
a dwelling house or other building . . . if, after notice of his office and
purpose, he be refused admittance.'

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