Opinion
Nos. 36359-3-II; 36362-3-II.
April 22, 2008.
Appeals from a judgment of the Superior Court for Jefferson County, No. 06-8-00063-4, James M. Bendell, J. Pro Tem., entered May 24, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.
After the State charged Ashley Parker and Stephanie Alvarez with being minors in possession of alcohol, they moved to suppress the evidence against them. The State appeals the trial court's decision granting the motion to suppress. We affirm.
Facts
Many of these facts are drawn from the trial court's memorandum opinion and its findings of fact. The State challenges none of the trial court's factual findings, so they are verities on appeal. State v. Balch, 114 Wn. App. 55, 58 n. 1, 55 P.3d 1199 (2002); State v. Ware, 111 Wn. App. 738, 742, 46 P.3d 280 (2002).
A week before her evening patrol on September 29, 2006, Port Townsend Police Officer Sherrie Erickson was briefed about a possible underage drinking party at a residence near 49th Street. While on patrol, Erickson was accompanied by a civilian who knew about the party and who wished to remain anonymous. Erickson drove to the party location at about 11:00 pm and heard laughter coming from the house.
She radioed for assistance and met Officer Dan Hunyh nearby. The officers returned to 49th Street but were unable to find the driveway to the house because they did not have an exact address. They parked off of 49th Street and walked to a gate in the enclosure around the house. The concrete and stucco enclosure is between six and ten feet high and is accessed through one of three decorative arched doors. It is possible to see portions of the enclosed area through air spaces incorporated into the enclosure. The officers stood at the gate and called out "police" three times but got no response. Report of Proceedings (RP) at 55, 117. They could smell marijuana and alcohol and could hear laughing and loud music. The officers walked around the enclosure to another gate that had a doorbell. They knocked on the gate and again received no response after announcing their presence. They opened the gate and entered the area circumscribed by the enclosure. That area contained a table and chairs, and several youths fled from a table containing open bottles of alcohol. After the officers knocked on the front door of the house, Parker, Alvarez, and some other youths emerged smelling of alcohol. Officer Hunyh obtained a warrant and searched the residence.
When the State charged Parker and Alvarez with being minors in possession of alcohol, they moved jointly to suppress the evidence against them, arguing that the officers unlawfully entered the curtilage of the residence they were visiting. During the suppression hearing, homeowner Dean Lebens, whose daughter had given the party in his absence, testified that mail and packages are delivered on the outside of the enclosure around his home. Lebens also testified that religious pamphlets are left outside the enclosure and that, in mild weather, members of his family sometimes sleep outside the area circumscribed by the enclosure. He testified that although the enclosed area is private and "part of my house," the gates are never locked. RP at 11, 40.
The trial court concluded that the officers violated the defendants' reasonable expectations of privacy:
It is the Court's opinion that a "reasonably respectful citizen" would not pass through the gated enclosure without permission of the occupants. It was the unrebutted testimony that all salesmen and solicitors do not pass through the gates without permission. Moreover, the existence of a doorbell on the outside of the enclosure clearly sends the message that visitors are to ask permission to enter. Finally, the fact that the police knocked on the gates before entering is in itself strongly suggestive of the fact that the visual impact of the enclosure, including its height, width and breadth, do[es] not invite entry without permission. One cannot, for example, imagine a doorbell on the exterior of the proverbial white picket fence. . . .
Clerk's Papers (CP) at 50-51. Accordingly, the trial court granted the motion to suppress the evidence obtained following the officers' unlawful entry. After denying the State's motion for reconsideration, the court concluded that its decision "eviscerated" the State's cases against Parker and Alvarez and dismissed each with prejudice. CP at 36, 39, 60. The State appeals.
Analysis
At issue is whether the trial court erred in concluding that the officers' entry into the home's enclosure violated the occupants' reasonable expectations of privacy.
Warrantless searches are per se unreasonable under both the Fourth Amendment of the United States Constitution and article I, section 7 of the state constitution unless they fall within a few specifically established and well-delineated exceptions. State v. Ross, 141 Wn.2d 304, 312, 4 P.3d 130 (2000). Constitutional protection against warrantless searches applies most strongly to a person's home.
Ross, 141 Wn.2d at 312. The curtilage of a home is so intimately tied to the home itself that it is placed under the home's "umbrella" of constitutional protection. Ross, 141 Wn.2d at 312. The closer an officer comes to entering the home, the greater the protection. State v. Ridgway, 57 Wn. App. 915, 918, 790 P.2d 1263 (1990).
Police with legitimate business may enter areas of the curtilage of a residence that are impliedly open and, in doing so, they "`are free to keep their eyes open.'" State v. Gave, 77 Wn. App. 333, 337, 890 P.2d 1088 (1995) (quoting State v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981)). Areas of curtilage impliedly open to the public include a driveway, walkway, or access route leading to the residence. Gave, 77 Wn. App. at 337 (citing State v. Hoke, 72 Wn. App. 869, 874, 866 P.2d 670 (1994)). When a law enforcement officer is able to detect something by use of one or more of his senses while lawfully present in an impliedly open curtilage area, that detection does not constitute a "search" subject to constitutional protections. Seagull, 95 Wn.2d at 901. As the court in Seagull further explained,
An officer is permitted the same license to intrude as a reasonably respectful citizen. However, a substantial and unreasonable departure from such an area, or a particularly intrusive method of viewing, will exceed the scope of the implied invitation and intrude upon a constitutionally protected expectation of privacy.
Seagull, 95 Wn.2d at 902-03 (citations omitted).
Whether a portion of the curtilage is impliedly open to the public depends on all the circumstances surrounding the officers' entry. State v. Ague-Masters, 138 Wn. App. 86, 98, 156 P.3d 265 (2007). The use of fences and gates, as well as the time that police enter the property, may affect the degree to which areas of curtilage and access routes are impliedly open. See State v. Johnson, 75 Wn. App. 692, 705-06, 879 P.2d 984 (1994) (fencing property and erecting gate showed that access way was not open); Ross, 141 Wn.2d at 314 (deputies entered property at hour when no reasonably respectful citizen would be welcome absent an actual invitation or emergency). Consequently, blocking a long driveway with a closed gate demonstrated a subjective expectation of privacy in the area beyond the gate. Ridgway, 57 Wn. App. at 918. Similarly, a backyard was not open to the public where it was enclosed by a six-foot fence with a padlocked gate. State v. Mierz, 72 Wn. App. 783, 791, 866 P.2d 65 (1994), aff'd on other grounds, 127 Wn.2d 460, 901 P.2d 286 (1995). And, a late-night entry is more likely to implicate privacy concerns than a mid-morning investigation. Gave, 77 Wn. App. at 338.
On appeal, the State devotes considerable discussion to the unique and isolated location of the Lebens house and the fact that the gate through which the officers entered had no "private property" or "no trespassing" signs, and none of the "normal aspects" of a front door, such as a lockable doorknob. The trial court's findings do not discuss these facts, but it would appear that the remote location of the residence, coupled with the timing of the officers' intrusion, supports the court's conclusion that their entry was not that of a reasonably respectful citizen. As Parker stated in her motion to suppress, "[A] reasonably respectful citizen would not enter a neighbor's side or backyard in the dark without an invitation to investigate the sound of voices and music, or even the smell of marijuana." CP at 12; see also Ridgway, 57 Wn. App. at 918 (isolated setting of house contributed to conclusion that deputies unlawfully entered curtilage).
As the trial court's findings reflect, however, the fact that the Lebens house was enclosed by a six to ten-foot concrete wall was far more pertinent than the remote nature of its location. The officers felt compelled to knock at the gates of that wall, and they entered through a closed gate that had a doorbell beside it. This doorbell provides evidence, contrary to the State's assertions on appeal, that public access beyond the gate was limited. The absence of "no trespassing" signs is not determinative on the issue of privacy here. See Gave, 77 Wn. App. at 338; Johnson, 75 Wn. App. at 706. Given the nature of the enclosure and the time of entry — after 11:00 at night — the trial court correctly found that the occupants of the curtilage had a reasonable expectation of privacy therein. Accordingly, the trial court properly granted the defendants' motion to suppress.
In so holding, we feel compelled to briefly address the State's complaint that to affirm the trial court is to undermine emergency response efforts:
The police did not unreasonably intrude into the defendant's private affairs when they entered the gate. The police were on legitimate business, trying only to openly contact the homeowner, [when they] entered the unmarked gate because it was on the public access route to the home, and knocked on the front door. To find otherwise would empower a closed gate to prevent police from lawfully contacting a homeowner on urgent, legitimate police business, such as responding to a 911 hang-up call from the home, investigating gunshot reports, notifying the residents of critical evacuations, looking for missing people, warning of dangerous animals in the neighborhood, or, as in this case, responding to a reported crime in progress.
Appellant's Reply Br. at 6.
Nothing in our resolution of this case affects the ability of officers to conduct a warrantless entry in response to an emergency. See State v. Schroeder, 109 Wn. App. 30, 39 n. 6, 32 P.3d 1022 (2001) (citing well-settled policy that officer's warrantless entry onto premises in response to report of need for medical assistance is justified under emergency aid exception). If the officers had been responding to a call about a medical emergency at the party, this would be a different case. However, the suspicion that a crime is being committed in a home is not sufficient to justify a warrantless entry into an area protected by privacy considerations. See Mierz, 72 Wn. App. at 792-93 (officers may not enter protected curtilage of home to effect arrest for crime committed in their presence absent exception to warrant requirement); Ross, 141 Wn.2d at 318 ("The rationale for the police to enter private property without a warrant should be narrowly grounded in community caretaking and consensual contacts between the police and the public, not in an expansive notion of `legitimate police business' that includes warrantless searches for evidence of a crime.") (Talmadge, J., concurring).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J., and VAN DEREN, A.C.J., concur.