Opinion
Nos. 48083-9-I, c/w 40891-0-I.
Filed: March 4, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Whatcom County, No. 001004764, Hon. Michael F. Moynihan, February 13, 2001, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Eric J. Nielsen, Nielsen Broman Assoc. Pllc, 810 3rd Ave, Ste 320, Seattle, WA 98104-1622.
Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Nancy P. Collins, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Rosemary H. Kaholokula, 311 Grand Ave Ste 201, Bellingham, WA 98225.
David Zamechek and Allison Steeneck appeal their convictions for manufacturing marijuana, arguing that police officers violated Article I, § 7 and the Fourth Amendment when they drove down their driveway, walked a path toward their house, and smelled marijuana.
Because the officers entered an area that was impliedly open to the public to conduct legitimate police business, they lawfully acquired the information regarding marijuana under the open view doctrine. We thus affirm the trial court's ruling denying the motions to suppress.
FACTS
Zamechek and Steeneck lived in a house off of Old Mount Baker Highway, an unpaved, public road running through rural Whatcom County. To reach the house, which is situated about 200 feet off the road, one must take a driveway that runs through wooded land. About 100 feet in from the road the driveway circles around in front of the house and runs back out to the road. A clear path runs from this part of the driveway to a stairway leading up to the house. The house sits several feet back from the top of the stairs. Facing the road at the end of the driveway is a sign reading `Private Property, No Trespassing' nailed to a tree about 15 feet above the ground. Although surrounded by woods, the house can be seen from the road.
The property has no fence and there is nothing blocking the driveway.
In April 2000, members of the Northwest Regional Drug Task Force received information regarding a possible marijuana `grow operation' at the Zamechek/Steeneck residence. The afternoon of May 2, 2000, Task Force Members Officers B.J. Ortega and Doug Chadwik went to the residence accompanied by a customs agent and a national guardsman. Driving in two cars, the officers entered the driveway and parked where the driveway loops in front of the house. The officers exited their cars and were walking toward the house when they met Zamechek and a male companion at the bottom of the stairs leading up to the house. The officers identified themselves, voiced their suspicion about the grow operation, and requested consent to search the house. Zamechek refused, asking if the officers had a warrant and if they saw the no trespassing sign. By that time, Ortega and Chadwick had smelled marijuana coming from the direction of the house. Based on this, they handcuffed Zamechek and his companion while they applied for a search warrant. A warrant was issued and a search revealed 24 marijuana plants and grow lights in the basement of the house.
The State charged Zamechek and Steeneck with manufacturing a controlled substance. Following a suppression hearing, the trial court found that when the officers smelled marijuana, they were in a place they had a right to be such that their observation and the search warrant it supported, were lawful. The court then found Steeneck and Zamechek guilty following a trial on stipulated facts.
DECISION
The Fourth Amendment of the United States Constitution and article I, § 7 of the state constitution protect citizens from unwarranted government intrusion onto their private property. A person's home is generally viewed as the area most strongly protected by the constitution. Article I, § 7 provides greater protection to a person's right to exclude the government from his or her property than the Fourth Amendment. The warrantless entry by government agents onto private property violates the state constitution if the agents unreasonably intrude into the citizen's "private affairs."
State v. Ross, 141 Wn.2d 304, 313-14, 4 P.3d 130 (2000); State v. Seagull, 95 Wn.2d 898, 632 P.2d 44 (1981).
Ross, 141 Wn.2d at 313-14.
State v. Gave, 77 Wn. App. 333, 337, 890 P.2d 1088 (1995); State v. Johnson, 75 Wn. App. 692, 703, 879 P.2d 984 (1994).
Id.
The burden is on the State to prove that a search falls within one of the few jealously guarded exceptions to the warrant requirement. Where information in support of a search warrant was obtained by an unconstitutional search, that information may not be used to support the warrant. The search warrant here was based on the officers smelling marijuana while standing on Steeneck's and Zamechek's property. The warrant's validity thus hinges on whether the officers lawfully entered the driveway and walked toward the house. Under both the state and federal constitutions, police with legitimate business may enter areas of curtilage that are impliedly open to the public, and in doing so they `are free to keep their eyes open."
Ross, 141 Wn.2d at 312.
Id. at 311-12.
Seagull, 95 Wn.2d at 902.
Under the `open view' doctrine, when an officer detects something using one or more of his senses while lawfully present in impliedly open curtilage, that detection is not a `search' subject to constitutional protections. Applying the open view doctrine requires us to examine the nature of the property to determine whether it was impliedly open to the public, and the officers' conduct to determine whether they were on `legitimate police business.' Zamechek and Steeneck argue that the open view doctrine did not apply because the driveway and connecting path the officers used were not open to the public. We disagree.
Seagull, 95 Wn.2d at 901; State v. Young, 123 Wn.2d 173, 182, 867 P.2d 593 (1994) (`open view' doctrine applies under state constitution).
Ross, 141 Wn.2d at 311-12; see also State v. Thorson, 98 Wn. App. 528, 532-33, 990 P.2d 446 (1999), review denied, 140 Wn.2d 1027 (2000).
Areas of curtilage impliedly open to the public normally include a driveway, walkway, or access route leading to the residence or its porch. The implication that a driveway or walkway is open may be overcome by other conduct manifesting intent to bar persons from entering such areas. `No trespassing' signs are relevant to the equation, but they are not dispositive. Signs must be viewed in light of other factors, such as the degree to which the residence is isolated or visible from a public road or neighboring property, the use of fences, gates, guard dogs, as well as the time that police enter the property.
Gave, 77 Wn. App. at 337 (citing State v. Hoke, 72 Wn. App. 869, 874, 866 P.2d 670 (1994)).
Johnson, 75 Wn. App. at 705-06; Gave, 77 Wn. App. at 337.
Johnson, 75 Wn. App. at 705-06; State v. Ridgway, 57 Wn. App. 915, 918-19, 790 P.2d 1263 (1990).
Applying state constitutional analysis, the court in State v. Johnson held that the open view doctrine did not apply where police officers entered the defendant's rural property and discovered marijuana. Significant to that holding were the presence of a no trespassing sign and a fence with a closed gate across the driveway, the isolated nature of the property, the fact the buildings could not be seen from the road, and the fact the officers entered the property at night.
Johnson, 75 Wn. App. at 708-09.
Id. at 709.
In contrast, in State v. Gave, the defendant's property was located in an isolated, forested area, off a road leading through city watershed property. There were several no trespassing signs placed along the road, on city property.
One sign was placed near the entrance to the defendant's driveway. On the other hand, there were no fences or gates blocking access to the defendant's property. The court held, under the state constitution, that the driveway was impliedly open, noting that the defendant had not adopted the no-trespassing signs as his own.
Significantly, the court also held that even if the defendant had owned the signs, they were insufficient to make the driveway private because `no other manifestation of privacy was present.' Here, several factors support the trial court's conclusion that the officers entered the property via an impliedly open driveway and path. Although located in a rural setting, the property lies adjacent to a public road, with a well-defined driveway leading from the road toward the house.
Gave, 77 Wn. App. at 338-39.
Even though the property is heavily wooded, the house is not completely hidden and can be seen from the end of the driveway. Given its context and setting, even the `no trespassing' sign near the end of the driveway is somewhat unclear as to whether the residents wished to deny access to the driveway, the house, or the woods adjacent to the sign.
Similar to Gave, there are no other manifestations of privacy to clarify what the sign referred to. Unlike in Johnson, there are no fences around the property and no gates blocking the driveway. Fences, gates, or signs are not always necessary to bar the public from entering property. But the absence of such barriers here in light of the property's topography and proximity to the road, supports the conclusion that the driveway and path were impliedly open curtilage. State v. Thorson, which Zamechek and Steeneck rely on, is distinguishable.
Thorson, 98 Wn. App. at 533, 535.
In Thorson, police officers entered the defendant's property through woods from a neighbor's yard using a path that was not connected to any public road. Officers spotted marijuana inside the defendant's property. The property lay on an isolated, sparsely populated island that had no public ferry service. The area where the defendant kept the marijuana was not visible from any road, driveway, or adjacent property. This Court held that the location and topography of the property was such that it was not open to the public despite the lack of a fence or no-trespassing sign.
Thorson, 98 Wn. App. at 537.
Thorson, 98 Wn. App. at 535.
Moreover, the path the officers used was not akin to a driveway, ungated road, or sidewalk and was not impliedly open to the public. In contrast, this property is adjacent to a public road and the house can be seen from that road.
Id. at 536-37, 540.
Significantly, unlike the private path in Thorson, the officers entered the property straight from the road via a driveway that reasonable persons would consider to be open. Thorson thus does not control and the trial court correctly ruled the officers entered open curtilage.
Additionally, the trial court correctly concluded that the officers acted reasonably and were conducting legitimate police business. So long as police behave as reasonably respectful citizens in entering open areas, they are conducting legitimate police business even though their purpose is to investigate criminal activity. In State v. Ross a four justice plurality of our Supreme Court held that police officers did not conduct legitimate police business when they entered a public driveway to confirm the odor of marijuana in support of a search warrant application.
Ross, 141 Wn.2d at 313-14; State v. Rose, 128 Wn.2d 388, 390, 909 P.2d 280 (1996).
Ross, 141 Wn.2d at 314.
Key to this ruling were the facts that the officers were there only to gather evidence, with no intent to contact the property owners, and they walked up the driveway at 12:10 a.m., `when no reasonably respectful citizen would be welcome absent actual invitation or an emergency.'
Id. A three justice concurrence would hold that police do not conduct legitimate police business unless they perform `knock and talks' or community caretaking functions. Id. at 317-19 (Talmadge J. concurring).
Similarly, in State v. Johnson, the court indicated that police officers were not conducting legitimate police business when they furtively trespassed onto the defendant's property, under cover of darkness, with no intent to contact the defendant, for the sole purpose of looking for marijuana. Here, unlike Ross and Johnson, the officers went to the property in the middle of the afternoon, when any reasonably respectful citizen could expect to visit.
Johnson, 75 Wn. App. at 704-05, accord Ross, 141 Wn.2d at 314.
The officers made no attempt to hide their presence and they remained on open curtilage. They immediately contacted Zamechek, informed him why they were there, and asked permission to search the house.
The conduct here was more akin to a lawful `knock and talk' procedure than the covert methods used in Ross and Johnson. The officers conducted legitimate police business.
In a `knock and talk,' officers seek permission to enter a residence with the intent to obtain consent to search for evidence or contraband. State v. Ferrier, 136 Wn.2d 103, 115, 960 P.2d 927 (1998). When properly conducted, a knock and talk is a lawful and approved police practice. Id. at 115-16, see also Ross, 141 Wn.2d at 318 (Talmadge, J. concurring).
Because the officers detected the marijuana in open view, there was no search under the state or federal constitutions. Thus the search warrant was valid and the trial court correctly denied the suppression motions.