State v. Browning

• Decision Date: 17 August 1992
• Docket Number: 27893-2-I,Nos. 27892-4-,s. 27892-4-
• Citation: 834 P.2d 84,67 Wn.App. 93
• Parties: STATE of Washington, Respondent, v. Douglas John BROWNING and Michele Lynn Browning, Appellants.
• Court: Washington Court of Appeals

Page 93

67 Wn.App. 93

834 P.2d 84

STATE of Washington, Respondent, v. Douglas John BROWNING and Michele Lynn Browning, Appellants.

Nos. 27892-4-I, 27893-2-I.

Court of Appeals of Washington,

Division 1.

Aug. 17, 1992.

Jeffrey Steinborn, Kenneth Friedman, Seattle, for appellants.

Seth R. Dawson, Pros. Atty., and David Thiele, Deputy Pros. Atty., Everett, for respondent.

BAKER, Judge.

This is a search and seizure case in which a building inspector inadvertently discovered marijuana plants in the Brownings' basement during a final housing inspection. We reverse the Brownings' convictions for possession of a controlled substance with intent to deliver because the inspector's entry into the house was unlawful.

FACTUAL BACKGROUND

A building inspector arrived at the Brownings' house to perform a final housing inspection. When the inspector arrived, he observed Michele Browning entering the garage. The inspector did not present any credentials; however, Ms The inspector testified at the suppression hearing that he informed Browning that a final inspection had been requested. According to the inspector, Browning told him she was taking care of a sick relative and then went back into the house. The inspector stated that Browning never told him he could not complete the inspection.

                Browning recognized him as an inspector from a prior meeting.   The two engaged in conversation, the content of which is disputed
                

Browning testified that she met the inspector in the driveway and asked him why he was there; she thought the final inspection had already been completed. According to Browning, she asked the inspector to come back when her husband was home. When the inspector refused, she told him to wait in the driveway while she looked for requested paperwork and contacted her husband.

In any event, it is undisputed that when Browning went into the house, the inspector began inspecting the premises. During the inspection, he observed unauthorized construction which led to a room concealing numerous marijuana plants. His observations were reported to the police, who obtained a search warrant.

The Brownings were charged with possession of a controlled substance with intent to manufacture or deliver. The trial court denied a motion to suppress the evidence brought on grounds that the inspector entered the premises unlawfully. The Brownings stipulated to facts sufficient to establish guilt, and appealed.

DID THE INSPECTION CONSTITUTE A SEARCH?

The protections of the Fourth Amendment and Const. art. 1, § 7 extend to administrative or regulatory searches. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). The State argues that the inspection did not constitute a search under the federal or state constitutions because the marijuana plants were observed in plain view, citing State v. Vonhof, 51 Wash.App. 33, 751 P.2d Both Vonhof and Seagull involved observations from points within the curtilage of the residences but not within areas deemed to have a reasonable expectation of privacy. Accordingly, the courts held that the observation of incriminating evidence from these points did not constitute a search. These cases thus involve the open view doctrine and stand for the proposition that there is no legitimate expectation of privacy "in those areas of the curtilage that are impliedly open to the public." Utter, Survey of Washington Search & Seizure Law: 1988 Update, 11 U. Puget Sound L.Rev. 411, 430 (1988); Seagull, 95 Wash.2d at 902, 632 P.2d 44; see also, State v. Ferro, 64 Wash.App. 181, 824 P.2d 500, review denied, 119 Wash.2d 1005, 832 P.2d 488 (1992).

1221, review denied, 111 Wash.2d 1010 (1988), cert. denied, 488 U.S. 1008, 109 S.Ct. 790, 102 L.Ed.2d 782 (1989) and State v. Seagull, 95 Wash.2d 898, 632 P.2d 44 (1981).

In this case, the inspector entered the residence itself, an area within which there was an unquestionable expectation of privacy. Thus, this case involves the "plain view" doctrine, not the "open view" doctrine discussed in Vonhof and Seagull. Our Supreme Court has explained the difference as follows:

In the "plain view" situation "the view takes place after an intrusion into activities or areas as to which there is a reasonable expectation of privacy." The officer has already intruded, and, if his intrusion is justified, the objects in plain view, sighted inadvertently, will be admissible.

In the "open view" situation, however, the observation takes place from a non-intrusive vantage point. The governmental agent is either on the outside looking outside or on the outside looking inside to that which is knowingly exposed to the public. The object under observation is not subject to any reasonable expectation of privacy and the observation is not within the scope of the constitution.

(Citations omitted.) Seagull, 95 Wash.2d at 901-02, 632 P.2d 44. Therefore, because the observation of incriminating evidence in this case was from a constitutionally protected area, we hold that the inspection constituted a search under the federal and state constitutions.

DID THE INSPECTOR ENTER THE RESIDENCE LAWFULLY?

The Brownings assert that the building inspector entered the residence unlawfully because Browning did not consent to the entry and the inspector did not present his credentials or request entry as required by the Uniform Building Code (UBC). We agree.

In Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), four policemen announced that they had a warrant to search a house, and the owner responded "go ahead." At trial, no warrant was produced, but the prosecutor argued that the search was permissible on grounds that a valid consent to the search had been given. The Supreme Court reversed the appellant's conviction and stated:

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.

(Footnote omitted.) Bumper, 391 U.S. at 548-49, 88 S.Ct. at 1792.

The claim of lawful authority referred to in Bumper has not been limited to situations in which officers claim to have a search warrant. 3 LaFave, Search & Seizure § 8.2(a), at 179 (2d ed. 1987). "The claim of such a right, though not expressly stated, is implicit when the police, instead of asking for permission to make the search, say that they have come to search or that they are going to search." (Footnotes omitted.) Search & Seizure § 8.2(a), at 179-80.

In United States v. Most, 876 F.2d 191 (D.C.Cir.1989), the Court of Appeals rejected the government's argument that acquiescence or nonresistance may support an inference of implied consent. The court stated, "[i]t is clear ... that for constitutional purposes nonresistance may not be equated with consent." Most, 876 F.2d at 199. See also Patzner v. Burkett, 779 F.2d 1363, 1369 (8th Cir.1985) (proof that a person merely acquiesced does not support a presumption that consent was given); United States v. Gonzales, 842 F.2d The State relies on two Washington cases to support its argument that the inspector lawfully entered the residence because Ms. Browning never expressly refused him entry. We do not find these cases to be persuasive in this context.

748, 754 (5th Cir.1988) (acquiescence cannot substitute for free consent), overruled on other grounds in United States v. Hurtado, 905 F.2d 74 (5th Cir.1990).

The first case involved a domestic violence situation in which one of the occupants was known to the police to have a violent temper. State v. Raines, 55 Wash.App. 459, 778 P.2d 538 (1989), review denied, 113 Wash.2d 1036, 785 P.2d 825 (1990). The other occupant, the suspected victim, affirmatively gestured to the officers to enter the apartment after the officers requested entry. Under these circumstances, we concluded that the affirmative act of stepping aside to allow the officers' entry amounted to more than mere acquiescence and constituted an implied waiver of the occupant's right to refuse entry. Raines, 55 Wash.App. at 462-63, 778 P.2d 538.

The second case involved a narcotics sale to an undercover agent. State v. Sabbott, 16 Wash.App. 929, 561 P.2d 212 (1977). In that case, there was no claim of lawful authority followed by acquiescence. Thus, we do not find the cited dicta in that case to be persuasive.

Because the State's evidence shows no more than acquiescence to a claim of authority, we hold that the State has failed to satisfy its burden of proving that Ms. Browning freely and voluntarily consented to the inspector's entry. "The opportunity to consent to an inspector's entry or perhaps arrange a more convenient time for inspection will go far toward enabling a citizen to keep private the 'private affairs' she conducts in her home." King Cy. v. Primeau, 98 Wash.2d 321, 331, 654 P.2d 1199 (1982) (Utter, J., concurring in part, dissenting in part).

Furthermore, the UBC expressly requires a building inspector to request entry. The UBC states:

Right of Entry. Whenever necessary to make an inspection to enforce any of the provisions of this code, or whenever the building official or his authorized representative has (Emphasis added.) UBC 202(c). No such request was made in this case. The facts cannot support a 2-tiered inference that a request was made and consent given in response thereto. Thus, we hold that the inspector did not enter the residence lawfully and the Brownings' motion to suppress the evidence should have been granted.

                reasonable cause to believe that there exists in any building or upon any premises any condition or code violation which makes such building or premises unsafe, dangerous or hazardous, the building official or his authorized representative may enter such building or premises at all reasonable times to inspect the same or to perform any duty imposed upon the building official by

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