State v. Daugherty

• Decision Date: 17 January 1979
• Docket Number: No. 3008-II,3008-II
• Citation: 22 Wn.App. 442,591 P.2d 801
• Parties: The STATE of Washington, Respondent, v. James Joseph DAUGHERTY, Appellant.
• Court: Washington Court of Appeals

Page 442

22 Wn.App. 442

591 P.2d 801

The STATE of Washington, Respondent, v. James Joseph DAUGHERTY, Appellant.

No. 3008-II.

Court of Appeals of Washington, Division 2.

Jan. 17, 1979.

Reconsideration Denied Feb. 9, 1979.

William G. Knudsen, Deputy Public Defender, Bremerton, for appellant.

C. Dan Clem, Pros. Atty., Ronald A. Franz, Deputy Pros. Atty., Port Orchard, for respondent.

PETRIE, Judge.

James J. Daugherty appeals his convictions of second-degree burglary and second-degree theft. His primary contention on appeal is that the trial court erred by refusing to suppress evidence seized by the police in his garage. We hold that the evidence was seized in violation of the fourth amendment to the United States Constitution. Accordingly, we must reverse the convictions.

The evidence presented at the suppression hearing establishes the following pattern. Shortly after 10 a. m. on May 12, 1977, four police officers drove to Mr. Daugherty's residence to investigate a burglary which had taken place the previous night. They had been told that at 4:30 a. m. Mr. Daugherty was seen in his pickup truck which at that time was in a parking stall backed up against the burglarized establishment and that a wheeled, black safe approximately 24 by 24 by 21 inches had been reportedly taken by the burglar. When they arrived at Daugherty's residence, they saw his pickup truck and an old model army truck parked side-by-side in a front yard driveway, backed up to the completely opened garage door. Mr. Daugherty, who was then in the garage, saw the police arriving, walked into the middle of his driveway between the two vehicles, and engaged in a brief conversation with Officer Patterson approximately 2 feet from the curb. Another officer, Krebs, walked around the army truck and, in his words, "took a flanking action in case the suspect would flee or if there was (Sic ) additional suspects." He remained outside the garage; but looking through the open garage doorway, he observed "a black metal object with wheels on the bottom that resembled a safe . . . lying directly behind the pickup on the floor of the garage . . . covered partially" with a tarpaulin. The safe was not in an upright position and was situated in the garage in space which would ordinarily be occupied by a vehicle. Krebs shouted his find to Patterson, who promptly arrested Daugherty for burglary.

All the officers then entered the garage, seized the safe, and subsequently concluded that, indeed, it was the safe which had been taken in the previous night's burglary. At least one of the officers also entered the living quarters of the residence and seized property which had no connection with this burglary. Photographs indicate that the garage is attached to one side of the defendant's residence, the garage door faces the street, and the driveway forms a part of the unenclosed front yard.

Several conclusions of law flow from this fact pattern. First, the defendant's driveway was clearly accessible to the public; at best, it was only a semi-private area. United States v. Magana, 512 F.2d 1169 (9th Cir. 1975). Technically, the officers' entrance onto the driveway might have constituted an abstract, theoretical trespass, but Daugherty's privacy was not invaded. State v. Wright, 74 Wash.2d 355, 444 P.2d 676 (1968). The driveway was not a constitutionally protected area. United States v. Brown, 487 F.2d 208 (4th Cir. 1973). See also Wattenburg v. United States, 388 F.2d 853 (9th Cir. 1968). Accordingly, when Officer Krebs observed the safe from outside the garage he had not yet intruded upon a constitutionally protected area. Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974). He saw the safe in "open view" and immediately recognized its significance. (For purposes of this opinion, we will assume that Krebs Inadvertently observed the safe, although Daugherty contends the officers' actions and words manifested a previously formed intent to search his house.)

Krebs' observation of the safe, coupled with his prior knowledge of the previous night's events, undoubtedly provided the officers with probable cause to arrest Daugherty and with probable cause to seek a search warrant. State v. Manly, 85 Wash.2d 120, 530 P.2d 306 (1975).

The real issue, therefore, reduces to a question of whether or not the police had the right to cross over Daugherty's threshold into the garage and seize the safe without the aid of a search warrant. The safe was partially covered and inside the garage thus evidencing some expectation of privacy. Hence, seizure of the safe was constitutionally prohibited. Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 (1932). Nevertheless, the prosecution suggests justification can be found in Coolidge v. New Hampshire,403 U.S. 443, 91...