State v. Dyreson

• Decision Date: 06 February 2001
• Docket Number: No. 19072-2-III, No. 19073-1-III.
• Citation: 104 Wash.App. 703,17 P.3d 668
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Wilma L. DYRESON and Danny Lee Austin, Appellants.

17 P.3d 668

104 Wash.App. 703

STATE of Washington, Respondent, v. Wilma L. DYRESON and Danny Lee Austin, Appellants.

Nos. 19072-2-III, 19073-1-III.

Court of Appeals of Washington, Division 3, Panel One.

February 6, 2001.

David N. Gasch, Spokane, for Appellants.

Kevin M. Korsmo, Andrew J. Metts, III, Deputy Pros. Attys., Spokane, for Respondent.

BROWN, A.C.J.

After a stipulated facts trial, Wilma Dyreson and Danny Lee Austin were found guilty of possessing marijuana seen by a detective after a warrantless entry into the appellants' garage. We decide the trial court erred by denying suppression of the marijuana seized under a subsequent warrant because the detective's affidavit was based upon an observation from an unlawful vantage point. Accordingly, we reverse.

FACTS

The facts are mainly drawn from the unchallenged CrR 3.6 findings. Spokane County Sheriff's Detective Steven Barbieri went to the residence of appellants Wilma Dyreson, and Danny Austin to contact them regarding an unrelated police matter. Detective Barbieri was unable to contact appellants at the house. A renter at the property told the detective to look in the shed/garage to see if appellants were there.

As Detective Barbieri approached the garage, he heard loud music. Although Detective Barbieri knocked on the open garage door and identified himself, he heard no response. Detective Barbieri believed it might be difficult for someone inside the garage to hear him, so he entered the building through the open door.

Detective Barbieri went about half way into the garage. He was unable to find appellants, but he saw marijuana in a tray near the back of the garage. He could not see the tray from the threshold of the building. Detective Barbieri left the property and returned several days later with a search warrant and seized the marijuana.

The State charged appellants with one count of possessing marijuana. Appellants unsuccessfully moved to suppress the marijuana. After the court entered consistent findings of fact and conclusions of law, appellants were convicted following a stipulated facts trial. We consolidated Ms. Dyreson and Mr. Austin's separate appeals.

ISSUE

Did the trial court err by denying suppression of the marijuana and concluding Detective Barbieri's warrantless entry into the appellants' open garage to a point where the marijuana could be seen was proper under open view principles considering the renter's direction to look for the appellants there?

ANALYSIS

Appellants do not challenge the CrR 3.6 findings. Unchallenged findings are binding on appeal and thus not subject to independent review. State v. Hill, 123 Wash.2d 641, 644-45, 870 P.2d 313 (1994). This court reviews the trial court's conclusions of law pertaining to suppression of evidence de novo. State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999).

Appellants argue violations of both the Fourth Amendment and article I, section 7 of our state constitution. The State contends the marijuana was observed in "open view" from an area of the curtilage impliedly open to the public. Significantly, the State disavows any contention that Detective Barbieri acted with apparent authority derived from the renter when entering the garage. Brief of Respondent at 8. While the court did not enter findings or conclusions regarding the renter, it mentioned the reasonableness of following the renter's instructions.

It is well settled that article I, section 7 provides broader protection against unreasonable search and seizure than the Fourth Amendment. See State v. Ladson, 138 Wash.2d 343, 347-48, 979 P.2d 833 (1999). When an analysis under article I, section 7 is appropriate, a Fourth Amendment analysis need not be addressed. State v. Gave, 77 Wash.App. 333, 337, 890 P.2d 1088 (1995). It is appropriate to begin our analysis under the state constitution. State v. Thorson, 98 Wash.App. 528, 531, 990 P.2d 446 (1999), review denied, 140 Wash.2d 1027, 10 P.3d 407 (2000). Recently, the Supreme Court blended state and federal search and seizure analyses in concluding that a premise search violated both constitutions. See State v. Ross, 141 Wash.2d 304, 312-14, 4 P.3d 130 (2000). We employ a combination of the Ross and Thorson analyses in our review here.

Here, the initial entry was warrantless. "It is well-established that if information contained in an affidavit of probable cause for a search warrant was obtained by an unconstitutional search, that information may not be used to support the warrant." Ross, 141 Wash.2d at 311-12, 4 P.3d 130 (citing State v. Johnson, 75 Wash.App. 692, 709, 879 P.2d 984 (1994)). The affidavit supporting the search warrant relies on Deputy Barbieri's observation from inside the garage. Consequently, this appeal turns on whether the deputy's entry into the building was constitutional.

"We begin with the well-recognized principle that warrantless searches are per se unreasonable under both the Fourth Amendment and article I, section 7 of our state constitution unless they fall within a few specifically established and well-delineated exceptions." Ross, 141 Wash.2d at 312, 4 P.3d 130 (citing State v. Myers, 117 Wash.2d 332, 337, 815 P.2d 761 (1991)). The burden is on the State to prove one of these exceptions applies. Ladson, 138 Wash.2d at 349-50, 979 P.2d 833.

Here, the State relies on the "open view" exception to the warrant requirement, which applies when an officer observes contraband from a "nonconstitutionally protected area." State v. Kennedy, 107 Wash.2d 1, 10, 726 P.2d 445 (1986) (citing State v. Seagull, 95 Wash.2d 898, 901-02, 632 P.2d 44 (1981)). "Under the `open view' doctrine, detection by an officer who is lawfully present at the vantage point and able to detect something by utilization of one or more of his senses does not constitute a search within the meaning of the Fourth Amendment." Ross, 141 Wash.2d at 313,4 P.3d 130 (citing Seagull, 95 Wash.2d at 901,632 P.2d 44; State v. Young, 123 Wash.2d 173, 182, 867 P.2d 593 (1994)). An "open view" observation is not a search at all but may provide probable cause for a constitutionally executed search. See State v. Bobic, 140 Wash.2d 250, 254, 255, 258-59, 996 P.2d 610 (2000).

Here, Detective Barbieri's vantage point was inside the garage and curtilage, where constitutional protections normally extend. Thus, the threshold federal constitutional question is whether Detective Barbieri "intruded upon a privacy expectation deserving of Fourth Amendment protection." Seagull, 95 Wash.2d at 902, 632 P.2d 44 (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). By contrast, the "ultimate question" under our state constitution is whether the detective "violated a privacy interest which citizens of this state have traditionally and justifiably held safe from governmental trespass absent a warrant" when he entered the garage. Thorson, 98 Wash.App. at 533, 990 P.2d 446.

The Thorson court, citing State v. Myrick, 102 Wash.2d 506, 688 P.2d 151 (1984), aptly noted that resolution of the state constitutional claim required the reviewing court "to look to the nature of the property, the expectation of privacy it reasonably supports, and the nature of the intrusion." Thorson, 98 Wash.App. at 533, 990 P.2d 446. An examination of these factors necessarily requires some deference to "traditional Fourth Amendment concepts." Thorson, 98 Wash. App. at 532-33, 990 P.2d 446 (footnote omitted).

Constitutional protection against warrantless searches applies most strongly to a person's home. Ross, 141 Wash.2d at 312, 4 P.3d 130. The Fourth Amendment's "umbrella" of protection extends to a home's curtilage. Id. (quoting State v. Ridgway, 57 Wash.App. 915, 918, 790 P.2d 1263 (1990)). Both parties agree the shed/garage lies within the curtilage of appellants' residence.

"An officer with legitimate business, when acting in the same manner as a reasonably respectful citizen, is permitted to enter the curtilage areas of a private residence which are impliedly open, such as access routes to the house." Ross, 141 Wash.2d at 312, 4 P.3d 130 (citing Seagull, 95 Wash.2d at 902, 632 P.2d 44; State v. Rose, 128 Wash.2d 388, 392, 909 P.2d 280 (1996)). "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 Wash.2d at 903, 632 P.2d 44. All parties agree the detective was initially engaged in legitimate police business.

Given the above, two questions arise. First, was the interior of the garage an area of the curtilage impliedly open to the public? Second, if the answer is no, did Detective Barbieri substantially and unreasonably depart from the impliedly open areas of the curtilage or engage in a particularly intrusive method of viewing so as to impermissibly intrude into appellants' reasonable expectations of privacy when he crossed the threshold of the garage? We turn now to our analysis of the first question.

Generally, areas of the curtilage impliedly open to the public include the driveway, walkway, or access route leading to the residence. State v. Hoke, 72 Wash.App. 869, 866 P.2d 670 (1994). But if a portion of the driveway is hidden from public view and does not lead directly to the house, it may fall outside the impliedly open areas of the curtilage. See State v. Daugherty, 94 Wash.2d 263, 268-69, 616 P.2d 649 (1980) (resident had reasonable expectation of privacy in particular area of driveway depriving officer of lawful right to view interior of garage from threshold). The guiding principle is that a police officer on legitimate business may go where any "reasonably respectful citizen" may go. Seagull, 95 Wash.2d at 902, 632 P.2d 44.

No case in Washington exists holding that the exposed interior of a residential garage is impliedly open to the public. In Minnesota a police officer may...