State v. Johnson

• Decision Date: 07 September 1994
• Docket Number: Nos. 16073-1-I,16347-1-II,s. 16073-1-I
• Citation: 879 P.2d 984,75 Wn.App. 692
• Parties: The STATE of Washington, Respondent, v. Tamara Sue JOHNSON, Appellant. The STATE of Washington, Respondent, v. James Raymond JOHNSON, Appellant.
• Court: Washington Court of Appeals

Page 692

75 Wn.App. 692

879 P.2d 984

The STATE of Washington, Respondent, v. Tamara Sue JOHNSON, Appellant.

The STATE of Washington, Respondent, v. James Raymond JOHNSON, Appellant.

Nos. 16073-1-II, 16347-1-II.

Court of Appeals of Washington Division 2.

Sept. 7, 1994.

Jeffrey Steinborn, Steinborn & Associates, Seattle, for appellant.

Jon Tunheim, Deputy Pros. Atty., Olympia, for respondent.

ALEXANDER, Judge.

Tamara Sue Johnson appeals her conviction on a charge of possession of marijuana. Her husband and codefendant, James Raymond Johnson, appeals his convictions on charges of possession of marijuana with intent to deliver, manufacture of marijuana, and first degree defrauding of a public utility. They each contend that the trial court erred in denying their motions to suppress evidence, arguing that the evidence was seized pursuant to an invalid warrant. Both Appellants raise additional issues, but because of our resolution of the suppression issue, we need not address them. We reverse.

On August 16, 1991, a "concerned citizen" contacted the United States Drug Enforcement Administration (DEA) to report a "large marijuana growing operation" being conducted by "Jim Johnson" on his property near Scott Lake in Thurston County. ¹ The informant also told a DEA agent that Johnson had recently been "involved" in an airplane crash on Scott Lake.

Following up on the information provided by the informant, DEA Special Agents Hedman and Parr went to the offices of the Thurston Narcotics Task Force (TNTF) in Lacey, where they spoke to Detective Stines. Stines investigated some of the information the informant had provided to the DEA and confirmed that a person by the name of James Johnson had been involved in an airplane crash on Scott Lake. She also confirmed that James Johnson lived at 11801 Tilley Road South in Olympia, a location near Scott Lake.

Armed with this additional information, Hedman and Parr, accompanied by Stines, drove to the vicinity of James Johnson's property. They found, however, that Johnson's property was accessible only by a dirt road that ran through Millersylvania State Park.

Hedman, Parr, and Stines walked down the dirt road through the park, but stopped at a closed gate that marked the boundary of Johnson's property. The gate was a "chain link gate" with a fence extending out from both sides. They observed that signs reading, "Private Property" and "No Trespassing" were posted on both sides of the fence and on a tree behind the fence. From that location, Hedman and Parr were unable to observe any buildings on Johnson's property. After making these observations, the three law enforcement officers left the scene without entering Johnson's property.

On August 18, 1991, Hedman and Parr returned to Thurston County. On this occasion, they visited the Thurston County Assessor's Office and confirmed that the property at 11801 Tilley Road was owned by Tamara and James Johnson. On two occasions between August 16 and 22, TNTF officers, at the request of DEA Agent Hedman, took aerial photographs of the Johnsons' property. These photographs were turned over to the DEA.

On August 19, 1991, shortly before 1 a.m., DEA agents Hedman and Parr returned to the Johnsons' property, this time without Detective Stines. Under cover of darkness, they walked through Millersylvania State Park to the gate marking the Johnsons' property. Finding the gate closed but unlocked, they opened it and proceeded down the dirt road onto the Johnsons' property.

About 200 yards past the gate, the agents observed a barn. They approached to within 10 yards of the barn, and, at this location, they both smelled the "odor of green growing marijuana". The agents also heard the "operation of machinery that they associated with a potential grow operation." They then aimed a "Thermal Imaging Device" at the barn and obtained readings that indicated to them the possible presence of marijuana grow operation. ² While the agents were standing on the road near the barn, they could see a residence approximately 75 to 100 yards from the barn. They did not approach the house.

At this point, Agents Hedman and Parr retraced their route and left the Johnsons' property. Later that day, Hedman obtained records showing power consumption at the Johnsons' property. These records showed "very low electrical usage ... consistent with an indoor marijuana growing operation".

Hedman prepared an affidavit containing essentially the facts set forth above and submitted it to a United States Magistrate. The magistrate issued a search warrant authorizing a search for evidence of a marijuana grow operation at 11801 Tilley Road South in Olympia. The search warrant was executed by DEA agents Hedman and Parr together with six TNTF officers, at least one Washington State Patrol trooper, and a Lacey police officer. A marijuana grow operation was discovered in the barn on the property. James Johnson was arrested and "[t]urned over to the local authorities, Thurston County." Some of the evidence obtained in the search was transferred to TNTF officers.

Tamara Johnson was subsequently charged with one count of possession of marijuana. James Johnson was charged with one count each of possession of marijuana with intent to deliver, manufacture of marijuana, and first degree defrauding of a public utility. Each moved to suppress all of the evidence that had been seized pursuant to the search warrant, contending that the warrant was based on information discovered during a search that violated both the state and federal constitutions. The Johnsons argued that because the DEA agents were working in cooperation with state officers, the DEA agents were subject to the constraints of article 1, section 7 of the Washington State Constitution, and that even if they had been acting without assistance of state officers, their actions violated the fourth amendment to the United States Constitution.

At a hearing on the defendant's motion to suppress, Agent Hedman was the only witness to testify. His testimony was consistent with the facts set forth above. Following the hearing, the trial court concluded that the DEA agents had acted without the cooperation or assistance of state officers, and were, therefore, not subject to the constraints of the Washington Constitution. It further concluded that the actions of the DEA agents did not violate the Fourth Amendment. Based on these conclusions, the trial court denied the motions of both defendants. ³

Tamara Johnson and James Johnson were both convicted of all charges at a bench trial. Each appealed, and their appeals were consolidated by this court.

I

The Johnsons contend that the trial court erred in denying their motions to suppress the evidence seized as a result of the search conducted pursuant to the search warrant. They assert that the warrant was invalid because it was based on the activity of DEA agents that was violative of article 1, section 7 of the Washington State Constitution, as well as the fourth amendment to the United States Constitution. Absent the tainted evidence, the Johnsons contend, the warrant contained insufficient evidence to establish probable cause to support its issuance.

When a party alleges a violation of a right that is protected by both the federal and Washington constitutions, it is appropriate to examine the state constitutional claim first. State v. Young, 123 Wash.2d 173, 178, 867 P.2d 593 (1994); Forbes v. Seattle, 113 Wash.2d 929, 934, 785 P.2d 431 (1990); O'Day v. King Cy., 109 Wash.2d 796, 801-02, 749 P.2d 142 (1988). Before reaching the issue of whether a citizen of this state is afforded greater protection under article 1, section 7 of our state constitution than under the Fourth Amendment, we must first address the question of whether the Washington State Constitution applies to the actions of the DEA agents. The State contends that because the DEA agents were conducting an independent federal investigation when they obtained the evidence that they summarized in the affidavit they submitted in support of issuance of the warrant, the Washington State Constitution does not come into play.

As a general principal, evidence that is lawfully obtained by federal officers pursuant to federal law is admissible in proceedings in courts of this state even if the Washington State Constitution would have required exclusion of evidence obtained in a similar manner by state officials. In re Teddington, 116 Wash.2d 761, 772-73, 808 P.2d 156 (1991); State v. Gwinner, 59 Wash.App. 119, 124-25, 796 P.2d 728 (1990) (explaining development of the "silver platter" doctrine), review denied, 117 Wash.2d 1004, 815 P.2d 266 (1991). "Neither state law nor the state constitution can control federal officers' conduct." State v. Bradley, 105 Wash.2d 898, 902-03, 719 P.2d 546 (1986). The Washington Supreme Court in Teddington quoted a New Jersey case, State v. Mollica, 114 N.J. 329, 351, 554 A.2d 1315, 1327 (1989), where the court concluded that "[s]tated simply, state constitutions do not control federal action."

A critical limitation to the so-called "silver platter" doctrine is that "the federal officer must not have been acting as an agent for the state at the time the officer acquired the evidence." Teddington, 116 Wash.2d at 774, 808 P.2d 156. Indeed, Division One of this court has indicated that the "silver platter" doctrine is subject to a " 'vital significant condition': that the federal officers acted without the cooperation or assistance of state officers." Gwinner, 59 Wash.App. at 125, 796 P.2d 728 (quoting Mollica, 554 A.2d at 1329-30). In Gwinner, the court set forth a number of factors that a court should consider in making this determination:

[A]ntecedent mutual planning, joint operations, cooperative investigations, or mutual assistance between federal and state officers may sufficiently establish agency and serve to bring the conduct of the federal agents under the color of state...