State v. Myrick, 50380-0

• Citation: 688 P.2d 151,102 Wn.2d 506
• Decision Date: 13 September 1984
• Docket Number: No. 50380-0,50380-0
• Parties: The STATE of Washington, Respondent, v. Edward E. MYRICK, Appellant.
• Court: United States State Supreme Court of Washington

Page 506

102 Wn.2d 506

688 P.2d 151

The STATE of Washington, Respondent, v. Edward E. MYRICK, Appellant.

No. 50380-0.

Supreme Court of Washington EnBanc.

Sept. 13, 1984.

Robert Alan Simeone, Colville, for appellant.

John G. Wetle, Stevens County Prosecutor, Dan B. Johnson, Deputy Pros. Atty., Colville, John E. Lamp, Sp. Deputy U.S. Atty., Spokane, for respondent.

James E. Lobsenz, Washington Appellate Defender Ass'n, Seattle, amicus curiae, for appellant on behalf of the American Civil Liberties Union.

E.R. Whitmore, Jr., Chelan County Prosecutor, James E. Freeley, Deputy Pros. Atty., Wenatchee, amicus curiae, for respondent on behalf of Chelan County.

UTTER, Justice.

Two issues are presented by this appeal: does aerial surveillance of open fields at an altitude of 1,500 feet above ground level violate Const. art. 1, § 7 and did the warrantless seizure of contraband inside buildings on appellant's property constitute reversible error. We answer both questions in the negative and affirm.

At the time of trial, appellant owned 80 acres of property in a remote area of Stevens County. His land was heavily wooded and bordered by high ridges which precluded casual observation. He had taken many precautions against intrusion onto his property. These included a fence, numerous no trespassing signs, electronic sensors, and an observation platform to detect intruders.

On September 2, 1981, acting on an anonymous tip which indicated that marijuana was being grown on appellant's property, Captain Ken Meyer of the Stevens County Sheriff's Department obtained a plane from the United States Drug Enforcement Agency (DEA) to view appellant's property from the air. At an altitude of 1,500 feet above ground level, he and Jerry Bishop, Special Agent Pilot for the DEA, identified marijuana on appellant's property. Based upon the information gathered from the informant and from the sightings in the plane, Captain Meyer then obtained a warrant to search appellant's property. The warrant specifically excluded buildings.

On September 3, 1981, officers from the sheriff's department entered appellant's property to execute the warrant. The officers proceeded to appellant's residence and attempted to serve the warrant, but found no one at home. The officers did not search appellant's residence but proceeded on the property to his cotenant's residence in a further attempt to serve the warrant. Smoke was coming from the chimney of this residence and the officers assumed that someone was home. Upon receiving no response, the officers peered through the front window to locate the resident and discovered several marijuana plants and other evidence of marijuana cultivation. They entered the house and seized these items. The officers also discovered and seized drying marijuana in an open shed between the residences.

Upon completion of their search of appellant's 80 acres the officers had seized approximately 500 marijuana plants, one 30-gallon barrel containing marijuana leaves, nine 30-gallon bags containing marijuana leaves and other evidence of marijuana cultivation. During the search, appellant returned from the marijuana fields in his station wagon. Immediately apparent within the station wagon were freshly cut marijuana plants and a machete. The officers arrested appellant and impounded the car. They later obtained a search warrant for the car and seized these items.

The trial court found that the officers' discovery of marijuana inside the shed and the cotenant's dwelling was inadvertent and supported by the plain view doctrine. It concluded that appellant's no trespassing signs, trail alarms, fencing and lookout tower, in addition to the isolated location of appellant's land, did not give him a reasonable expectation of privacy from aerial surveillance. It then denied appellant's motion to suppress and admitted all evidence discovered on the property. Appellant was convicted of manufacture and possession of marijuana. RCW 69.50.401.

Appellant and amicus for appellant contend that the overflight of appellant's property was a search within the meaning of U.S. Const. amend. 4 and Const. art. 1, § 7. Under this theory, the officers were required to obtain a warrant before flying over appellant's land, the warrant which issued based on the sighting of marijuana from the plane was invalid as the fruit of an unlawful search and all evidence seized on appellant's property should have been suppressed.

Respondent counters that the Fourth Amendment "open fields" doctrine of Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), which was recently revitalized in Oliver v. United States, --- U.S. ----, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), is controlling. Hester and Oliver stand for the proposition that open fields are not entitled to Fourth Amendment protection from searches and seizures. Oliver, at ----, 104 S.Ct. at 1740. Amici for respondent argues that Const. art. 1, § 7 does not protect appellant from aerial surveillance of his open fields because that which is exposed to public view does not come with the purview of one's "private affairs."

In a recent series of cases we have recognized that the unique language of Const. art. 1, § 7 provides greater protection to persons under the Washington Constitution than U.S. Const. amend. 4 provides to persons generally. See State v. Jackson, --- Wash.2d ---, 688 P.2d 136 (1984); State v. Chrisman, 100 Wash.2d 814, 818, 676 P.2d 419 (1984); State v. Ringer, 100 Wash.2d 686, 674 P.2d 1240 (1983); State v. White, 97 Wash.2d 92, 640 P.2d 1061 (1982); State v. Simpson, 95 Wash.2d 170, 622 P.2d 1199 (1980); State v. Hehman, 90 Wash.2d 45, 578 P.2d 527 (1978). While we may turn to the Supreme Court's interpretation of the United States Constitution for guidance in establishing a hierarchy of values and principles under the Washington Constitution, we rely, in the final analysis, upon our own legal foundations in determining its scope and effect.

Const. art. 1, § 7 provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Like the United States Constitution, Const. art. 1, § 7 requires a warrant for arrests, searches and seizures subject only to a few, limited exceptions. State v. Ringer, supra. To determine whether a search necessitating a warrant has taken place under U.S. Const. amend. 4, the inquiry is whether the defendant possessed a "reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349 (1974). In contrast, due to the explicit language of Const. art. 1, § 7, under the Washington Constitution the relevant inquiry for determining when a search has occurred is whether the state unreasonably intruded into the defendant's "private affairs." State v. Simpson, supra, 95 Wash.2d at 178, 622 P.2d 1199. Const. art. 1, § 7 analysis encompasses those legitimate privacy expectations protected by the Fourth Amendment; but is not confined to the subjective privacy expectations of modern citizens who, due to well publicized advances in surveillance technology, are learning to expect diminished privacy in many aspects of their lives. Amsterdam, at 349; see also United States v. White, 401 U.S. 745, 786-87, 91 S.Ct. 1122, 1143-44, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting). Rather, it focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.

The issue here is one of first impression in this state, although it has been considered by other jurisdictions. In all but two of these cases, the aerial surveillance has been upheld as reasonable government conduct. United States v. DeBacker, 493 F.Supp. 1078 (W.D.Mich.1980) (aircraft flew at 50 feet above ground level, no closer than 200 feet from any person); State v. Stachler, 58 Hawaii 412, 570 P.2d 1323 (1977) (aircraft flew at 300 feet above ground level); People v. Superior Court, 37 Cal.App.3d 836, 112 Cal.Rptr. 764 (1974) (aircraft flew at 500 feet above ground level; officer used binoculars); Dean v. Superior Court, 35 Cal.App.3d 112, 110 Cal.Rptr. 585 (1973) (aircraft flew at 300 feet above ground level; officer used binoculars); Goehring v. State, 627 S.W.2d 159 (Tex.Crim.App.1982) (aircraft hovered at 50-75 feet above ground level).

The rationale used by the courts upholding aerial surveillance has varied. Some courts have relied upon the "open fields" doctrine of Hester v. United States, supra, and have concluded that no privacy interest whatever extends to open fields. Reece v. State, 152 Ga.App. 760, 264 S.E.2d 258 (1979). Others have employed the "reasonable expectations" test and have focused on the validity of claimed subjective expectations of safety from aerial surveillance in modern society. People v. Superior Court, supra. A more reasonable approach was taken by the court in United States v. DeBacker, supra, which considered the location of contraband in open fields as a factor in determining whether defendant's privacy expectation was reasonable. See generally Comment, Aerial Surveillance: A Plane View of the Fourth Amendment, 18 Gonz.L.Rev. 307 (1982-83).

The first court to find aerial surveillance unconstitutional did so because the police hovered in their helicopter 20 to 25 feet above the ground and 125 feet away from appellant's residence in an effort to identify marijuana in a corral. This conduct, the court concluded, was an unreasonable governmental intrusion into defendant's privacy. People v. Sneed, 32 Cal.App.3d 535, 108 Cal.Rptr. 146 (1973). But see People v. Joubert, 118 Cal.App.3d 637, 173 Cal.Rptr. 428, 434 (1981) (where the same court disregarded the intrusive nature of the aircraft circling defendant's property 15-20 times).

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