State v. Petty
| Decision Date | 27 July 1987 |
| Docket Number | No. 18577-2-I,18577-2-I |
| Parties | STATE of Washington, Appellant, v. Ronald Allen PETTY, Respondent. |
| Court | Washington Court of Appeals |
Norm Maleng, King County Pros. Atty., John Bell, Deputy Pros. Atty., Seattle, for State of Wash.
Julie A. Kesler, Washington Appellate Defender, Seattle, for Ronald Allen Petty.
The State appeals an order suppressing evidence seized pursuant to a search warrant and an incriminating statement made by the defendant in the course of the execution of the search warrant. We reverse the portion of the order suppressing the physical evidence, but we affirm the portion suppressing the defendant's statement.
On October 15, 1985, Detective Ninomiya, a member of the Seattle Police Department, obtained a warrant based on the following affidavit:
On 10/14/85 your affiant was contacted by a confidential and reliable informant whom your affiant has been working with in excess of twenty-four months. During this period of time this informant has provided your affiant with information regarding narcotics trafficking in the Greater Seattle Area which your affiant has verified as being true and accurate through police and narcotics files, other police personel[l] and your affiant's own personal knowledge. This informant has made in excess of three controlled buys of controlled substances under the direct supervision of Det. Ninomiya. Further, that during the past twenty-four months this informant has provided information which resulted in the issuance of at least three search warrants where quantities of controlled substances including Marijuana were seized. That as a result of these search warrants, over four individuals have been arrested on narcotics charges. That this informant is familiar with Marijuana and other controlled substances through at least seven years association with users and dealers of the same and his/her own prior use of Marijuana. That information provided by this informant has generally been true and correct.
That within the past two weeks of the above date, this informant went to the above listed residence and did observe a quantity of growing Marijuana. This Marijuana was being cultivated in the basement under a number of halide lights. Further, Marijuana could be smelled not only from the front door, but in the alley located directly north of the premise.
On 10/14/85 at approx. 2000 hours your affiant responded to the above described location, walked through the alley north of the premise in question and detected a [sic ] odor of Marijuana. The premise in question borders the alley. Further, your affiant went to the front door and knocked. A moment later a W/M approx. 30 years of age, 6'1"', 220lbs with facial hair answered the door opening it wide open. Your affiant was approx. three feet from the open door and detected a strong odor of Marijuana coming from inside the premise.
Your affiant has found through his police experience and training, eight years as a police officer, 2 1/2 years as a narcotics detective that he is familiar with Marijuana in both its growing and packaged states. Further, that persons growing Marijuana indoors commonly use halide lights and keep records of growth rates and sales of the finished product. That your affiant has been on approx. 50+ search warrants where Marijuana was being cultivated. For the reasons outlined above, your affiant beli[e]ves that there is Marijuana being grown in this residence and a search warrant for controlled substances is requested.
On the same day, Detective Ninomiya and six other detectives executed the search warrant. Four officers approached the door, knocked, and announced that they were police officers, but received no response. When they heard the sound of running inside the house, they forced open the door and entered with their guns drawn. Four people, including the defendant, were discovered in the living room. Right after the detectives entered, Detective Ninomiya asked each person if he lived there. The defendant was the only one who answered affirmatively. A short time later the officers discovered marijuana, growing equipment, cash, guns, and a paper indicating dominion and control over the premises. The defendant was arrested and subsequently charged by information with possession of marijuana with intent to manufacture or deliver.
Prior to trial, the defendant moved to suppress both the evidence seized in the search and the statement he made indicating that he lived at the house. The court suppressed the evidence seized pursuant to the search warrant, concluding that
[t]he informant's information was stale, and the detective's knocking on the door to detect the odor of marijuana when it was opened was an unlawful search.
The odor of marijuana detected by the officer in an alleyway was not sufficient to supply corroboration since there was no indication which house or property the odor could have emanated from. It is impossible to separate these observations from the observations perceived by the unlawful search.
The court also suppressed the defendant's incriminating statement, ruling that
[t]he defendant should have been advised of his constitutional rights before the first statement. That statement is not admissible for that reason and as the fruit of an unlawful search.
The court later entered an additional finding that suppression of the evidence terminated the State's ability to proceed to trial.
We first address the trial court's conclusion that the officer conducted an illegal search when he approached the house, knocked, and detected the odor of marijuana while standing 3 feet outside the open door of the residence. In State v. Seagull, 95 Wash.2d 898, 632 P.2d 44 (1981), our Supreme Court stated:
The presence of an officer within the curtilage of a residence does not automatically amount to an unconstitutional invasion of privacy. Rather, it must be determined under the facts of each case just how private the particular observation point actually was. It is clear that police with legitimate business may enter areas of the curtilage which are impliedly open, such as access routes to the house. In so doing they are free to keep their eyes open.... An officer is permitted the same license to intrude as a reasonably respectful citizen.
(Footnote omitted.) Seagull, at 902, 632 P.2d 44. The Seagull court held that when an officer approached the house upon an access route impliedly open to the public in order to question the occupants about a nearby abandoned vehicle and the officer discovered what he believed to be marijuana in a greenhouse along the access route, the officer was not conducting a search. Seagull, at 905, 632 P.2d 44.
In State v. Daugherty, 94 Wash.2d 263, 616 P.2d 649 (1980), a section of a driveway which was exposed to view from the street and was a means of conventional access to the house was "not protected under the Fourth Amendment either from view by police officers or from an incursion by officers with a legitimate purpose walking across it to reach respondent at the door to his home." Daugherty, at 268, 616 P.2d 649. When the officers entered a portion of the driveway that the defendant had effectively blocked off and obscured from view, however, they entered an area in which the defendant had a reasonable expectation of privacy. Daugherty, at 268-69, 616 P.2d 649. Because they had no lawful right to be in this area, the evidence discovered there had to be suppressed.
Petty argues, based on Seagull and Daugherty, that Detective Ninomiya conducted an illegal search by approaching his front door with the anticipation of smelling incriminating evidence. He contends that the court in Seagull upheld the officer's approach to the house only because the officer was seeking information unrelated to any suspicion about the occupant. An officer who approaches a residence in order to acquire information about an occupant, Petty argues, is not acting with a "legitimate" purpose.
Such a narrow interpretation, however, is not supported by the authority relied on in Seagull and Daugherty. The "legitimate purpose" or "legitimate business" distinction is drawn from cases which hold that even when an officer approaches a residence in connection with an investigation focused on an occupant, the officer does not violate the Fourth Amendment as long as the defendant does not have a reasonable expectation of privacy in the access route used by the officer. United States v. Magana, 512 F.2d 1169 (9th Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 42, 46 L.Ed.2d 43 (1975) (); Davis v. United States, 327 F.2d 301 (9th Cir.1964) (); State v. Corbett, 15 Or.App. 470, 516 P.2d 487 (1973) (). None of these cases holds that an officer's suspicions about an occupant transform the officer's approach to the house into a search.
The rationale for finding that an officer in this situation does not violate the Constitution is twofold. It is based, first of all, on the conclusion that an officer, like anyone else, may approach a residence from an access route impliedly open to the public.
Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's "castle" with the honest intent of asking questions of the occupant thereof--whether the questioner be a pollster, a salesman, or an officer of the law.
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