State v. Rose

• Citation: 128 Wn.2d 388,909 P.2d 280
• Decision Date: 11 January 1996
• Docket Number: No. 62139-0,62139-0
• Court: United States State Supreme Court of Washington
• Parties: The STATE of Washington, Petitioner, v. Ryan B. ROSE, Respondent.

Page 388

128 Wn.2d 388

909 P.2d 280

The STATE of Washington, Petitioner, v. Ryan B. ROSE, Respondent.

No. 62139-0.

Supreme Court of Washington En Banc.

Jan. 11, 1996.

Jim Krider, Snohomish County Prosecutor and Mr. S. Aaron Fine, Deputy County Prosecutor, Everett, for petitioner.

Jessica A. Ryan, Seattle and Nielsen & Acosta, Eric Nielsen, Seattle, for respondent.

MADSEN, Justice.

At issue is whether an unconstitutional warrantless search occurred when a police officer looked with the aid of a flashlight through an unobstructed window of Defendant's mobile home during the evening. We hold that the officer's observations did not constitute an illegal search, and accordingly reverse the trial court's suppression order.

Defendant Ryan B. Rose rented property from John Yarton. Yarton was entitled to use part of a garage located to the right of a parking lot on the property for storage, and he maintained the property by mowing the lawns and cutting brush. A mobile home was on the left side of the parking lot, approximately thirty-five yards away. A shed was located about nineteen yards behind the mobile home.

On November 18, 1991, Yarton went to the property to store some items in the garage. He noticed that the mobile home appeared neglected, and that curtains had been ripped down. The condition of the premises led him to check around the property, and as he did so he noticed a hose going to the shed behind the mobile home. He saw a lock on the shed, and smelled what he thought was marijuana.

Yarton called the police from his home located nearby. Deputy Ty Dekofski responded. When he and Yarton met, Yarton told him that he had been on the land to store some items, contact Rose, and check on the property, and that he had smelled what he thought was marijuana coming from the shed. Yarton and Dekofski drove to the rental property, and parked in the parking area sometime around 7 p.m. They walked together back to the shed, where Deputy Dekofski could smell marijuana. He saw that there were water and electrical lines running into the storage shed, and that the shed was locked. Dekofski looked in a window at the back of the mobile home using a flashlight, and then walked around to the front of the mobile home and knocked. While on the front porch, he shined his flashlight through a window and saw cut marijuana and a scale on a table inside. A second officer joined Dekofski during this investigation. ¹

Dekofski obtained a telephonic search warrant based upon the information he had gathered. During the search, pursuant to the warrant, officers found a complete marijuana grow operation and fourteen pounds of marijuana. Rose was charged with possession of marijuana with intent to manufacture or deliver. He moved to suppress the evidence obtained during the search because Yarton lacked authority to consent to a search of the property. The trial court granted the motion to suppress, and found that the practical effect of the suppression order was dismissal of the case. The State appealed.

In a split decision, the court of appeals affirmed, holding that Yarton lacked authority to consent to a search. The court also rejected the State's argument that the evidence which Dekofski saw through the front window of the mobile home was in open view, legally observed, and sufficient to establish probable cause for issuance of the warrant regardless of whether other information was unlawfully obtained. Finally, the court of appeals held that with the illegally obtained information excised from the warrant, insufficient facts remained to establish probable cause for issuance of the warrant.

We granted the State's petition for discretionary review.

The State challenges only the court of appeals' holding that the officer's warrantless observations through the mobile home window with the aid of a flashlight constituted an unlawful search.

I

The Fourth Amendment provides in part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." In deciding whether an unconstitutional search has occurred, the court considers whether the defendant had a legitimate expectation of privacy and whether that expectation is one that society is willing to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); State v. Young, 123 Wash.2d 173, 189, 867 P.2d 593 (1994). A legitimate expectation of privacy is one which includes an actual and subjective expectation of privacy. Katz, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring). "People have a reasonable expectation of privacy in their own homes." Young, 123 Wash.2d at 189, 867 P.2d 593 (quoting Payton v. New York, 445 U.S. 573, 589, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980)).

However, no search within the meaning of the Fourth Amendment occurs where the "open view" doctrine is satisfied. Under the "open view" doctrine: " 'As a general proposition, it is fair to say that when a law enforcement officer is able to detect something by utilization of one or more of his senses while lawfully present at the vantage point where those senses are used, that detection does not constitute a "search"....' " Young, 123 Wash.2d at 182, 867 P.2d 593 (quoting State v. Seagull, 95 Wash.2d 898, 901, 632 P.2d 44 (1981) (quoting in turn 1 Wayne R. LaFave, Search and Seizure § 2.2, at 240 (1978)). Where the open view doctrine is satisfied " '[t]he object under observation is not subject to any reasonable expectation of privacy and the observation is not within the scope of the constitution.' " Seagull, 95 Wash.2d at 902, 632 P.2d 44 (quoting State v. Kaaheena, 59 Haw. 23, 28-29, 575 P.2d 462 (1978)).

There can be no serious question that Officer Dekofski was entitled to walk up onto the porch. "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." Seagull, 95 Wash.2d at 902, 632 P.2d 44. Normally "a front porch ... to a house is not a constitutionally protected area, and police officers who enter these areas may do so with their eyes open." State v. Myers, 117 Wash.2d 332, 344, 815 P.2d 761 (1991).

Defendant Rose's mobile home was at the end of a private driveway off a private road, but there was no "private" sign posted, and the property was not fenced. Nothing in the record indicates that any attempt was made to prevent people from approaching the residence. The front porch was accessible from a large parking area near the mobile home. The porch was impliedly open to the public. ²

Just as the officer could lawfully step onto the front porch, he also could intentionally look through the window. There is no inadvertence requirement under the open view doctrine. 1 Wayne R. LaFave, Search and Seizure § 2.2(a), at 323 (2d ed. 1987). The conduct of an officer at residential premises does not exceed the open view doctrine just because the officer is there deliberately to look for evidence of a crime. State v. Maxfield, 125 Wash.2d 378, 397-99, 886 P.2d 123 (1994) (open view doctrine; investigator went to residence to look for evidence of marijuana grow operation); cf. United States v. Dunn, 480 U.S. 294, 304-05, 107 S.Ct. 1134, 1141-42, 94 L.Ed.2d 326 (1987) (in context of "open fields" doctrine, irrelevant that officer's observation is directed specifically at the identification of marijuana plants growing on area protected by Fourth Amendment) (citing California v. Ciraolo, 476 U.S 207, 213, 106 S.Ct. 1809, 1812-13, 90 L .Ed.2d 210, rehearing denied, 478 U.S. 1014, 106 S.Ct. 3320, 92 L.Ed.2d 728 (1986)).

In numerous cases courts have upheld the constitutionality of officers' intentional views through unobstructed windows at residential premises while deliberately investigating reports of crime. See, e.g., State v. Gott, 456 S.W.2d 38 (Mo.1970) (no Fourth Amendment violation where officers were legitimately on premises to investigate informant's report that the occupant was in possession of marijuana when they observed defendant through an uncovered window allegedly rolling a marijuana cigarette); State v. Cloutier, 544 A.2d 1277 (Me.1988) (no Fourth Amendment violation where officer who was aware of burglaries in the neighborhood legitimately approached defendant's residence on police business to investigate a possible burglary where the suspicion of such resulted from the only illumination in the residence being in the basement; observation of marijuana through a window from the normal route of access not a search); Latham v. Sullivan, 295 N.W.2d 472 (Iowa Ct.App.1980) (no Fourth Amendment violation where officer legitimately investigating a burglary in the neighborhood approached the only outside entrance to defendant's apartment and while on the landing outside the apartment door observed through an apartment window items allegedly stolen in the burglary); State v. Taylor, 61 Ohio App.2d 209, 401 N.E.2d 459 (1978) (no Fourth Amendment violation where the officer had a right to be on a sidewalk within the premises with the purpose to observe potentially illegal activity involving narcotics, and saw through a window a brown substance believed to be marijuana bagged for sale).

Nor is there any constitutional infirmity resulting because Officer Dekofski looked through a window to the left of the door. First, there is no reasonable expectation of privacy in what can be seen through uncurtained windows. State v. Manly, 85 Wash.2d 120, 124, 530 P.2d 306 (view enhanced by binoculars), cert. denied, 423 U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 81 (1975); see also State v. Drumhiller, 36 Wash.App. 592, 595- 675 P.2d 631 (officers legitimately on residential premises to investigate a reported burglary lawfully stood a few feet from the walkway to the front door for their own protection and to carry out their obligation to...