State v. Ross

• Decision Date: 27 July 2000
• Docket Number: No. 67996-7.,67996-7.
• Citation: 141 Wash.2d 304,4 P.3d 130
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Gary ROSS, Respondent.

4 P.3d 130

141 Wash.2d 304

STATE of Washington, Petitioner, v. Gary ROSS, Respondent.

No. 67996-7.

Supreme Court of Washington, En Banc.

Argued October 28, 1999.

Decided July 27, 2000.

John Ladenburg, Pierce County Prosecutor, Kathleen Proctor, Deputy, Tacoma, for Petitioner.

David William Murdach, Tacoma, for Respondent.

Steinborn & Associates, Jeffrey Steinborn, Seattle, Daniel J. Rodriguez, Tacoma, Amicus Curiae on Behalf of Washington Association of Criminal Defense Lawyers.

MADSEN, J.

The State seeks review of a Court of Appeals decision reversing the conviction of Gary William Ross (Defendant) for manufacture and possession of a controlled substance. At issue is whether a police officer's observation of growing marijuana during a warrantless entry on Defendant's property constituted an unlawful search under the Fourth Amendment, United States Constitution, or article I, section 7 of the Washington Constitution. We find that it did and affirm the Court of Appeals.

Facts

In February 1995, Pierce County Deputy Sheriff John Bananola went to 8310 Woodbourne Road S.W. to investigate an anonymous informant's tip regarding a marijuana grow operation at that location. While there, he saw a blue Chevy Blazer in the driveway and learned that it was registered to the Defendant.

On March 24, 1995, at around 8:30 p.m., Deputy Bananola, along with Deputy Jeff Reigle, returned to Defendant's residence. They were in an unmarked car and wearing street clothes. The house and detached garage are located between two streets running north and south, Luzader Street on the west and Woodbourne Road S.W. curving east at the southeast corner of the property. The property has two entrances. They parked their car along Luzader Street and walked up the driveway to the corner of Defendant's garage. When they reached the corner of Defendant's garage, Deputy Reigle smelled the odor of growing marijuana. Deputy Bananola did not smell marijuana but did notice mold and mildew on the inside of a garage window. Deputy Reigle immediately turned around and started walking back to the car, motioning Deputy Bananola to follow. Later that evening, Deputy Bananola indicated to Deputy Reigle that he did not feel comfortable stating in an affidavit that he had smelled growing marijuana and wanted to double check the garage for evidence of growing marijuana. The deputies returned to the Defendant's residence at 12:10 a.m. and again approached the garage from the driveway on Luzader. They confirmed the smell of marijuana and left without approaching the front door or attempting to contact the residents.

Deputy Bananola filed an affidavit of probable cause and obtained a search warrant which was executed on March 31. Police found growing marijuana plants in the garage and house and packaged cut marijuana in the house. Defendant was charged with unlawful manufacture of a controlled substance and possession of a controlled substance. RCW 69.50.401. Prior to trial, Defendant moved to suppress the evidence on the grounds that the deputies had not been on his property lawfully when they obtained probable cause. The trial court denied the motion, finding that the deputies "were on legitimate business, investigating an allegation of a crime," that they "used the most apparently normal, most direct access route to the house," that Defendant did not have a "reasonable expectation of privacy in the area from which the deputies smelled the growing marijuana," and that "[s]uch area was impliedly open to the public." Clerk's Papers (CP) at 614. The case was tried on stipulated facts and the Defendant was convicted.

On appeal, the Court of Appeals reversed the Defendant's conviction finding that the deputies' initial intrusions onto his property exceeded the scope of an implied invitation. State v. Ross, 91 Wash.App. 814, 819-20, 959 P.2d 1188 (1998). The court relied on the following facts: (1) the discovery was not accidental because the deputies entered Defendant's property specifically to investigate an alleged marijuana grow operation; (2) the deputies acted secretly by going on the property at night, in plain clothes and an unmarked car, and without identifying themselves; and (3) the deputies used a side-entry rather than the most direct access route to the front door, which according to the court would have been from Woodbourne. Ross, 91 Wash.App. at 820, 959 P.2d 1188. This court granted the State's second motion for discretionary review.

Analysis

The first argument raised by the State is that the Court of Appeals improperly reversed the trial court's unchallenged findings of fact. Specifically, the State argues that the court disregarded the trial court's finding that the deputies had used the most direct route to the residence, finding instead that the driveway off Luzader was a side-entrance. Because the Defendant did not assign error to the trial court's finding, the State contends that the Court of Appeals erred when it rejected the unchallenged findings. As the State asserts, unchallenged findings of fact are verities on appeal and an appellate court "will review only those facts to which error has been assigned." State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994).

The Defendant claims that the finding at issue was really a legal conclusion since it was found in the section entitled, "Reasons for the Admissibility of Evidence."¹ Alternatively, he argues that he sufficiently challenged the trial court's factual findings by objecting at the trial court level or that the Court of Appeals was free to review the trial court's factual findings even though he technically failed to assign error in compliance with RAP 10.3(a)(3). He relies on State v. Olson, 126 Wash.2d 315, 893 P.2d 629 (1995).

Turning first to the Defendant's technical argument, even if the trial court had denominated its finding a "conclusion of law," it would nevertheless be a factual finding and this court would review it as such. See Willener v. Sweeting, 107 Wash.2d 388, 394, 730 P.2d 45 (1986). The finding here, that the deputies took the most direct route to the residence, is necessarily a factual question. Moreover, it is a finding that is based on many other factual findings that were so denominated by the trial court.² The Defendant did not assign error to any of the supporting factual findings.

As to whether the Defendant's objections in the trial court were sufficient to preserve error for appellate review, the Defendant himself recognizes the requirements of RAP 10.3(a)(3) that appellant's brief contain a "separate concise statement of each error" "together with the issues pertaining to the assignments of error." However, even assuming that Defendant's objections to the trial court sufficiently preserved his challenge to the fact at issue, an appellate court is limited to determining whether the challenged fact is supported in the record by substantial evidence. Hill, 123 Wash.2d at 647, 870 P.2d 313. Here, substantial photographic and testimonial evidence supported the trial court's findings regarding the appearance of the two entrances. In turn, these factual findings support the finding that the deputies used the most direct access route to the Defendant's residence. We agree with the State that the Court of Appeals erred when it rejected the trial court's finding.

Finally, the Defendant's argument that an appellate court may review unchallenged facts in spite of his failure to comply with RAP 10.3(a)(3) is not supported by Olson. In Olson, this court held that the Court of Appeals does not abuse its discretion by considering the merits of an appeal where the appellant's challenge is clear but there are technical flaws in the appellant's compliance with the Rules of Appellate Procedure. Olson, 126 Wash.2d at 323, 893 P.2d 629. The failure to challenge findings of fact is not a technical flaw within the meaning of Olson.

We turn now to the central issue in this case: whether the observations made by Deputy Bananola and contained in the affidavit supporting the search warrant were made in the course of an unlawful search. The Court of Appeals found that the deputy's intrusions exceeded the scope of an implied invitation, thus constituting a search.

The State argues that the Court of Appeals' decision is in conflict with a number of this court's opinions discussing the "open view" doctrine. The State contends that as long as an officer remains in an area that is impliedly open to the public, the officer will not intrude upon a constitutionally protected expectation of privacy unless the officer uses a particularly intrusive method of viewing or observing. Because the deputies here did not depart from an area impliedly open to the public, the State claims, and used only their sense of smell and sight unaided by any enhancement device, they did not invade the Defendant's reasonable expectation of privacy.

The Defendant argues, however, that the police entry onto his property did not satisfy the requirements of the "open view" doctrine. As a result, the officers conducted an unlawful search, the result of which cannot be used to establish probable cause for the issuance of a search warrant. 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. State v. Johnson, 75 Wash.App. 692, 879 P.2d 984 (1994). The affidavit in support of the warrant in this case relies on the evidence gathered by the deputies during their two entries onto the Defendant's property. The trial court, with the State's agreement, excised from the affidavit Deputy Reigle's allegation that he smelled marijuana when he entered the property at 8:30 p.m. Accordingly, our analysis will be limited to Deputy Bananola's observations. State v. Hoke, 72 Wash.App. 869, 872-73, 866 P.2d 670 (1994).

We begin with the well-recognized...