State v. Seagull

• Citation: 632 P.2d 44,95 Wn.2d 898
• Decision Date: 30 July 1981
• Docket Number: No. 47130-4,47130-4
• Parties: STATE of Washington, Respondent, v. Suzzi SEAGULL and Douglas Gilson, Petitioners.
• Court: United States State Supreme Court of Washington

Page 898

95 Wn.2d 898

632 P.2d 44

STATE of Washington, Respondent, v. Suzzi SEAGULL and Douglas Gilson, Petitioners.

No. 47130-4.

Supreme Court of Washington, En Banc.

July 30, 1981.

David V. Johnson, Port Angeles, for petitioners.

Grant S. Meiner, Clallam County Prosecutor, Kenneth L. Cowsert, Deputy Pros. Atty., Port Angeles, for respondent.

STAFFORD, Justice.

Petitioners seek review of a denial of their motion to suppress evidence gathered as a result of an allegedly unconstitutional search and seizure. We affirm.

In the summer of 1977 petitioners Suzzi Seagull and Douglas Gilson lived in an old farmhouse in rural Clallam County. Approximately 20 feet to the west of the house were a chickencoop/pumphouse and a greenhouse. The 10 foot by 12 foot greenhouse was constructed of two-by-fours covered with light translucent plastic. Between the house and the outbuildings was patchy grass, and, apparently, a worndown area somewhat adjacent to the house resulting from foot traffic between the north and south doors.

On July 8, 1977, Sergeant Talvi of the Clallam County Sheriff Department was canvassing the neighborhood for information about an abandoned vehicle with a broken window and blood stains. Petitioners' residence, located less than a mile from the vehicle, was the third house visited.

Talvi stopped in a parking area to the south of the house. He went to the south door (originally the back door, but now used as the main entrance by the occupants), knocked and received no answer. At that time he remembered having been there over a year previously and having been told by the former occupants that they could not hear knocking on that door. It was separated from the rest of the house by a small entrance room and another door, which was closed at the time. Consequently, he proceeded toward the north door by walking through the west yard. He did not take the most direct route along the side of the house. Rather, he walked down the middle of the open space, traversing the patchy grass area, which took him somewhat closer to the outbuildings. By the time he reached the area between the corner of the house and the greenhouse he decided that apparently no one was home. He stopped between six and ten feet from the greenhouse and observed what he concluded was a marijuana plant growing in the southeast corner. The plant was visible through a longitudinal 2-inch strip where condensation had not collected on the plastic. He looked no further and took no further action, but turned around and immediately left the premises.

The next day Talvi obtained a search warrant for the house and outbuildings, which was ultimately executed by another officer. Marijuana and paraphernalia were seized in the house and 60 plants were taken from the northwest corner of the greenhouse, yielding over one-half pound of marijuana.

At the suppression hearing, Talvi apparently learned for the first time that the plant in the southeast corner which he had identified as marijuana was in actuality a tomato plant. While marijuana plants were in fact being grown in the greenhouse, none could have been seen from the point of his observation. The marijuana plants were located only in the northwest corner of the greenhouse.

The trial court denied the motion to suppress and found petitioners guilty of possession of over 40 grams of marijuana. RCW 69.50.401. The Court of Appeals, 26 Wash.App. 58, 613 P.2d 528, affirmed, holding Sergeant Talvi had an implied invitation to enter the property and that he had not exceeded that implied invitation by making his observation of the plant in the greenhouse. The court also held the officer's innocent mistake of identifying a tomato plant as marijuana did not invalidate the warrant.

Two issues are presented: (1) whether the police officer had a right to be where he was when he observed the plants in the greenhouse; and (2) whether what was found as a result of the search invalidated the warrant.

The mere observation of that which is there to be seen does not necessarily constitute a search within the meaning of the Fourth Amendment. State v. Glasper, 84 Wash.2d 17, 20, 523 P.2d 937 (1974); State v. Martin, 73 Wash.2d 616, 440 P.2d 429 (1968); Recznik v. Lorain, 393 U.S. 166, 89 S.Ct. 342, 21 L.Ed.2d 317 (1968). As stated in 1 W. LaFave, Search and Seizure § 2.2 at 240 (1978) (hereinafter LaFave):

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" within the meaning of the Fourth Amendment.

This "open view doctrine" is to be distinguished from the visually similar, but legally distinct, "plain view doctrine". As noted in State v. Kaaheena, 59 Haw. 23, 28-29, 575 P.2d 462, 466-67 (1978):

In the "plain view" situation "the view takes place after an intrusion into activities or areas as to which there is a reasonable expectation of privacy." The officer has already intruded, and, if his intrusion is justified, the objects in plain view, sighted inadvertently, will be admissible. Coolidge v. New Hampshire, 403 U.S. 443, (91 S.Ct. 2022, 29 L.Ed.2d 564) (1971); Harris v. United States, 390 U.S. 234, (88 S.Ct. 992, 19 L.Ed.2d 1067) (1968).

In the "open view" situation, however, the observation takes place from a non-intrusive vantage point. The governmental agent is either on the outside looking outside or on the outside looking inside to that which is knowingly exposed to the public. See Moylan, The Plain View Doctrine: Unexpected Child of the Great "Search Incident" Geography Battle, 26 Mercer L.Rev. 1047, 1096, 1097 (1975). The object under observation is not subject to any reasonable expectation of privacy and the observation is not within the scope of the constitution.

(Some citations and footnote omitted.) See also 68 Am.Jur.2d Searches and Seizures §§ 23, 88 (1973); LaFave § 2.2.

Thus, the question here is whether the officer, by his actions, intruded upon a privacy expectation deserving of Fourth Amendment protection under Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). If his vantage point was not within such a constitutionally protected area, his observation of the greenhouse was permissible under the open view doctrine.

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 ¹ 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. See generally LaFave at § 2.3. An officer is permitted the same license to intrude as a reasonably respectful citizen. United States v. Vilhotti, 323 F.Supp. 425 (S.D.N.Y.) aff'd in part and rev'd in part 452 F.2d 1186 (2d Cir. 1971), cert. denied 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1972). However, a substantial and unreasonable departure from such an area, or a particularly intrusive method of viewing, will exceed the scope of the implied invitation and intrude upon a constitutionally protected expectation of privacy.

What is reasonable cannot be determined by a fixed formula. It must be based on the facts and circumstances of each case. Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). Thus, it is instructive to review comparable cases from other jurisdictions to determine what has been considered reasonable police behavior. Such a review makes it clear that substantially more intrusive police conduct than that which occurred here has been held constitutionally permissible. ² Further, in those comparable cases wherein the evidence was ultimately suppressed, police conduct was substantially more intrusive than that in the instant case. ³

This case is factually similar to United States v. Anderson, 552 F.2d 1296 (8th Cir. 1977). There, police officers went to the front door of a suspect's residence to talk with him. After ringing the doorbell and receiving no answer, they heard a dog barking and saw a light in the backyard. While walking around the house to see if someone was with the dog they looked into a basement window, saw incriminating evidence, and obtained a warrant based on that observation. The court refused to suppress the evidence as having been the fruit of an illegal search. Defendants argued that the officers went to the back of the house on a "pretext", but the trial court found otherwise and its determination was held not to be clearly erroneous. Other factually analogous cases where evidence was not suppressed include Brenneman v. State, 264 Ark. 460, 573 S.W.2d 47 (1978) cert. denied 442 U.S. 931, 99 S.Ct. 2863, 61 L.Ed.2d 299 (1979); Blincoe v. People, 178 Colo. 34, 494 P.2d 1285 (1972); State v. Nine, 315 So.2d 667 (La. 1975); Long v. State, 532 S.W.2d 591 (Tex.Cr.App. 1975) cert. denied 425 U.S. 937, 96 S.Ct. 1670, 48 L.Ed.2d 179 (1976).

On the other hand, Lorenzana v. Superior Court, 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33 (1973), is a case where an officer overstepped his implied invitation and unreasonably intruded on a constitutionally protected expectation of privacy. There an officer, looking for the suspect at night, when to the side of a house where there were no doors or defined pathway. He went there for the express purpose of looking into a window. He was not on the way to a door and his route was neither a normal means of access to either door nor was the land used in common by neighboring residences. The officer peered into the residence through a 2-inch gap between the drawn window shade and the sill, putting his face within an inch of the window. There he remained for a substantial period of time...