State v. Solberg
| Decision Date | 04 November 1993 |
| Docket Number | No. 59755-3,59755-3 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Petitioner, v. Scott Carl SOLBERG, Respondent. En Banc |
Steinborn & Associates, Jeffrey Steinborn, Kenneth R. Friedman and Andrew L. Subin, Seattle, for respondent.
Christine O. Gregoire, Atty. Gen. and John R. Wasberg, Asst. Atty. Gen., Seattle, amicus curiae, for petitioner.
This case involves first, the legality of an arrest which occurred on the front porch of a suspect's home and second, a challenge to the Court of Appeals decision vacating the exceptional sentence imposed by the trial court in this case.
On April 27, 1989, a woman, who identified herself only as a real estate agent, called police and informed them that she had smelled a strong odor of marijuana at a home she had been attempting to show to a prospective buyer. Pursuant to that tip, two police officers went to the address the following day. The police asked and received permission from the neighbors to go onto their property in order to observe the home described by the caller. Both officers smelled a strong odor of marijuana near the house, observed that the basement windows had been covered and that there was mildew and peeling paint on the side of the house. The officers later explained that, in their experience, due to the inside humidity, mildew and peeling paint are common on the exterior of houses that contain marijuana grow operations.
Based on these observations, the officers executed an affidavit to Seattle City Light to obtain the power consumption records for the residence. 1 An official at City Light, who had previously taught one of the officers a class on power consumption The officers then returned to the residence in order to obtain an exact description of the property for the application for a search warrant. When they arrived at the property, there was a van beside the house which had not been present on their earlier visit. The officers determined from the license plate number that the vehicle was registered to Scott Solberg. One of the officers stated that it was common to talk to suspects before obtaining a search warrant. The other officer explained that because they had earlier identified themselves to the neighbors as police officers, they were concerned that the grow operation they suspected was in the house might be dismantled before they could obtain the search warrant. They decided to make contact with the residents.
as related to indoor grow lights, informed the officers that the power consumption was excessive for the size of the home and for the time of year and that such consumption was consistent with the operation of four or five halide grow lights. The officers determined from the police computer and from the City Light records that the occupant of the house was Scott C. Solberg. This was consistent with the neighbors' earlier statement that "Sol" lived at the address under investigation
The officers knocked on the door and Mr. Solberg's roommate, Edward Bowley, answered and stepped out onto the porch. One of the officers explained to Mr. Bowley that they were investigating a possible grow operation in the house. Mr. Solberg testified that he overheard the officers talking to Mr. Bowley and so he "went to the front door and went out and talked to the officers." Mr. Solberg testified that the conversation with the officers took place out on the porch. The fact that the entire conversation between Mr. Solberg and the two arresting officers occurred on the unenclosed front porch was corroborated by the police officers' testimony.
After Mr. Solberg joined Mr. Bowley and the two officers on the porch, one of the officers read both suspects their Other officers were called to the house to wait with Mr. Solberg and Mr. Bowley while the first two officers went to write the warrant affidavit and secure the search warrant. During the 2 to 3 hours it took to secure the search warrant, Mr. Solberg and Mr. Bowley were not allowed to leave the premises. Although there was conflicting testimony at the suppression hearing, the trial court found that the officers remained outside of the house prior to serving the warrant. No error has been assigned to this finding.
Miranda 2 rights. The other officer then told the suspects that the officers believed there was a grow farm in the basement, why they had that belief, and that based on power consumption they suspected there were four or five halide grow lights in the basement. Mr. Solberg replied that there were only four lights
The affidavit in support of the search warrant contained the information about the anonymous tip, the strong odor of marijuana near the house as noticed by officers familiar with the smell, the blacked-out windows, the mildew accumulation on the basement exterior, the information obtained from the City Light power consumption records, and the statement given to the officers by Mr. Solberg on the front porch that the house contained four grow lamps and that money was tight and he needed to supplement his income. Pursuant to the affidavit, the search warrant was issued.
After the search revealed evidence of a marijuana grow operation in the basement, Mr. Solberg was charged under RCW 69.50.401(a) with possession of a controlled substance, marijuana, with intent to manufacture or deliver.
Mr. Solberg moved to suppress the evidence on the basis that he was unlawfully arrested, that his residence was unlawfully seized, and that the search warrant was not based on probable cause. The trial court found that there was probable cause to arrest and that Mr. Solberg was therefore lawfully arrested. It further found that the defendant The trial court imposed an exceptional sentence of 6 months and 12 months in community supervision. Mr. Solberg appealed both his conviction and his sentence to the Court of Appeals.
was read his Miranda rights prior to making a knowing and voluntary statement and that there was no search of the home until the search warrant was served. The trial court also found that the search warrant was supported by probable cause. The trial court, therefore, declined to suppress the evidence found in defendant's residence. Mr. Solberg waived his right to a jury trial and was found guilty by the court
The Court of Appeals held that Mr. Solberg was illegally arrested on his porch. State v. Solberg, 66 Wash.App. 66, 79, 831 P.2d 754 (1992), review granted, 120 Wash.2d 1019, 844 P.2d 1018 (1993). However, because the affidavit for the search warrant contained sufficient facts to establish probable cause to search even without the statement Mr. Solberg made following his arrest, the Court of Appeals declined to suppress the evidence found pursuant to the warrant. It then affirmed Mr. Solberg's conviction. The Court of Appeals also held that the seizure of the house for the amount of time it took officers to obtain the search warrant was a lawful seizure, and that the search warrant affidavit contained sufficient facts to establish probable cause independent of Mr. Solberg's statement "following his unlawful arrest". 3
The Court of Appeals then reversed the trial court's imposition of an exceptional sentence and remanded for resentencing within the standard range.
The State petitioned for review only of the Court of Appeals conclusion that defendant was illegally arrested and of that part of the Court of Appeals decision reversing the exceptional sentence imposed by the trial court. We accepted review. Although the lawfulness of the arrest was irrelevant to the ultimate determination of the validity of the defendant's conviction Three issues are here presented.
as analyzed by the Court of Appeals, we have determined it is nonetheless an important issue for this court to resolve. Research indicates that warrantless arrests which occur on porches and which are supported by probable cause are quite common. Amicus, the State of Washington Attorney General, argues that prior to this published Court of Appeals holding, Washington law was settled that the threshold of the home was the "bright line" over which police could not cross absent a warrant, consent, or exigent circumstances. Mr. Solberg does not ask this Court to review the part of the Court of Appeals decision affirming his conviction but does claim that the State's petition is untimely as to the arrest issue. He also argues that the Court of Appeals was correct in vacating the trial court's imposition of the exceptional sentence.
ISSUE ONE. Is the State's petition for review of the arrest issue timely?
ISSUE TWO. May the police make a warrantless arrest of a suspect, based upon probable cause, when the suspect voluntarily exits a residence to speak to officers on the front porch of the home?
ISSUE THREE. Did the Court of Appeals err in vacating the trial court's imposition of an exceptional sentence?
ISSUE ONE.
CONCLUSION. The State's petition for review of the arrest issue is timely under our Rules of Appellate Procedure.
The Court of Appeals decision in this case was filed on June 15, 1992, and the State made a timely motion for reconsideration on July 2, 1992, raising the issues of the legality of the arrest and the vacation of the exceptional sentence. On July 15, 1992, the Court of Appeals entered an order denying the State's motion for reconsideration as to the arrest issue, but requested that the appellant (Mr. Solberg) file an answer to the motion for reconsideration with regard to the exceptional sentence issue. On August 27, 1992 the Court of Appeals entered an order denying the motion for reconsideration, and sent a letter to counsel stating that within 30 days after that order was filed, the opinion of the Court of Appeals...
To continue reading
Request your trial
-
State v. Scott
...P.2d 533 (1990), and for the reasons forcefully articulated by Justice Goodloe in his dissent in State v. Armstrong.2 State v. Solberg, 122 Wash.2d 688, 861 P.2d 460 (1993), was published just as this dissent was being placed in circulation. Solberg rejected a proportionality analysis evalu......
-
State v. Vaughn
...Dunaway, 109 Wash.2d 207, 219, 743 P.2d 1237 (1987), order supplemented, 109 Wash.2d 207, 749 P.2d 160 (1988); State v. Solberg, 122 Wash.2d 688, 704, 707, 861 P.2d 460 (1993); RCW 9.94A.390(2)(c)(iii); RCW Webster defines "high" as being of relatively great degree, size or amount; intense,......
-
State v. Groom, 63951-5
...v. Berber, 48 Wash.App. 583, 589, 740 P.2d 863, 74 A.L.R.4th 491 (1987) (a person's home is a highly private place); State v. Solberg, 122 Wash.2d 688, 861 P.2d 460 (1993). It is apparent that, in enacting RCW 10.79.040 and .045, the Legislature intended potential criminal liability to serv......
-
State v. Mierz
...Ridgway, 57 Wash.App. 915, 917-19, 790 P.2d 1263 (1990) (area by door of hidden rural house part of curtilage); State v. Solberg, 122 Wash.2d 688, 696-701, 861 P.2d 460 (1993) (no expectation of privacy in porch area open and visible to the public).Moreover, we note that the Court of Appeal......