State v. White

• Citation: 168 P.3d 459,141 Wn. App. 128
• Decision Date: 04 October 2007
• Docket Number: No. 23502-5-III.,23502-5-III.
• Parties: STATE of Washington, Respondent, v. Paul David WHITE, Appellant.
• Court: Court of Appeals of Washington

168 P.3d 459

141 Wn. App. 128

STATE of Washington, Respondent, v. Paul David WHITE, Appellant.

No. 23502-5-III.

Court of Appeals of Washington, Division 3.

October 4, 2007.

Stephanie C. Cunningham, Attorney at Law, Seattle, WA, for Appellant.

Kenneth L. Ramm Jr., Yakima County Courthouse, Yakima, WA, for Respondent.

SCHULTHEIS, A.C.J.

¶ 1 Paul White was convicted of manufacturing methamphetamine on his mother's property after his motion to suppress was denied. On appeal, Mr. White argues that police could not rely on a neighbor's consent to search his mother's property, despite the limited authority of that third party, because he was present and had at least common authority not to consent, and he attempted to assert that right. He also contends that entry was not justified for community caretaking reasons. We agree and reverse.

FACTS

¶ 2 Mr. White's mother, Janet White, owns real property and a residence in a rural area outside of Grandview, Washington. Bill Michener, a neighbor, leases orchards surrounding Janet's¹ property. Mr. Michener owns a house and orchards adjacent to Janet's property. He has known her family since 1984.

¶ 3 Located on Janet's property is a multipurpose building that holds tools and houses the controls for the orchards' irrigation system and also has a furnished sunroom that opens to a garden. This building has always been unlocked. In the past, Mr. Michener had regularly come upon Janet's property and entered the building, sometimes with hired hands, to operate the irrigation controls and, at times, to use tools. Mr. Michener also had keys and the security code to Janet's residence and was given full access to the home and outbuildings.

¶ 4 When Janet was out of town, Mr. Michener helped out by watering her lawn and shrubs in the backyard and picking up her mail and newspaper. Janet had never expressly limited Mr. Michener's access to any part of her property. She assumed that Mr. Michener would deal with a break-in of her property if one occurred, and she had no problem with him taking the police into her premises under such circumstances. In fact several years prior to the events in this case, Janet's security alarm went off when she was away, and Mr. Michener had police check inside the home.

¶ 5 Mr. White had not lived at his mother's residence for a few years, but he had permission to come and go and he, too, had keys and the access codes. Mr. White kept clothing at the residence and stored furniture and various other items in the outbuildings.

¶ 6 Janet left on a trip a couple of days before the events of May 7, 2003. She made the usual arrangements with Mr. Michener to look after her place. Mr. White did not tell either Janet or Mr. Michener that he would be at the residence during Janet's absence.

¶ 7 In the early morning hours of May 6, Mr. Michener came to Janet's property to irrigate the fields. At 3 or 4 a.m. he recognized Mr. White's pickup parked near the irrigation room, and he saw lights coming from under the door of the room. By 8 a.m., it appeared that Mr. White (or whoever was there earlier) had gone. Mr. Michener noticed an odd odor in the irrigation room.

¶ 8 When Mr. Michener returned the next morning, the door to the irrigation room was locked and a "very strong odor" was coming from inside.² Report of Proceedings (RP) (Apr. 13, 2004) at 44. Unlike the prior morning, Mr. Michener saw no vehicles parked nearby. He called the sheriff's office and requested that a deputy come out to investigate.

¶ 9 Yakima County Sheriff's Deputy Derrick Artz responded. Mr. Michener reported his observations to the deputy and stated that he had the authority to enter and use the building. Mr. Michener led the deputy to the irrigation room, which was still locked. As Mr. Michener began to walk around to try the sunroom door, Mr. White opened the irrigation room door. In a brief conversation, Mr. White identified himself and stated that he had a right to be there.

¶ 10 Deputy Artz smelled a strong ammonia-type odor coming from the open door. He sensed something was wrong because of Mr. White's body language so he directed Mr. White to step outside. Mr. White initially refused. He complied when the deputy unholstered, but did not aim, his firearm. Deputy Artz secured Mr. White in a patrol car "so he could further investigate the situation." Clerk's Papers (CP) at 102 (Finding of Fact 15).

¶ 11 The deputy returned to the building and looked inside the doorway. On the ground, he saw a bucket filled with liquid that was emitting a vapor. He also saw a box containing black and clear tubing, plastic bottles of HEET, and a 10-gallon container of paint thinner. Mr. Michener said that he had not seen the items in the shed before. Deputy Artz believed that the items were indicators of a possible methamphetamine lab.

¶ 12 Deputy Artz stepped inside and followed an extension cord from the irrigation room to a hotplate in the backyard. On top of the hotplate was a bubbling container of liquid that was emanating a strong ammonia odor. He returned to the patrol car and arrested Mr. White for manufacturing methamphetamine.

¶ 13 In denying Mr. White's motion to suppress the evidence, the trial court concluded that:

Although Deputy Artz's entry onto the property and into the [irrigation room] was made without a warrant, his entry was lawful because of Mr. Michener's invitation and request for the Deputy to enter the property and building to investigate. Mr. Michener was standing in the shoes of the property owner, as he had been given authority by Mrs. White to enter, use, and bring other people onto the property. Mr. Michener had actual authority to invite the Deputy to go inside the [irrigation room] and he had actual authority to give consent to search.

CP at 104 (Conclusion of Law 2).

¶ 14 The trial court further concluded that Mr. White's initial detention was lawful "based upon an articulable and substantial possibility that criminal conduct may have occurred." CP at 105 (Conclusion of Law 3). Finally, the trial court concluded that Deputy Artz had probable cause to arrest Mr. White based on what was found in the building.

¶ 15 Mr. White was convicted of one count of manufacturing methamphetamine after a stipulated facts trial on the evidence seized by the warrantless search of his mother's home. This appeal follows. We remanded for the entry of findings of fact and conclusions of law.

DISCUSSION

¶ 16 We review challenged findings of fact related to a motion to suppress for substantial evidence. State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. Id. at 644, 870 P.2d 313. Conclusions of law pertaining to suppression of evidence are reviewed de novo. State v. Johnson, 128 Wash.2d 431, 443, 909 P.2d 293 (1996).

¶ 17 Article I, section 7 of the Washington Constitution provides greater protection to individual privacy rights than the Fourth Amendment to the United States Constitution. State v. Jones, 146 Wash.2d 328, 332, 45 P.3d 1062 (2002). "Article I, section 7 provides that `[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.'" Id. (alteration in original) (quoting WASH. CONST. art. I, § 7). This state constitutional provision is violated when the State unreasonably intrudes upon a person's private affairs. Id. at 332, 45 P.3d 1062.

¶ 18 Warrantless searches are per se unreasonable under article I, section 7 unless they qualify as specific exceptions to the warrant requirement. State v. Ross, 141 Wash.2d 304, 312, 4 P.3d 130 (2000). Warrant exceptions are "`jealously and carefully drawn ... which provide for those cases where the societal costs of obtaining a warrant ... outweigh the reasons for prior recourse to a neutral magistrate.'" State v. Duncan, 146 Wash.2d 166, 171, 43 P.3d 513 (2002) (internal quotation marks omitted) (quoting State v. Williams, 102 Wash.2d 733, 736, 689 P.2d 1065 (1984)). "`[W]here the police have ample opportunity to obtain a warrant, we do not look kindly on their failure to do so.'" State v. Ferrier, 136 Wash.2d 103, 115, 960 P.2d 927 (1998) (internal quotation marks omitted) (quoting State v. Leach, 113 Wash.2d 735, 744, 782 P.2d 1035 (1989)). The State has the burden to show that a warrantless search or seizure falls within one of the exceptions to the warrant requirement. State v. Acrey, 148 Wash.2d 738, 746, 64 P.3d 594 (2003) (quoting State v. Kinzy, 141 Wash.2d 373, 384, 5 P.3d 668 (2000)).

¶ 19 One recognized exception to the warrant requirement is a consent to search. State v. Mathe, 102 Wash.2d 537, 541, 688 P.2d 859 (1984). To establish valid consent, the State must show that the person consenting to the search had authority to consent. State v. Thompson, 151 Wash.2d 793, 803, 92 P.3d 228 (2004). Under Washington's constitution, "[o]ne who has equal or lesser control over a premises does not have authority to consent for those who are present and have equal or greater control." State v. Morse, 156 Wash.2d 1, 4-5, 123 P.3d 832 (2005).

¶ 20 "A third party may consent to a search if he or she possesses `common authority over or other sufficient relationship to the premises or effects sought to be inspected.'" State v. Holmes, 108 Wash.App. 511, 518, 31 P.3d 716 (2001) (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)). Common authority exists when there is "`mutual use of the property by persons generally having joint access or control for most purposes.'" Id. (quoting Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988). "Access and permission to enter are the hallmarks of common authority." Id. at 520, 31 P.3d 716. This includes the authority to invite others into the area as Mr Michener had done here. Morse, 156 Wash.2d at 11, 123 P.3d 832.

¶ 21 Under the circumstances here, however, the State has not shown authority...