Opinion
No. 36768-8-II.
November 25, 2008.
Appeal from a judgment of the Superior Court for Lewis County, No. 07-1-00011-3, Nelson E. Hunt, J., entered September 11, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton and Armstrong, JJ.
The State appeals the trial court's suppression of Timothy Dale Newhouse's marijuana grow operation that law enforcement officers discovered after their warrantless entry onto his rural, gated, fenced, posted property. The State argues that the trial court erred in (1) ruling that Newhouse's driveway was not impliedly open to the public, (2) finding that the officers were not on the property for legitimate police purposes, and (3) suggesting that the only time law enforcement officers can enter private property is when they are specifically invited. We affirm.
See n. 7, infra, for discussion of the second and third arguments. The State also assigns error to the trial court's findings of fact 1.2 and 1.6. But it presents no argument related to these assignments of error. Accordingly, we do not address the State's apparent challenge to these findings and consider these findings verities on appeal. RAP 10.6; State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994) (unchallenged findings of fact are verities on appeal) (citations omitted).
FACTS I. Entry and Search
In late 2005 or early 2006, Detective Kevin Engelbertson of the Lewis County Sheriff's Office, executed a search warrant on Newhouse's neighbors, during which Engelbertson "recovered an underground marijuana growing operation" and found hoses leading to Newhouse's property, prompting him to investigate Newhouse. The local drug task force informed Engelbertson that "they had received information that a Teresa Newhouse was getting marijuana from Timothy Newhouse, . . . and was shipping it back to the Colorado area." Report of Proceedings (RP) at 5. Engelbertson was also aware of elevated power use at Newhouse's residence.
In its brief, the State states that Theresa Newhouse is Newhouse's sister, but there is nothing in the record regarding their relationship.
On the afternoon of January 3, 2007, Engelbertson went to Newhouse's property. Newhouse's trailer, located several hundred yards from the public road, was not visible from the public road or from any neighbors' property. At least one "No Trespassing" sign was posted at the substantial chain link gate, at the driveway's entrance. A long well-defined dirt and gravel driveway, flanked by mid-height wire fencing and clearly visible "No Trespassing" and "Private Property" signs, curved through the densely wooded property to Newhouse's trailer.
Engelbertson drove up the driveway to the trailer, where he contacted Newhouse, who was standing outside. Engelbertson identified himself as a police officer and told Newhouse that he was there investigating a possible marijuana grow operation. According to Engelbertson, Newhouse said that he had numerous marijuana plants, that he was supplying about five or six "responsible" marijuana users, and that he did not have a medical reason for possessing the marijuana. After advising Newhouse that he was not under arrest and that he was not being detained, Engelbertson asked Newhouse if he would consent to a search. Newhouse refused.
Engelbertson obtained a search warrant. Executing the search warrant, officers found 70 marijuana plants and various growing equipment and supplies.
II. Procedure
The State charged Newhouse with manufacture of marijuana, with a school bus route stop sentencing enhancement. Newhouse moved to suppress the evidence obtained during the search, arguing that (1) Engelbertson's warrantless entry on to his (Newhouse's) property was unlawful because his property was not impliedly open to the public; and (2) therefore, the information Engelbertson obtained from him could not be used to support the search warrant.
The record does not reflect that there was additional information in the affidavit independently supporting the search warrant.
A. Suppression Hearing
At the suppression hearing, Engelbertson testified that he commonly entered private property if the gate to the property was open, apparently even if he saw "No Trespassing" signs. According to Engelbertson, the gate was open, so he entered Newhouse's property even though he saw at least one "No Trespassing" sign posted at the gate.
In contrast, Jesse Vanning testified that he had shut the gate behind him at approximately 11:45 am, after talking to Newhouse about whether he (Newhouse) needed help cutting wood. Vanning had told Newhouse that he would return later to help him cut wood.
Vanning's mother, Rita Jean Roberts, who was Newhouse's neighbor, testified that Newhouse's driveway gate had been closed when she passed by at approximately 11:45 am, 12:45 pm, and 2:30 pm. But when she passed by again at approximately 3:15 pm, she noticed that the gate was open. A short time later, her husband told her that there were police officers at Newhouse's residence.
Newhouse testified that (1) a large part of his reason for having purchased this property was because it was in the country and because it was isolated; (2) before he purchased the property, a long term resident of the area told him that to stay on the good side of his neighbors he had to respect their privacy and any posted signs; (3) after moving onto the property, he did not seek out company or social relationships; (4) immediately after learning that the police had entered and raided the property next door because it was not posted, he put up "No Trespassing" and "Private Property" signs next to his gate; (5) it was local practice in this secluded area not to pass through gates posted with no-trespassing signs, (6) no uninvited guests had ever passed beyond the gate; (7) in the past, when his gate's lock was in working order, he would arrange to give expected visitors keys; and (8) even the public utility workers would not pass through his gate.
Newhouse further explained that (1) he had been outside getting wood when Engelbertson appeared, uninvited, and (2) he would not have greeted Engelbertson but for his mistaken belief that Engelbertson was Vanning, returning to help him cut wood.
B. Trial Court's Grant of Motion To Suppress
The trial court granted Newhouse's motion to suppress. In its oral ruling, it noted that although it did not find the "No Trespassing" signs dispositive, they were a factor that it considered in addition to (1) the rural setting; (2) the positioning of the residence so far back from the public road that it was not visible to the public or to Newhouse's neighbors; (3) Newhouse's having posted more than one sign intended to exclude others from his property; and (4) the presence of a gate at the driveway entrance, regardless of whether it was open or closed. The trial court further stated:
Unlike [the prosecutor], I do think that going up to somebody's house without invitation, without authority of law, does intrude on their private affairs. To say that well, okay, it's legitimate police business, to me that is the point. I know that the case law in this is confusing about what that means, but legitimate police business still has to fall under the Constitution and to just say well, I just wanted to go up and talk to him when he said I don't want to be talked to, then that is not a legitimate exercise of police power. It would be in town. It might be here if there were a sign up that said police are welcome to come up and talk to me any time or there were no indication of that, that these other factors weren't there. But if you say well, he was on legitimate police business so therefore any contact that he had, no matter how much the individual wants to try to prevent it, then you get the Fourth Amendment swallowed by the claim of legitimate police business, so to me that is precisely the issue.
Essentially this comes down to if you're not here on emergency or community care-taking functions, stay out. That is what the sign says, and that is what happens here. Yes, the police do have a duty to investigate crimes, but they have to do it in accordance with our Constitution. This fell outside that.
The trial court also entered the following written findings of fact and conclusions of law:
I. UNDISPUTED FACTS
The Court finds the following undisputed facts:
1.1 Mr. Newhouse's home and outbuildings were in a rural setting.
1.2 The home was set back from the road so far as not to be visible from any public property.
1.3 The home was set back enough from the neighbor's home so as not to be visible from the neighbor's property.
1.4 There were two "No Trespassing" signs, bracketing the entrance of the driveway.
1.5 The driveway was several hundred yards in length.
1.6 The existence of the gate itself was an indication of Mr. Newhouse's intent to exclude persons from the property, at least on a part time basis.
1.7 Detective Engelbertson entered the driveway and approached Mr. Newhouse's home during daylight, business hours (between 3:00 and 5:00 p.m.). He saw at least one of the "No Trespassing" signs.
1.8 Detective Engelbertson did not deviate from the driveway. He met Mr. Newhouse in front of Mr. Newhouse's home.
1.9 Detective Engelbertson was attempting to contact Mr. Newhouse to inquire about a possible marijuana grow on Mr. Newhouse's property.
1.10 Detective Engelbertson did not have a search warrant before entering Mr. Newhouse's property. Engelbertson was attempting to gain information about the possible marijuana growing on Mr. Newhouse's property, and to gain permission to search the property.
1.11 Detective Engelbertson was clearly identified as a police officer. There was no attempt on his part to be secretive about his approach or his identity.
1.12 When he arrived, Detective Engelbertson informed the Defendant that he was not under arrest and he was free to leave.
1.13 Engelbertson asked the Defendant if he (the Defendant) had any medical reasons for his marijuana.
1.14 The Defendant told Engelbertson that he did not have medical reason for the marijuana, and that he supplied only 5-6 people.
1.15 Mr. Newhouse did not consent to the search of his property.
1.16 Based on Mr. Newhouse's statements and other information Engelbertson had regarding the marijuana growing on Newhouse's property, Engelbertson applied for and was granted a search warrant for Mr. Newhouse's property.
II. DISPUTED FACT(S)
2.1 The only disputed facts is whether or not the gate was open when Detective Engelbertson arrived. The Court finds by a preponderance of the evidence that the gate was open.
Although Newhouse initially challenged this finding in a cross-appeal, he has withdrawn his cross appeal. Accordingly, because the trial court found that the gate was open and the parties do not challenge this finding, we do not address the State's argument in its opening brief related to this finding. Hill, 123 Wn.2d at 644.
III. CONCLUSIONS OF LAW
3.1 Approaching somebody's house without invitation and without authority of law does intrude on that person's private affairs.
3.2 The officers were not contacting the Defendant on an emergency or community caretaking basis. They were there to conduct an investigation in order to obtain consent to search.
3.3 Approaching a person's home under the facts outlined above is a violation of Article I, Section 7 of the Washington State Constitution, prohibiting law enforcement from disturbing a person in his private affairs.
3.4 The search warrant obtained, in part, by Mr. Newhouse's statements to law enforcement was illegal because the detective had no lawful authority to be on Mr. Newhouse's premises.
3.5 The evidence obtained from the search warrant should therefore be suppressed as "fruit of the poisonous tree."
Clerk's Papers at 2-4.
After the trial court denied the State's subsequent motion for reconsideration, it granted the State's motion to dismiss the case without prejudice.
The State appeals the trial court's suppression of the evidence.
ANALYSIS
The State asks us to reverse the trial court's suppression of the evidence. It argues that the trial court erred in (1) determining that the route by which Engelbertson entered Newhouse's property was not impliedly open to the public, (2) inferring that Engelbertson was not on the property for a lawful purpose, and (3) ruling that law enforcement may enter private property only with express permission. We disagree.
In its brief, the State argues that the trial court erred when it granted Newhouse's motion to dismiss and asks us to reverse the order dismissing the case. But the State filed the motion to dismiss, not Newhouse.
I. Standard of Review
When reviewing a trial court's ruling on a motion to suppress evidence, we independently determine whether (1) substantial evidence supports the trial court's factual findings, and (2) the factual findings support the trial court's conclusions of law. State v. Carney, 142 Wn. App. 197, 201, 174 P.3d 142 (2007) (citing Hill, 123 Wn.2d at 647; State v. Dempsey, 88 Wn. App. 918, 921, 947 P.2d 265 (1997)). "Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding." Hill, 123 Wn.2d at 644 (citing State v. Halstien, 122 Wn.2d 109, 129, 857 P.2d 270 (1993)). We consider any unchallenged findings of fact as verities on appeal. Hill, 123 Wn.2d 644 (citations omitted). And we review the trial court's conclusions of law de novo. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999) (citation omitted), overruled on other grounds by Brendlin v. California, ___ U.S. ___, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).
II. Right to Privacy
The Fourth Amendment of the United States Constitution and article I, sec. 7 of the State of Washington Constitution protect citizens from unwarranted government intrusion onto their private properties. State v. Myers, 117 Wn.2d 332, 337, 815 P.2d 761 (1991) (citation omitted). Article I, sec. 7 of our state constitution provides greater protection to a person's right to exclude the government from his property than the Fourth Amendment to the federal constitution. State v. Gave, 77 Wn. App. 333, 337, 890 P.2d 1088 (1995) (citing State v. Johnson, 75 Wn. App. 692, 702-03, 879 P.2d 984 (1994), review denied, 126 Wn.2d 1004 (1995)).
A warrantless entry by government agents onto private property violates the state constitution if the agents unreasonably intrude into the citizen's "private affairs." Johnson, 75 Wn. App. at 703. But mere entry onto private property does not always constitute a violation of a person's privacy rights. Law enforcement officers on legitimate business may enter an area of curtilage which is impliedly open to the public, such as an access route to a house or a walkway leading to a residence. State v. Rose, 128 Wn.2d 388, 392, 909 P.2d 280 (1996) (citing State v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981)). And "[a]n officer is permitted the same license to intrude as a reasonably respectful citizen." Seagull, 95 Wn.2d at 902 (citation omitted). As the trial court clearly recognized here, see RP 55-56, whether an access route to private property is impliedly open to the public depends on the particular facts and circumstances of each case. State v. Hornback, 73 Wn. App. 738, 743, 871 P.2d 1075 (1994) (citing Seagull, 95 Wn.2d at 902). The non-exclusive factors that courts consider include: (1) the rural or residential nature of the neighborhood; (2) the relative density of the area; (3) the degree to which the residence is isolated from the public road and neighbors; (4) the presence of fences, gates, guard dogs, "No Trespassing" or "Private Property" signs, and other physical manifestations of a subjective expectation of privacy; (5) how obvious these physical manifestations are and whether they relate to the specific property in question; (6) whether any existing gates were open, closed, or locked; (7) the type of gate or gates present; (8) whether there was evidence that the access route used was a commonly used access route; (9) the length of the access route; (10) whether the defendant reacted to the presence of the officers in a manner consistent with an expectation of privacy; (11) evidence of local custom regarding respecting a neighbor's privacy; (12) whether other members of the public commonly used the access route without permission; (13) the time of day the officer entered the property; and (14) whether the officer's actions while on the property were consistent with those of a guest on the property.
See State v. Jesson, 142 Wn. App. 852, 855-57, 859-60, 177 P.3d 139 (holding that the access route was not impliedly open when the property was in a sparsely populated, heavily forested area; the officers had to drive several miles of dirt roads to reach the driveway; the residence was not visible from the public roadway or any neighboring property; the driveway was marked with "No Trespassing" and "Keep Out" signs; the officers had to open a closed but unlocked gate; and the driveway was rough and "primitive," despite the officers accessing the area during daylight hours), review denied, ___ P.3d ___ (2008); State v. Ague-Masters, 138 Wn. App. 86, 92-93, 98, 156 P.3d 265 (2007) (holding that the access route was impliedly open when there may have been a posting excluding trespassers or hunters but the officers accessed the property through an open, unlocked, cattle gate; the driveway was not otherwise obstructed; the officers entered during daylight hours; the residence was only 200 to 225 feet from the access point; there were no other indicators of privacy expectations such as "high fences, closed gates, security devices, or dogs."); State v. Thorson, 98 Wn. App. 528, 530, 534-35, 540, 990 P.2d 446 (1999) (holding that the access route was not impliedly open despite a total lack of fencing or signage when the officers accessed the property from a neighbor's property and there were no boundary lines between the properties; the property was very rural and located on a sparsely populated, non-developed island in the San Juan's that had no ferry or public utility service; the community held a very protective view of privacy that included a reluctance to approach another islander's property without first somehow announcing their presence; and the property was not visible from any road), review denied, 140 Wn.2d 1027 (2000); Gave, 77 Wn. App. at 335-36, 338-39 (holding that the access route was impliedly open despite the presence of "No Trespassing" signs when the signs were placed by the City of Olympia on land owned by the city that was leased to the defendants and the defendant admitted that he did not post the signs or know who did; the residence was visible from the road; no fences or gates blocked the access route; the defendant did not respond to the officers in a manner indicating that he believed they should not be on the property); Johnson, 75 Wn. App. at 696-97, 709 (holding that the access route was not impliedly open when the property was only accessible from a dirt road that ran through a state park; the officers had to pass through a closed, unlocked, chain link gate with a fence extending from both sides of the gate; there were posted "No Trespassing" signs on both sides of the fence on a tree behind the fence; the residence was not visible from the access area; and the officers entered the property at 1:00 am to gather evidence and made no attempt to contact the defendant); Hornback, 73 Wn. App. at 740, 743-44 (holding that the access route was impliedly open when the officers accessed the defendant's residence via and open and unobstructed driveway and did not encounter any closed gates; the driveway was only 100 yards long; the residence was at least partially visible from the road and from neighboring properties; the property was located in a "semi-residential area"; it was unclear whether there were "No Trespassing" signs posted when the officers entered; the defendant came out to talk to the officers and did not ask them to leave the property); State v. Chaussee, 72 Wn. App. 704, 706-07, 709-10, 866 P.2d 643, (holding that the access route was impliedly open when the officers entered the property from an access route off a shared access road; although there were signs posted along the access route, the signs were not posted on the defendant's property or posted by the defendant; the officers entered through an open gate; there was evidence that other members of the public, including "members of religious groups, hunters and delivery drivers [had] unexpectedly appeared on [the] property"; and the defendant invited the officers in when she discovered upon returning to the property), review denied, 124 Wn.2d 1008 (1994).
III. Newhouse's Property not Impliedly Open to the Public
The State argues that the trial court erred in concluding that Newhouse's driveway was not impliedly open to the public. We disagree.
The following factors support the trial court's conclusion that the driveway was not impliedly open to the public: (1) Newhouse's property was relatively isolated and rural; (2) the residence was not visible from the public roadway or visible to any neighbors; (3) the property in the immediate area of the driveway was fenced; (4) there was a gate at the driveway entrance; (5) Newhouse had posted not one, but two, obvious signs excluding trespassers, one on either side of the gate; (6) these signs were clearly related to the property; and (7) Newhouse testified that the community placed a very high value on privacy, that his neighbors were very respectful of one another's privacy, and that other members of the public did not regularly approach his house via the driveway without first obtaining his permission.
In spite of other factors arguably supporting the State's position, we hold that, on balance, substantial evidence supports the trial court's factual findings, which support the trial court's conclusions of law. Accordingly, the State fails to establish that the trial court erred when it concluded that the route Engelbertson took onto Newhouse's property was not impliedly open to the public.
The State also appears to argue that the trial court erred when it (1) appeared to conclude that Engelbertson was not on legitimate police business when he entered the property, and (2) suggested that Engelbertson could lawfully enter the property only if there were clear signs specifically stating that law enforcement was welcome on the property. The State misconstrues the trial court's statements.
First, the trial court's reference to authority of law was a clear reference to an authorized entry pursuant to a search warrant, statutory authority, the resident's permission, or exigent circumstances, not to whether Engelbertson had legitimate police business on the property. Second, in its oral ruling, the trial court did not say that attempting to contact a person regarding a police investigation was not allowed. Taken in context, the trial court merely stated that even if the police have a legitimate reason to contact a person, they cannot violate a person's constitutional right to privacy by randomly entering private property without warrant authorization or the owner's permission when there are sufficient factors indicating that the property is not open to the public. Nor did the trial court rule that the only time police are allowed on private property is when there is clear notice that they are welcome.
IV. Conclusion
The evidence supports the trial court's findings, which support the trial court's conclusion that the police unlawfully obtained the search warrant affidavit information in entering Newhouse's posted, secluded private property without permission and without a warrant. Because this unlawfully obtained information could not be used to support the search warrant, the trial court properly suppressed the evidence seized during execution of that warrant on Newhouse's property. State v. Eisfeldt, 163 Wn.2d 628, 640, 185 P.3d 580 (2008) (citation omitted).
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and ARMSTRONG, J., concur.