Opinion
Court of Appeals No. A-8858.
September 19, 2007.
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge, Trial Court No. 3PA-02-427 CR.
David R. Edgren, Edgren Law Offices, LLC, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Shane Neuharth appeals his convictions on four counts of fourth-degree misconduct involving a controlled substance. Neuharth argues that the police violated his constitutional rights when they entered his property without a warrant, smelled an odor of marijuana coming from a building on the property, and obtained a search warrant based partly on this information. The State argues that the police justifiably collected this information under the "open fields" doctrine.
AS 11.71.040(a)(2), (a)(3)(F), (a)(3)(G), (a)(5).
However, the superior court did not address this potential justification for the troopers' entry onto Neuharth's property because the State did not ask the court to enter findings on the factual issues necessary to address this issue. Accordingly, we must remand the case to the superior court for additional findings.
Background facts and proceedings
Steve Frachey, Neuharth's neighbor, contacted the Alaska Department of Fish and Wildlife to report excavation activities occurring at a waterway behind Frachey's residence. Alaska State Troopers Daryl Magnuson and Robert Welch contacted Frachey at Frachey's residence on January 3, 2002. (Troopers Magnuson and Welch were assigned to the Division of Fish and Wildlife Protection.) Frachey had reported a possible habitat violation — that is, activity that affects waters containing anadromous fish.
The troopers went directly to Frachey's property and spoke with him to get additional details about his report. Frachey told the troopers that he saw heavy equipment digging in a slough near his property, and possibly installing a septic system. Frachey said he was concerned that this activity would affect the nearby waterway. Frachey also mentioned that he thought there might be marijuana growing on Neuharth's property in a building with no windows. Frachey identified on a map the location of the digging he had seen taking place.
Troopers Magnuson and Welch went to the location Frachey pointed out on the map, and saw that there had been digging and that excavator tracks led into the slough. The troopers followed the tracks, which led onto Neuharth's property (although the troopers did not know where Neuharth's property began) and to a flat-roofed building with no windows. The troopers saw fresh vehicle tracks near this building, and thought there might be someone present on the property. They tried to locate anyone present to ask about the excavation activities, but no one was home. The troopers also wanted to investigate the reported installation of a septic system, which Frachey had stated was located behind the building with no windows.
Trooper Welch walked around the building to see if he could identify any sign of an improperly installed septic system. (The septic system was thirty or forty feet behind the flat-roofed building.) As he did so, he detected the smell of growing marijuana coming from the building. Trooper Magnuson, who was standing near the door of the building, also smelled growing marijuana. The troopers then went to the edge of the Neuharth property to where the electrical meter was located, and observed its rate of rotation to determine if there was a large amount of electricity being consumed on the property. The troopers then returned to Frachey's property and compared the rotation rate of his electrical meter to that of Neuharth's.
The troopers testified that they did not know where Neuharth's property lines were located, so they did not know when they had crossed onto Neuharth's property. Trooper Welch also testified that he noticed "no trespassing" signs on the buildings on Neuharth's property, but not near where the excavation activities had taken place or along the tracks leading to the property and buildings. Trooper Magnuson confirmed that there were no "no trespassing" signs near where they had entered the property by the site of the excavation. The troopers also saw a sign on the door of the flat-roofed building, identifying Shane and Renee Neuharth as owners of the property, and stating that "anyone on or interested in this propertymust contact the persons in charge." The notice provided phone numbers for the Neuharths and their attorney. At the evidentiary hearing, Neuharth's attorney asked Trooper Welch whether access to the property was "prevented by a locked iron gate," and Trooper Welch said he had not seen a gate. The troopers did not use the driveways on the property, either when they entered the property following the excavation tracks or when they left it after checking the electric meter.
Later investigation by the Department of Fish and Wildlife following up on the information provided by Troopers Magnuson and Welch showed that the waterway in question did not support anadromous fish. Thus, there was no habitat violation for disturbing the waterway. However, the troopers passed along the information about the odor of marijuana and the electric meter to the narcotics unit.
See AS 41.14.895.
The narcotics unit followed up the next day. Trooper John Ostoj and Sergeant Lance Ketterling of the Palmer Police Department went to the vicinity of the Neuharth property. The officers did not enter Neuharth's property, but confirmed the layout of the buildings on the property and obtained the meter number from the electric meter, which was adjacent to the roadway.
A few days later, on January 10, Trooper Ostoj, Sergeant Ketterling, and Sergeant Patrick Davis returned to the same location during the late evening hours when marijuana growers often "vent" the air from a grow operation. While standing on the road, the officers smelled growing marijuana coming from the direction of the flat-roofed building on Neuharth's property.
Shortly thereafter, Trooper Ostoj applied for a search warrant for the buildings on Neuharth's property and Neuharth's business and residence in Wasilla. When the search warrant was executed at the flat-roofed building on Neuharth's property, officers found evidence of a commercial marijuana grow operation, including a large number of live marijuana plants. When officers searched Neuharth's business and residence (Neuharth lived below his business, "Broken Bonz Snowboards"), they found a number of bags of marijuana and $290 in cash. Later, when confronted with the evidence discovered in the searches of his property, Neuharth admitted to growing marijuana.
The grand jury charged Neuharth with four counts of fourth-degree misconduct involving a controlled substance. Neuharth moved to suppress all of the evidence against him under a variety of legal theories, including that Troopers Welch and Magnuson had violated his rights in their initial entry on his property, and that the search warrant was improperly issued. Neuharth contended that all the evidence seized when the police executed the search warrant must be suppressed. Superior Court Judge Beverly W. Cutler held an evidentiary hearing, during which all of the law enforcement officers testified.
AS 11.71.040(a)(2), (a)(3)(F), (a)(3)(G), (a)(5).
Judge Cutler found that Troopers Magnuson and Welch had gone to the area of Neuharth's property to investigate a plausible complaint of a habitat violation. She found that the troopers had smelled the odor of marijuana when they followed the tracks of the excavating equipment to what appeared to be an abandoned building and then attempted to find someone to speak to on the property. She concluded that walking around the flat-roofed building in an attempt to locate someone to speak to did not violate the Fourth Amendment. She also concluded that AS 16.05.180 did not require the troopers to give notice to the owner of the property, because there was nobody present to give notice to. She reasoned that because the troopers followed the excavation tracks directly to the building, their actions did not violate Pistro v. State. Judge Cutler thus denied Neuharth's motion to suppress.
590 P.2d 884, 886-87 (Alaska 1979) ("[A]n officer who leaves a driveway and crosses a portion of a yard which was not a normal access route to any door . . . unlawfully intruded on the rights of privacy of the occupants.").
Neuharth filed a "motion for clarification" of the court's denial of his motion to suppress, which Judge Cutler denied without prejudice. Neuharth renewed the motion. Judge Cutler considered the motion at a hearing and modified one of her factual findings: she found that Troopers Magnuson and Welch were told about a possible marijuana grow operation before they entered Neuharth's property for the first time, but she concluded that this change in her findings was unlikely to change her ruling on the motion to suppress. The court later expressly denied Neuharth's motion to reconsider (at a hearing which Neuharth did not designate for transcription).
A jury found Neuharth guilty on all four counts charged in the indictment. Judge Cutler imposed 1 year to serve on each count, with all counts imposed concurrently. Neuharth appeals. Discussion
Neuharth argues that Troopers Welch and Magnuson violated his state constitutional rights on their first visit to his property, and that the search warrant must be invalidated because it was based on "fruits" of the troopers' illegal activities. He also raises a claim regarding the notice requirement of AS 16.05.180.
Judge Cutler discussed Pistro v. State when she upheld the troopers' initial entry onto Neuharth's property and their subsequent discovery of the smell of growing marijuana around the flat-roofed building. In Pistro, the supreme court announced that "a normal means of ingress and egress [on property is] impliedly open to public use by one desiring to speak to occupants of . . . the house." The expectation is that a reasonable person would expect that visitors, including officials, would use normal means of access to approach a residence to contact the occupants. However, those portions of premises off the normal means of ingress and egress are protected areas under the constitution.
590 P.2d 884 (Alaska 1979).
Id. at 887.
See Michel v. State, 961 P.2d 436, 437 (Alaska App. 1998).
See Pistro, 590 P.2d at 886-87.
In this appeal, the State does not contend that the troopers' entry onto Neuharth's property and their movement around the flat-roofed building was permitted under Pistro. The State has not pointed to any finding by the superior court that the route the troopers took onto Neuharth's property — following the heavy equipment tracks — was a normal means of ingress and egress, and has not pointed to evidence that would require such a finding.
Instead, the State relies on the "open fields" doctrine announced by the United States Supreme Court in Hester v. United States. The Court reaffirmed this doctrine in Oliver v. United States, but held that the doctrine has no application within the curtilage of a protected building or residence — that is, the area immediately surrounding a home in which a person retains a reasonable expectation of privacy. The State points to another decision by the Court to analyze whether the flat-roofed building falls within the curtilage on Neuharth's property, United States v. Dunn. Dunn held that questions regarding the extent of curtilage are resolved by reference to four factors: "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by."
265 U.S. 57, 59, 44 S. Ct. 445, 446, 68 L. Ed. 898 (1924) ("[T]he special protection accorded by the Fourth Amendment to the people in their `persons, houses, papers, and effects,' is not extended to the open fields. The distinction between the latter and the house is as old as the common law.") (citation omitted). See also Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.4(a), at 617-26, (4th ed. 2004).
466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984).
480 U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987).
The State contends that examining the record with these factors leads to the conclusion that the area around the flat-roofed building was not within the curtilage on Neuharth's property. Perhaps this is so, but this analysis requires findings based on the evidence presented before the superior court, and neither party asked the court to enter findings on those factors. Because the superior court has not explicitly addressed the factors established in Dunn, we must remand the case to the superior court to address those factors which underlie the question whether the flat-roofed building was within the curtilage.
Neuharth also argues that the troopers violated AS 16.05.180 by not giving him written notice before they searched his property. Alaska Statute 16.05.180 authorizes peace officers and other authorized employees of the Department of Fish and Game to conduct searches without a warrant when investigating potential fish and game violations. However, the statute requires the officers conducting the warrantless searches to first provide written notice to the person in control of the property. The notice requirement of AS 16.05.180 does not apply if the defendant has no constitutionally protected expectation of privacy in the area searched, or if the warrantless search is justified under another exception to the warrant requirement.
Mackelwich v. State, 950 P.2d 152, 153 (Alaska App. 1997).
Id.
Wamser v. State, 600 P.2d 1359, 1360-61 (Alaska 1979).
Mackelwich, 950 P.2d at 155-57.
The State does not argue that the actions of Troopers Welch and Magnuson were valid warrantless searches under this statute — because the State argues that the troopers had a legal right to enter the property without a warrant. Even so, the State argues that if AS 16.05.180 is applicable, the troopers were excused from the notice requirement because there was no person present on the property who could be deemed "in control of the property" at the time of the troopers' entry. The State relies on Nathanson v. State to argue that fish and wildlife protection officers need not comply with the advanced written notice requirement in AS 16.05.180 whenever the person in control of the property is not present and it would be unreasonable to delay the search.
554 P.2d 456 (Alaska 1976).
Id. at 459-60. See also Mackelwich, 950 P.2d at 157.
It is not clear to us that Nathanson stands for such a broad proposition. Nathanson was a commercial fisherman in the highly regulated king crab fishery. The officers seized his unattended crab pots, which were in state waters and clearly visible, as required, from buoys that marked their location. The supreme court found that, under the circumstances, Nathanson had no reasonable expectation of privacy in his crab pots. But the court noted that "[t]he consideration leading us to conclude that no notice was required under the circumstances would not apply to the search of a vessel, building or other effects in which the owner would have a reasonable expectation of privacy."
Nathanson, 554 P.2d at 457.
Id.
Id. at 459.
Id. at 460 n. 14.
If the superior court concludes on remand that the warrantless search of Neuharth's property was authorized under the "open fields" doctrine, the troopers had no obligation to give notice under AS 16.05.180. We therefore reserve judgment on this issue until we receive the court's findings and the parties' responsive memoranda. Conclusion
We REMAND the case to the superior court. The superior court shall enter findings on the factors relating to the "open fields" question — that is, whether the flat-roofed building was within the curtilage — and transmit its findings on this issue to this Court within 90 days of this decision. The parties shall have 25 days after the superior court transmits its findings to this Court to submit simultaneous memoranda addressing the superior court's findings. Thereafter, we will resume our consideration of the case. We retain jurisdiction.