Opinion
No. 53684-2-I
Filed: March 21, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-02066-1. Judgment or order under review. Date filed: 01/15/2004. Judge signing: Hon. Richard F. McDermott.
Counsel for Appellant(s), Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Dana Cashman, King County Prosecutor's Office 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
A police detective drove down a driveway off a rural road to confirm the address of a suspect, and saw a license plate that she later learned was stolen. Upon obtaining a warrant to search the premises, she found incriminating evidence that led to the conviction of appellant Zachary Cairnes. His appeal puts at issue both the legality of the detective's initial visit, and the sufficiency of her affidavit in support of the warrant. We conclude the trial court properly denied the motion to suppress.
Detective Kristi Bridgman was investigating appellant Zachary Cairnes as a suspect in vehicle theft and narcotics in June 2003. She went to the Cairnes property in a rural part of King County just before 7 p.m. on an evening in early June. Her stated purpose in going there was to verify the defendant's address, as to which she had received conflicting information from two databases. She testified that she needed his address `because when you're investigating somebody for possible narcotic activity you need to know where they live for future documentation.' She `was looking for license plates specifically so I could get an address of this location.'
Verbatim Report of Proceedings 1/5/04 at 64.
Verbatim Report of Proceedings 1/5/04 at 40.
Taking the only available route to the property from a public street, Detective Bridgman drove over railroad tracks marked with a Burlington Northern railroad `No Trespassing' sign, and proceeded down a tree-lined dirt driveway. She passed through two open gates and eventually came to a large fenced area with two main structures, outbuildings and numerous vehicles. Detective Bridgman was driving an unmarked police car. She testified that she did not approach the main house because `you don't necessarily want the suspect knowing that you're at their house, knowing that you're investigating them.' She recorded the license plate numbers from some of the vehicles parked in the area near the house, and then left the property by the same way she had entered. On her way out, she located a house number posted where the driveway met the road, before the railroad tracks.
Verbatim Report of Proceedings 1/5/04 at 106.
After Detective Bridgman left the property, she checked out the license plate numbers and learned that one of them belonged to a member of the Cairnes family. Another had been reported stolen from a truck in Tacoma. She applied for and obtained a search warrant based upon the evidence of the stolen plate. Detective Bridgman and other officers went to the property with the search warrant on June 5, 2003. The warrant authorized her to search the premises and vehicles and to seize the stolen vehicle plate, other vehicles and accessories found to be stolen, and other evidence of car theft.
At the main house, they encountered Zachary Cairnes' mother, who identified an outbuilding as the residence of her son. The search of that outbuilding turned up some methamphetamines and several firearms. Zachary Cairnes arrived while the police were there, and was taken into custody. The State charged him with possession of methamphetamine and unlawful possession of the firearms.
Cairnes unsuccessfully moved to suppress the evidence. The court held a bench trial on stipulated facts, and convicted him as charged. Cairnes appeals.
WARRANT
Cairnes first contends the search during which police discovered the contraband was unlawful, though authorized by a warrant, because the affidavit in support of the warrant did not establish a nexus between the suspected criminal activity and Cairnes' residence.
A search warrant may be issued only upon a determination of probable cause, based upon facts and circumstances sufficient to establish a reasonable inference that criminal activity is occurring or that contraband exists at a certain location. Probable cause exists when an affidavit supporting a search warrant sets forth facts sufficient for a reasonable person to conclude the defendant probably is involved in criminal activity. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). Probable cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched. State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997). A magistrate's determination that a warrant should issue is an exercise of judicial discretion that is reviewed for abuse of discretion and is generally given great deference by a reviewing court. An application for a search warrant should be judged in the light of common sense with doubts resolved in favor of the warrant. Cole, 128 Wn.2d at 286.
Detective Bridgman obtained a search warrant based upon the evidence that there was a truck on the property displaying a stolen license plate. The affidavit in support of the warrant also stated her belief, based upon her experience in car theft investigations, that it was common for stolen plates to be attached to stolen vehicles; and that it was common to find titles, registrations, and plates as well as stolen vehicle parts in residences, garages, and sheds belonging to auto thieves.
Cairnes contends that Detective Bridgman's affidavit was insufficient to support a belief that evidence of criminal activity would be found at the place searched. He relies on State v. Thein, 138 Wn.2d 133, 977 P.2d 582 (1999). In Thein, the officers while in the course of a drug bust at a residence of someone other than Thein found evidence suggesting that Thein was dealing drugs. They found money order receipts made out to him for `rent', and a packing slip bearing his name and home address. The packing slip was for materials the officers believed to be commonly associated with the cultivation of marijuana. The officers obtained a warrant to search Thein's residence based on their suspicion that Thein was a dealer and their generalized conclusion that drug dealers are likely to keep evidence of illegal drug dealing in their homes. The Court held that the evidence discovered at the first residence was insufficient to support a reasonable conclusion that there was illegal activity being carried out in Thein's residence. Thein, 138 Wn.2d at 150-51.
Thein establishes that general statements regarding the common habits of drug dealers are not alone sufficient to establish probable cause. But here, probable cause was supported by more than Detective Bridgman's statements regarding the common habits of car thieves. The necessary nexus was the stolen license plate Detective Bridgman observed on the Cairnes property. This fact, supported by the generalization that car thieves commonly keep stolen or parts and other accessories in buildings on the property where they reside, supported a reasonable conclusion that such items would be found at the premises to be searched. Thus, we will not disturb the trial court's conclusion that the search warrant was supported by probable cause.
INITIAL ENTRY
Cairnes contends that the court erred in failing to suppress the evidence for the further reason that it was the fruit of Detective Bridgman's initial entry onto the Cairnes property. He contends that the visit during which she wrote down the license numbers was a search, and unlawful because it was conducted without a warrant. A search conducted without a warrant is per se unreasonable under both the federal and state constitutions unless the search falls within a specific exception to the warrant requirement. U.S. Const. amend. IV; Washington Const. art. 1, sec. 7; State v. Ross, 141 Wn.2d 304, 312, 4 P.3d 130 (2000).
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. Seagull, 95 Wn.2d 898, 901, 632 P.2d 44 (1981) (officer, canvassing neighborhood for information about an abandoned vehicle, walked around house trying to find front door and saw what appeared to be a marijuana plant growing in a greenhouse; held, not a search).
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 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. . . . 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.
Seagull, 95 Wn.2d at 902.
Cairnes contends that when Detective Bridgman wrote down the license numbers, she did not have legitimate business, and was not on an access route impliedly open to the public. These two arguments were fully aired during the suppression hearing, and the trial court ruled against Cairns after resolving numerous disputes about the facts.
We review conclusions of law based upon findings of fact to determine whether the finding is supported by substantial evidence, and if so, whether those findings support the conclusion of law. State v. Graffius, 74 Wn. App. 23, 29, 871 P.2d 1115 (1994). Cairns has assigned error to many of the court's findings, but has not specifically argued that they were unsupported by substantial evidence. Our review, therefore, is primarily concerned with whether the findings support the conclusions.
One principle of the `open view' doctrine discussed in Seagull is that `the officer must be conducting legitimate business when he enters the impliedly open areas of the curtilage.' State v. Ross, 141 Wn.2d 304, 313, 4 P.3d 130 (2000). Cairnes claims that Detective Bridgman did not have legitimate business because her sole reason for visiting was to gather information — his address — for a criminal investigation. The State responds that the legitimacy of the officer's presence was established by the court's consideration of factors listed in Seagull, 95 Wn.2d at 905.
Neither Cairnes nor the State addresses the point that was most important to the trial court: `In the end, the court finds that Det. Bridgman was not invading on the curtilage of the defendant's home, and that the access road itself is not curtilage.' The court based this conclusion on findings that Detective Bridgman did not go `anywhere near to any building, corral, barn, shed, or home on the Cairnes property,' and that she `turned her car around well before encountering any structure on the Cairnes property.' The court used these observations to distinguish Detective Bridgman's entry onto the property from the far more intrusive activities of officers in one of the cases on which Cairnes relies, State v. Ross.
Conclusion of Law 2.17, Clerk's Papers at 57.
Conclusion of Law 2.6, Clerk's Papers at 56.
Conclusion of Law 2.8, Clerk's Papers at 56.
The officers in Ross were investigating an anonymous tip that there was a marijuana grow operation at the defendant's address. The officers' first visit, not argued to be unlawful, was to go to the address and observe a vehicle in the driveway. After learning that it was registered to the defendant, the officers came back a month later at 8:30 in the evening, driving an unmarked car and wearing street clothes. The officers walked up the driveway where one of them noticed mold and mildew growing on the garage windows. Because one officer could not confirm the other officer's observation that there was also an odor of growing marijuana, they both returned to the residence around midnight. On this visit, both confirmed the smell of growing marijuana, and left without approaching the front door or contacting the residents. Ross, 141 Wn.2d at 307-08. They obtained a warrant, and the marijuana they found led to a conviction. To determine whether the officers had conducted a search, the court began by noting that a person's home `has generally been viewed as the area most strongly protected by the constitution' and the `curtilage of a home is "so intimately tied to the home itself that it should be placed under the home's `umbrella' of Fourth Amendment protection."' Ross, 141 Wn.2d at 312, quoting State v. Ridgway, 57 Wn. App. 915, 918, 790 P.2d 1263 (1990). The court determined that, given the late hour and furtive approach, the officers were not conducting legitimate police business. Ross, 141 Wn.2d at 314.
Unlike in Ross, here Detective Bridgman was not sneaking around the curtilage under cover of darkness. It was early evening and the sky was still light when she came down the driveway, she did not get out of her car, and she did not get near any of the buildings on the property. A stranger who drives down an ungated and unposted driveway in the rural countryside and turns around and leaves before reaching the house, is unlikely to be perceived as a trespasser. Detective Bridgman's intrusion was more like the first visit of the officers in Ross, where they obtained the license number of a car in the driveway, than like the visit where they walked around the garage at midnight, sniffing for marijuana.
Because the inquiry into the legitimacy of the officer's purpose is, under Seagull and Ross, important only when the officer is on the curtilage, arguably nothing more need be said on this topic to sustain the trial court's ruling. However, we have held that the absence of an intrusion into the curtilage is not necessarily dispositive on the question of whether officers were conducting a search, reasoning that `our state constitution does not foreclose a person's ability to protect his or her private affairs in an `open field.'' State v. Johnson, 75 Wn. App. 692, 707, 8879 P.2d 984 (1994), quoting State v. Myrick, 102 Wn.2d 506, 510-11, 688 P. 2d 151 (1984). In Johnson, the officers approached a barn, which did not appear to be within the area intimately tied to the home. Johnson, 75 Wn. App. at 706. They had no intention to approach the house or contact the occupants. Their furtive entry onto the property `under cover of darkness in an apparent effort to look for a marijuana grow operation' showed that their only purpose `was to conduct a search and gain information by trespassing on private property.' Johnson, 75 Wn. App. at 705.
Relying on Johnson, Cairnes contends that Detective Bridgman's intentional decision not to approach the house, and her purpose of gathering information, necessarily leads to the conclusion that she was conducting a search. But neither Johnson, nor any other case cited, establishes such a bright line rule. Indeed, our courts have consistently followed the statement in Seagull that there is no fixed formula; and that comparison with other cases can be instructive. Seagull, 95 Wn.2d at 903. See State v. Graffius, 74 Wn. App. 23, 27-29, 871 P.2d 1115 (1994) (considering factors derived from Seagull). Cf. Ross, 141 Wn. 2d at 315-319, Talmadge, J., concurring (recommending adoption of a `predictable' jurisprudence that would use `legitimate police business' as the touchstone and define it narrowly to include only community caretaking and consensual contacts between police and citizens).
The court in Johnson relied on numerous factors not present here; the police were snooping around in the dark, on foot, in an area they knew was fenced, gated, and posted — exactly the kind of conduct that a reasonable person is likely to perceive as trespassing. As the trial court concluded here, Detective Bridgman's visit — in a car, in the daylight, in an area that was impliedly open — was considerably less intrusive. Thus, while Detective Bridgman did not intend to contact the residents and was indeed looking for information that would assist in her investigation, her investigative purpose does not compel a conclusion that she was conducting a search.
Cairnes challenges the trial court's determination that here, unlike in Johnson, the access route was impliedly open. Whether an access route is impliedly open depends on the particular facts and circumstances of each case. Relevant factors include the degree to which the residence is isolated from the road and neighbors, and the presence of fences, gates, guard dogs, and `No Trespassing' or `Private Property' signs that manifest a subjective expectation of privacy. Johnson, 75 Wn. App. at 705. Ignoring a visible `No Trespassing' sign `is an important factor that is looked at to determine if an alleged trespasser is aware that the owner of the premises does not welcome uninvited visitors.' Johnson, 75 Wn. App. at 702.
In Johnson, an informant provided information that Johnson was conducting a large marijuana grow operation. Johnson's property was accessible only by a dirt road through a State park. At the boundary with Johnson's property, the dirt road had a chain link gate and fence extending from both sides, as well as `No Trespassing' and `Private Property' signs. No buildings could be seen from this vantage point. Two officers went to Johnson's property under cover of darkness. Finding the gate closed but unlocked, they went through it and approached a barn. There they smelled the odor of growing marijuana, heard the operation of machinery they identified with a grow operation, and obtained readings with a thermal imaging device near Johnson's barn. The State contended that the visit by the officers did not constitute a search because they approached the house by an impliedly open access route. We rejected this contention, concluding that the Johnsons had manifested their subjective intent to close their property by fencing it, erecting a gate, and posting the signs.
In this case, Cairnes' mother testified that she had posted `No Trespassing' signs at both gates in 1984. Detective Bridgman testified that on her first trip to the property, the only `No Trespassing' signs she saw were those posted near the tracks by the railroad, and these she knew from prior experience were not intended to apply to law enforcement. She said she did see an old `No Trespassing' sign above the first gate when she returned to inspect the property just before the suppression hearing in January 2004.
Verbatim Report of Proceedings 1/5/04 at 124.
The State conceded below that if `No Trespassing' signs had been visible on the Cairnes property, Detective Bridgman `would not have been justified in continuing onto the property absent a warrant, probable cause, or some other exigency.'
Conclusion of Law 2.26, Clerk's Papers at 58.
The trial court found, however, that if there were any `No Trespassing' signs present during her first visit other than the railroad signs, Detective Bridgman did not see them, and this could be accounted for by lush foliage that was present in June as contrasted to January. Cairnes treats the court's findings skeptically, but he has not shown them to be unsupported by substantial evidence. Because the court did not find there were visible `No Trespassing' signs at the gates, the case is not like Johnson.
Findings of Disputed Fact 1, 2, 11, 12, 18, Clerk's Papers at 53-54.
The trial court found that the route Detective Bridgman took was the most direct route to the house, that she did not need to create an artificial vantage point to write down the license plate numbers, and that she did not even get out of her car while doing so. The court concluded `the dirt road that Det. Bridgman drove down impliedly was open by invitation, as both gates were open.' Cairnes contends the open gates should not have been dispositive. He stresses the fact that the property was fenced, and invites comparison to State v. Thorson, 98 Wn. App. 528, 990 P. 2d 446 (1999), rev. denied, 1040 Wn.2d 1027 (2000).
Conclusion of Law 2.7, Clerk's Papers at 56.
In Thorson, the court concluded that the owner of property on Waldron Island in the San Juans had a legitimate expectation of privacy in his woodlands despite the absence of gates and posted signs. Although the Cairnes property is rural and secluded, the driveway is not comparable to the private footpath used by the officer in Thorson, along which he walked `through a heavily wooded area across two other parcels and some distance onto Thorson's property.' Thorson, 98 Wn. App. at 536. Given the nature and location of the property in Thorson, the footpath was not `analogous to a driveway, ungated road, or sidewalk that is impliedly open to the public' and the officer `was not in a place where he had a right to be.' Thorson, 98 Wn. App. at 537. In this case, by contrast to Thorson, there was testimony that the driveway would be typically used for deliveries. It was the most direct route to the house. Absent other indicators of the residents' desire to exclude the public, the open gates were sufficient to imply an invitation to come down the driveway. The trial court did not err in its conclusion that the route was impliedly open.
In summary, Cairnes has not shown that Detective Bridgman's observation of the stolen license plate while driving down an open driveway was an unreasonable intrusion into private affairs. The motion to suppress was properly denied.
The conviction is affirmed.
BECKER, APPELWICK, and COX, concur.