Superior Court: The Superior Court for Kitsap County, No. C-3204, Jay W. Hamilton, J., refused to suppress the evidence and on July 14, 1977, entered a judgment of guilty of both charges. Court of Appeals: The court reversed the judgment at 22 Wn. App. 442, holding that the intrusion into the garage was not justified by the observation of the safe in open view. Supreme Court: Holding that the officer was not justified in walking behind the truck and that the seizure of the safe was not permissible under the plain view exception to the warrant requirement, the court affirms the decision of the Court of Appeals.
The bounds of the warrant are defined by the issuing magistrate, who, "alone, is clothed with the power to authorize an intrusion into a constitutionally protected area and a seizure of evidence found therein." State v. Daugherty. 22 Wn.App. 442, 446, 591 P.2d 801 (1979) (citing McDonald v. United States. 335 U.S. 451, 455-56, 69 S.Ct. 191, 93 L.Ed. 153 (1948)), aff'd, 94 Wn.2d 263 (1980).
In the second category, the officer, intending to conduct an investigation rather than contact the occupants, nevertheless restricted his movements to areas of the driveway and walkway that the public would reasonably be expected to use to make contact with occupants of the residence.See, e.g., United States v. Reyes, 283 F.3d 446, 465 (2d Cir. 2002); United States v. Magana, 512 F.2d 1169 (9th Cir. 1975); State v. Cobb, 115 Ariz. 484, 566 P.2d 285 (1977); State v. Johnston, 150 N.H. 448, 839 A.2d 830 (2004); State v. Johnson, 171 N.J. 192, 793 A.2d 619 (2002); State v. Lodermeier, 481 N.W.2d 614 (S.D. 1992); State v. Ryea, 153 Vt. 451, 571 A.2d 674 (1990); State v. Dougherty, 22 Wash.App. 442, 591 P.2d 801 (1979); McCutcheon v. State, 604 P.2d 537 (Wyo. 1979).See, e.g., Pineda-Moreno, 591 F.3d 1212, 1215 (investigating agent testified person attempting to make delivery to house would have to go through driveway to get to house); McVickers v. State, 551 So.2d 1130, 1134 (Ala.Crim.App. 1989) (no Fourth Amendment violation when officers restricted movements to places visitors could reasonably be expected to walk); People v. Bradley, 1 Cal.3d 80, 81 Cal.Rptr. 457, 459, 460 P.2d 129 (1969) (no violation where marijuana was only about twenty feet from defendant's door where delivery person would go); Com. v. A Juvenile (No. 2), 411 Mass.157, 580 L.E.2d 1014, 1016 (1991) (no violation where vehicle parked on area of driveway within normal route for approaching front door of residence); State v. Pike, 143 Vt. 283, 465 A.2d 1348, 1351 (1983) (no violation when officers restrict their movements to driveways visitors could be expected to use).
The mere fact that it would be inconvenient to obtain a warrant does not excuse the police from doing so. See State v. Daugherty, 22 Wn. App. 442, 446, 591 P.2d 801 (1979), aff'd, 94 Wn.2d 263, 616 P.2d 649 (1980); State v. Orcutt, 22 Wn. App. 730, 737, 591 P.2d 872 (1979). In this case the search occurred in the early evening after the defendant had exited his vehicle and the vehicle was in no danger of being moved.
Clearly the front porch, driveway and parking area were within that portion of the premises to which the public, including police officers on legitimate business, are impliedly invited by the owner, and in which the owner has a lesser expectation of privacy. Lorenzana v. Superior Court, 9 Cal.3d 626, 511 P.2d 33, 108 Cal.Rptr. 585 (1973); State v. Daugherty, 22 Wn. App. 442, 591 P.2d 801 (1979); see also United States v. Anderson, 552 F.2d 1296 (8th Cir. 1977); United States v. Bradshaw, 490 F.2d 1097 (4th Cir. 1974); State v. Crea, 305 Minn. 342, 233 N.W.2d 736 (1975); Pistro v. State, 590 P.2d 884 (Alaska 1979); Brenneman v. State, 264 Ark. 460, 573 S.W.2d 47 (1978); 1 W. LaFave, Search and Seizure ยง 2.3 (1978). The same is true of the unenclosed, unimproved side yard or walkway between the house and outbuildings leading to the rear of this rural home.
Only at that time, did he cross the threshold and seize the pipe and marijuana seeds. The circumstances here bear a close resemblance to State v. Daugherty, 22 Wn. App. 442, 591 P.2d 801 (1979), and the rationale in that case is applicable. The police suspected that Daugherty had burglarized a safe.