Opinion
Nos. 31007-4-II (consolidated with), 31282-4-II
Filed: May 24, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pacific County. Docket No: 03-8-00061-6. Judgment or order under review. Date filed: 10/02/2003. Judge signing: Hon. Joel Penoyar.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Daniel Herbert Bigelow, Attorney at Law, PO Box 153, Cathlamet, WA 98612-0153.
Counsel for Respondent(s), Nathaniel Lauren Needham, Guy Glenn Law Firm, 12305 Sandridge Rd, Long Beach, CA 90831.
The juvenile court adjudicated minors Brandon Dilley and Crystal Longwith guilty of alcohol consumption. They appeal, arguing that the trial court erred in upholding the validity of a search warrant. We reverse and remand with instructions to suppress the evidence seized.
FACTS
On the night of January 17, 2003, police officers Jerry Miller and Chuck Spoor went to Willapa Harbor Hospital to investigate a report of a minor female being treated for an apparent drug and alcohol overdose. The girl's mother told the officers that she had picked up her daughter at Larry Vaughn's apartment. The officers proceeded to that apartment to investigate. Miller went to the front door and knocked while Spoor went to the back of the home.
Miller testified that, before this incident, he had spoken to the girl's mother four or five times about her problems with her daughter and that he had known the mother for about a year. At trial, but not in his affidavit, he stated that he considered the mother's statements reliable because she had not previously lied to him.
When asked at trial why he went to the back of the home, Spoor testified: `Given the circumstances, it's pretty standard procedure for us to make sure we can kind of see what's going on in the residence or make sure no one can bail out, which is pretty common at juvenile parties and it's generally what we do.' Report of Proceedings (RP) (09/15/03) at 9.
In describing the back of the home, Spoor stated that he did not see any pathway, such as gravel or tile, leading to the back of the building; he walked on mowed grass that he thought was a pathway. Spoor also stated that the home had no back door, porch, or deck.
He described the area behind the building:
A. I walked around the side and there was a truck parked next to the apartment. I think it was Larry Vaughn's truck . . . and it was probably parked six to eight feet from the side of the apartment. . . .
Q. . . .
A. And I walked past that probably — you know, somewhere between the pickup and the house. . . .
. . . .
Q. . . .
A. The yard didn't appear to be overgrown.
RP (09/15/03) at 9-10. No one had posted a `No Trespassing' sign behind the building. RP (09/15/03) at 10.
Miller knocked on the front door several times, but no one answered. While Miller was knocking, Deputy Allison arrived at the scene and started walking past the pickup truck parked next to the building. Spoor also started walking toward Allison and, as Spoor passed by one of the building's side windows, he saw movement inside the apartment. Spoor `kind of took a step back and looked through the window.' Report of Proceedings (RP) (09/15/03) at 11. Although curtains covered the window, they were not pulled tightly. Through that gap in the curtains, Spoor saw three young people, including Dilley and Longwith, clearing beer cans off the kitchen counter. Spoor told Miller what he had seen.
When the officers arrived, lights illuminated the apartment, but a few minutes after Miller started knocking on the door, someone turned off the lights. Somebody inside the apartment pulled a curtain aside, peaked out, and let the curtain go back. Miller could not identify the person who looked through the window. But he could hear people running around inside the apartment.
Miller sought a telephonic search warrant. In his affidavit of probable cause, Miller averred:
On this date of 1/17/03 at approx[imately] 2250 hrs, I was contacted by Willapa Harbor Hospital of an out of control female juvenile. I calmed the juvenile down and she was transported to St Peters hospital for overdose on pills and alcohol. I talked to the mother. She advised me she picked her daughter up at Larry Vaughn's apartment #3 Maple St. She advised me [there] were other juveniles [there]. I went to apartment #3 Maple St. [and] knocked on the door. Officer Spoor went to the back I could hear movement in the house. Officer Spoor advised me he saw 4 juvenile[s] and recognized one to be Brandon Dilly [sic] who is under 21 years of age removing beer cans from the kitchen table. Then all the lights were turned out.
Exhibit 6. Miller asked for a warrant `to enter the residence to remove any minors and any alcohol containers . . . and any drugs or paraphernalia.' Exh. 6.
The court issued the warrant and the officers entered the apartment. They found four juveniles in the bathroom, including Dilley and Longwith. The officers smelled a strong odor of intoxicants and saw some empty beer cans in the bathroom. Miller noticed that Dilley spoke with a slur and had bloodshot eyes. In the kitchen, the police found a garbage can containing several beer cans and another beer can in the sink. The officers arrested the juveniles for alcohol possession.
The State charged Dilley and Longwith with possession of alcohol while under the age of 21, a violation of RCW 66.44.270(2)(a).
The court denied the defense motion to suppress the seized evidence. The court determined that Spoor did not engage in a warrantless search when he glanced through the window because he stood in part of the curtilage impliedly open to the public. Also, the court found that the officers properly obtained the search warrant and it admitted the seized evidence. The court then adjudicated Dilley and Longwith guilty.
Dilley and Longwith appeal.
ANALYSIS
First, Dilley and Longwith contend that, by peering through the window, Spoor performed an unlawful warrantless search of the premises.
Both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution prohibit unreasonable searches and seizures. State v. Davis, 86 Wn. App. 414, 420, 937 P.2d 1110, review denied, 133 Wn.2d 1028 (1997). Warrantless searches of constitutionally protected areas are per se unreasonable. Davis, 86 Wn. App. at 420; State v. Ridgway, 57 Wn. App. 915, 918, 790 P.2d 1263 (1990). In the absence of a search warrant, the burden falls on the State to overcome the presumption of an unreasonable search. State v. McAlpin, 36 Wn. App. 707, 716, 677 P.2d 185, review denied, 102 Wn.2d 1011 (1984).
Although the Fourth Amendment does not protect `open fields' from unreasonable searches and seizures, Oliver v. United States, 466 U.S. 170, 179, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984), article I, section 7 of our state constitution allows individuals to protect their private affairs in open fields if they have manifested their desire to exclude others from their `open fields.' State v. Johnson, 75 Wn. App. 692, 707, 879 P.2d 984 (1994), review denied, 126 Wn.2d 1004 (1995).
Under the `open view doctrine' of both article I, section 7, and the Fourth Amendment, police with legitimate business may enter impliedly open areas of a residential curtilage and `[i]n so doing they are free to keep their eyes open.' State v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981); Johnson, 75 Wn. App. at 704. Under the open view doctrine, no search occurs when a law enforcement officer detects something from a legitimate nonintrusive vantage point. State v. Myers, 117 Wn.2d 332, 345, 815 P.2d 761 (1991). An officer holds the same license to intrude as does a `reasonably respectful citizen.' Seagull, 95 Wn.2d at 902 (slight deviation by officer from most direct route between two doors was not unreasonable intrusion upon privacy).
In determining whether an officer exceeded the scope of the open view doctrine, we consider several factors, including whether the officer: `(1) spied into the house; (2) acted secretly; (3) approached the house in daylight; (4) used the normal, most direct access route to the house; (5) attempted to talk with the resident; (6) created an artificial vantage point; and (7) made the discovery accidentally.' Myers, 117 Wn.2d at 345.
Areas of curtilage impliedly open to the public include a driveway, walkway, or access route leading to the residence or its porch. State v. Hoke, 72 Wn. App. 869, 874, 866 P.2d 670 (1994). If officers are able to detect something using one of their senses while lawfully present in impliedly open curtilage areas, that detection does not constitute a `search' under either Washington Constitution article I, section 7 or the Fourth Amendment. Seagull, 95 Wn.2d at 901. In short, our Supreme Court stated:
If a law enforcement officer or agent does not go beyond the area of the residence that is impliedly open to the public, such as the driveway, the walkway, or an access route leading to the residence, no privacy interest is invaded. Whether the intrusion into an area has substantially and unreasonably exceeded the scope of an implied invitation depends on the facts and circumstances of the particular case.
State v. Maxfield, 125 Wn.2d 378, 398, 886 P.2d 123 (1994) (footnotes omitted).
Here, Spoor said that he had followed a grassy path next to the parked vehicle to the rear of the building. The State argues that because a vehicle was parked at the side of the house, the entire area around the house was impliedly open to the public. We disagree.
Spoor stood in an area within six to eight feet of the back of the home. Although not surrounded by a fence or other boundary marker, the house bounded the back yard on one side and blackberry bushes and a gravel driveway bounded two sides. Also, the rear area of the house had nothing but mown grass and the house had no back door, porch, or deck. No defined pathway led alongside the house in either direction, indicating that no access route led from front to back. Finally, Spoor deviated from the direct access route to the home, which ended at the front porch, when he walked around the side of the residence.
In Hoke, 72 Wn. App. at 877, the court expressly rejected the notion that the homeowner must take overt steps signaling that an area of the curtilage is private, as such a requirement would impose a burden on the homeowner and would `seriously weaken the constitutional protection against unreasonable searches.'
Overall, the back area of the home was not impliedly open to a reasonably respectful citizen. Thus, Spoor's travel alongside the house to the rear constituted an invasion of privacy, and his observations made from that location constituted a warrantless search, requiring suppression of evidence obtained through it.
Because we reverse and remand to suppress the evidence seized, we do not address Longwith and Dilley's other arguments.
Reversed and remanded to suppress the seized evidence.
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.
BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., Concur.