State v. Crandall

697 P.2d 250, 39 Wash. App. 849

• Court: Court of Appeals of Washington
• Decided: February 26, 1985
• Docket: 5739-9-III
• Status: Published

Opinions

Thompson, J.

— Michael Crandall, Arthur Stoop, and Margaret Searle appeal convictions for manufacturing and possessing a controlled substance, marijuana.

On opening day of hunting season, October 9, 1982, a deer hunter reported to Tom Carlson, a property owner, discovery of what he believed to be growing marijuana. Carlson phoned the Stevens County sheriffs office. Deputy Ron Anderson was sent to the area and both Anderson and Carlson proceeded to follow the hunter's directions in search of the marijuana.

Mr. Carlson had begun construction of a barbed wire fence along the western boundary of his property. The parties, unable to see the marijuana from the property line, crossed under the 1-wire strand and walked approximately 20 to 50 feet onto the property of Arthur Stoop and Michael Crandall. At that point, Deputy Anderson looked through his rifle scope and confirmed the fact that he was viewing marijuana growing approximately 150 feet from their location.

Upon return to the Carlson residence, Deputy Anderson called his supervisor and was told to wait until Monday when a search warrant could be obtained. Later that evening Deputy Anderson, following a map sketched by Mr. Carlson, returned to the marijuana patch which was approximately 200 feet from the eastern boundary, 800 feet south of the nearest residence or outbuilding, and 100 feet from the western boundary of the Crandall and Stoop property.

The deputy approached the patch from the west side, waited approximately 2 hours, and then, reaching across a barbed wire fence enclosing the garden, seized one plant and returned to the sheriff's department. A field test confirmed the plant was marijuana.

Deputy Anderson prepared an affidavit¹ and obtained a search warrant. On Monday, October 11, a search of the property yielded 235 marijuana plants — 128 growing and 107 drying in a shed on the premises. Crandall, Stoop and Searle appeal their conviction based on the trial court's denial of their motion to suppress evidence gathered as the result of an allegedly unconstitutional search. We affirm.

U.S. Const, amend. 4 provides in part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, . . ."In order to be a "search" within the protection of the Fourth Amendment, the person invoking its protection must claim state invasion of a justifiable, reasonable, or a legitimate expectation of privacy. Smith v. Maryland, 442 U.S. 735, 740, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979); Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). The inquiry requires answers to two questions: (1) whether the individual by conduct has exhibited a subjective expectation of privacy; and (2) whether society is prepared to recognize that expectation as reasonable. State v. Young, 28 Wn. App. 412, 416, 624 P.2d 725, review denied, 95 Wn.2d 1024 (1981) (citing Smith v. Maryland, 442 U.S. at 740).

However, Fourth Amendment protections do not extend to open fields and no legitimate privacy interest is recognized unless the area immediately surrounding the home is involved. Oliver v. United States,_U.S._, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984); see also Betchart v. State Dep't of Fish & Game, 158 Cal. App. 3d 1104, 205 Cal. Rptr. 135 (1984).

The term "open fields" includes:

any unoccupied or undeveloped area outside of the curti-lage. An open field need be neither "open" nor a "field" as those terms are used in common speech. For example, ... a thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment.

Oliver, 104 S. Ct. at 1742 n.11.

The curtilage, the land and outbuildings immediately surrounding and associated with the home, is considered "part of the home itself for Fourth Amendment purposes." Oliver, 104 S. Ct. at 1742. " [Ejxactly where the curtilage ends and the open field begins is answered only on a case to case basis, ..." State v. Wright, 74 Wn.2d 355, 360 n.3, 444 P.2d 676 (1968), cert. denied, 394 U.S. 961 (1969). Under the facts in this case, we conclude the Fourth Amendment protections are not available.

The Washington Constitution, Const, art. 1, § 7, differs significantly from the fourth amendment to the United States Constitution in providing: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Because of its unique language, Const, art. 1, § 7 generally provides greater protection than does the fourth amendment to the United States Constitution. State v. Myrick, 102 Wn.2d 506, 688 P.2d 151 (1984). If '"bona fide separate, adequate, and independent [state constitutional] grounds,"' are the foundation for a decision, it is unnecessary to reach federal constitutional issues. State v. Coe, 101 Wn.2d 364, 378, 679 P.2d 353 (1984) (quoting Michigan v. Long,_U.S._, 77 L. Ed. 2d 1201, 103 S. Ct. 3469, 3476 (1983)).

Furthermore,

[w]hile we may turn to the [United States] Supreme Court's interpretation of the United States Constitution for guidance in establishing a hierarchy of values and principles under the Washington Constitution, we rely, in the final analysis, upon our own legal foundations in determining its scope and effect.

Myrick, at 510.

Therefore, though the specific language of the Fourth Amendment may not embrace open fields as stated in Oliver, accord, United States v. Basile, 569 F.2d 1053 (9th Cir. 1978), that does not foreclose an inquiry under the Washington Constitution to determine whether the State has unreasonably intruded into the defendant's "private affairs". The analysis is not confined to the subjective privacy expectations of citizens who are learning to expect diminished privacy, but rather, "it focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant." Myrick, at 511.

Neither the open fields doctrine of Oliver, which looks to the nature of the property viewed, nor the reasonable expectations test of Katz are solely dispositive, but rather, each serves as a factor in determining whether the entry onto the property unconstitutionally intruded into a person's "private affairs". Myrick, at 510-11.

Here, the isolated instances of trespass by Deputy Anderson onto open fields which were not posted and were admittedly frequented by hunters do not offend the constitution. Any hunter might have observed the marijuana and directly notified the police in this instance. This property was not an area in which one traditionally could reasonably expect privacy, United States v. DeBacker, 493 F. Supp. 1078, 1081 (W.D. Mich. 1980) (citing United States v. Freie, 545 F.2d 1217 (9th Cir. 1976), cert. denied, 430 U.S. 966, 52 L. Ed. 2d 356, 97 S. Ct. 1645 (1977)), and therefore does not rise to a privacy interest held by the citizens of this state. Myrick, at 511. We conclude that in this case the search and seizure did not constitute an unreasonable governmental intrusion violative of the Washington Constitution.

Since we have held that the area where the search and seizure occurred was not constitutionally protected under either the fourth amendment to the United States Constitution or article 1, section 7 of the Constitution of the State of Washington, we need not address the validity of the search warrant and the supporting affidavit. However, review of the testimony of Mr. Carlson and Deputy Anderson himself makes it readily apparent false statements were included in the affidavit. We would be remiss were we not to observe the potential invalidity of the warrant had it been necessary to the case. See State v. Stephens, 37 Wn. App. 76, 678 P.2d 832 (1984).

The judgment is affirmed.

Mitchell, J. Pro Tern., concurs.

1 The affidavit states in pertinent part:

"On Oct. 9,1982,1 was contacted by a concerned citizen who wishes to remain anonymous and who meets the two prong test of reliability and trustworthiness. The citizen fears reprisal if identified but is willing to appear in camera if necessary.

"The citizen has been a resident of this area for a number of years, is active in community affairs and has no criminal record known to myself or the Sheriff's Dept.

"The citizen told me about what the citizen believed to be a large area of growing marijuana plants on property described as the West lA of the N.E. Vi of the S.E. Vi of Section 28, Township 32, Range 38 E.W.M. in Stevens County West of the Addy Cedonia road, southwest of Schmidt meadows, who [sic] according to Assessor records, is owned by Arthur Stoop Sr. and Michael Crandall, 1391 W. Penn Cove Rd., Oak Harbor, WA.

"The citizen further told me that I could stand on Boise Cascade land adjacent and observe a number of the plants water barrells [sic] used to water them and black plastic pipe. The citizen further reported that the water came from a pump in the pond behind a cabin that the citizen believes belongs to the owners of the described property.

"I went to where the citizen had directed me and observed a 3 to 4 strand bob wire fence in poor repair. Just across this fence was what I believed to be, growing marijuana plants from 3 ft. to 6 ft. in height and in the neighborhood of 60 to 80 plants."