State v. Creegan

99 P.3d 897, 123 Wash. App. 718
CourtCourt of Appeals of Washington
DecidedAugust 3, 2004
DocketNo. 22040-1-III
StatusPublished
Cited by1 cases

This text of 99 P.3d 897 (State v. Creegan) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Creegan, 99 P.3d 897, 123 Wash. App. 718 (Wash. Ct. App. 2004).

Opinion

Kato, C.J.

James Creegan was charged with unlawful failure to use a fish guard under RCW 77.15.310(l)(a). Finding his due process rights were violated, the district court dismissed the charge. The superior court reversed on appeal and remanded for trial on the damage. Claiming again his due process rights were violated, he was entitled [721]*721to an advisement of rights before he was questioned, and the seizure of his property was unlawful, Mr. Creegan successfully sought discretionary review. We nonetheless affirm.

On February 23, 2002, Washington Department of Fish and Wildlife Officers Matthew Nixon and James Brown were driving on a public road when they observed a suction dredge in the Similkameen River in Okanogan County, Washington. They also noticed a camp on the south bank of the river.

The officers discovered the dredging operation was not in compliance with fish and wildlife regulations in that the screen intake and nozzle were larger than allowed. They contacted their office to make sure a permit was not in place. When they learned no permit existed, they seized the portions of the dredging operation in violation of the regulations.

The officers then contacted Mr. Creegan at his residence to continue their investigation. He admitted not using a smaller screen as required. The officers told him they were seizing his equipment and would be referring the case to the prosecutor’s office.

The State charged Mr. Creegan in district court with unlawful failure to use a fish guard under RCW 77-.15.310(l)(a). He filed a motion to dismiss, claiming that the officers violated his due process rights by seizing his property without notice as required by RCW 77.15.310(2) and RCW 77.55.040. He also claimed the search of his operation was unlawful and the officers failed to give him Miranda1 warnings. The district court agreed the officers did not give Mr. Creegan notice of the seizure as required by the statute and accordingly dismissed the charge.

The State appealed to the superior court, which reversed. It concluded the officers were authorized to seize the property under RCW 77.15.070. The court also held that the officers did not need a warrant to conduct their search [722]*722because the dredging operation was in an open and public area where Mr. Creegan did not have any expectation of privacy requiring a warrant. The court further determined Miranda warnings were not required because Mr. Creegan was not in custody. We granted his motion for discretionary review.

Mr. Creegan claims the fish and wildlife officers conducted an unlawful search because they did not have a warrant. Generally, a warrantless search is unreasonable under both the state and federal constitutions. State v. Neeley, 113 Wn. App. 100, 106, 52 P.3d 539 (2002). But the constitution protects a person’s home and private affairs only from warrantless searches. State v. Jackson, 111 Wn. App. 660, 681, 46 P.3d 257 (2002), aff’d, 150 Wn.2d 251, 76 P.3d 217 (2003). Anything that is “ ‘voluntarily exposed to the general public and observable without the use of enhancement devices from an unprotected area is not considered part of a person’s private affairs.’ ” Jackson, 111 Wn. App. at 683 (quoting State v. Young, 123 Wn.2d 173, 182, 867 P.2d 593 (1994)). The officers arrived at the dredge site by public road, accessible to anyone who traveled there. One of the officers had to wade into the river to see the dredge, but anyone could have done what he did. In these circumstances, the dredge was not part of Mr. Creegan’s private affairs and thus was not subject to constitutional protections.

Moreover, no search occurs “ ‘when a law enforcement officer is able to detect something by utilization of one or more of his senses while lawfully present at the vantage point where those senses are used.’ ” State v. Bobic, 140 Wn.2d 250, 259, 996 P.2d 610 (2000) (quoting State v. Rose, 128 Wn.2d 388, 392, 909 P.2d 280 (1996)); see also State v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981) (open view observation occurs from a nonintrusive vantage point of an object that is knowingly exposed to the public). The officers were lawfully at the Similkameen River. They observed the camp and noticed the violations. There was no search.

[723]*723 Mr. Creegan next contends his right against self-incrimination was violated because the officers’ questioning of him was not preceded by Miranda warnings. These warnings were designed to protect a defendant’s right not to make incriminating statements during a custodial police interrogation. State v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975 (1986), cert. denied, 480 U.S. 940 (1987). Accordingly, the defendant must have been subject to a custodial interrogation by a state agent for Miranda to apply. Id.

The custody requirement is satisfied “as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’ ” Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983)). The relevant inquiry is whether “ ‘the suspect reasonably supposed his freedom of action was curtailed.’ ” State v. Heritage, 114 Wn. App. 591, 598, 61 P.3d 1190 (2002) (quoting State v. Short, 113 Wn.2d 35, 41, 775 P.2d 458 (1989)).

Mr. Creegan was at home when the officers approached him. They asked him whether the dredging equipment was his. They also talked about the requirements for a dredging operation. Mr. Creegan told them he was in compliance with the requirements. He also admitted the equipment was his. The officers then told Mr. Creegan they were seizing the equipment.

Mr. Creegan could have ended the conversation at any time. There is nothing in the record to suggest he reasonably believed his freedom of action was curtailed. Because he was not in custody, Miranda warnings were not required. State v. Warness, 77 Wn. App. 636, 639, 893 P.2d 665 (1995).

Mr. Creegan asserts the officers violated his due process rights by seizing his property without notice.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Creegan
122 Wash. App. 1054 (Court of Appeals of Washington, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
99 P.3d 897, 123 Wash. App. 718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-creegan-washctapp-2004.