State v. Dyreson

17 P.3d 668, 104 Wash. App. 703
Court of Appeals of Washington·Decided February 6, 2001·No. 19072-2-III, 19073-1-III·Published·Cited by 13 cases

Opinion

17 P.3d 668 (2001)
104 Wash.App. 703

STATE of Washington, Respondent,
v.
Wilma L. DYRESON and Danny Lee Austin, Appellants.

Nos. 19072-2-III, 19073-1-III.

Court of Appeals of Washington, Division 3, Panel One.

February 6, 2001.

*670 David N. Gasch, Spokane, for Appellants.

Kevin M. Korsmo, Andrew J. Metts, III, Deputy Pros. Attys., Spokane, for Respondent.

*669 BROWN, A.C.J.

After a stipulated facts trial, Wilma Dyreson and Danny Lee Austin were found guilty of possessing marijuana seen by a detective after a warrantless entry into the appellants' garage. We decide the trial court erred by denying suppression of the marijuana seized under a subsequent warrant because the detective's affidavit was based upon an observation from an unlawful vantage point. Accordingly, we reverse.

FACTS

The facts are mainly drawn from the unchallenged CrR 3.6 findings. Spokane County Sheriff's Detective Steven Barbieri went to the residence of appellants Wilma Dyreson, and Danny Austin to contact them regarding an unrelated police matter. Detective Barbieri was unable to contact appellants at the house. A renter at the property told the detective to look in the shed/garage to see if appellants were there.

As Detective Barbieri approached the garage, he heard loud music. Although Detective Barbieri knocked on the open garage door and identified himself, he heard no response. Detective Barbieri believed it might be difficult for someone inside the garage to hear him, so he entered the building through the open door.

Detective Barbieri went about half way into the garage. He was unable to find appellants, but he saw marijuana in a tray near the back of the garage. He could not see the tray from the threshold of the building. Detective Barbieri left the property and returned several days later with a search warrant and seized the marijuana.

The State charged appellants with one count of possessing marijuana. Appellants unsuccessfully moved to suppress the marijuana. *671 After the court entered consistent findings of fact and conclusions of law, appellants were convicted following a stipulated facts trial. We consolidated Ms. Dyreson and Mr. Austin's separate appeals.

ISSUE

Did the trial court err by denying suppression of the marijuana and concluding Detective Barbieri's warrantless entry into the appellants' open garage to a point where the marijuana could be seen was proper under open view principles considering the renter's direction to look for the appellants there?

ANALYSIS

Appellants do not challenge the CrR 3.6 findings. Unchallenged findings are binding on appeal and thus not subject to independent review. State v. Hill, 123 Wash.2d 641, 644-45, 870 P.2d 313 (1994). This court reviews the trial court's conclusions of law pertaining to suppression of evidence de novo. State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999).

Appellants argue violations of both the Fourth Amendment and article I, section 7 of our state constitution. The State contends the marijuana was observed in "open view" from an area of the curtilage impliedly open to the public. Significantly, the State disavows any contention that Detective Barbieri acted with apparent authority derived from the renter when entering the garage. Brief of Respondent at 8. While the court did not enter findings or conclusions regarding the renter, it mentioned the reasonableness of following the renter's instructions.

It is well settled that article I, section 7 provides broader protection against unreasonable search and seizure than the Fourth Amendment. See State v. Ladson, 138 Wash.2d 343, 347-48, 979 P.2d 833 (1999). When an analysis under article I, section 7 is appropriate, a Fourth Amendment analysis need not be addressed. State v. Gave, 77 Wash.App. 333, 337, 890 P.2d 1088 (1995). It is appropriate to begin our analysis under the state constitution. State v. Thorson, 98 Wash.App. 528, 531, 990 P.2d 446 (1999), review denied, 140 Wash.2d 1027, 10 P.3d 407 (2000). Recently, the Supreme Court blended state and federal search and seizure analyses in concluding that a premise search violated both constitutions. See State v. Ross, 141 Wash.2d 304, 312-14, 4 P.3d 130 (2000). We employ a combination of the Ross and Thorson analyses in our review here.

Here, the initial entry was warrantless. "It is well-established that if information contained in an affidavit of probable cause for a search warrant was obtained by an unconstitutional search, that information may not be used to support the warrant." Ross, 141 Wash.2d at 311-12, 4 P.3d 130 (citing State v. Johnson, 75 Wash.App. 692, 709, 879 P.2d 984 (1994)). The affidavit supporting the search warrant relies on Deputy Barbieri's observation from inside the garage. Consequently, this appeal turns on whether the deputy's entry into the building was constitutional.

"We begin with the well-recognized principle that warrantless searches are per se unreasonable under both the Fourth Amendment and article I, section 7 of our state constitution unless they fall within a few specifically established and well-delineated exceptions." Ross, 141 Wash.2d at 312, 4 P.3d 130 (citing State v. Myers, 117 Wash.2d 332, 337, 815 P.2d 761 (1991)). The burden is on the State to prove one of these exceptions applies. Ladson, 138 Wash.2d at 349-50, 979 P.2d 833.

Here, the State relies on the "open view" exception to the warrant requirement, which applies when an officer observes contraband from a "nonconstitutionally protected area." State v. Kennedy, 107 Wash.2d 1, 10, 726 P.2d 445 (1986) (citing State v. Seagull, 95 Wash.2d 898, 901-02, 632 P.2d 44 (1981)). "Under the `open view' doctrine, detection by an officer who is lawfully present at the vantage point and able to detect something by utilization of one or more of his senses does not constitute a search within the meaning of the Fourth Amendment." Ross, 141 Wash.2d at 313, 4 P.3d 130 (citing Seagull, 95 Wash.2d at 901, 632 P.2d 44; State v. Young, 123 Wash.2d 173, 182, 867 P.2d 593 (1994)). An "open *672 view" observation is not a search at all but may provide probable cause for a constitutionally executed search. See State v. Bobic, 140 Wash.2d 250, 254, 255, 258-59, 996 P.2d 610 (2000).

Here, Detective Barbieri's vantage point was inside the garage and curtilage, where constitutional protections normally extend. Thus, the threshold federal constitutional question is whether Detective Barbieri "intruded upon a privacy expectation deserving of Fourth Amendment protection." Seagull, 95 Wash.2d at 902,

State v. Dyreson, 17 P.3d 668, 104 Wash. App. 703 (Wash. Ct. App. 2001).

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