State v. Rose

909 P.2d 280, 128 Wash. 2d 388, 1996 Wash. LEXIS 3

Opinions

Madsen, J.

— At issue is whether an unconstitutional warrantless search occurred when a police officer looked with the aid of a flashlight through an unobstructed window of Defendant’s mobile home during the evening. We hold that the officer’s observations did not constitute an illegal search, and accordingly reverse the trial court’s suppression order.

Defendant Ryan B. Rose rented property from John Yarton. Yarton was entitled to use part of a garage located to the right of a parking lot on the property for storage, and he maintained the property by mowing the lawns and cutting brush. A mobile home was on the left side of the parking lot, approximately 35 yards away. A shed was located about 19 yards behind the mobile home.

On November 18, 1991, Yarton went to the property to store some items in the garage. He noticed that the mobile home appeared neglected, and that curtains had been ripped down. The condition of the premises led him to check around the property, and as he did so he noticed a hose going to the shed behind the mobile home. He saw a lock on the shed, and smelled what he thought was marijuana.

Yarton called the police from his home located nearby. Deputy Ty Dekofski responded. When he and Yarton met, Yarton told him that he had been on the land to store some items, contact Rose, and check on the property, and that he had smelled what he thought was marijuana coming from the shed. Yarton and Dekofski drove to the rental property, and parked in the parking area sometime around 7 p.m. They walked together back to the shed, where Deputy Dekofski could smell marijuana. He saw that there were water and electrical lines running into the storage shed, and that the shed was locked. Dekofski looked in a window at the back of the mobile home using a flashlight, and then walked around to the front of the mobile home and knocked. While on the front porch, he shined his flashlight through a window and saw cut marijuana and a scale on a table inside. A second officer joined Dekofski during this investigation.¹

Dekofski obtained a telephonic search warrant based upon the information he had gathered. During the search, pursuant to the warrant, officers found a complete marijuana grow operation and 14 pounds of marijuana. Rose was charged with possession of marijuana with intent to manufacture or deliver. He moved to suppress the evidence obtained during the search because Yarton lacked authority to consent to a search of the property. The trial court granted the motion to suppress, and found that the practical effect of the suppression order was dismissal of the case. The State appealed.

In a split decision, the Court of Appeals affirmed, holding that Yarton lacked authority to consent to a search. The Court also rejected the State’s argument that the evidence which Dekofski saw through the front window of the mobile home was in open view, legally observed, and sufficient to establish probable cause for issuance of the warrant regardless of whether other information was unlawfully obtained. Finally, the Court of Appeals held that with the illegally obtained information excised from the warrant, insufficient facts remained to establish probable cause for issuance of the warrant.

We granted the State’s petition for discretionary review.

The State challenges only the Court of Appeals’ holding that the officer’s warrantless observations through the mobile home window with the aid of a flashlight constituted an unlawful search.

I

The Fourth Amendment provides in part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . In deciding whether an unconstitutional search has occurred, the court considers whether the defendant had a legitimate expectation of privacy and whether that expectation is one that society is willing to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring); State v. Young, 123 Wn.2d 173, 189, 867 P.2d 593 (1994). A legitimate expectation of privacy is one which includes an actual and subjective expectation of privacy. Katz, 389 U.S. at 361 (Harlan, J., concurring). "People have a reasonable expectation of privacy in their own homes.” Young, 123 Wn.2d at 189 (quoting Payton v. New York, 445 U.S. 573, 589, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)).

However, no search within the meaning of the Fourth Amendment occurs where the "open view” doctrine is satisfied. Under the "open view” doctrine, " 'As a general proposition, it is fair to say that 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, that detection does not constitute a "search” ....’” Young, 123 Wn.2d at 182 (quoting State v. Seagull, 95 Wn.2d 898, 901, 632 P.2d 44 (1981) (quoting in turn 1 Wayne R. LaFave, Search and Seizure § 2.2, at 240 (1978))). Where the open view doctrine is satisfied " '[t]he object under observation is not subject to any reasonable expectation of privacy and the observation is not within the scope of the constitution.’ ” Seagull, 95 Wn.2d at 902 (quoting State v. Kaaheena, 59 Haw. 23, 28-29, 575 P.2d 462 (1978)).

There can be no serious question that Officer Dekofski was entitled to walk up onto the porch. "It is clear that police with legitimate business may enter areas of the curtilage which are impliedly open, such as access routes to the house.” Seagull, 95 Wn.2d at 902. Normally "a front porch ... to a house is not a constitutionally protected area, and police officers who enter these areas may do so with their eyes open.” State v. Meyers, 117 Wn.2d 332, 344, 815 P.2d 761 (1991).

Defendant Rose’s mobile home was at the end of a private driveway off a private road, but there was no "private” sign posted, and the property was not fenced. Nothing in the record indicates that any attempt was made to prevent people from approaching the residence. The front porch was accessible from a large parking area near the mobile home. The porch was impliedly open to the public.²

Just as the officer could lawfully step onto the front porch, he also could intentionally look through the window. There is no inadvertence requirement under the open view doctrine. 1 Wayne R. LaFave, Search and Seizure § 2.2(a), at 323 (2d ed. 1987). The conduct of an officer at residential premises does not exceed the open view doctrine just because the officer is there deliberately to look for evidence of a crime. State v. Maxfield, 125 Wn.2d 378, 397-99, 886 P.2d 123 (1994) (open view doctrine; investigator went to residence to look for evidence of marijuana grow Operation); cf. United States v. Dunn, 480 U.S. 294, 304-05, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987) (in context of "open fields” doctrine, irrelevant that officer’s observation is directed specifically at the identification of marijuana plants growing on area protected by Fourth Amendment) (citing California v. Ciraolo, 476 U.S. , 106 S. Ct. 1809, 90 L. Ed. 2d 210, reh’g denied, 478 U.S. 1014 (1986)).

In numerous cases courts have upheld the constitutionality of officers’ intentional views through unobstructed windows at residential premises while deliberately investigating reports of crime. See, e.g., State v. Gott, 456 S.W.2d 38 (Mo. 1970) (no Fourth Amendment violation where officers were legitimately on premises to investigate informant’s report that the occupant was in possession of marijuana when they observed defendant through an uncovered window allegedly rolling a marijuana cigarette); State v. Cloutier, 544 A.2d 1277 (Me. 1988) (no Fourth Amendment violation where officer who was aware of burglaries in the neighborhood legitimately approached defendant’s residence on police business to investigate a possible burglary where the suspicion of such resulted from the only illumination in the residence being in the basement; observation of marijuana through a window from the normal route of access not a search); Latham v. Sullivan, 295 N.W.2d 472 (Iowa Ct. App. 1980) (no Fourth Amendment violation where officer legitimately investigating a burglary in the neighborhood approached the only outside entrance to defendant’s apartment and while on the landing outside the apartment door observed through an apartment window items allegedly stolen in the burglary); State v. Taylor, 61 Ohio App. 2d 209, 401 N.E.2d 459 (1978) (no Fourth Amendment violation where the officer had a right to be on a sidewalk within the premises with the purpose to observe potentially illegal activity involving narcotics, and saw through a window a brown substance believed to be marijuana bagged for sale).

Nor is there any constitutional infirmity resulting because Officer Dekofski looked through a window to the left of the door. First, there is no reasonable expectation of privacy in what can be seen through uncurtained windows. State v. Manly, 85 Wn.2d 120, 124, 530 P.2d 306 (view enhanced by binoculars), cert. denied, 423 U.S. 855 (1975); see also State v. Drumhiller, 36 Wn. App. 592, 595-96, 675 P.2d 631 (officers legitimately on residential premises to investigate a reported burglary lawfully stood a few feet from the walkway to the front door for their own protection and to carry out their obligation to investigate; their observation through the unobstructed window of illegal activity within was not a search), review denied, 101 Wn.2d 1012 (1984). Second, courts have frequently upheld observations through unobstructed windows from an impliedly open area, even where the window was to the side of the entry. See, e.g., Sayre v. State, 471 N.E.2d 708 (Ind. Ct. App. 1984) (officer went to residence to question occupant about theft; observation from front yard into unobstructed window only a few feet from the front door not a search), cert. denied, 475 U.S. 1027 (1986); State v. Taylor, 61 Ohio App. 2d 209, 401 N.E.2d 459 (1978) (officer lawfully on sidewalk within premises looked through window and saw material believed to be marijuana; went onto porch, then jumped off porch and looked through window and saw defendant gathering up material); People v. Donald, 637 P.2d 392 (Colo. 1981) (if officer was looking through living room window from a common entrance or similar passageway, the observations did not constitute a search; remand for factual determination); Latham v. Sullivan, 295 N.W.2d 472 (Iowa Ct. App. 1980) (officer on landing outside apartment door looked through apartment window and saw items allegedly stolen in burglary); People v. Maltese, 149 A.D.2d 626, 540 N.Y.S.2d 817 (officer approaching door of basement apartment by common means of ingress and egress, observations through window situated next to door not a search), appeal denied, 74 N.Y.2d 743 (1989); United States v. Hersh, 464 F.2d 228 (9th Cir.) (view through window immediately to left of door proper) (holding confirmed in a number of cases, including United States v. Garcia, 997 F.2d 1273 (9th Cir. 1993)), cert. denied, 409 U.S. 1008 (1972); State v. Cloutier, 544 A.2d 1277 (Me. 1988) (officer on walkway immediately outside residence on normal access route glanced into ground level window to immediate right; not a search).³

The window through which Officer Dekofski looked is a waist-high picture window just left of the front door. Standing on the porch, one can look directly through the window without leaning, bending, or straining the body— and indeed, there is no evidence in this case that the officer had to leave the porch or maneuver his body in any way to see through the window.

An officer may act as any reasonably respectful citizen. Such a person can be expected to stand virtually anywhere on a porch like the one in this case while waiting for a response from the door, and to look inside while waiting. A resident who leaves unobstructed a window immediately to the left of the front entrance should expect that reasonably respectful persons will look in, even if just out of curiosity.

In short, there is no serious question that Officer Dekofski was lawfully on the porch, and that he could intentionally look through the window while legitimately on the premises deliberately investigating a report of criminal activity. The only serious question in this case is whether it makes any difference that darkness fell before he could complete that investigation.

As stated in Marshall v. United States, 422 F.2d 185, 189 (5th Cir. 1970):

When the circumstances of a particular case are such that the police officer’s observation would not have constituted a search had it occurred in daylight, then the fact that the officer used a flashlight to pierce the nighttime darkness does not transform his observation into a search. Regardless of the time of day or night, the plain view[⁴] rule must be upheld where the viewer is rightfully positioned .... The plain view rule does not go into hibernation at sunset.

The use of a flashlight has been upheld under the open view theory in a number of contexts. See, e.g., State v. Young, 28 Wn. App. 412, 624 P.2d 725 (where vehicle parked in public place, and officer’s observation would not have constituted a search if it occurred in daylight, fact that officer used a flashlight does not transform observation into search), review denied, 95 Wn.2d 1024 (1981); State v. Cagle, 5 Wn. App. 644, 490 P.2d 123 (same), review denied, 80 Wn.2d 1003 (1971); State v. Regan, 76 Wn.2d 331, 457 P.2d 1016 (1969) (same); United States v. Lee, 274 U.S. 559, 47 S. Ct. 746, 71 L. Ed. 1202 (1927) (no search occurred when a Coast Guard patrol used a searchlight to see aboard a motorboat and discovered alcohol on board; use of a searchlight to see on the deck of the motorboat is comparable to use of a field glass or a marine glass, and is not prohibited by the Constitution); Commonwealth v. Johnson, 777 S.W.2d 876, 879 (Ky. 1989) (where defendant left his motel door and window partially open to public view he was deprived of a reasonable expectation of privacy, and the determination of whether contraband lay in plain view should not depend upon existing lighting conditions: "[o]ne seeking to maintain his privacy should reasonably expect that persons disposed to look inside a motel room will not hesitate to enhance their visibility by use of a widely available device such as a flashlight”), cert. denied, 494 U.S. 1085 (1990); State v. Hite, 642 So. 2d 55 (Fla. Dist. Ct. App. 1994) (officer in bedroom by consent lawfully used flashlight to look into partially open closet area; fact that closet beyond scope of consent irrelevant; use of flashlight to illuminate area not a search but merely enhancement of officer’s plain view).

Recently, the United States Supreme Court held that no unlawful search occurred when officers in an "open field” used a flashlight to look through an open door into a barn which the Court assumed was entitled to Fourth Amendment protection. United States v. Dunn, 480 U.S. 294, 304-05, 107 S. Ct. 1134, 94 L. Ed. 2d 326, reh’g denied, 481 U.S. 1024 (1987). The Court said use of the beam of the flashlight did not turn the officers’ observations into an unreasonable search, and cited the plurality opinion in Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983). In Brown, 460 U.S. at 739-40, the plurality reasoned that it was beyond dispute that the action of an officer shining a flashlight into an automobile without probable cause to search did not violate the Fourth Amendment.

There are few reported cases involving residential premises. However, we find persuasive the reasoning in Commonwealth v. Pietrass, 392 Mass. 892, 467 N.E.2d 1368 (1984). There, the court concluded that the record did not establish whether a police officer was lawfully on an enclosed porch from which he saw evidence through the window of a residence with the aid of a flashlight, and remanded for a factual determination as to whether the porch was an area impliedly open to the public. However, the court held that if the officer was rightfully on the porch, he could see what was in plain view even through a window, and the use of a flashlight did not transform such an observation into a search. Pietrass, 467 N.E.2d at 1373 n.12 (citing Marshall, 422 F.2d 185). The court in Pietrass reached this conclusion after acknowledging that the search of a car is different from the search of a house.

As Pietrass suggests, we have examined the lawfulness of the vantage point without reference to use of a flashlight and have concluded that Officer Dekofski was in a lawful vantage point. Next, we examine the intrusiveness of the view, including the use of the flashlight. In accord with the reasoning in Dunn, Lee, and other cases cited above, we hold that the fact that a flashlight is used does not transform an observation which would fall within the open view doctrine during daylight into an impermissible search simply because darkness falls. One who leaves contraband in plain sight, visible through an unobstructed window to anyone standing on the front porch of his residence, does not have a reasonable expectation of privacy in the visible area.

Nor is the mere use of a flashlight an intrusive method of viewing. A flashlight is an exceedingly common device; few homes or boats are without one. It is not a unique, invasive device used by police officers to invade the privacy of citizens, and is far different from the device at issue in State v. Young, 123 Wn.2d 173, 182-83, 867 P.2d 593 (1994). In Young, we held that use of an infrared device to detect heat patterns in the home, which could not be detected by the naked eye or other senses, and which could in effect enable the officer to "see through the walls” of the home, was a particularly intrusive method of viewing which went well beyond mere enhancement of normal senses. A flashlight, in contrast, does not enable an officer to see within the walls or through drawn drapes. Instead, it is a device commonly used by people in this state, and, in fact, would be an expected device for someone to use approaching a mobile home in a rural area at dusk or after nightfall.

Officer Dekofski looked through an unobstructed window to the left of the front door while lawfully standing on the front porch. Rose simply did not have an expectation of privacy in what could be seen through that window in natural light, and the fortuity that darkness fell before Officer Dekofski could investigate the report of criminal activity does not change that fact. There was no Fourth Amendment violation as a result of the officer’s observations through the unobstructed window while using a flashlight.

II

Const. art. I, § 7 provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Both a person’s home and private affairs are thus protected. As to one’s private affairs, the relevant inquiry is whether the State has intruded into a person’s private affairs. Young, 123 Wn.2d at 181 (citing State v. Boland, 115 Wn.2d 571, 577, 800 P.2d 1112 (1990)). "[U]nder the Washington Constitution the inquiry 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.’ ” Id. at 181 (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)). The open view doctrine applies under the state constitution. See Young, 123 Wn.2d at 182.

Relying heavily on Young, Rose also contends that use of a flashlight during evening hours of darkness is too intrusive to pass constitutional muster under Const. art. I, § 7. We do not agree. This case is wholly unlike Young, where we held the state constitutional provision was violated by the government’s use of an exceedingly intrusive device which effectively allowed officers to see inside a home. Two factors were particularly compelling in Young, i.e., that the device used went "well beyond an enhancement of natural senses” and that it allowed the officers to see "more than what [the defendant] left exposed to public view.” Young, 123 Wn.2d at 183. In contrast, we noted in Young, use of binoculars to confirm what otherwise would have been visible with the naked eye was not constitutionally impermissible. Young, 123 Wn.2d at 183 n.1 (citing State v. Manly, 85 Wn.2d 120, 530 P.2d 306, cert. denied, 423 U.S. 855, 96 S. Ct. 104, 46 L. Ed. 2d 81 (1975) and State v. Ludvik, 40 Wn. App. 257, 698 P.2d 1064 (1985)). In this case, unlike the circumstances in Young, Rose left marijuana in plain view through an unobstructed window, and the flashlight used by the officer was no more invasive than observations with natural eyesight during daylight would have been. This case is thus similar to cases involving use of binoculars. Just as use of binoculars may enhance the officer’s senses to see what lies at a distance but could be seen if the officer were closer, so does use of a flashlight enhance the officer’s sen ses to see after darkness falls what could be seen in natural daylight. While there is no doubt that a person’s home is a highly private place, that which is left exposed to anyone standing on a front porch impliedly open to the public has no privacy interest in the item exposed. There was no violation of Const. art. I, § 7 as a result of the officer’s observations through the unobstructed window while using a flashlight.

Finally, the facts in this case are very different from those in the case relied upon by the court of appeals. In that case, State v. Tarantino, 322 N.C. 386, 368 S.E.2d 588 (1988), cert. denied, 489 U.S. 1010 (1989), the officer, who had no response to initial knocks on the front door of a two-story nonresidential structure built into a hill, climbed the hill using a little-used path, entered a porch on the second floor, again knocked with no response, then searched the back wall until he found cracks in the wall between the doors. "By maneuvering his body and shining his flashlight through the cracks,” he saw the interior and marijuana plants. Tarantino, 368 S.E.2d at 590. A distinction clearly exists between cases like Dunn, where the flashlight simply enabled the officer to see through the open barn door what would have been visible in daylight, and cases like Tarantino, where the use of a flashlight was part of a probing examination which went well beyond the scope of the "open view” doctrine.

Officer Dekofski looked through an unobstructed window to the left of the front door while standing on the front porch. Under the circumstances of this case, Rose had no constitutionally protected interest in what could be seen through that window in natural light, and the fact that darkness fell before Officer Dekofski could investigate the report of criminal activity does not change our analysis.

The Court of Appeals and the trial court are reversed, and this matter is remanded for trial.

Durham, C.J., Dolliver and Guy, JJ., and Pekelis, J. Pro Tern., concur.

Footnotes

1

While Dekofski was on the premises two men with bolt cutters arrived. They were read Miranda warnings, and upon questioning said that they knew there was a marijuana grow operation on the premises and they were there to steal it.

2

The State has conceded the activity at the rear of the mobile home and the shed was illegal. Information obtained during that illegal search must be stricken from the affidavit in support of the warrant, and cannot be used to determine probable cause to issue the warrant. See, e.g., State v. Coates, 107 Wn.2d 882, 887, 735 P.2d 64 (1987). However, Officer Dekofski legitimately responded to the landlord’s report of a possible marijuana grow operation. In responding to that report, he was entitled to approach the front of the mobile home, access the residence by the impliedly open way between the parking area and the mobile home, and step up onto the front porch to conduct his investigation. Any information gathered at the rear of the home did not alter the fact that Officer Dekofski already had the information leading him to a legitimate investigation at the front of the mobile home. Under these circumstances, the officer’s deviation to the area back of the home is immaterial in assessing the validity of his view from the porch of the mobile home. The illegal search did not taint the open view from the front porch, and did not turn what otherwise is a lawful vantage point into an unlawful one. See generally, e.g., State v. Chapin, 75 Wn. App. 460, 463, 879 P.2d 300 (1994) (discussing derivative evidence rule and citing Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)), review denied, 125 Wn.2d 1024 (1995).

3

In contrast, where the window through which an officer looked was eight feet from the fire escape and well out-of the view of anyone engaged in normal use of the fire escape, the officer’s view through the window was a search. State v. Alexander, 170 N.J. Super. 298, 406 A.2d 313, 316 (1979), aff’d, 173 N.J. Super. 260, 414 A.2d 36 (1980). However, the court in Alexander noted the general rule that "police may enter upon portions of private property normally open to the public, such as a front porch, and attain a plain view observation through a window.” Alexander, 170 N.J. Super, at 304, 406 A.2d at 315-16.

4

The term "plain view” here is used in the sense that we use the term "open view.”