State v. Smith

55 P.3d 686, 113 Wash. App. 846
Court of Appeals of Washington·Decided October 15, 2002·No. 20234-8-III, 20235-6-III·Published·Cited by 10 cases

Opinion

55 P.3d 686 (2002)
113 Wash.App. 846

STATE of Washington, Respondent,
v.
Greg Ryan SMITH, Appellant.
State of Washington, Respondent,
v.
Dina Smith, Appellant.

Nos. 20234-8-III, 20235-6-III.

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

October 15, 2002.

*687 Richard L. Bechtolt, Jr., Spokane, Garth L. Dano, Garth Dano & Associates, Robert E. Schiffner, Moses Lake, for Appellant.

Edward A. Owens, Deputy Prosecuting Attorney, Ephrata, for Respondent.

KURTZ, J.

While standing on adjoining property, Deputy Nick Dirks viewed a patch of marijuana plants growing on property occupied by Greg and Dina Smith. Later, Deputy Dirks, accompanied by two other officers, went to the Smith residence to request permission to search the property. When no one answered the door, Deputy Dirks left to obtain a search warrant while the other officers remained behind to secure the property; several other officers also arrived on the scene. While waiting for Deputy Dirks to return, officers walked about the property but did not enter the marijuana patch. When Deputy Dirks returned with a search warrant, marijuana plants were seized from the property and from inside the residence. The Smiths were charged with a violation of the uniform controlled substances act and manufacturing marijuana. The Smiths appeal their convictions, contending the trial court erred by failing to suppress the evidence seized during the search of the property and the house.

Although we conclude that the officers' intrusions on the property constituted an unreasonable search, we hold that suppression was not required because the evidence would have been subject to seizure as part of the search pursuant to a valid warrant. We affirm the Smiths' convictions.

FACTS

On August 1, 2000, Deputy Nick Dirks of the Grant County Sheriff's Office met with an employee of Radach Farms to investigate a confidential informant's tip concerning a marijuana grow operation on private property adjoining a Radach Farm alfalfa field. After receiving permission from Mr. Radach to enter the alfalfa field, Deputy Dirks drove down Road O northeast to reach the field. Deputy Dirks then exited his patrol car and walked through the alfalfa field to a point where he found a break in the hedge sufficient to allow him to view the adjoining property.

From his viewpoint in the Radach alfalfa field, Deputy Dirks was able to see what he believed to be 30 to 40 marijuana plants growing approximately 15 to 20 feet away. Based on the information he received from the confidential informant and Mr. Radach, Deputy Dirks believed that marijuana plants were growing on private property occupied by Dina and Greg Smith.

Later that morning Deputy Dirks and two other deputies returned to the Radach alfalfa field. Both of these officers confirmed Deputy Dirks's assessment that approximately 30 to 40 marijuana plants were growing on the adjoining property. The deputies then decided to contact someone at the residence on the property where the marijuana was growing to ask for permission to search both the residence and the property. The three deputies approached the residence by walking down the driveway leading to the residence. The driveway starts at the road and terminates at the carport adjacent to the residence. The deputies knocked at the door, but were unable to contact anyone. They then retreated back to the driveway in the most direct route.

*688 The deputies then returned to their car and phoned Sergeant Richard Watson. Deputy Dirks left to apply for a search warrant for the property and the two other deputies remained at the property. After Deputy Dirks left, Brandy B. McDarment arrived by car and informed the remaining deputies that she did not live at the residence but that she was there to visit her daughter, Dina Smith. Ms. McDarment was accompanied by Detective Matthew Messer to see the marijuana and its location. Detective Messer took Ms. McDarment to the edge of the weed patch where the marijuana was growing and showed her the marijuana plants. They did not enter the area where the marijuana was growing.

Ms. McDarment was not arrested and was allowed to stay on the property—but she was not allowed to roam about unless she was with an officer. Ms. McDarment sat down in a chair on the front yard of the residence where she could see the location where the marijuana was growing. She also observed officers walk around the property and up to, but not into, the edge of the patch where the marijuana was growing. At no time did Ms. McDarment observe any officer go into the patch where the marijuana was growing, nor did she observe any officer pull any marijuana plants from the field prior to the arrival of the search warrant.

At various times, Sergeant Watson, along with Detectives J. Perez, J. Wade, and Sergeant Karl Karlsson, as well as other deputies, arrived at the location to assist in executing the anticipated search warrant. While waiting for the search warrant to arrive, the officers walked about the property and walked up to the edge of the patch where the marijuana was growing to observe the plants. Officers did not enter the marijuana patch or pull up any marijuana plants until after the officer arrived at the residence with the search warrant.

At 3:05 P.M., a judge signed the search warrant for the premises. At 3:09 P.M., Deputy Dirks left the courthouse en route back to the residence. Once leaving the courthouse, Deputy Dirks notified Sergeant Watson via cell phone that he had a signed search warrant and was on his way back to the residence. The distance from the Smith residence to the courthouse is approximately 25.5 miles. Deputy Dirks arrived at the residence with the search warrant at approximately 3:38 P.M.

At approximately 3:45 P.M., a videotape was started showing the first marijuana plants being pulled by the officers. Prior to the taping, the officers took still photographs of the area, the house exterior, and the growing marijuana. Shortly after the video was started, the Smiths arrived at their residence and were arrested by law enforcement officers after the search warrant was read to them and served. The search warrant resulted in the seizure of 90 marijuana plants from the area outside the residence and approximately 35 marijuana plants from inside the residence.

Based on these undisputed facts, the court denied the Smiths' motion to suppress the evidence obtained during the search. The court concluded that there was a lawful observation of the patch where the marijuana was growing and there was initially a lawful intrusion onto the property limited to those areas impliedly open to the public, i.e., the driveway as far west as the front door, a path to the front door, and the front porch. The court also determined that the search warrant was sought on the basis of the observations from the field.

Significantly, the court also determined that before the search warrant was obtained, there were unlawful intrusions onto a portion of the property not impliedly open to the public. The court further concluded that these unlawful intrusions were for the purpose of observation only and that the observation constituted a search, not a seizure. Observing that the search was fruitless, the court stated it "added nothing to the observations lawfully made, was not exploited in any way, and resulted in no greater intrusion into the Defendant's property and private affairs than that lawfully made."[1] The court found that the unlawful intrusions were "irrelevant to the process of obtaining the initial

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State v. Smith, 55 P.3d 686, 113 Wash. App. 846 (Wash. Ct. App. 2002).

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