THE STATE OF WASHINGTON, Respondent, v. SUZZI SEAGULL, ET AL, Appellants.
Nos. 3515-II; 3522-II
Division Two
April 30, 1980
26 Wn. App. 58
Reconsideration denied June 2, 1980.
Review granted by Supreme Court October 24, 1980.
In view of the totality of circumstances involved in this dispute, we hold that a trial on all the issues in one forum is the appropriate procedure.
The remand order is reversed, and the cause is remanded for trial on the merits.
PEARSON, A.C.J., and PETRICH, J., concur.
Grant S. Meiner, Prosecuting Attorney, аnd Kenneth L. Cowsert, Chief Deputy, for respondent.
REED, C.J. Following a trial to the court, defendants Suzzi Seagull and Douglas Gilson were found guilty of felony possession of marijuana,
MOTION TO SUPPRESS
At a suppression hearing first held on September 15, 1977, and reconsidered in December 1977, the following facts were elicited.
Upon arriving at defendants’ house, the officer parked his car in the driveway next to a truck, walked up to the south porch and knocked on the door. While knocking, he recalled having been told by former residents that persons in the house could not hear knocking on the south door. Accordingly, he left the south porch and began walking around the left side of the house to the north porch.1 As Sergeant Talvi testified:
A [S]o I came—retraced my steps, came around this way and I got just prior to the greenhouse, which would be down here is when I noticed what appeared to me to be Marihuana leaves in there.
Q Apрroximately how far would you say you were from the greenhouse at that point?
A Six, ten feet.
Q Did you approach the greenhouse to make any clearer observations?
A No.
After making his observations, Sergeant Talvi abandoned his attempt to contact the occupants of the house and returned to his car. Based on Talvi‘s affidavit, a search warrant was issued and executed the following day by a different officer. During the search, 60 marijuana plants were discovered in the far corner of the greenhouse. As will
During the original suppression hearing, when asked whether there was a walkway going from the south porch to the north porch, Gilson testified:
Yeah, the pathway—the grass is sort of worn away at the end of the porch. The vegetation shows a path going right around the corner to the front [north].
Gilson also testified that he had measured the distance from the pathway to the greenhouse and found it to be 20 feet.
Following the hearing the trial judge orally denied the motion and the matter proceeded to trial. On the day of trial the motion to dismiss was renewed and again denied. No formal or written findings of fact were entered on the original suppression hearing. However, a special finding
Defendants contend that Sergeant Talvi‘s observations of the marijuana were made from a place he had no right to be. Consequently the defendants argue the marijuana should have been suppressed because it was the product of an unreasonable and therefore unconstitutional search of their premises. In support of this contention defendants rely entirely upon belated suppression hearing finding of fact No. 3, which reads:
As he was walking around the west side of the Defendants’ house, Sergeant Talvi departed from the pathway and approached the greenhouse. At a point between 6 to 10 feet from the greenhouse, he observed green vegetation pressed up against the plastic which formed the south wall of the greenhouse. He made this observation through a two-inch clear space in the visqueen just below one of the horizontal two by fours forming the frame of the greenhouse. The remainder of the visqueen was damp on the inside and could not be seen through.
(Italics ours.)
It is obvious the trial judge did not believe that Talvi‘s slight departure from the pathway required a conclusion that his actions were unlawful. Had the trial judge suppressed the evidence, we would likely be constrained to uphold his decision. However, he did not suppress the evidence. For this reason and because the findings of fact ultimately entered are sparse to say the least, we deem it both necessary and appropriate to look to the entire record and particularly to other findings and to thе oral rulings and observations of the trial judge.
That Sergeant Victor Talvi of the Clallam County Sheriff‘s Office was properly and justifiably upon the premises occupied by the Defendants, since he was seeking information regarding a possible injury accident, when he observed what appeared to him to be marihuana growing in a greenhouse . . .
(Italics ours.)
And in his oral ruling denying the original motion the judge stated:
The fact that the suggestion that the Sergeant was there on a trespass, doesn‘t impress the Court. There‘s an implied invitation to people to come to thе door of a house to deliver packages, to visit friends, et cetera, to ask questions, as the sheriff was doing, or attempting to do about what they believed to be a crime of violence and his going around to the front door instead of staying at the back door, I think is certainly consistent with his testimony that previously he had knowledge that you could not hear in the front room if he knocked on the back door.
And, during the hearing on the renewal of the motion the trial judge observed, correctly so, we think, that:
Constitutional rights should not rise or fall on the question of whether an officer goes to the right hand side or the left hand side of a tree.
Given that defendants had a reasonable expectation of privacy in their greenhouse, thus making it a constitutionally protected area, Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967); State v. Manly, 85 Wn.2d 120, 530 P.2d 306 (1975), it does not follow as a matter of rote that Sergeant Talvi‘s observation of what he believed was illicit material therein impеrmissibly violated defendants’ constitutional rights.
It is undisputed from the record, and the trial court found, that Sergeant Talvi entered upon the premises in pursuit of a legitimate police investigation or inquiry. His
A sidewalk, pathway, common entrance or similar pаssageway offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there. The officer who walks upon such property so used by the public does not wear a blindfold; the proрerty owner must reasonably expect him to observe all that is visible. In substance the owner has invited the public and the officer to look and to see. But, by the same reasoning, the officer who intrudes upon property not so open to the public enjoys no such prerogatives.
VALIDITY OF WARRANT
Defendants also challenge the issuance of the search warrant which was based upon Sergeant Talvi‘s affidavit that he had seen and identified marijuana. As it turned out, the vegetation seen by Talvi was in fact tomato plants; actual marijuana was located in the far reaches of the greenhouse where it could not have been observed from without.
We first note that Sergeant Talvi‘s sworn statements, if accurate, establish probable cause for issuance of a sеarch warrant. United States v. Ventresca, 380 U.S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965); State v. Patterson, 83 Wn.2d 49, 515 P.2d 496 (1973).
While mistaking tomato plants for marijuana must have been a source of embarrassment to Sergeant Talvi, there is nothing in the record to suggest this was other than an innocent mistake. There is no evidence that the error was the product of intentional falsehood or reckless disregard for the facts. The trial court found that Sergeant Talvi “erroneously believed” he had seen marijuana. He further found that although tomato plants or marijuana plants can be readily distinguished when seen side by side, “the officer could have identified these as marijuana.” These findings and ruminations by the trial judge indicate his belief that Sergeant Talvi had been truthful though mistaken. We will not invalidate the warrant because of аn honest mistake.
CONSTITUTIONALITY OF RCW 69.50.401
In their final assignment of error defendants allege that
PETRIE, J., concurs.
PEARSON, J. (dissenting)—After Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), a determination of whether an intrusion on private property constitutes an unreasonable search depends upon the owner‘s actual “subjective expectation of privacy and whether that expectation is objectively reasonable.” United States v. Freie, 545 F.2d 1217, 1223 (9th Cir. 1976).
Defendants testified as to their expectation of privacy of the greenhouse. This expectatiоn was objectively evidenced by its construction and location on the premises. Furthermore, they testified that it was physically impossible to see the contents from the point where the observations were allegedly made. In my opinion the officer clearly intruded upon an area of the рremises where a right of privacy was both subjectively expected and objectively reasonable. See Wattenburg v. United States, 388 F.2d 853 (9th Cir. 1968).
Moreover, the officer entered defendants’ premises without express permission. Any implied permission should, in my view, be no broader than is necessary to accomplish the business at hand. Here the officer was purportedly investigating an abandoned vehicle located almost 1 mile from defendants’ home. There was evidence the car had been at its location for some time. Defendants’ connection with the vehicle was remote at best, and the officer‘s purpоse in finding information about its owner was neither urgent nor compelling.
When the officer received no response to the knock on the door nearest his point of entry, he should have departed. At the very least, given his prior knowledge, he should have taken the most direct route to the other entry without departing from that route, as the court‘s findings suggest that he did. Any further intrusion was wholly unwarranted.
I would hold that the contraband was not observed from a place where the officer had a right to be and that his intrusion on defendаnts’ privacy was unconstitutional. Wattenburg v. United States, supra.
Therefore, I dissent.
REED, C.J.
JUDGE