|
Frank Cikutovich:
Cases
|
|
[U] State v. Knight, No. 21414-1-III (Wash.App.Div.3 07/15/2003)
|
| [1] |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON Division
Three Panel Six |
| [2] |
No. 21414-1-III |
| [3] |
2003.WA.0001022< http://www.versuslaw.com> |
| [4] |
July 15, 2003 |
| [5] |
STATE OF WASHINGTON, RESPONDENT,
v.
DONALD DAVID KNIGHT, APPELLANT. |
| [6] |
Appeal from Superior Court of Spokane County Docket No: 02-1-00126-3
Judgment or order under review Date filed: 05/24/2002 |
| [7] |
Counsel for Appellant(s) Frank Louis
Cikutovich Stiley & Cikutovich
1408 W Broadway Ave Spokane, WA 99201-1902 |
| [8] |
Counsel for Respondent(s) Kevin Michael Korsmo Spokane County
Prosecutors Office Ms:s&t 1116 West Broadway Ave Spokane, WA 99260;
Andrew J. III Metts Spokane County Pros Offc 1100 W Mallon Ave Spokane,
WA 99260-0270 |
| [9] |
The opinion of the court was delivered by: Sweeney, J. |
| [10] |
Concurring: Frank L Kurtz, John a Schultheis |
| [11] |
UNPUBLISHED OPINION |
| [12] |
Police may not generally intrude upon the curtilage of a residence
without a search warrant. State v. Ridgway, 57 Wn. App. 915, 918-19,
790 P.2d 1263 (1990). But the 'curtilage' and legal property boundaries
are not the same thing. Curtilage requires some showing of an expectation
of privacy. State v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981).
Here, police came upon the property of a neighbor, at his invitation,
in order to determine if Donald Knight was growing marijuana. |
| [13] |
Mr. Knight claims the police intruded on the curtilage of his
home. But we find none of the traditional indicia of a curtilage--signs,
fences, or natural barriers. And we therefore affirm the trial judge's
denial of his motion to suppress the drug evidence. |
| [14] |
FACTS |
| [15] |
A neighbor reported to the Spokane County Sheriff's Office that
he thought Donald Knight was growing marijuana. Mr. Knight only
visited the residence once a week. His windows were covered in plastic
or were boarded up. And he recently bought a new car. |
| [16] |
Deputy Mark Smoldt and Deputy Jay McNall conducted an undercover
investigation. They could not access Mr. Knight's property directly
because of a locked gate, 'No Trespassing' signs, and a large dog.
But they could see a trailer with the windows boarded up or covered
in plastic and a new Mustang. |
| [17] |
Power records reflected a substantial increase in power use.
Thermal imaging did not show a large amount of heat to be emitting
from the trailer. Several weeks later, the deputies received an
anonymous tip via the regional drug task force that Mr. Knight was
using his trailer to grow marijuana. The tipster described the plants
as approximately three to four feet tall. |
| [18] |
The next day, the deputies stopped at Mr. Knight's next-door
neighbor's house; his gate was open. The deputies identified themselves
as undercover police and told Thomas Sutherland, the neighbor, that
Mr. Knight was under investigation. They asked Mr. Sutherland to
show the property line with Mr. Knight's residence. Mr. Sutherland
pointed to two large trees which he believed was the property line.
This line was within 20 to 25 feet of Mr. Knight's trailer. Deputy
McNall walked to that area and smelled growing marijuana. |
| [19] |
Police then obtained a search warrant, executed it, and found
a marijuana grow operation inside the trailer. The State charged
Mr. Knight with one count of manufacture of a controlled substance. |
| [20] |
Mr. Knight moved to suppress the evidence. He filed an affidavit
by Mr. Sutherland. In the affidavit, Mr. Sutherland said Deputy
McNall walked 10 feet past where Mr. Sutherland had pointed out
the property line. Deputy McNall responded that he believed he was
on Mr. Sutherland's property when he smelled the marijuana. Mr.
Sutherland also represented that his landlord, the owner of the
property, set the property line at least 100 yards from Mr. Knight's
residence. And it was farther away from Mr. Knight's trailer than
where Mr. Sutherland had first represented. Mr. Sutherland also
said that the gate and driveway to his residence were actually on
Mr. Knight's property. So, at least according to the landlord, the
deputies were on Mr. Knight's property all along. |
| [21] |
Mr. Knight argued that the evidence should be suppressed because
the deputies knew or should have known that they were on Mr. Knight's
property. The State responded that Mr. Knight's challenge was actually
an attack on the facts set forth in the search warrant affidavit
and required a Franks*fn1 analysis.
The court agreed. But it ultimately found that Mr. Knight did not
show reckless disregard for the truth, deliberate falsehood, or
material omissions in the affidavit--the threshold requirements
for a suppression hearing under Franks. And it denied his motion.
The court then convicted Mr. Knight on stipulated facts. |
| [22] |
DISCUSSION |
| [23] |
Mr. Knight argues, convincingly, that deliberate police misconduct
(the Franks standard) was not the issue here. His objection was,
instead, that the deputies substantially and unreasonably intruded
upon the curtilage of his property during their search. |
| [24] |
The State responds that property lines are not the ultimate
determination of unconstitutional encroachment of the curtilage.
And we agree with that also. |
| [25] |
We limit our review of findings of fact entered following a
suppression motion solely to 'those facts to which error has been
assigned.' State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
The purpose of requiring written findings and conclusions is to
ensure efficient and accurate appellate review. State v. McGary,
37 Wn. App. 856, 861, 683 P.2d 1125 (1984). We have unfortunately
no findings or conclusions to work from here. |
| [26] |
The trial judge's oral opinion is, nonetheless, so clear and
sufficiently comprehensive that written findings would be a formality.
State v. Cruz, 88 Wn. App. 905, 907-08, 946 P.2d 1229 (1997); see
also State v. Miller, 92 Wn. App. 693, 703, 964 P.2d 1196 (1998). |
| [27] |
We review the court's factual findings--or, in this case its
opinion--for substantial evidence. State v. Mendez, 137 Wn.2d 208,
214, 970 P.2d 722 (1999). We review de novo the trial court's conclusion--there
was no breach of Mr. Knight's curtilage. Id. |
| [28] |
The significant findings are: |
| [29] |
1. The deputies had the neighbor's permission to be on his property.
Report of Proceedings (May 23, 2002) (RP) at 3. |
| [30] |
2. The neighbor cooperated with the deputies. RP at 4. |
| [31] |
3. '{T}here was no improper entry . . . by the officers onto
{the neighbor's} property.' RP at 4. |
| [32] |
More significantly, there is no finding (or evidence to support
one) that police crossed a gate, a fence, a sign, or significant
terrain demarcation to view, smell, or listen to Mr. Knight's trailer. |
| [33] |
The law prohibits police intrusion into the curtilage of a home.
'Under the Fourth Amendment, the curtilage is an area {usually}
protected from warrantless searches.' Black's Law Dictionary 389
(7th ed. 1999). 'The curtilage is that area 'so intimately tied
to the home itself that it should be placed under the home's 'umbrella'
of Fourth Amendment protection.'' State v. Ridgway, 57 Wn. App.
915, 918, 790 P.2d 1263 (1990) (quoting United States v. Dunn, 480
U.S. 294, 301, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987)). |
| [34] |
Mr. Knight relies on two cases, Ridgway and State v. Hoke,*fn2
to support his claim of an unlawful intrusion upon his curtilage. |
| [35] |
In Ridgway, the officer walked around a closed gate on the defendant's
property and up to the house. Ridgway, 57 Wn. App. at 917. But here,
the deputies did not walk up to the trailer because of the locked
gate and 'No Trespassing' signs on Mr. Knight's property. They went
instead to a neighbor's house to conduct the investigation. |
| [36] |
In Hoke, the officer knocked on the front door, and walked around
to the side yard of the residence when no one answered. State v.
Hoke, 72 Wn. App. 869, 871-72, 866 P.2d 670 (1994). The case turned
on the fact that the officer unreasonably departed from the area
of curtilage that was impliedly open to the public. Again, that
did not happen here. Here, the deputy was not in a public area when
he smelled the marijuana. He accessed an area through a neighbor's
yard apparently open and, more apparently, part of the neighbor's
land. The fact that it turned out not to be does not alter the fact
that their access was not blocked, signed, or otherwise denominated
as part of the curtilage of Mr. Knight's trailer. |
| [37] |
Although the record indicates there were some 'No Trespassing'
signs on other areas of the property, there is no such reference
regarding the area in which the deputy obtained the sniff. Nor is
there reference to fencing on the sides of Mr. Knight's property.
See State v. Johnson, 75 Wn. App. 692, 706, 879 P.2d 984 (1994).
There is a rocky cliff that separates Mr. Knight's property from
that of his neighbor. But the deputy did not pass that natural barrier
to smell the marijuana. See State v. Thorson, 98 Wn. App. 528, 535,
990 P.2d 446 (1999). |
| [38] |
Mr. Knight complains that, once the deputies arrived on Mr.
Sutherland's property, the deputies left that driveway or access
road and walked onto 'a rocky and a weeded area' that is 'not a
well traveled path.' RP at 4-5. This would be an issue if the deputies
were on the neighbor's property without permission. Cf. Thorson,
98 Wn. App. 528 (finding an unreasonable intrusion into defendant's
private affairs where officers reached their vantage point by sneaking
onto and trespassing upon heavily wooded neighboring property and
traversing some distance to reach the defendant's isolated property).
But here the initial entry onto the neighbor's property was proper.
The terrain of the neighbor's property is not relevant here. |
| [39] |
There is nothing in this record to indicate that Mr. Knight
expected to keep the property line area private or otherwise prevent
intrusion by his neighbor or others lawfully on his neighbor's property.
The only obstacles encountered were weeds and rocks on the ground. |
| [40] |
Here, the deputy walked to what he was told was the property
line and smelled marijuana. There is, then, no showing of a constitutionally
prohibited search here. And we affirm the trial judge's denial of
Mr. Knight's motion to suppress. |
| [41] |
A majority of the panel has determined that this opinion will
not be printed in the Washington Appellate Reports but it will be
filed for public record pursuant to RCW 2.06.040. |
| [42] |
Sweeney, J. |
| [43] |
WE CONCUR: |
| [44] |
Schultheis, J. |
| [45] |
Kurtz, J. |
| |
|
| |
Opinion Footnotes |
| |
|
| [46] |
*fn1 A Franks hearing to test
a warrant's veracity is required only when the defendant makes a
preliminary substantial showing that a materially false statement
in the warrant affidavit was made knowingly and intentionally or
with reckless disregard for the truth. Franks v. Delaware, 438 U.S.
154, 98 S. Ct. 2674, 75 L. Ed. 2d 667 (1978); State v. Garrison,
118 Wn.2d 870, 827 P.2d 1388 (1992). |
| [47] |
*fn2 72 Wn. App. 869, 866
P.2d 670 (1994). |
