Opinion
No. 26307-0-III.
July 17, 2008.
Appeal from a judgment of the Superior Court for Ferry County, No. 06-1-00025-1, Salvatore F. Cozza, J., entered June 25, 2007.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Kulik, A.C.J., and Sweeney, J.
A deputy sheriff obtained a search warrant for Lee Guertin's residence based on observations he made while serving Mr. Guertin with a civil order. The search warrant was signed by a judge who previously represented Mr. Guertin on a drug charge that occurred at the same residence. Mr. Guertin was charged with several drug offenses based on evidence found during execution of the warrant. His motion to suppress was denied, and based on stipulated facts, he was found guilty of possession of more than forty grams of marijuana. Because the deputy's observations fall under the open view doctrine, and the search warrant was issued by a neutral and detached magistrate, the trial court did not err in denying the motion to suppress. Accordingly, we affirm the conviction.
FACTS
Most of the facts are unchallenged and are therefore verities on appeal. See State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994) (holding "that in reviewing findings of fact entered following a motion to suppress, we will review only those facts to which error has been assigned").
On June 18, 2006, Ferry County Deputy Sheriff Dennis L. Boone went to the residence of Lee Guertin, located at 508 Lambert Creek Road, in Republic. The purpose of Deputy Boone's presence at Mr. Guertin's residence was the legitimate service of an order to show cause regarding contempt for the nonpayment of child support. Mr. Guertin's residence is in an area typical of other homes in northeastern Washington and the parking area was situated approximately 100 feet off of Lambert Creek Road, a county road.
Deputy Boone arrived in a marked patrol car during daylight hours. Deputy Boone parked his vehicle in the parking area where other vehicles were parked and followed a foot trail which led to a small footbridge. After crossing the footbridge, Deputy Boone followed the trail leading to the front steps of Mr. Guertin's home. Deputy Boone stood on the front porch and looked inside the front uncovered window for approximately 4-5 seconds. Deputy Boone saw three individuals sitting by the window with green vegetable matter and other contraband on the table in front of them. After Deputy Boone knocked, the two adult children of Mr. Guertin came to the front door. Deputy Boone smelled a very strong odor of marijuana coming from inside the residence. He served the court papers on Mr. Guertin and was ordered to leave, which he did.
The following day, Deputy Boone prepared an affidavit for a search warrant based on probable cause obtained while at Mr. Guertin's residence. The warrant was presented to Ferry County Superior Court Commissioner Lynda Eaton in the normal course of business. Commissioner Eaton authorized a search warrant based on the information contained in the affidavit. On June 19, 2006, Deputy Boone, along with other officers, conducted a search of Mr. Guertin's residence pursuant to the search warrant.
Following the search of his residence, Mr. Guertin was charged with four drug offenses: possession of a controlled substance (methamphetamine), use of drug paraphernalia, possession of marijuana more than forty grams, and manufacturing marijuana. Mr. Guertin moved to suppress the evidence found during the search of his residence. At a hearing on the motion to suppress, the court heard testimony from Deputy Boone and Mr. Guertin.
Deputy Boone testified that on June 18, 2006, he traveled to Mr. Guertin's residence at approximately 8:00 p.m. Deputy Boone testified Mr. Guertin's residence was located approximately five miles up Lambert Creek Road, "a maintained county dirt/gravel road." He further testified he could see Mr. Guertin's residence from Lambert Creek Road, which was located approximately three or four hundred yards off the road. Deputy Boone testified "[t]here's a driveway that turns to the right and goes back down to a parking area. I simply turned down his driveway and parked in the parking area." He further testified Mr. Guertin's residence is located across a creek from the parking area. Deputy Boone did not notice any no trespassing signs. He testified in order to get to Mr. Guertin's residence: "There was a path that walks right in front of the parking area. There's a path, a maintained path, that goes down across the foot bridge and a trail that goes right to the residence and I simply walked across the bridge to the residence." The trail continued after the footbridge, and Deputy Boone testified from here:
[J]ust up the hill, there's a slight incline. They had some steps built into the side of the little incline. I walked up that and directly onto the porch of the house . . . [t]he front of the home.
The window he looked into was located "right next to the front door." Deputy Boone also stated there were two routes to reach Mr. Guertin's residence: "One direct driveway, another one through a neighbor's house, but there was a cable across that road." He testified the alternative route "would have been through another individual's property and by their house through their driveway."
Mr. Guertin testified his residence was located in a remote, heavily-wooded area. He stated there were two ways to access his residence. The main access road is "about a half mile before you get to that other driveway I had put in that [Deputy Boone] took." He testified he was the only person that used the road Deputy Boone took. Mr. Guertin testified the main access road had a gate, although when asked if it was there on June 18, 2006, he stated "I don't think there was because I have some people that were supposedly house-sitting and they've done a lot of things that I wasn't aware of." With respect to the search warrant, Mr. Guertin testified Commissioner Eaton represented him in 1994, on a charge for possession and manufacture of marijuana at the same residence on Lambert Creek Road.
In an oral ruling, the court denied the motion to suppress. Subsequently, the court entered written findings of fact and conclusions of law on the motion. Mr. Guertin proceeded to a bench trial on stipulated facts, and was found guilty of possession of more than forty grams of marijuana. The State dismissed the remaining charges. Mr. Guertin appealed.
ANALYSIS
The issue is whether the court erred in denying the motion to suppress. This court reviews challenged findings of fact entered following a motion to suppress for substantial evidence. See State v. Hill, supra at 647. Unchallenged facts will not be reviewed. Id. Appellant does not assign error to any of the findings of fact entered by the trial court. Therefore, this court's review "is limited to a de novo determination of whether the trial court derived proper conclusions of law from those findings." State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997).
Mr. Guertin first contends the information contained in the affidavit in support of the search warrant was unlawfully obtained, because Deputy Boone's observations do not fall under the open view doctrine. Both the Fourth Amendment and article I, section 7 of the Washington Constitution prohibit warrantless searches unless they fall within a few specific, "well-delineated exceptions." State v. Myers, 117 Wn.2d 332, 337, 815 P.2d 761 (1991). Here, although appellant cites to both the Fourth Amendment and article I, section 7, he makes no separate arguments under article I, section 7. Therefore, only his Fourth Amendment argument will be considered. See, e.g., State v. Hoke, 72 Wn. App. 869, 873 n. 2, 866 P.2d 670 (1994) (only considering the Fourth Amendment argument under the same circumstances).
Under the open view doctrine, "police with legitimate business may enter areas of the curtilage which are impliedly open, such as access routes to the house." State v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981) (footnote omitted). Officers must, however, conduct themselves in the same manner as a "reasonably respectful citizen." Id. Courts will look to the particular facts of each case in deciding what is reasonable. Id. Furthermore, "an officer's observation of evidence from a lawful vantage point is not, standing alone, a search subject to constitutional restrictions." State v. Ferro, 64 Wn. App. 181, 182, 824 P.2d 500 (citing Seagull, 95 Wn.2d at 901), review denied, 119 Wn.2d 1005 (1992).
In State v. Rose, an officer responded to the defendant's residence following a report of the odor of marijuana coming from a shed on the property. State v. Rose, 128 Wn.2d 388, 390, 909 P.2d 280 (1996). The officer went to the front porch of the residence and knocked. Id. While standing on the front porch, the officer shined a flashlight through a window located to the left of the door, and observed marijuana and a scale sitting on a table. Id. at 390-391, 394. Based upon this observation, the officer obtained a search warrant. Id. at 391. As a result of the evidence found during the search, the defendant was charged with possession of marijuana with intent to manufacture or deliver. Id. After the trial court granted the defendant's motion to suppress and the Court of Appeals affirmed, the Supreme Court granted review. Id.
The Supreme Court reversed the lower courts. Id. at 401. The court first found "[t]he [front] porch was impliedly open to the public." Id. at 393. The court reasoned, "[n]ormally `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.'" Id. at 392 (quoting Myers, 117 Wn.2d at 344). The court further reasoned "[n]othing in the record indicates that any attempt was made to prevent people from approaching the residence." Id. at 393. Specifically, although the defendant's residence "was at the end of a private driveway off a private road . . . there was no `private' sign posted, and the property was not fenced." Id. Additionally, "[t]he front porch was accessible from a large parking area near the [residence]." Id. Second, the court found the officer "could intentionally look through the window" located to the left of the door. Id. The court reasoned "there is no reasonable expectation of privacy in what can be seen through uncurtained windows." Id. at 394 (citing State v. Manly, 85 Wn.2d 120, 124, 530 P.2d 306, cert. denied, 423 U.S. 855 (1975)). The court further reasoned "courts have frequently upheld observations through unobstructed windows from an impliedly open area, even where the window was to the side of the entry." Id. at 395. Because the window "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.
Id. at 396.
The court recognized:
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 to the left of the front entrance should expect that reasonably respectful persons will look in, even if just out of curiosity.
Id.
Third, the court found the officer's use of a flashlight was permissible, stating "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." Id. at 398-399. Accordingly, the court concluded, given all, the officer's conduct did not violate the Fourth Amendment or article I, section 7 of the Washington Constitution. Id. at 399-401.
Here, Mr. Guertin does not argue Deputy Boone was not on legitimate police business when he entered his property. Rather, he challenges the deputy's method of viewing, through the front window, and also appears to argue the access route to his house was not impliedly open to the public.
Appellant argues that his residence is located in a remote setting, where one would not expect frequent visitors to the front door, and the actual driveway to his residence was one which went through a neighbor's property, not the route used by Deputy Boone here. However, the facts of this case allow the inference that Mr. Guertin opened his property to uninvited visitors. Although his residence is located in a remote setting, it is visible from Lambert Creek Road. Deputy Boone accessed the residence by turning into an un-gated driveway, parking in an area where other vehicles were parked, and following a maintained path directly to the front porch. Furthermore, the deputy did not veer from this maintained path to reach the front porch, and there was nothing along the path indicating Mr. Guertin had a subjective expectation of privacy in the area, such as guard dogs or a closed gate. Cf. Rose, 128 Wn.2d at 393 (stating "[n]othing in the record indicates that any attempt was made to prevent people from approaching the residence"). Additionally, even though there are two ways to access Mr. Guertin's residence, this does not change the fact that the route chosen by the deputy was impliedly open to the public. Mr. Guertin testified he uses the route chosen by Deputy Boone to access his property; and Boone testified the alternative route "would have been through another individual's property and by their house through their driveway." Accordingly, the deputy lawfully entered the curtilage of the property. The access route to his residence was impliedly open to the public.
Turning to the observations through the front window, Mr. Guertin argues the deputy did "spy into the house," and the normal method of going to someone's door does not include peering into the window for five seconds. Deputy Boone was entitled to walk up onto Mr. Guertin's porch. As recognized in State v. Rose, "[n]ormally `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.'" Rose, 128 Wn.2d at 392 (quoting Myers, 117 Wn.2d at 344). Second, also as recognized in State v. Rose, the deputy could intentionally look through Mr. Guertin's uncurtained window. Id. at 393-394. "[T]here is no reasonable expectation of privacy in what can be seen through uncurtained windows." Id. at 394 (citing Manly, 85 Wn.2d at 124). The window here was located "right next to the front door." There is no indication that Deputy Boone had to maneuver himself in any way to look through the window. See Rose, 128 Wn.2d at 396. Accordingly, the deputy's observations did not constitute a search under the Fourth Amendment. Therefore, his observations could provide the basis for the search warrant.
Mr. Guertin also contends the search warrant was not issued by a neutral and detached magistrate, because the issuing judge previously represented him in a case alleging drug possession at the same residence involved here. Case law interpreting the Fourth Amendment requires that the crucial determination of probable cause be made by a "neutral and detached magistrate." State v. Neslund, 103 Wn.2d 79, 84, 690 P.2d 1153 (1984) (citing Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S. Ct. 2119, 32 L. Ed. 2d 783 (1972); Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948)). Furthermore, "[t]he primary reason for the warrant requirement is to interpose a `neutral and detached magistrate' between the citizen and `the officer engaged in the often competitive enterprise of ferreting out crime.'" United States v. Karo, 468 U.S. 705, 717, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984) (quoting Johnson, 333 U.S. at 14).
There are three Washington cases discussing the definition of a neutral and detached magistrate. See State v. Smith, 16 Wn. App. 425, 428, 558 P.2d 265 (1976) (declining to invoke the exclusionary rule where the issuing judge's "function was totally divorced from the investigative or police function"), review denied, 88 Wn.2d 1011 (1977); State v. Hill, 17 Wn. App. 678, 683, 564 P.2d 841 (concluding the issuing judge was neutral and detached, where "[The issuing judge] was not a prosecutor or policeman involved in the present case [and . . . the d]efendant has made no independent showing that the pro tempore judge was in fact biased or prejudiced"), review denied, 89 Wn.2d 1010 (1977); State v. Neslund, supra at 88 (upholding search warrants issued by a special inquiry judge, where "the special inquiry judge is sufficiently severed and disengaged from law enforcement activities to qualify as a neutral and detached magistrate, even with respect to those cases before him on special inquiry").
Here, Mr. Guertin argues Commissioner Eaton was not a neutral and detached magistrate because in 1994 she represented Mr. Guertin in a case alleging drug possession at the same residence involved here. However, the cases set forth above interpreting what is required for a magistrate to be neutral and detached, focus on the magistrate's separation from the activities of law enforcement. Here, Commissioner Eaton played no part in the investigation of the case, nor was she involved in the prosecution of Mr. Guertin. Furthermore, the remedy of suppression requested by Mr. Guertin is not appropriate, because "[p]olice deterrence is simply not involved and the underlying purposes of the Fourth Amendment would not be advanced by invoking the exclusionary rule." Smith, 16 Wn. App. at 428. Additionally, Mr. Guertin does not present any facts, other than the fact of the prior representation, demonstrating how Commissioner Eaton failed to act as a neutral and detached magistrate. He makes no argument that the commissioner had special knowledge of his activities that was used to enhance the affidavit in support of the search warrant. Indeed, his challenge to the warrant is based on what Deputy Boone observed, not any information he believes the commissioner might have had.
Prior representation of a criminal defendant by a judicial officer does not require disqualification of the judicial officer. State v. Dominguez, 81 Wn. App. 325, 329, 914 P.2d 141 (1996). Rather, the defendant must make a specific showing of bias by the judge. Id. at 329-330. There has been no showing of bias here.
Affirmed.
A majority of the panel has determined 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.
KULIK, A.C.J., SWEENEY, J., concur.