No. 31245-0-IIThe Court of Appeals of Washington, Division Two.
Filed: February 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No. 03-1-00087-6. Judgment or order under review. Date filed: 11/20/2003. Judge signing: Hon. James B II Sawyer.
Counsel for Appellant(s), Bruce J. Finlay, Attorney at Law, PO Box 3, Shelton, WA 98584-0003.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
ARMSTRONG, J.
Randy Lynn Watters appeals the trial court’s decision to deny his motion to suppress evidence officers found while executing a search warrant. The issuing magistrate found probable cause because an officer smelled marijuana after driving down Watters’s driveway, which was posted with `No Trespassing’ and `Beware of Dog’ signs. We affirm.
FACTS
On March 4, 2003, Bremerton Police Officer Roy Alloway received a tip from the Washington State Patrol marijuana hotline that a grow operation existed on 833 S.E. Mill Creek. After reviewing records, Alloway learned that Randy Watters owned the property and that he listed a gutter business at the same address.
On March 6, 2003, Alloway went to Watters’s property. To get near the house, he had to drive down a driveway measuring more than 800 feet. At the entrance to the driveway, Watters had posted a `No Trespassing’ sign. Report of Proceedings (RP) at 18-19. About 500 feet down the driveway, Alloway found an open gate. On the gate, Watters had posted a `Beware of Dog’ sign and a sign reading `No Turnaround, This Means You.’ RP at 18, 21. Without getting out of his car, Alloway continued past the gate and drove to within 30 feet of Watters’s house. There, he smelled a strong odor of marijuana.
Alloway obtained a search warrant for Watters’s property. On the basis of what the police found during the search, the State charged Watters with one count of unlawful manufacture of a controlled substance,[1] one count of unlawful possession of a controlled substance,[2] and unlawful possession of a firearm.[3]
Watters moved to suppress evidence of drugs police found during the search, arguing that because Alloway violated his constitutional right to privacy when he entered the property, the marijuana odor could not be used to establish probable cause. During the hearing, Watters testified that he operated a gutter business from his truck, which he kept on the property. He stated, however, that he did not use the property as his business address. Alloway’s affidavit in support of the search warrant, which stated that the business listing was on the property, was not before the trial court as evidence. But Watters did include in his suppression motion excerpts from the affidavit, including facts about the business listing.
The trial court found that Alloway properly entered the property; the court then upheld the warrant, ruling that (1) `No Trespassing’ signs did not necessarily manifest an increased expectation of privacy; (2) Alloway did not go through any closed or locked gates; (3) Watters listed his business at the same address; (4) using the property for a business address and leaving the gate open allowed the public reasonable access; and (5) Alloway visited the property during regular business hours and did not deviate from impliedly open areas of the curtilage, therefore, he was at a legitimate vantage point when he smelled the marijuana.
The trial court found Watters guilty on all three counts.
ANALYSIS I. Standard of Review
Although we give some deference to the magistrate issuing a search warrant, we independently evaluate the evidence in support of the warrant. State v. Chaussee, 72 Wn. App. 704, 707-08, 866 P.2d 643 (1994) (citing State v. Mennegar, 114 Wn.2d 304, 309-10, 787 P.2d 1347 (1990)); State v. Hill, 68 Wn. App. 300, 304, 842 P.2d 996 (1993) (stating that we allow Sgreat significance’ to the findings and deference to the credibility issues). We look first for substantial evidence in support of the trial court’s findings and then ask whether the findings support the legal conclusions.
II. Driveway
Warrantless searches are per se unreasonable. State v. Thorson, 98 Wn. App. 528, 531-32, 990 P.2d 446 (1999) (citing State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999)). Washington Constitution article 1, section 7 states that: `No person shall be disturbed in his private affairs or his home invaded, without authority of law.’ Section 7 grants greater privacy rights than does the Fourth Amendment of the United States Constitution. Thorson, 98 Wn. App. at 531 (citing State v. Johnson, 75 Wn. App. 692, 698, 879 P.2d 984 (1994)). To determine whether the police improperly invaded a citizen’s privacy rights, we “[focus] on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.” Thorson, 98 Wn. App. at 532 (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)).
Police officers on legitimate business may `enter an area of curtilage which is impliedly open to the public, such as an access route to a house or a walkway leading to a residence.’ Chaussee, 72 Wn. App. At 708 (citing State v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981)). An officer is permitted the same right to enter as a reasonably respectful citizen. Seagull, 95 Wn.2d at 902 (citing United States v. Vilhotti, 323 F. Supp. 425
(S.D.N.Y. 1972)). Even though the officers may be investigating a possible crime on the property, they do not lose this entry right so long as they are in the area impliedly open to the public. See State v. Gave, 77 Wn. App. 333, 338, 890 P.2d 1088 (1995) (citing State v. Petty, 48 Wn. App. 615, 619, 740 P.2d 879 (1987)).
The presence or absence of fences and signs is but one factor in considering the reasonableness of a police intrusion. In State v. Hornback, 73 Wn. App. 738, 740, 871 P.2d 1075 (1994), after entering the defendant’s curtilage, the officers smelled marijuana and suspected that the defendant was under the influence of a controlled substance. Using a Fourth Amendment analysis, the court upheld the warrant because (1) the house was at least partially visible from the road, (2) the neighborhood was semi-residential, (3) officers did not deviate from the direct route to the house, and (4) officers maintained a considerable distance from the house. Hornback, 73 Wn. App. at 743-44. And the presence of `No Trespassing’ signs at the entrance to the driveway `was not dispositive of the constitutional issue.’ Hornback, 73 Wn. App. at 744.
Watters argues that Hornback is not controlling because there, the court used a Fourth Amendment analysis in finding the search valid. But in Gave, the court applied an article 1, section 7 analysis to similar facts. Gave, 77 Wn. App. 333. In Gave, the police went to the defendant’s home during the day. Gave, 77 Wn. App. at 335. The home, which was visible from the road, was located at the end of an access road. Gave, 77 Wn. App. at 335-36. The city of Olympia owned the defendant’s home as well as another property on the same road. Gave, 77 Wn. App. at 335. Gave did not know who posted the `No Trespassing’ signs; they appeared to belong to the city. Gave, 77 Wn. App. at 335. The court stated that the `No Trespassing’ signs, `[were] merely one factor to be considered in conjunction with other manifestations of privacy.’ Gave, 77 Wn. App. at 338 (citing State v. Johnson, 75 Wn. App. 692, 702-03, 879 P.2d 984 (1994)). And even if the signs expressed Gave’s own intent to close the property, they alone were not enough because Gave manifested no other privacy expectations. Gave, 77 Wn. App. at 338-39.
Unlike in Gave, Watters’s house was not visible from the road, although it was visible from the neighbor’s property. And Watters posted the `No Trespassing’ signs himself. Because of these distinctions, Watters reasons that State v. Thorson controls. Thorson, 98 Wn. App. 528. There, the court found the police had unreasonably intruded on the defendant’s property. Thorson, 98 Wn. App. at 540. But the police in Thorson had to walk through a heavily wooded area to reach the defendant’s property, which was located on a small island. Thorson, 98 Wn. App. at 530, 535. Once on the property, the police crossed a field to find a barrel with marijuana in it. Thorson, 98 Wn. App. at 531. The court found that because of the extremely rural nature of Thorson’s property, the defendant had no reason to anticipate intrusion by strangers. Thorson, 98 Wn. App. at 540. The court differentiated the footpath by which the officers entered the property from a driveway, which is impliedly open to the public. Thorson, 98 Wn. App. at 536-37.
Here, Alloway entered Watters’s property during the day, remained on the driveway, and stayed in his car. He did not cross through any closed gates or attempt to approach the house. Further, although not highly populated, Watters did have several neighbors and the area could be considered semi-residential. And although Watters had posted `No Trespassing’ signs, he did not otherwise manifest a privacy expectation that the public would not come down his driveway; for example, he did not close the gate on his driveway or post a guard dog.[4] We agree with the trial judge’s reasoning; a reasonably respectful citizen would believe he or she could drive down Watters’s driveway to the area where Alloway stopped.
III. Business Listing
Watters argues that the trial court improperly considered facts not before the court in upholding the warrant. Specifically, he argues that the court considered his business listing in ruling that the driveway was impliedly open to the public. The affidavit supporting the search warrant states that Alloway searched state business records to determine that Watters listed a business on his property. But the State did not offer the affidavit into evidence.
Nonetheless, the trial court’s use of the business record information was harmless error. An error is harmless where it is reasonably probable that the evidence did not affect the result of the case. State v. Gonzalez-Hernandez, 122 Wn. App. 53, 59-60, 92 P.3d 789 (2004) (citing State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984)). The facts support the validity of Alloway’s entrance to the property even without the business listing evidence. As stated above, the `No Trespassing’ signs are but one factor in determining Watters’s expectation of privacy. And the trial court found no other manifested expectation of privacy. We conclude that the evidence, other than the business listing, supports the trial court’s ruling upholding the warrant.
Moreover, in Watters’s own motion to suppress, he asked the court to consider large sections of the affidavit, including a section asserting 833 S.E. Mill Creek was a business address listed in the phone directory. Thus, even if the court did err for considering the affidavit as a whole, the error was harmless as to the court’s finding that the property was a business address because Watters, himself, provided the court with that information.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, A.C.J. and HUNT, J., concur.