State Of Washington v. Mark E. D'entremont ( 2013 )

t IL E0
0OURT OF APPEALS
2013 OCT 29
APP 9: 49
S T,f r 4VA i 14
cy
0 UTY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 43784 -8 -II
Respondent,
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MARK E. D' ENTREMONT, UNPUBLISHED OPINION
QUINN- BRINTNALL, J. — Mark E. D' Entremont appeals his convictions of
manufacturing and possessing marijuana, arguing that the trial court erred in finding probable
cause for the search warrant that revealed his marijuana grow operation. Because the officers'
observations corroborated the anonymous tip about the marijuana grow and were made during a
lawful entry onto D' Entremont' s property, we affirm the finding of probable cause and the
resulting convictions.
FACTS
On November 23, 2010, the Lewis County Sheriff' s Office received an anonymous
Crime Stopper' s tip regarding a suspected marijuana grow at 122 McAtee Road in Centralia.
The tipster .reported that several people were growing marijuana in the middle outbuilding and
added that the " very large" grow was not for medical purposes. Ex. 2.
No. 43784 -8 -II
Deputy Kevin Engelbertson drove out to 122 McAtee Road that day and saw that the
property contained a residence with an attached carport and separate but adjacent outbuildings.
The residence and outbuildings clearly were visible from the road. Engelbertson noticed that the
two -bay middle outbuilding was the only building on the property that did not have snow on its
roof. After reviewing the property' s power records, he discovered that the power usage had been
consistently elevated throughout 2010 with no significant fluctuations.
On November 24, Deputy Engelbertson and Detective Bruce Kimsey drove to the
property during the daytime to do some surveillance and attempt to contact the property owner.
While driving by the property, they saw an unoccupied truck, with its engine running, parked in
Another in the The officers
the driveway in front of the middle outbuilding. car was carport.
parked down the street and watched to see whether there was any traffic coming to and from the
property and any other evidence that might suggest a marijuana grow.
After about 20 or 30 minutes, the truck left the property, but the officers could not see the
driver and did not know who had left. They decided to make contact with the property to see if
anyone was present to answer questions about the suspected marijuana grow. The purpose of
this contact was not only to develop evidence of a criminal investigation but also to establish
what was actually occurring on the property. The officers considered the possibility that there
could be a legal marijuana grow on the property.
The entry to the property at 122 McAtee Road did not have any gate or fence or any
nontrespassing or other restrictive signage, and it was not closed off to the public in any way.
When the officers approached the property, they were able to walk right into a driveway / arking
p
area that was directly in front of the residence and the middle outbuilding. There was a cement
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No. 43784 -8 -I1
walkway in front of the middle outbuilding, which also had a door built for people to walk
through.
The officers wanted to see whether anyone was in the middle outbuilding, so they walked
directly to the small door at its front and knocked. Deputy Engelbertson could hear fans or
equipment running inside the building, but no one came to the door.
While standing outside the middle outbuilding, Detective Kimsey told Deputy
Engelbertson that he smelled marijuana. Engelbertson then saw a hole in the wall of the middle
outbuilding. He got down on the ground to peer through it and observed evidence of a marijuana
grow. The officers then went to the front door of the main residence and knocked several times,
but they received no response.
Based on the anonymous tip, the steady elevated electric bill, the lack of snow on the
roof, the odor of marijuana, and the observation of evidence of a marijuana grow, the officers
applied for and were granted a search warrant for the middle outbuilding. After a forced entry
into the found in two separate rooms. The evidence
building, they marijuana growing
established that the grow operation had been going on for a long time, and the amount of
marijuana present exceeded the amount allowed under the medical marijuana law. The packaged
and dried marijuana in the building weighed hundreds of grams.
During the search, D' Entremont returned to the property in the truck the officers had seen
earlier. He admitted growing marijuana with the help of another person and stated he had
recently received a medical marijuana authorization. D' Entremont acknowledged that even with
the authorization, which he had obtained 11 days earlier, he could not have grown or possessed
the amount of marijuana in the building.
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No. 43784 -8 -II
After the State charged D' Entremont with manufacturing marijuana, D' Entremont filed a
motion to suppress, arguing that the officers conducted an unlawful search before obtaining the
warrant and that all of the resulting evidence should be suppressed. The trial court agreed that
Deputy Engelbertson conducted an unlawful search when he looked through the hole in the
outbuilding' s wall but otherwise upheld the officers' actions.' The court concluded that the
officers' remaining observations corroborated the anonymous tip and provided probable cause
for issuance of the search warrant. The State then amended the information to add a charge of
possession of marijuana over 40 grams. The trial court found D' Entremont guilty after a bench
trial on stipulated facts and imposed concurrent 30 -day sentences.
DISCUSSION
PROBABLE CAUSE
Appellate courts generally review the issuance of a search warrant for abuse of discretion.
State v. Maddox, 152 Wash. 2d 499, 509, 98 P.3d 1199 ( 2004). Great deference is given to the
probable cause determination of the issuing judge or magistrate. State v. Young, 123 Wash. 2d 173,
195, 867 P.2d 593 ( 1994). At the suppression hearing, however, the trial court acts in an
appellate -like capacity; its review, like ours, is limited to the four corners of the affidavit
probable cause. State v. Neth, 165 Wash. 2d 177, 182, 196 P.3d 658 ( 2008). Although
supporting
we defer to the magistrate' s determination, the trial court' s assessment of probable cause is a
legal conclusion that we review de novo. ,Neth, 165 Wn.2d at 182.
The State does not challenge the court' s assessment of Deputy Engelbertson' s conduct in
looking through the hole, so we do not consider it or the officer' s resulting observations in
analyzing the issues presented.
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No. 43784 -8 -II
A search warrant should issue only if the application shows probable cause that the
defendant is involved in criminal activity and that evidence of the criminal activity will be found
in the place to be searched. Neth, 165 Wn.2d at 182. Probable cause to issue a warrant is
established if the supporting affidavit sets forth facts sufficient for a reasonable person to
conclude the defendant probably is involved in criminal activity. State v. Cord, 103 Wash. 2d 361,
365 -66, 693 P.2d 81 ( 1985). Probable cause requires a nexus between criminal activity and the
item to be seized and between that item and the place to be searched. Neth, 165 Wn.2d at 183.
The affidavit should be evaluated in a commonsense manner rather than hypertechnically, with
doubts resolved in the warrant' s favor. Neth, 165 Wn.2d at 182; Young, 123 Wn.2d at 195.
Washington courts apply the Aguilar- Spinelli2 test to determine probable cause to support
a search warrant based on an informant' s tip. State v. Jackson, 102 Wash. 2d 432, 433, 688 P.2d
136 ( 1984). This two - rong test requires the State to show the informant' s basis of knowledge
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and veracity. Jackson, 102 Wn.2d at 435. If the State cannot make that showing, probable cause
can still be established if independent police work sufficiently corroborates the informant.
Jackson, 102 Wn.2d at 438. The independent investigation should point to suspicious activity
along the lines of the criminal behavior proposed by the informant. State v. Huft, 106 Wash. 2d
206, 210, 720 P.2d 838 ( 1986). The investigation is insufficient if it corroborates only innocuous
facts. Huft, 106 Wn.2d at 210.
Here, the State could not establish either the tipster' s basis of knowledge or veracity. The
trial court concluded, however, that the officers' investigation corroborated the anonymous tip
2
Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 ( 1964), abrogated by Illinois
v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 ( 1983); Spinelli v. United States, 393
abrogated by Gates, 462 U.S. 213, but adhered
U. S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 ( 1969),
to by State v. Jackson, 102 Wash. 2d 432, 688 P.2d 136 ( 1984).
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No. 43784 -8 -II
and that probable cause existed before the officers entered the property based on the tip, the
power usage records, and the snow melt on the middle outbuilding' s roof.
D' Entremont challenges that conclusion and the State concedes error, but we question
both the challenge and the concession. We recognize that Washington courts have held that
records of abnormally high electrical consumption alone are not sufficient to corroborate a tip
regarding a marijuana grow. Young, 123 Wn.2d at 196; State v. McPherson, 40 Wash. App. 298,
301, 698 P.2d 563 ( 1985). But the combination of the tip about a commercial marijuana grow in
a specific building among several on the property, the records of continually high electrical
usage, and the snow melt on the roof of the building in question, arguably satisfies the probable
cause requirement. See State v. Rakosky, 79 Wn. App. 229, 239, 901 P.2d 364 ( 1995) ( high
electrical usage in new outbuilding and absence of snow on its metal roof did not provide
probable cause where tip did not allege criminal activity).
We need not rest the probable cause determination on this evidence alone, however, if the
magistrate properly considered the odor of marijuana that Detective Kimsey detected while
standing outside the middle outbuilding. See State v. Johnson, 79 Wash. App. 776, 778 -83, 904
P.2d 1188 ( 1995) ( probable cause for search warrant existed where anonymous tip reported
marijuana grow, roof of residence had no snow, electrical records showed large fluctuations, and
agents smelled marijuana from street in front of residence), review denied, 128 Wash. 2d 10231996). D' Entremont argues here, as he did below, that the officers gathered this evidence
during the course of an unlawful warrantless entry and search and that it cannot be considered in
evaluating probable cause.
No. 43784 -8 -II
ENTRY INTO CURTILAGE
The trial court upheld the officers' entry into the curtilage of D' Entremont' s property in
denying his motion to suppress. We review this aspect of the court' s ruling to determine whether
substantial evidence supports the findings of fact and whether those findings support the trial
court' s conclusions. State v. Hill, 123 Wash. 2d 641, 647, 870 P.2d 313 ( 1994). Where, as here,
the findings are unchallenged, they are verities on appeal. State v. Stevenson, 128 Wash. App. 179,
193, 114 P.3d 699 ( 2005).
The constitutional protection against warrantless searches applies most strongly to a
person' s home. State v. Ross, 141 Wash. 2d 304, 312, 4 P.3d 130 ( 2000). The curtilage of a home
is tied to the home itself that it is under the home' s" umbrella" of
so intimately placed
constitutional protection. Ross, 141 Wn.2d at 312. The closer an officer comes to entering the
home, the greater the protection. State v. Ridgway, 57 Wash. App. 915, 918, 790 P.2d 12631990).
Police with legitimate business may enter areas of the curtilage of a residence that are
impliedly open, and in doing so they "`` are free to keep their eyes open. "' State v. Gave, 77 Wn.
App. 333, 337, 890 P.2d 1088 ( 1995) ( quoting State v. Seagull, 95 Wash. 2d 898, 902, 632 P.2d 441981)). Legitimate police business includes investigating possible criminal activity. Ross, 141
Wn.2d at 314. Areas of curtilage impliedly open to the public include a driveway, walkway, or
access route leading to the residence. Gave, 77 Wn. App. at 337 ( citing State v. Hoke, 72 Wn.
App. 869, 874, 866 P.2d 670 ( 1994)). When a law enforcement officer is able to detect
something by use of one or more of his senses while lawfully present in an impliedly open
curtilage area, that detection does not constitute a " search" subject to constitutional protections.
Seagull, 95 Wn.2d at 901. As the court in Seagull further explained,
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No. 43784 -8 -II
An officer is permitted the same license to intrude as a reasonably respectful
citizen. However, a substantial and unreasonable departure from such an area, or
a particularly intrusive method of viewing, will exceed the scope of the implied
invitation and intrude upon a constitutionally protected expectation of privacy.
95 Wn.2d at 902 -03 ( citations omitted).
Whether a portion of the curtilage is impliedly open to the public depends on the totality
of the circumstances surrounding the officers' entry. State v. Ague -Masters, 138 Wash. App. 86,
98, 156 P.3d 265 ( 2007). The use of fences, gates, and restrictive signage may affect the degree
to which areas of curtilage and access routes are impliedly open. See State v. Johnson, 75 Wn.
App. 692, 705 -06, 879 P.2d 984 ( 1994) ( fenced and gated property, with " no trespassing" and
private property" signs, showed that access way was not open), review denied, 126 Wash. 2d 10041995); Ridgway, 57 Wn. App. at 918 ( blocking long driveway with closed gate demonstrated
subjective expectation of privacy in area beyond gate). And a late -night entry is more likely to
implicate privacy concerns than a mid -
morning investigation. Gave, 77 Wn. App. at 338; see
also Ross, 141 Wn.2d at 314 ( entry unlawful where deputies entered property at hour when no
reasonable respectful citizen would be welcome absent an actual invitation or emergency).
Here, the trial court found that the property at 122 McAtee Road had no gate or fence, no
restrictive signage, and was not closed off to the public in any way. All of the property was
easily visible from the road and there was a large driveway /parking area in front of the residence
and the middle outbuilding.
The trial court also found that the officers walked up to the outbuilding and knocked, but
received no answer despite hearing noise inside. As Deputy Engelbertson explained, they had
seen a truck parked outside that building and assumed someone was inside. While standing
outside the building, Detective Kimsey smelled the odor of marijuana coming from the building.
No. 43784 -8 - II
The officers unsuccessfully attempted to contact someone at the main residence and then left to
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obtain a warrant.
The court' s findings show that the officers were attempting to contact the property' s
occupants to ask about the possible marijuana grow when they smelled marijuana. They
approached the property openly and during the day with the intent to speak to its occupants.
They did not enter the property under cover of darkness to look for a marijuana grow operation
without attempting to approach the house or contact its occupants, as did the officers who
conducted an unlawful search in Johnson, 75 Wn. App. at 705. Nor did they leave the front door
after receiving no answer and put their noses against the crack in the nearby garage doors to see
if they could smell marijuana, thereby deviating substantially from the conduct of a reasonably
respectful citizen. State v. Boethin, 126 Wash. App. 695, 700, 109 P.3d 461 ( 2005).
D' Entremont argues that our analysis should be guided by the Ninth Circuit' s reasoning
in United States v. Rey, 680 F.3d 1179 ( 9th Cir. 2012).
Perea - There, the court held that an
officer' s uninvited entry into a carport was not justified under the " knock and talk" exception to
Perea - 680 F.3d 1187 -88. Under this exception, law
the warrant requirement. Rey, at
enforcement officers may encroach upon the curtilage of a home for the purpose of asking
questions of the occupants. Rey, 680 F. 3d
Perea - at 1187. Where the officer entered the carport
without invitation, saw the defendant, identified himself and told the defendant not to move, the
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During the suppression hearing, the officers testified that they went first to the middle
outbuilding, then to the residence, and then back to the outbuilding in an attempt to contact any
occupants. Neither the affidavit nor the findings of fact describe the officers as making two
attempts to contact the occupants of the outbuilding, but this discrepancy is not material. The
officers did not unlawfully intrude whether they knocked on the outbuilding door once or
returned for a second attempt at contact because they had heard noise inside.
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No. 43784 -8 -II
officer did not engage in a lawful " knock and talk" but instead trespassed on the curtilage and
unlawfully detained the defendant. Perea -Rey, 680 F. 3d at 1188 -89.
The Perea -
Rey case is easily distinguishable on its facts. Here, the officers stayed on the
open access routes to the house and outbuilding. They did not enter an enclosed carport
surrounded by a fence with a closed driveway gate, as did the officer Rey. 680 F. 3d at
in Perea -
1184. Detective Kimsey smelled marijuana while he and Deputy Engelbertson were attempting
to contact the property' s occupants from a lawful vantage point. The officers did not engage in
an unlawful search.
We hold that the specifics of the anonymous Crime Stopper' s tip, combined with the
officers' information and observations regarding the high and steady electric usage, lack of snow
on the middle outbuilding roof, and the smell of marijuana emanating from that outbuilding,
were sufficient to provide probable cause for the issuance of a search warrant. The trial court did
not err in denying D' Entremont' s motion to suppress.
Affirmed.
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 in accordance with RCW
2. 06. 040, it is so ordered.
OUINN- BRINTNALL, P. J.
We concur:
PEN'OY , R
MAXA, J
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