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State v. Cody

March 24, 1997

STATE OF WASHINGTON, RESPONDENT/CROSS-APPELLANT,
v.
KENNETH D. CODY, APPELLANT/CROSS-RESPONDENT.



Appeal from Superior Court of Snohomish County. Docket No: 94-1-01662-2. Date filed: 09/06/95. Judge signing: Hon. Gerald L. Knight.

PER CURIAM. After receiving an anonymous tip that there was a marijuana grow operation in Kenneth Cody's garage, Detective Glen Bergstrom drove over to Cody's Arlington property during the early evening hours to look for evidence of a grow operation. A circular driveway wraps in front of Cody's mobile home and passes within a few feet of a large detached garage. Detective Bergstrom parked his car next to the garage. He noticed another car parked there. Directly across from the garage is a gravel pathway which leads to the mobile home's front entrance. After getting no response at the home, the detective walked back down the pathway to the garage and knocked on the door facing the driveway. From there, he smelled marijuana and heard a humming noise. He also saw a bright light coming from the roof area of the garage. Based on his observations, he obtained a search warrant. On serving the warrant, police found a grow operation.

Cody was convicted of the manufacture of a controlled substance on stipulated facts.

Cody contends that Detective Bergstrom violated his Fourth Amendment right to privacy when he approached the garage and that the court therefore erred in denying his motion to suppress. *fn1 Because we find that the detective's presence at the garage was not an intrusion upon a privacy expectation deserving of Fourth Amendment protection, we affirm.

DECISION

The Fourth Amendment protects an individual's "privacy interest."

Under the rule set out in State v. Seagull, *fn2 "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." *fn3 When an officer observes something by use of one or more of his senses while lawfully present in an unprotected area, that detection does not constitute a search under the Fourth Amendment. *fn4 But a substantial or unreasonable departure from the area exceeds "the scope of the implied invitation and intrudes upon a constitutionally protected expectation of privacy." *fn5 Whether the intrusion has "substantially and unreasonably" exceeded the scope of the implied invitation depends on the facts and circumstances of each case. *fn6

The sole issue we are asked to decide here is whether Detective Bergstrom "substantially or unreasonably" departed from "an area of curtilage which is impliedly open to the public" when he walked on the pathway from the home to the garage area. Based on the controlling caselaw, we hold that he did not.

Cody concedes that the detective parked his car in a legitimate area and that he had the right to approach the house to locate and speak with the occupants. He contends, however, that after getting no response at the house, the detective was not then free to go to the garage because it was not implicitly open to the public under Seagull. A similar argument was rejected by the Supreme Court in State v. Maxfield. *fn7

Maxfield involved virtually identical facts. There, the investigator went to a rural residence to look for evidence of a marijuana grow operation. He drove to the residence, drove in the driveway and noticed a car parked there. After getting no answer to his knock at the front door, he walked across the driveway to the garage and then on what appeared to be a pathway to an entry door. *fn8 He knocked and again got no response. While there, he smelled marijuana. He then looked for evidence of a grow operation and saw signs that there might be an operation in the garage. *fn9

Defendants' motion to suppress the evidence was denied. On appeal, defendants argued that the evidence found by the investigator was the result of an unconstitutional search and that it should have been suppressed.

The Supreme Court held that the investigator did not invade defendants' privacy rights by deviating from the house to the garage. The court first noted that "the fact that the investigator was there attempting to find evidence of a marijuana grow does not change the rule set forth in Seagull." *fn10 The significant facts were instead that the investigator testified that "he stayed on the pathway, the driveway or the immediate access routes to the house and garage at all times."

Similarly here, Detective Bergstrom testified that he stayed on the gravel pathway running between the mobile home and the garage and that he did not deviate from that path. There was no unconstitutional invasion of privacy. *fn11

Affir ...


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