                                                                                                      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,


        0


MARK E. D' ENTREMONT,                                                 UNPUBLISHED OPINION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




                                                                2
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.



                                                              3
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 Wn.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 Wn.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 Wn.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.

                                                                 0
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 Wn.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 Wn.2d 432, 433, 688 P. 2d

136 ( 1984).        This two - rong test requires the State to show the informant' s basis of knowledge
                             p

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 Wn.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 Wn.2d 432, 688 P. 2d 136 ( 1984).
                                                                    5
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 Wn. 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 Wn. 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 Wn.2d 1023


  1996).     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 Wn.2d 641, 647, 870 P. 2d 313 ( 1994).                    Where, as here,


the findings are unchallenged, they are verities on appeal. State v. Stevenson, 128 Wn. 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 Wn.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 Wn. App. 915, 918, 790 P. 2d 1263

 1990).


           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 Wn.2d 898, 902, 632 P. 2d 44

 1981)).         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 Wn. 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 Wn.2d 1004


 1995);         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
                        3
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 Wn. 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




 3
   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.
                                                                  9
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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