                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                        December 6, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 47927-3-II

                               Respondent,

        v.

 CURTIS WALTER HORTON,                                        UNPUBLISHED OPINION

                               Appellant.

       JOHANSON, J. — Curtis W. Horton sought discretionary review of the trial court’s order

denying his CrR 3.6 motion to suppress evidence following a search of property that he did not

own. He argues that the trial court erred in concluding that (1) he did not have a reasonable

expectation of privacy in the areas where his Jeep and recreational vehicle (RV) were located

because he did not own the searched property and (2) the officers did not conduct a search because

they were on the curtilage when they observed the evidence. We hold that the trial court erred

when it concluded as a matter of law that Horton did not have a reasonable expectation of privacy

in the areas searched because he did not own the property. Accordingly, we reverse the trial court’s

order denying the CrR 3.6 motion and remand for further proceedings, including another

suppression motion.
No. 47927-3-II


                                             FACTS

                                           I. SEARCH

       On August 30, 2013, several law enforcement officers responded to a possible single

vehicle collision and rollover on a beach near Moclips. The 911 caller who reported the accident

stated that a white car and a dark-colored Jeep had been doing donuts on the beach and that the

Jeep had rolled over.

       When the officers arrived at the scene, the Jeep was gone and fire personnel were already

caring for the injured Jeep passenger, Michael Walls. Park Rangers Joe Fernandez and Brad Staab

and Washington State Patrol Trooper Justin Blake all spoke with Walls, who was conscious but

appeared intoxicated. Walls told them that the vehicle that rolled over was a black Jeep, that the

driver was “Corey,” and that Corey had driven the Jeep towards Tidelands Resort where Walls’s

group was staying. Clerk’s Papers (CP) at 16.

       Staab left the beach and located a group of about 20 Jeep enthusiasts camping on private

property, not owned by Horton, near the Tidelands Resort. Staab “entered [the property] from

Railroad Road, [and] had to travel some distance across a grassy parking space to . . . access the

campsite, which is tucked behind a permanent structure.” CP at 17. Staab was aware he was on

private property, and he later acknowledged that he had not been invited onto the property. Ranger

Fernandez, Trooper Blake, and Grays Harbor County Sheriff’s Deputy Russell also arrived at the

campsite and entered the area “without permission, and without first ascertaining whether it was

private or public property.” CP at 17. The officers walked through the campsite and attempted to

interview the campers, but the campers all stated that they did not know anything about an

overturned Jeep.


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No. 47927-3-II


       After talking to the people at the campsite, Staab continued to look around the property.

Staab found a set of “aggressive tire tracks” and followed them further into the property. CP at

17. He eventually found the Jeep that appeared to have been involved in the accident1 “concealed

by high brush and a six foot tall fence at the back of the property, approximately 80 yards off the

roadway when accessed through the campsite, and about 25 yards from the nearest road running

parallel to where the Jeep was parked.” CP at 17.

       Staab ran the Jeep’s license plate and identified the registered owner as Horton. The

officers then ran the license plates of the RVs on the property and located an RV registered to

Horton. Horton’s RV was 35 yards off the roadway and well within the campsite.

       The officers contacted Horton in his RV; he appeared to be intoxicated. The officers

observed that Horton had sand in his ears and blood on his pants. Although Horton denied driving

the Jeep that day, Trooper Blake arrested Horton.

                                          II. PROCEDURE

       The State charged Horton with vehicular assault. Horton filed a motion to suppress the

evidence gathered by the officers after they entered the campsite.

       In his motion, Horton argued that the officers engaged in an illegal warrantless search of

private property under both the federal and state constitutions because they had no legal authority

to enter the property and did not observe the evidence from a lawful vantage point. He also asserted




1
  The Jeep appeared to have damage consistent with a rollover accident and there was blood inside
the vehicle.

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No. 47927-3-II


that Horton had a protected privacy interest in the area surrounding the RV, including the area

where the officers found the Jeep.2

       Horton also argued,

               Where, as here, there is a private parcel of property accessible only from a
       private road, in which the owner has allowed several guests to park temporary
       homes away from the view of the road and in a manner indicating that what happens
       in the campground is not a matter for public consumption, the Court should find
       that the area surrounding the RVs, within the private property, is curtilage and only
       accessible in the manner of a reasonably respectful citizen on legitimate business.

CP at 28 (emphasis added).

       During oral argument on the motion,3 the State did not dispute that when the officers

entered the property they did not know who owned the property. Horton’s counsel asserted that

the officers entered private property, but he admitted that Horton did not own the property and that

he (counsel) did not know if Horton had a lawful right to be on the property.

       The trial court’s focus was on whether Horton had an “expectation of privacy” in relation

to the property where the Jeep was found if he did not own the property or if he had any right to

be on the property. Report of Proceedings (RP) at 17, 22. The trial court stated that the defendant

must demonstrate a personal, legitimate expectation of privacy in the area searched to establish a

Fourth Amendment violation. The trial court concluded that Horton had not “demonstrated any




2
  He also argued that exigent circumstances did not justify the warrantless search and that the
officers lacked probable cause to detain him for further investigation or to arrest him, but he does
not raise any issues regarding these arguments on appeal.
3
  Rather than hear testimony on the CrR 3.6 motion, the parties agreed to allow the trial court to
rely on the facts set forth in Horton’s motion to suppress. We note that because the trial court did
not hold an evidentiary hearing, written findings of fact and conclusions of law were not required.
CrR 3.6(b).

                                                 4
No. 47927-3-II


personal expectation of privacy as to that property.” RP at 24. The trial court stated, “I’m denying

[the CrR 3.6] motion. I just do not believe that there was any reasonable expectation of privacy

when your client parked his Jeep in the bushes. He had no reason to expect that it wasn’t going to

be found, that someone might look at it.” RP at 25. The trial court further concluded that the

officers were “simply continuing their investigation” and that “they did so without conducting any

searches, that they were simply within the curtilage areas of where these RV’s [sic] were parked.”

RP at 29-30. The trial court denied Horton’s motion to suppress.

       Horton sought discretionary review of the order denying his CrR 3.6 motion to suppress.

A commissioner of this court granted review.

                                            ANALYSIS

       Horton argues that the trial court erred in concluding that (1) he did not have a privacy right

as a matter of law under either the federal or state constitutions because he did not own the property

and (2) the officers’ conduct did not constitute a search because they observed the evidence from

the curtilage of the camping area. We agree with Horton’s first argument and because of this

conclusion, we do not address whether the officers observed the Jeep’s or the RV’s license plate

from a lawful vantage point.

       The facts, as set out in Horton’s motion to suppress and discussed in argument, are not

disputed. We review the trial court’s conclusions of law de novo. State v. Johnson, 128 Wn.2d

431, 443, 909 P.2d 293 (1996).

       A defendant asserting a search was unlawful under the Fourth Amendment has the initial

burden of establishing “a justifiable, reasonable, or legitimate expectation of privacy in the thing

examined.” State v. Carter, 151 Wn.2d 118, 127, 85 P.3d 887 (2004). Similarly, a defendant


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No. 47927-3-II


asserting a search was unlawful under article I, section 7 of the Washington Constitution has the

initial burden “of proving a disturbance of his or her private affairs.” State v. Cheatam, 112 Wn.

App. 778, 787, 51 P.3d 138 (2002), aff’d, 150 Wn.2d 626, 81 P.3d 830 (2003). “A privacy interest

must be reasonable to warrant protection even under article I, section 7.” Cheatam, 112 Wn. App.

at 787 (citing State v. Goucher, 124 Wn.2d 778, 784, 881 P.2d 210 (1994)).

       Here, the trial court concluded that Horton had no “reasonable expectation of privacy,”

apparently because he did not own the property. RP at 25. The conclusion that a defendant must

own property to assert any privacy interest is incorrect. For instance, an overnight guest in

someone’s home can have a legitimate, reasonable privacy interest inside the host’s home. See

Minnesota v. Carter, 525 U.S. 83, 89-90, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998) (citing

Minnesota v. Olson, 495 U.S. 91, 98-99, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990)); State v. Link,

136 Wn. App. 685, 692, 150 P.3d 610 (2007). Thus, the trial court erred to the extent it concluded

that Horton could not assert a privacy interest in the property as a matter of law because he was

not the property owner.

       We do not hold that the trial court must grant the suppression motion on remand. Instead,

the trial court must determine whether Horton had a privacy interest even though he was not the

owner of the property. We do not address this issue because the trial court did not consider it.

       We reverse the trial court’s denial of the suppression motion because Horton is not required

to show he was the owner of the property to establish a reasonable expectation of privacy in the




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No. 47927-3-II


area searched.4 We remand for further proceedings, including another suppression hearing,

consistent with this opinion.

         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.



                                                  JOHANSON, J.
    We concur:



    MAXA, A.C.J.




    MELNICK, J.




4
  Because of this holding, we do not address whether the officer observed the Jeep’s or the RV’s
license plates from any areas that were impliedly open.
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