State v. Littlefair

119 P.3d 359

129 Wn. App. 330

STATE of Washington, Respondent, v. Peter T. LITTLEFAIR, Appellant.

No. 31244-1-II.

Court of Appeals of Washington, Division 2.

August 3, 2005.

Publication Ordered September 7, 2005.

COPYRIGHT MATERIAL OMITTED

George A. Kolin, Attorney at Law, Washougal, WA, for Appellant.

Adam Nathaniel Kick, Skamania Co. Pros. Attorney, Stevenson, WA, for Respondent.

BRIDGEWATER, J.

¶ 1 Peter T. Littlefair appeals his convictions for manufacture of a controlled substance — marijuana, and possession of marijuana with intent to deliver. We reverse, finding that the officers unconstitutionally obtained the information supporting the search warrant by surreptitiously entering onto the defendant's property. Thus, the evidence must be suppressed, the case dismissed, and the judgment and sentence vacated.

A. General History

¶ 2 The State charged Peter Littlefair on March 1, 1996, with manufacture of a controlled substance-marijuana and possession with intent to deliver a controlled substance-marijuana. Detective Arne Gonser conducted surveillance on January 23, January 24, March 23, May 12, June 13, and December 27, 1995. While conducting the surveillance on December 27, Detective Gonser and Reserve Officer Will Harryman smelled a strong odor of green growing marijuana emanating from a venting system in some unknown type of underground container. Detective Gonser was 20 feet away from the underground container hidden by barrels when he smelled the marijuana.

¶ 3 The officers obtained a search warrant on December 28, to search Littlefair's property. When the officers executed the search, they discovered a 40-amp breaker located inside the breaker box in the back bedroom of the main residence. The breaker was the power source for the underground container. The officers also observed that someone had tampered with the electrical meter and power was being bypassed.

¶ 4 Also located on the property were outbuildings and a camper trailer. Inside of these buildings police found 21 marijuana starter plants, dried marijuana, two firearms, paperwork addressed to Littlefair, and Littlefair's identification.

¶ 5 Inside the buried container, officers found four marijuana plants along with a homemade lightshield, a transformer, a 1000-watt halide light bulb, a heater, fans, timers, scales, packing material, water drums, a marijuana smoking pipe, an SKS 7.62 assault rifle, and several thousand rounds of ammunition. The officers also found a Stuart Hall Executive notebook containing notes pertaining to the grow operation. Those notes discussed watering, fertilizing, and insecticide for the plants.

B. Procedural History

¶ 6 Littlefair moved to suppress and dismiss the action on March 27, 1996. He filed a brief in support of his motion on August 16. On August 27, the State filed a brief in opposition to Littlefair's motion. On August 26, Littlefair moved for a Franks¹ hearing. The State filed its brief in opposition to the motion on August 28. The court held a suppression hearing on August 29.

¶ 7 At the hearing, Littlefair testified that in 1983 he had purchased two acres of property at the end of Gordon Road in Stabler, Washington. At the end of the intersection of Foster and Gordon Road there was a sign that stated "Gordon Road Private." 1 Report of Proceedings (RP) (Aug. 29, 1996) at 4. Littlefair also stated that Gordon Road was posted with "Private Property" and "No Trespassing" signs and that his residence was not visible from Foster Road. 1 RP at 5. Littlefair testified that James Barresse also lived on his property.

¶ 8 The trial court admitted a map of Littlefair's property.² Littlefair testified that red metal stakes about four feet high with white tops and little markers that had a "PL" on them which stood for "property line" demarcated his south property line. 1 RP at 18. The markers were roughly 50 to 60 feet apart all the way down the road. On the southeast corner of Littlefair's property was a two-inch steel pipe cemented in concrete along with two metal red stakes with white tops on them that stood three to four feet high. The southeast corner also had two tree lines that Littlefair used to mark his property. Littlefair stated that the property east of his belonged to Longview Fiber.

¶ 9 On cross-examination, the State asked Littlefair whether the map adequately depicted his driveway. Littlefair responded that a revision to the map in 1988 failed to include the driveway and "just put in the road." 1 RP at 32. The State also asked whether Littlefair had any signs posted on the east or south sides of his property. Littlefair answered that he did not have any signs. He also conceded that he did not have any barrier to prevent people from crossing over his property line in the area that bordered the Longview Fiber property.

¶ 10 Littlefair called Detective Gonser. The detective was a member of the Clark/Skamania Drug Task Force and was familiar with the appearance and smell of controlled substances. The detective testified that he obtained a map from the assessor's office before going to Littlefair's property and called Longview Fiber to ask permission to go onto its property. He stated that he was acting on a tip from an informant that Littlefair had a couple of burn barrels with a bunch of stacked wood on top of them and that inside of the burn barrels police would find an underground marijuana grow.

¶ 11 Detective Gonser went down to the end of Foster Road where the road turned into a gravel road. There was a spur road off of the gravel road that took the detective onto Longview Fiber land. The detective testified that his location was south of Gordon Road. From that location, on two occasions, the detective and different officers walked north across the Longview Fiber land toward Gordon Road and Littlefair's property.

¶ 12 Littlefair asked the detective if he saw any corner stakes. The detective responded that he did not see any corner stakes so he used the assessor's map to help him in his investigation. Detective Gonser also testified that on all occasions while doing surveillance, it was after dark, he wore camouflage, and he approached Littlefair's property from the south in order to avoid detection. The detective stated he did not observe the tree line on either January 23 or December 27. The detective stated that on December 27, he was 20 feet west of the barrels when he smelled marijuana.

¶ 13 Littlefair asked the detective whether he had located the underground marijuana grow on January 23. The detective answered that he came across the area described by the informant and found two barrels. He then conducted a quick search of the area. Detective Gonser also testified that he sent a letter to the Skamania County Public Utilities District requesting Littlefair's usage records.

¶ 14 After Detective Gonser's testimony, Littlefair concluded his case. The State presented no witnesses. The court took a recess and viewed a videotape that Littlefair had made of his property. The court then made its oral ruling.

¶ 15 It first noted the undisputed facts of the case. It then stated that the disputed fact was whether or not Detective Gonser had reason to believe that he was on Littlefair's property and not Longview Fiber property. The court found that Detective Gonser did believe he was on Longview Fiber property. The court based its ruling on the fact that the assessor map the detective used did not show the extension of Gordon Road. It also relied on the videotape it had viewed of Littlefair's property. The court further stated that the corner post located in the southeast corner was well hidden by foliage.

¶ 16 In addressing the Franks issue, the court ruled that a falsehood did exist in the affidavit but that Detective Gonser did not intentionally make the falsehood. The court also found that Littlefair did not have a reasonable expectation of privacy over the southeast corner of his property. The court denied the motion to suppress.

¶ 17 Littlefair pleaded guilty to manufacture of marijuana on October 17, 1996. The court entered a judgment and sentence on the same day. After an appeal concerning Littlefair's plea, we remanded the case to the trial court on July 18, 2003. State v. Littlefair, 112 Wash.App. 749, 51 P.3d 116 (2002), review denied, 149 Wash.2d 1020, 72 P.3d 761 (2003). In the new trial, the jury found Littlefair guilty on all counts.

I. Waiver of Issues on Appeal

¶ 18 The State argues that Littlefair has waived all of the assignments of error in his appeal because he did not raise them during his prior appeal, before the trial court during pretrial hearings, or by objecting at trial subsequent to the appeal and grant of a new trial. We disagree.

¶ 19 On appeal, an appellant may not raise for the first time an error predicated on evidence allegedly obtained from an illegal search. State v. Silvers, 70 Wash.2d 430, 432, 423 P.2d 539, cert. denied, 389 U.S. 871, 88 S.Ct. 156, 19 L.Ed.2d 152 (1967). However, under RAP 2.5(a)(3), an appellant may raise for the first time before this court a "`manifest error affecting a constitutional right.'" State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995) (quoting RAP 2.5(a)(3)). The underlying issue in this appeal is the trial court's failure to suppress evidence seized as the result of a bad search warrant. That issue does affect a constitutional right and thus, Littlefair has not waived the errors now before this court. RAP 2.5(a)(3); McFarland, 127 Wash.2d at 333, 899 P.2d 1251.

II. Findings of Fact

¶ 20 The trial court held a hearing to determine whether to suppress the evidence obtained from the execution of the warrant. The hearing also included a Franks issue because Detective Gonser stated that he was on Longview Fiber land when he smelled the growing marijuana. As a factual matter, the officers were not on Longview Fiber land, but were on Littlefair's property when they made the observations and odor...