### t IL E0 

# 0OURTOFAPPEALS 2013 

### OCT 29 

### APP 9: 49 ST, f r 4VA i 14 cy 0 UTY

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON,Respondent,

0 MARK E. D' ENTREMONT, No. 43784 - 8 -II

UNPUBLISHED OPINION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 onthe property that did not have snow on its roof. After reviewing the property' s power records, he discovered thatthe powerusage had been 

### consistently elevatedthroughout 2010 with no significantfluctuations. 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 bythe property,they sawan unoccupied truck,with its engine running,parked in the driveway in front of the middle outbuilding. Another car was in the carport. The officers 

### parked down the street and watched to see whetherthere was anytraffic coming to and from the property and any other evidence that might suggest amarijuana grow. 

### After about 20 or 30 minutes,the truck leftthe property, butthe officers could not seethe driver and did not know who had left. 

### They decided to make contactwith the propertyto 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 offto the public in any way. Whenthe officers approached the property,they were able to walk right into a driveway / parking

area that was directly in front of the residence and the middle outbuilding. There was a cement

2No. 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 

### equipmentrunning insidethe building,but noone came tothe door.

While standing outside the middle outbuilding, Detective 

### Kimsey told Deputy Engelbertson that he smelled marijuana. Engelbertson then saw a hole in the wall ofthe middle 

### outbuilding. He gotdown onthe groundto peerthrough itand observed evidence ofamarijuana grow. The officers then went to the front door ofthe main residence and knocked several times, butthey 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 building, they found marijuana growing in two separate rooms. The evidence 

### established that the grow operation had been going on for a long time, and the amount of marijuana present exceeded the amount allowed underthe medical marijuana law. The packaged and dried marijuana in the building weighed hundreds ofgrams. 

### Duringthe search,D'Entremont returnedtotheproperty inthetruckthe 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 ofmarijuana in the building.

3No. 43784 - 8 -II 

### Afterthe 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 generallyreviewthe issuance ofasearchwarrantforabuse ofdiscretion. State v. Maddox, 152 Wn.2d 499, 509, 98 P. 3d 1199 ( 2004). Great deference is given to the 

### probable cause determination ofthe issuingjudge ormagistrate. 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 supporting probable cause. State v. Neth, 165 Wn.2d 177, 182, 196 P. 3d 658 ( 2008). Although 

### 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. 0No. 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 ofthe criminal activitywill 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 -

prong test requires the State to showthe informant's basis ofknowledge
and veracity. Jackson, 102 Wn.2d at 435. Ifthe 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 ifit corroborates only innocuous facts. Huft, 106 Wn.2d at 210. Here, the State could not establish either the tipster' s basis ofknowledge 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 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 ( 1969), 

### abrogated by Gates, 462 U.S. 213, butadhered 

### to by State v.Jackson, 102 Wn.2d 432, 688 P.2d 136 (1984). 5No. 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). 

### Butthe combination ofthe 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 roofofthe 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 wheretip did notallege criminal activity). 

### We need not restthe probable cause determination on this evidence alone, however, ifthe 

### 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, roofof 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 

### duringthe course ofan unlawful warrantless entry and search andthat itcannotbe considered in evaluating probable cause.No. 43784 - 8 -II ENTRY INTO CURTILAGE 

### The trial court upheld the officers' entry into the curtilage ofD' Entremont's property in 

### denying his motionto suppress. We reviewthis aspectofthe court's rulingto determinewhether 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 areverities 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 so intimately tied to the home itself that it is placed under the home' s " umbrella" of
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 ofthe 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 ofcurtilage 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, 7No. 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 ofviewing, will exceed the scope ofthe implied invitation and intrude upon aconstitutionally protected expectation ofprivacy. 95 Wn.2d at 902 -

03 ( citations omitted). 

### Whether a portion ofthe 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 offences, gates, and restrictive signage may affectthe degree 

### to which areas ofcurtilage 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,thetrial courtfoundthatthe property at 122 McAtee Road had no gate orfence, no
restrictive signage, and was not closed off to the public in any way. All of the property was 

### easilyvisible fromthe roadandtherewas alarge driveway / parking area in frontofthe residence and the middle outbuilding. 

### Thetrial court also foundthatthe officers walked up tothe 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 attemptedto contact someone atthe main residence andthen leftto
obtain a warrant.3 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 enterthe property under cover ofdarkness to lookfor a marijuana grow operation without attempting to approach the house or contact its occupants, as did the officers who conducted an unlawful search inJohnson, 75 Wn.App. at705. Nor didthey leavethe frontdoor 

### after receiving no answerand puttheirnoses againstthe crackinthe nearby garagedoorsto see ifthey could smell marijuana,thereby deviating substantially from the conduct ofa reasonably respectful citizen. State v. Boethin, 126 Wn.App. 695, 700, 109 P.3d461 (2005). D' Entremont argues that our analysis should be guided by the Ninth Circuit's reasoning in United States v. Perea - Rey, 680 F.3d 1179 ( 9th Cir. 2012). There, the court held that an 

### officer's uninvited entry into acarport was notjustified underthe "knock andtalk" exception to the warrant requirement. Perea - Rey, 680 F.3d at 1187 -88. Under this exception, law 

### enforcement officers may encroach upon the curtilage of a home for the purpose of asking questions of the occupants. Perea - Rey, 680 F.3d at 1187. Where the officer entered the carport without invitation, saw the defendant, identified himselfand told the defendant not to move, the

3 

## During the suppression hearing, the officers testified that they went first to the middle outbuilding,thento the residence, andthen backto the outbuilding in an attemptto 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 contactbecausethey had heard noise inside. 9No. 43784 - 8 -II officer did not engage in a lawful " knock and talk" but instead trespassed on the curtilage and 

### unlawfullydetained 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 in Perea - Rey. 680 F.3d at 1184. 

### Detective Kimsey smelled marijuanawhile 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, lackofsnow 

### on the middle outbuilding roof,and the smell of marijuana emanating from that outbuilding, were sufficientto provide probable cause forthe issuance ofasearchwarrant. The trial courtdid 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 10