State Of Washington, Res. V. Steven Harlin Hovander, App.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, 	)
Respondent, 	)
V- 	)
STEVEN H. HOVANDER, 	)
Appellant. 	)
STATE OF WASHINGTON, 	)
Respondent, 	)
v. 	)
STARLARE HOVANDER, 	)
Appellant. 	)
No. 70338-2-1 consolidated with
DIVISION ONE
UNPUBLISHED OPINION
No. 70339-1-1
FILED: June 13, 2016
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TRICKEY, A.C.J. — Police conducting 	legitimate business in the manner of a
reasonably respectful citizen may enter areas of private property that are impliedly open
to the public. 	In this case, the totality of the circumstances support the trial court's
conclusion that police investigating a tip on Steven and Starlare Hovander's property
acted like reasonably respectful 	citizens and travelled only on areas of the property
impliedly 	open to the 	public. 	Accordingly, 	the 	court did 	not err 	in 	denying 	the
Hovanders' motion to suppress evidence and statements obtained as a result of the
deputies' warrantless investigation.

No. 70338-2-1 / 2
FACTS
In May 2011, Whatcom County Sherriff's deputies received an anonymous tip
involving property belonging to the Hovanders. 	Based on observations made during an
investigation of the property, the deputies obtained a search warrant. 	While searching
the property they discovered a marijuana growing operation in the Hovanders' cabin.
The Hovanders arrived during the search and Starlare made incriminating statements.
The 	State 	subsequently 	charged 	the 	Hovanders 	with 	manufacturing 	a 	controlled
substance.
Prior to trial, the Hovanders moved to suppress the evidence and statements
obtained by the deputies, arguing that they were tainted by the deputies' initial unlawful
investigation on the property. 	After a hearing, the court entered the following pertinent
findings of fact:
I. FINDINGS OF UNDISPUTED FACT
1. 	On 	May 	27, 	2011 	deputies 	from 	the 	Whatcom 	County Sheriff
investigated an anonymous tip regarding a marijuana growing operation in
Glacier, Washington. 	The site of the suspected growing operation was in
a trailer located on property belonging to Steve and Starlare Hovander.
The deputies were familiar with the property and parked their vehicles in
the lot of an adjoining condominium complex.
2. 	Deputies 	Paz, 	Bons[o]n, and 	Taddonio 	walked 	up a 	dirt driveway
separating three cabins located at 10453 Mt. Baker Highway and an RV
[(recreational vehicle)] park at 10443 Mt. Baker Highway. 	There were no
gates, 	fences, 	or "No 	Trespassing" 	or "Private 	Property" 	signs
restricting their access to the RV park along this route and their path
was impliedly open to the public.
3. At the RV park, they viewed the interior of some vacant cabins and did
not observe anything arousing their suspicions. 	They spoke 	with the
occupant of a trailer, Steve Rhea, who advised that the Hovanders lived in
one of the cabins on the adjoining property. 	He said one of the other

No. 70338-2-1 / 3
cabins was vacant and the third was being rented out to a woman and her
children and was in the eviction process.
4. After speaking with Mr. Rhea, Deputy Taddonio and Deputy Bons[o]n
walked back towards the access driveway they had used to enter the RV
park. 	Deputy Paz had followed a fork in the driveway back into some
adjoining woods behind the three cabins before returning to where the
access driveway to the cabins veered off towards the RV park. 	When the
deputies returned to Deputy Paz's location, he asked them if they could
hear 	anything. 	All 	immediately 	heard 	the 	sound 	of [a] 	high 	output
electrical fan.
5. All of the deputies had extensive experience investigating marijuana
growing 	operations and knew that fans, 	like the one they heard, are
routinely used in such operations to circulate air and to discharge the odor
of the operation to where it is not likely to be detected. The three deputies
walked along the driveway to the portion outside the front of the middle
(vacant) cabin.
6. From this location, they were able to intermittently detect an odor they
immediately recognized to be growing marijuana. Deputy Taddonio went
to the front door of the cabin and observed that all its windows were
completely covered and that there were items on the front porch that could
be associated with growing marijuana. 	He could not detect the marijuana
odor at the front door; but again smelled it when he stepped away from the
house into the driveway. 	He surmised that the odor was coming from the
direction of the chimney on the second floor.
7. The deputies then went to the adjoining Chair 9 restaurant where they
used its telephone to secure a search warrant. 	From the time they left
their parked vehicles until they retreated from the front door of the
middle cabin, the deputies did not open a gate, climb over a fence, or
walk past or observe any signs restricting public access to their
location. Their route was impliedly open to the public and they acted
in the manner of any reasonably respectful member of the 	public
who might be visiting or transacting business at the cabin.
8. Two employees of Chair 9 testified that they were familiar with the
location because they worked on [a] daily basis at the adjoining property.
Both testified that there were no "No Trespassing" or "Private Property"
signs or barriers restricting access to the cabins at the time the deputies
executed the search warrant on the middle cabin. 	The gates and signs
were 	not 	put 	up 	until after defendants 	had 	been 	released 	from
custody following their arrest.

No. 70338-2-1/4
9. 	Steven 	Hovander 	testified 	as 	to 	the 	presence 	of 	several 	"No
Trespassing" o[r] "Private Property" signs he had placed on the premises,
as well as, a strand of wire he had strung across the driveway displaying a
Private Property sign. 	He stated that the signs had been removed or
stolen on several occasions and that he had put up over a dozen such
signs.
II. DISPUTED FACTS
1. Were there any No Trespassing or Private Property signs or barriers
across the 	driveway when 	the 	deputies walked 	up 	the 	driveway and
approached the cabins on May 27, 2011?
Answer: No. The signs and barrier must have been missing on that
evening.[1]
The court concluded the deputies acted like "a reasonably respectful member of
the public in approaching the front of this cabin along the normally perceived access
route," "did not enter into any location that was not impliedly open to the public," and did
not violate the Hovanders' privacy rights.2 	The court denied the Hovanders' motion to
suppress the evidence and statements.
Following a bench trial on stipulated facts, the court convicted the Hovanders of
manufacturing a controlled substance. We consolidated their appeals.
ANALYSIS
The 	sole 	issue 	on 	appeal 	is whether the 	trial court 	erred 	in denying 	the
Hovanders' motion to suppress the evidence and 	statements obtained following the
deputies' alleged unlawful entry onto the property. In reviewing the denial of a motion to
suppress, we review findings of fact for substantial evidence and conclusions of law de
novo. 	State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). 	The challenged
1 Clerk's Papers (CP) at 68-71 (emphasis added).
2 CP at 71-72.

No. 70338-2-1 / 5
findings in this case are supported by substantial evidence, and the court did not err in
concluding that the police acted lawfully during their warrantless investigation of the
Hovanders' property.
Warrantless searches of property are per se unreasonable under the Fourth
Amendment and article I, section 7 of the Washington Constitution, unless they fall
within specific exceptions. 	State v. Myers. 117 Wn.2d 332, 337, 815 P.2d 761 (1991).
For example, police conducting legitimate business and acting in the same manner as a
reasonably respectful citizen may enter areas of private property, including the curtilage
of a residence,3 without a warrant if the areas are impliedly open. 	State v. Ross, 141
Wn.2d 	304, 	312-13, 	4 	P.3d 	130 	(2000). 	Legitimate 	police 	business 	includes
investigating possible criminal activity. 	Ross, 	141 Wn .2d at 314. 	If police lawfully
present 	on 	property detect 	something 	with 	their senses, 	that 	detection 	does 	not
constitute a "'search'" subject to constitutional protections. 	State v. Seagull, 95 Wn.2d
898, 901, 632 P.2d 44 (1981) (quoting 1 W. LaFave, Search and Seizure § 2.2, at 240
(1978)). 	However, a 	substantial 	and 	unreasonable departure from 	impliedly open
areas, or a particularly intrusive method of viewing, "will exceed the scope of the implied
invitation and intrude upon a constitutionally protected expectation of privacy." 	Seagull,
95 Wn.2d at 902-03.
In determining whether a 	portion 	of the curtilage and/or access 	routes to a
residence are 	impliedly open to the 	public, courts must consider the totality of the
circumstances. 	Seagull, 	95 Wn. App. 	at 	902-03. 	The 	use of fences, 	gates, 	and
3 "Curtilage is the land immediately surrounding and associated with [a] home." 	State v.
Chaussee, 72 Wn. App. 704, 711, 866 P.2d 643 (1994).

No. 70338-2-1 / 6
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, 891 P.2d 38
(1995); State v. Ridgwav. 57 Wn. App. 915, 918, 790 P.2d 1263 (1990) (blocking long
driveway 	with closed 	gate 	demonstrated 	subjective 	expectation 	of privacy in area
beyond gate); State v. Chaussee, 72 Wn. App. 704, 709-10, 866 P.2d 643 (1994) (no
trespassing signs alone do not create a legitimate expectation of privacy, especially
without additional indicators of privacy expectations such as high fences, closed gates,
security devices, or dogs). 	Also, a property is less likely to be impliedly open late at
night. 	See State v. Gave, 77 Wn. App. 333, 338, 890 P.2d 1088 (1995); Ross. 141
Wn.2dat314.
The totality of the circumstances in this case support the trial court's conclusions
that the routes travelled by the deputies' were impliedly open, and that the deputies
acted in a manner consistent with a reasonably respectful citizen. 	It is undisputed that
the deputies entered the Hovanders' properties at dusk. 	The court found that there
were no gates, fences, or signs restricting public access along the deputies' route. The
court's findings on this point are supported by substantial evidence.
The court also found and/or concluded that the deputies travelled on a driveway
and dirt road that were impliedly open to the public and acted "in the manner of any
reasonably 	respectful 	member 	of the 	public who 	might 	be 	visiting 	or transacting

No. 70338-2-1 / 7
business at the cabin."4 	These findings and 	conclusions are supported by exhibits,
including photographs and sketches of the deputies' routes, and undisputed testimony
regarding the deputies' movements on the property.
The Hovanders argue, however, that the deputies' investigation "went far beyond
what a respectful citizen would do."5 	They note that the deputies entered the property
at 	dusk, 	did 	not 	immediately attempt to 	contact them, 	and 	"canvassed 	the 	entire
property, even going into the woods and behind residences."6 We are not persuaded.
While the investigation did occur at "dusk,"7 the record clearly indicates it was still
light out. The record also indicates that the deputies took reasonable routes across the
property and made reasonable attempts to locate and contact the Hovanders given the
information in the tip and their observations at the scene. 	The tip mentioned a trailer on
the Hovanders' property. 	The deputies testified that the Hovanders' property included
the cabin area and the trailer/RV park further up the driveway, but they did not know
where the Hovanders' lived on the property.
When they did not see a trailer near the cabins but did "see trailers back in the
back edge of the RV park,"8 two deputies headed directly to the RV park where they
contacted the park's caretaker. The caretaker told them that the Hovanders lived in one
of the cabins the deputies passed on the way in. 	The deputies then returned to the
cabins where they heard a fan and detected the odor of marijuana from their position in
4 CP at 70 (Finding of Undisputed Fact 7).
5Appellant's Opening Br. at 12.
6 Appellant's Opening Br. at 13.
7 Report of Proceedings (RP) (Jan. 22, 2013) at 44.
8RP(Nov. 26, 2012) at 101.

No. 70338-2-1 / 8
the driveway. They then knocked on the Hovanders' door but no one answered. These
actions were consistent with those of a reasonably respectful citizen.
The same is true of the third deputy's actions. 	He simply walked up a dirt road
adjacent to the cabins looking for a trailer, saw nothing of interest, and returned to the
driveway. 	Nothing in the findings or the record suggests that he left the impliedly open
dirt road and driveway during his walk. 	Nor does anything in the findings or record
suggest that, prior to recontacting the other deputies, he had reason to believe there
was anyone presently in the cabins or that the Hovanders resided in one of them.
For the first time on appeal, 	the 	Hovanders contend specific actions of the
deputies substantially and unreasonably departed from impliedly open areas or were
unlawful observations made from "particularly intrusive vantage points."9 	We need not
consider grounds for suppression that were not argued below. 	State v. Garbaccio, 151
Wn. App. 716, 731, 214 P.3d 168 (2009). 	Furthermore, the record does not support
their claims.
For example, the Hovanders correctly note that the deputies saw black plastic
lining the Hovanders' door through a hole left by a missing door handle. 	But this
observation was made from a lawful vantage point and nothing in the record suggests
that the officers did anything more than observe what could be lawfully be seen in open
view. 	See Ross, 141 Wn.2d at 313 (officers may lawfully observe that which can be
seen or detected from a lawful vantage 	point so long as they do not engage in a
particularly intrusive method of viewing). 	Likewise, while the deputies looked in the
Appellant's Opening Br. at 13.
8

No. 70338-2-1 / 9
windows of several abandoned trailers in the RV park and "viewed"10 the back of the
suspected cabin after concluding that the marijuana odor was coming from that cabin,
nothing in the record indicates that they used a particularly intrusive method or vantage
point to do so.
In short, the trial court did not err in denying the Hovanders' motion to suppress.
Given that conclusion, the Hovanders' argument that Starlare's statements to police
were tainted by the deputies' initial investigation also fails.
Finally, the Hovanders contend the trial court erred in denying their motion to
suppress "without reviewing the warrant or its supporting affidavit."11 	But the Hovanders
did not challenge the warrant or the supporting affidavit below. 	Rather, they contended
the deputies' trespassed during their initial warrantless investigation and therefore any
evidence seized pursuant to the subsequent search warrant was the product of unlawful
police conduct and had to be suppressed. 	In these circumstances, the State had no
burden to produce the warrant or the supporting affidavit and the court did not err by
ruling in their absence.
Affirmed.
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WE CONCUR:
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10 CP at 69.
11 Appellant's Opening Br. at 10.