Jessee v. State

640 P.2d 56, 1982 Wyo. LEXIS 290

• Court: Wyoming Supreme Court
• Decided: January 29, 1982
• Docket: 5524
• Status: Published

Opinions

RAPER, Justice.

The appellant was tried before a jury and found guilty of burglarizing a dwelling¹ and sentenced by the trial judge. The appellant raises as issues:

“Whether the search of the cabin that appellant was occupying violated his rights under the Fourth Amendment to the United States Constitution and Article I, Section 4 of the Wyoming Constitution and whether the evidence obtained pursuant to that search must be suppressed.

“Whether the subsequent seizure of additional evidence was a direct result of the illegal search of Appellant’s dwelling and whether the evidence seized is suppressa-ble [sic] as fruits of an illegal search.”

We will affirm.

The ensuing narrative is a summary of the trial evidence. Fritz Portschy owned a trailer house on Beaver Creek, located about five miles from Atlantic City in Fremont County. He lived in Riverton and used the trailer house for recreation purposes such as weekends for fishing, hunting and as he testified it was a “home away from home.” On November 1,1980, he and some friends and a son went there to go hunting and discovered that it and some of the out-buildings had been broken into and “ninety-eight percent” of his possessions were gone. Various locks had been broken to gain access. Many of the items, including an electric generator, were introduced into evidence and he was able to identify them. No one had given consent to anyone to use the trailer. The next day he' reported the break-in and theft to an officer of the sheriff’s office and made up a list of items missing. He also at that time identified the location of his trailer to the officer.

Prior to that incident, on October 18, 1980, a friend of Mr. Portschy had been in the area deer hunting and checked out the trailer and related facilities as he usually did. Everything had been intact.

The deputy sheriff, John Coppock, investigator for the Fremont County Sheriff, who had taken the report from Mr. Portschy, along with another deputy, drove to the location of the trailer in accordance with Mr. Portschy’s direction to carry on their investigation. Neither, however, were familiar with the area. They went in the wrong direction at one point and then had to turn around and follow what is known as the Miners Delight Road to a point where they believed Beaver Creek was nearby. Eventually they came to a fence and gate marked “Private Property No Trespassing.” It bore the name “Mazet,” so they thought they were on the wrong road. Portschy had not advised them that the land upon which his trailer was located belonged to George Mazet, so they took another road.

They came to what appeared to be an old abandoned cabin. A piece of plastic, used to cover a window opening, had broken loose and was blowing in the wind. There was no fence or other barrier around the cabin. They approached the cabin and Cop-pock looked through the window opening and saw numerous items: pans, pots, silverware, dishes, food, a sheepherders’ stove, skillet, a gray five-gallon can and a red two-gallon can. These items attracted their attention because Mr. Portschy had reported items like these as stolen from his trailer. The officers had no idea who the cabin belonged to. The door was flapping in the wind so they went in.

Coppock took pictures of the cabin and its contents. A Bible was in the cabin but he did not photograph it. A photo of the Bible was produced by defense counsel and the witness testified he had seen the Bible previously during an investigation of littering at Willow Creek. It was in appellant’s van at that time. The Bible had later been turned into the sheriff’s office as a lost item, and he had returned it to appellant. The discovery of the Bible after entry was the first item that connected appellant with the cabin and contents. Coppock confiscated some of the property in the cabin: silverware, a knife, a teaspoon, a tablespoon, a skillet, a gas can, a five-gallon can and a brown trash can, which Portschy later identified as items stolen from his trailer.

On the way back to the sheriff’s office, Coppock recognized appellant’s vehicle going down the road, stopped and conversed with appellant, and as a result, followed the appellant to a friend’s home where he was living. Appellant left his car there and rode with Coppock back to the sheriff’s office to talk about the items found in the cabin and the Bible. Before the discussion began, Coppock read to appellant his Miranda rights. Appellant indicated he understood them. After Coppock explained his findings, appellant became nervous and wanted to talk to his attorney but, when Coppock pointed to the phone, he could not remember who his attorney was. He was not questioned further, but he did ask if he was going to be arrested. Coppock responded that he did not know, whereupon appellant asked Coppock to give him until the next morning and he would bring in other items, not found. Appellant left.

The next morning, November 3, 1980, Coppock saw appellant’s vehicle at a service station in Hudson. When appellant came out, he was asked if he would be coming to the sheriff’s office in Lander. Appellant responded in the affirmative and asked to ride with Coppock because he was low on gas and without funds. At the sheriff’s office appellant was again given his Miranda rights and interviewed, all of which was recorded. The tape was played to the jury. It amounted to a confession of guilt.

Appellant, after the taped interview, gave permission to Coppock to search the cabin and his automobile. After that appellant was arrested and placed in jail. Cop-pock then returned to the cabin and picked up the other things Portschy had told him were missing. Other items were found in appellant’s car, including a bottle of Jack Daniels whiskey and a bottle of Chivas Regal scotch whiskey, which Portschy had reported as stolen. A generator was retrieved through use of a search warrant from the residence of appellant’s friend, Longtine, located east of Riverton. At the trial Longtine, in the pawn business part time, testified that appellant had brought him the generator.

Longtine had been, since 1932, acquainted with the Miners Delight cabin occupied part time by appellant. In fact he called one Kenny Cooper, the alleged owner, for permission for appellant to stay in the cabin, which was granted. Appellant had worked for Longtine off and on doing various jobs.

The appellant testified on his own behalf. What here follows, until otherwise noted, is a summary of appellant’s testimony. He explained that Jeff Ellis, about age 19, who was living with him, was the “illegitimate product” of an illicit relationship between his father and a Montana woman and therefore his half-brother. Since the mother was marrying someone else, it appeared better for Jeff to live with appellant, so he had been with him since 1976, when those arrangements were made. They moved to Wyoming in April, 1980. After holding jobs of various sorts he filed with the United States Bureau of Land Management a gold mining claim on Willow Creek.

He was notified by the Bureau of Land Management that his claims were invalid and he had to cease mining and move off the property. He commenced a move into the Miners Delight cabin. After that he was picked up for a probation violation resulting from forgery charges in California and was returned to there by California authorities. Whatever business he had with the authorities there was taken care of and he was allowed to return to Lander. He went to his camp on Willow Creek to move more of his stuff but found that his camp there had been set fire — still smoldering when he arrived. A number of things had been stolen from him. He made a list of missing things, gave it to the sheriff and completed his move into the cabin.

He claimed that a California hunter gave him a game validation tag for killing a deer on his land, thinking he could collect a landowner’s fee on it from the Game and Fish Commission. The gift was out of gratitude for help he had given the hunting party.

He left the cabin on October 23 to go down and do some work for Longtine, fixing fence and other things and returned to the cabin. He claimed he had given the sheriff’s office a map of how to get there. When he arrived, there were a lot of things in the cabin someone had put there including an electric generator — it was “kind of like Christmas morning when you are expecting Santa Claus.” All the various things in evidence were there. He found a note under a coffee cup which said:

“Thanks for the guided tour, don’t dig too much gold or Uncle Sam will gig you and take fifty percent. Send us your address so we can get in touch. The California Bunch, Bob, Richard, and Ernie.”

He figured the “California Bunch” had left it for him along with some bottles of liquor (the same purportedly stolen from the Portschy cabin.) He did not want to leave the generator in the cabin for fear someone would steal it, so he left it with Longtine.

His claim is that he denied to the sheriff’s deputy any guilt when interrogated, until he was advised that Jeff Ellis was also to be arrested and charged. Coppock let him go but appellant was picked up in Hudson and told that Jeff Ellis had been arrested for the burglary. Coppock also said he wanted to know of the illegal activities of Frank Longtine, suspected of dealing in hot equipment, hot firearms, whatever. Appellant denied any knowledge. Appellant also was promised if appellant confessed that Jeff Ellis would not be charged, appellant would not be charged with being an habitual criminal and Coppock would recommend probation. He gave the statement because he had a twenty-year criminal record did not want to see the young boy Ellis go to prison; so, he confessed to protect Jeff Ellis. This ended appellant’s testimony.

In rebuttal, Jeff Ellis’ mother testified that appellant was not his half brother, nor had she ever met appellant or his father. The hunter from California testified that he had left the note and when he last saw the cabin there were a lot of things there not present the first time and after appellant had taken his party past the Portschy trailer while hunting. He admitted giving the landowner’s deer tag to appellant and said the deer had been shot about two and a half miles away from the cabin.

The following testimony was elicited at the suppression hearing held about two months prior to trial. The hearing was held with the appellant taking two positions— first that there was an unconstitutional search of the cabin; and second that appellant’s confession was not voluntary but coerced by promises that his relative would not be prosecuted, though he was, and that he would not be prosecuted as an habitual criminal, which promise was kept. There is no question on appeal with respect to the alleged coercion, though appellant does argue that the search and seizure led to appellant’s confession and it was poisoned and inadmissible as a result.

The testimony presented by the State which assumed the burden of establishing a lawful search was substantially that presented at the trial except that there was greater detail laid out as to the area in which the cabin was located and its dilapidated condition. Deputy Coppock testified running into what appeared to be an old abandoned cabin; there were no signs indicating it to be private property, no fences, barricades, or hedges around the property. The cabin looked as though it was about to collapse. Old rusted cans and a bedspring were around the outside of the building. The rickety door was flapping open in the wind and in doing so made a crashing sound. Coppock did not notice a sign on the door which read “Dynamite. Danger. No trespassing.” On one of the windows — no glass — there was only a piece of plastic which was torn loose and blowing about. He looked through the window and saw various items similar to what had been taken from the Portschy trailer, took samples and had them identified by Portschy. The inside did not look lived in, though there were various items of food, later identified as stolen from Portschy. The cabin had a dirt floor. It was the impression of the deputy sheriff that the stuff he saw had been stashed there.

They (the deputies) took samples because they were afraid the evidence would be destroyed or moved; it was getting late in the afternoon and the chill factor was getting below zero. Further, the cabin is up in the hills, in a remote area, eight miles from any highway and over forty miles from their headquarters at Lander.

The appellant testified. He claimed that Coppock knew he was going to the Miners Delight cabin because, when he told Cop-pack of his plans, Coppack had said he could not live on or work that area because it, “belonged to BLM. It’s on the national register,” (a historical site). He nevertheless moved into the cabin on October 11, 1980 with what food they had and borrowed utensils. The cabin was at one time Frank Longtine’s but sold to a Kenneth Cooper who resides in Nebraska. Afterwards they lived in it briefly and on weekends in order to work another claim belonging to Frank Longtine. He claimed to have permission to use the cabin from Cooper, having talked to him just before the suppression hearing at Frank Longtine’s residence. He could use the place for doing the assessment work. Apparently all he got around to doing was putting plastic on the window.

The district judge and counsel, as part of the suppression hearing, went out and viewed the cabin area. The court took three Polaroid pictures, introduced as court’s exhibits. Other photos were also introduced at a second session on the suppression. They vividly express better than the testimony the ramshackle condition of the cabin and cabin site.

The trial judge, in rendering his oral decision, first advised that the defendant if he wished could submit the question and issues of unlawful search and seizure to the jury upon proper instructions because any decision would involve a question of fact. It is noted from the instructions that no such instruction was offered by appellant or given.

The trial judge in his opinion denying suppression, rendered from the bench at the close of the hearing, gave thoughtful attention to the law and the facts. He had obviously done his homework on the pertinent leading and controlling cases. By way of fact finding, he noted that it was believable that the law enforcement officers were in the area in connection with a search for the Portschy place when, more by chance than purpose, they came on the cabin, and further, that it was reasonable to nose around the cabin located in an area of historical significance. From the outside there was no distinguishable evidence that the premises were secured, occupied as an abode, and privacy expected. On the contrary, the appearance was one of abandonment, with the plastic over the window loose and flapping, the door with no lock or latch, open and banging in the wind. Rather than discouraging entry, those conditions invited investigation. The trial court pointed out that officers have an obligation to inquire into what could have been vandalism in progress. The trial court noticed that it was practically conceded that the goods observed were stolen from the Portschy premises but that the discovery was inadvertent and there was no unconstitutional intrusion. Furthermore, the trial judge found that there was present the exigency of a reasonable threat of removal or loss of evidence. It was a cold day with a heavy chill factor and the cabin was in a remote, semi-wild area. The discovery was made in an atmosphere of innocence; the material seized was in plain view. The appellant had not done those minimal things which would give the world notice that expressed any reasonable expectation of privacy, not only from the police but even from the public at large, hunters or any others. The court expressly held that any reasonable person viewing the premises from the outside as an entirety would reasonably conclude that it was abandoned.

I

Appellant’s first claim is that the stolen property seized must be suppressed as evidence against appellant in that the search of the cabin violated his rights under the Fourth Amendment to the Constitution of the United States² and § 4, Article 1, Wyoming Constitution.³ The key words in each of these constitutional provisions are “unreasonable searches and seizures.” Not all searches and seizures are forbidden, but only those that are unreasonable. Whether searches and seizures are unreasonable depends to some extent at least upon the articles procured and the circumstances under which they are obtained. As to when a search and seizure is reasonable is a judicial question and as a general rule searches not made under a search warrant are unreasonable. State v. George, 32 Wyo. 223, 231 P. 683 (1924).⁴ The burden is upon the State to establish that a search and seizure is reasonable, in the absence of a search warrant. At the suppression hearing the trial judge recognized this rule and required the State to go forward and carry that responsibility once it was apparent that the initial entry of the cabin was without the benefit of process.

Reasonableness of search is not capable of precise definition or any mechanical application. Each case requires a weighing of the need for the particular search in the public interest against the invasion of the personal rights that the search calls for. Courts must probe the scope of the particular intrusion, the manner in which it is carried on, the justification for its initiation, and the place in which it is conducted. Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447, 481 (1979) and cases there cited.

Many of the judicial utterances on search and seizure have dealt with the subject in a context not related to “[t]he right of the people to be secure in their * * * houses * * but rather in connection with searches of the person, automobiles, packages, suitcases, et cetera.⁵

From early on in the history of the United States, it was the determination of the architects of the Bill of Rights to secure to the American people safeguards from invasions of the home and privacy of citizens. The Fourth Amendment establishes the fundamental principle that “every man’s house is his castle.” It is one of the most sacred rights of all those secured by the Constitution. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). A home is entitled to special dignity and sanctity, and the proper way to search a home is to obtain a search warrant. Goddard v. State, Wyo., 481 P.2d 343 (1971). While Weeks specifically held that Fourth Amendment rights were applicable only to federal officers, the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933, reh. denied 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72 (1961), held that the Fourth Amendment right to privacy is enforceable against state officers under the due process clause of the Fourteenth Amendment to the Constitution of the United States.

Reiterating that there is no formula for the determination of reasonableness and that each case must be decided on its own facts and circumstances, in Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), it was held that Mapp v. Ohio, supra, was not intended to impose on the states any rule different than

“[t]his Court’s long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean[⁶] application is carried forward when that Amendment’s proscriptions are enforced against the States through the Fourteenth Amendment. * * * ” 83 S.Ct. at 1630.

In Ker, supra, search of an apartment was held reasonable and recognized that states are not precluded from developing workable rules governing searches and seizures to meet the practical demands of effective criminal investigation and law enforcement, provided they do not violate the constitutional proscription against unreasonable searches and seizures. Reasonableness of a search is in the first instance a substantive determination to be made by the trial court, subject to review.

The theme of workable rules in Ker is also found in State v. George, supra, where it was said that to say an examination is invalidly made at a place where an officer has a right to be would unreasonably stretch the constitutional provision invoked. “To make persons secure in their property and protect them against the invasion of thieves who have no regard for the rights of others, is just as important, and without it, in fact, our civilization would vanish.” 231 P. at 689.

It has long been settled that objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The plain-view doctrine is applied when a police officer is not searching for evidence against the accused but nonetheless inadvertently comes across an incriminating object. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). However, plain view alone is not enough to justify warrantless seizure of evidence; exigent circumstances must also be present.⁷

In support of the plain-view doctrine, this court has had recent occasion to adopt the federal view and apply it in McCutcheon v. State, Wyo., 604 P.2d 537, 540 (1979); and the elements for plain view as an exception to and in lieu of a search warrant requirement were laid out:

(1) The officer’s presence must be proper.

(2) The items observed must appear to be possible evidence.

(3) Attention must be paid to the proposition that the doctrine is only applicable to the inadvertent discovery of incriminating evidence.

While the law of search and seizure is a constantly perplexing problem and in shambles,⁸ we are satisfied that there is present clear and authoritative precedent disposing of the present appeal without confusion or dispute.

The comprehensive array of evidence produced at the suppression hearing held before the trial judge and his perceptive analysis prior to trial discloses the presence of all the necessary facts to support a proper search and seizure without a search warrant.

First, the officers had a right to be where they were. They were on land belonging to the United States of America. As they entered the Miners Delight area, they passed through the gate of a fence where appeared a sign declaring the land to be property of the United States. The cabin is located upon that land. The region is of historical interest in which are located a number of abandoned cabins, relics of early prospecting activity. The public freely traverses the vicinity and pokes around in the ruins and structures left from the early-in-the-century quest for gold. The photos demonstrate the cabin in question to be practically on the verge of collapse; its sod roof sagging with age, greying timber and logs, together with rusty junk lying around, giving every appearance of having been abandoned. The loose and flapping piece of plastic piqued the curiosity of the officers. Their role at this point would be that of patroling law enforcement officers. They had no knowledge of any unlawful activity in this normally uninhabited country. For all they knew, someone could be inside, dead or sick or vandalism taking place. They had as much right to be curious and nose around as the public. They were standing on property of the United States when they peeked through the window opening — there was no glass. The door was swinging in the wind — there was no lock— no latch — no fastening of any sort. Under the circumstances, they had a right to be there.

The view through the window opening showed various items of personal property which gave the appearance of articles which matched the description on the list given them by Mr. Portschy. These items were possible evidence.

The discovery was inadvertent. They were there only because they were looking for Mr. Portschy’s trailer and were on the wrong road to reach it, and in a sense lost. They were not looking for the stolen property. It was strictly accidental that they bumped into this find. Their narrative of how they got there is entirely believable. They had no idea of any relationship of the discovered loot to appellant until they found appellant’s Bible, which also was in plain sight. There could be no better example of inadvertence — more luck than any conceivable design.

Now, what about the exigencies of the situation? Why could not one of them remain, before ever entering the cabin, and the other return to Lander for a search warrant? They had one vehicle; it was nearing dusk and the chill factor was below zero. They were forty-five miles from Lander in mountainous country. Neither of the officers was equipped or clothed to stand guard while the other returned to town. For both to return would raise the risk that the thief, then unknown, would return and remove the possible evidence. It was a weekend, neither the county prosecuting attorney or a judge would be available except through being sought out, returned to their offices or at least their advice and a-judge’s signature obtained wherever he might be found. The circumstances were just such that it was impractical to obtain a search warrant and so unnecessary in view of the abandoned appearance of the building. Law officers are not required to go through motions of absurdity. Common sense must have a place in the law. The search and seizure was reasonable.

II

Our holding on the fact issue is disposi-tive of appellant’s second issue. There was no fruit of a poisonous tree. Goddard v. State, supra; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Affirmed.

1 . In violation of § 6-7-201(a)(i), W.S.1977:

“(a) Whoever, intentionally enters, or attempts to enter, any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony therein may be imprisoned not more than fourteen (14) years:

“(i) Any building or dwelling; or”

2 . Fourth Amendment, Constitution of the United States:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

3 . Section 4, Article 1, Constitution of the State of Wyoming:

“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized.”

4 .See also Neilson v. State, Wyo., 599 P.2d 1326, 1330 (1979); Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543, 39 A.L.R. 790 (1925).

5 . None of the cases here cited to this point have had to do with search of a house: State v. George, supra, sheep corral; Neilson v. State, supra, automobile; Carroll v. United States, supra, automobile; Bell v. Wolfish, supra, body cavity. Others cited by and relied upon by the parties are equally not germane in that respect, though they do put together applicable language dealing with the vast subject of search and seizure. For example, cases cited by counsel. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), automobile; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), phone booth.

6 . Webster explains that “procrustean" is derived from Procrustes, the name of a legendary robber of ancient Greece who forced his victims to fit a certain bed by stretching or lopping off their legs. In modern application it is that which is marked by complete disregard of individual differences or special circumstances and that often arbitrarily, ruthlessly and violently forces conformity to a doctrine.

7 . See also, annotation, 29 L.Ed.2d 1067, “Search and Seizure: Observation of objects in ‘Plain View’ — Supreme Court Cases.”

8 . See a most interesting and informative comment, McClain, “Unreasonable Searches Under the Fourth Amendment: ‘The Rule Becomes Curiousier and Curiouser’,” XV Land and Water L.Rev. 275 (1980).