State v. Cleator

857 P.2d 306, 71 Wash. App. 217, 1993 Wash. App. LEXIS 362
CourtCourt of Appeals of Washington
DecidedSeptember 7, 1993
Docket30869-6-I
StatusPublished
Cited by10 cases

This text of 857 P.2d 306 (State v. Cleator) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cleator, 857 P.2d 306, 71 Wash. App. 217, 1993 Wash. App. LEXIS 362 (Wash. Ct. App. 1993).

Opinions

[218]*218Coleman, J.

Lance Cleator, a juvenile, appeals the disposition order finding him guilty of residential burglary. Cle-ator claims that the arresting officer's warrantless seizure of stolen property violated Cleator's constitutional rights. In addition, Cleator claims that his confession was the fruit of an unconstitutional search and seizure. We affirm.

On January 24, 1992, Everett Police Officer Donald Dene-vers responded to a call reporting a residential burglary. At the scene, Officer Denevers was told that several envelopes, a Mason jar, and two Crayola children's banks, each containing money, had been taken that day. Denevers assumed that the burglar had come through the woods behind the house because the point of entry appeared to be a rear window, there was a gate in the back fence providing access to the woods, and the woods provided good cover. He entered the woods to investigate, and about 150 yards behind the house he discovered a 6-person tent with a fire smoldering in front of it. He saw no one and when he called out, no one answered. The wooded area was not a campground, and the officer believed that the tent was on city property.

After determining that no one was in the tent vicinity, Officer Denevers stepped up to the tent entrance and lifted the opaque flap, which was not tied or secured in any way. Officer Denevers testified that he looked into the tent for officer safety to ensure that no one was hiding inside with a weapon. Underneath the tent flap, the mosquito mesh was zipped closed, and Denevers looked through the mesh and saw a Mason jar with some coins in it just 2 feet inside the tent entrance. Beside the Mason jar were several coin rolls, similar to the ones that had been reported missing. After making sure there was no one hiding in the trees or bushes, Officer Denevers unzipped the tent opening, took the Mason jar and the coin rolls from the tent, and carried them back to the resident of the home. She identified them as hers, and the Mason jar and coin rolls were impounded.

[219]*219The next day Denevers went back to the tent with Officer Ann Bakke to see who was living there. When they arrived, they found three individuals outside the tent — Lance Cleator and Kahere Sidiq, who had spent the night in the tent, and Cleator's cousin, who had been visiting for a couple of hours. Officer Denevers told the juveniles that he was investigating a burglary and had found evidence in the tent, but Denevers did not indicate what that evidence was. Officer Denevers then advised the juveniles of their Miranda1 rights, and each, including Cleator, said that they understood. Cleator and Sidiq were arrested for possession of stolen property. In addition, Cleator was taken into protective custody because he was a runaway.2

Officer Bakke drove Lance to the station. During the drive she asked Cleator how he had gotten the money, and Cleator admitted that he and Sidiq had gone into the house through the back slider. Cleator described how they got the Crayola coin banks, envelopes, money, and coins, and he stated that when they returned to the campsite, they emptied out the Crayola banks and burned them.

At the station, Cleator was again read his Miranda rights, and he gave a written statement. Cleator was charged with residential burglary in violation of RCW 9A.52.025.

Before trial, Cleator moved to suppress the property recovered from the tent on the grounds that he had a reasonable expectation of privacy in the tent and that the search was warrantless. Cleator also moved to suppress his confession on the grounds that it was involuntary and the fruit of an [220]*220illegal arrest. Cleator's motions were denied. Lance Cleator was found guilty of residential burglary and given a disposition within the standard range. Cleator appeals.

We initially consider whether the police officer's war-rantless seizure of stolen property violated Cleator's Fourth Amendment3 rights. "To determine whether a search necessitating a warrant has taken place under U.S. Const, amend. 4, the inquiry is whether the defendant possessed a 'reasonable expectation of privacy.'" State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984); see also Katz v. United States, 389 U.S. 347, 361, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). An individual wrongfully camping on private property has no "reasonable expectation of privacy in the area surrounding his tent". State v. Pentecost, 64 Wn. App. 656, 659-60, 825 P.2d 365 (1992). While no Washington cases directly address whether a squatter has a reasonable expectation of privacy inside his tent, the Pentecost court noted, in dicta, the trial court's conclusion that Mr. Pentecost had "a limited expectation of privacy, if any, in only his tent." (Some italics ours.) Pentecost, at 658.

Most courts have rejected an individual's claim to a right of privacy in the temporary shelter he or she wrongfully occupies on public property.4 No reasonable expectation of privacy has been found in a squatter's home under a bridge, [221]*221State v. Mooney, 218 Conn. 85, 94, 98-99, 588 A.2d 145, 152, 154 (1991) (privacy right in duffel bag and cardboard box stored under the bridge, but not in the defendant's home under the bridge), cert. denied,_U.S._, 116 L. Ed. 2d 270, 112 S. Ct. 330 (1991); in a squatter's home in a cave on federal land, United States v. Ruckman, 806 F.2d 1471, 1472-73 (10th Cir. 1986) (no reasonable expectation of privacy in a cave from which defendant could be ejected at any time); or in a squatter's home on state land, Amezquita v. Hernandez-Colon, 518 F.2d 8, 11 (1st Cir. 1975) (no reasonable expectation of privacy on land which squatters had no right to occupy), cert. denied, 424 U.S. 916, 47 L. Ed. 2d 321, 96 S. Ct. 1117 (1976). Thus, if an individual

places his effects upon premises where he has no legitimate expectation of privacy (for example, in an abandoned shack or as a trespasser upon another's property), then he has no legitimate reasonable expectation that they will remain undisturbed upon [those] premises.

4 W. LaFave, Search and Seizure § 11.3(c), at 305 (2d ed. 1987) (quoting Gutterman, "A Person Aggrieved": Standing to Suppress Rlegally Seized Evidence in Transition, 23 Emory L.J. 111, 119 (1974)). Further, where "an individual has no reasonable expectation of privacy in a particular area, the police 'may enter on a hunch, a fishing expedition for evidence, or for no good reason at all.' "5 State v. Petty, 48 Wn. App. 615, 620, 740 P.2d 879 (quoting State v. Bell,

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State v. Cleator
857 P.2d 306 (Court of Appeals of Washington, 1993)

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Bluebook (online)
857 P.2d 306, 71 Wash. App. 217, 1993 Wash. App. LEXIS 362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cleator-washctapp-1993.