State v. Lee

633 P.2d 48, 1981 Utah LEXIS 811

• Court: Utah Supreme Court
• Decided: June 30, 1981
• Docket: 16566
• Status: Published

Opinions

STEWART, Justice:

The defendant was charged and convicted of theft, a second-degree felony, in violation of § 76-6-404, Utah Code Ann. (1953), as amended, and burglary, a third-degree felony, in violation of § 76-6-202, Utah Code Ann. (1953), as amended. He appeals his conviction on the basis that the trial court’s failure to suppress the stolen equipment taken from his camper-truck constituted a denial of his constitutional right to be protected from unreasonable searches and seizures. The principal issue is whether an officer who, with the aid of a flashlight, looked into the windows of the camper-truck and saw stolen items conducted an illegal “search” within the constitutional meaning of the term.

On August 6, 1978, at about 11:00 p. m., Deputy Sergeant Dan Ipson of the Salt Lake County Sheriff’s Office was driving north on Redwood Road in Salt Lake County in response to a call. As he passed a business called Joe’s Mobile Homes, he noticed two people on the premises. After he answered the original call, he returned to the business area where he had seen the two persons to look for evidence of a burglary. There he observed a person, later identified as the defendant, looking around in a suspicious manner.

Sergeant Ipson then pulled his patrol car out onto Redwood Road. The defendant was not then in sight, but a camper-truck was parked nearby. The tires and hood of the truck were warm, indicating that it had recently been driven. Ipson looked into the camper portion of the truck and saw only a tire and some tool boxes. He then went to the cab of the truck, reached in, and removed the registration card which was attached to the sun visor. He discovered that the truck was owned by the defendant. He also obtained defendant’s home address from one card. Ipson then continued his surveillance from across the street.

Shortly thereafter two men got into the truck and drove north on Redwood Road and then returned south. Sergeant Ipson then inspected several retail stores in the area for possible break-ins. Finding nothing, he drove to the defendant’s home and observed the truck backed into the defendant’s driveway with the front end meeting the public sidewalk. He then started up the front pathway to question the defendant about his earlier activities and looked into the windows of the truck and camper as he passed by. He noticed heavy equipment in the camper that had not been there earlier that evening. With the aid of his flashlight he was able to identify the equipment as an arc welder and several tool boxes.

Suspecting a burglary, Ipson immediately returned to the business area on Redwood Road where he had previously seen the camper-truck parked to make a more thorough search for possible break-ins. He also summoned other officers to aid in the investigation. About a quarter of a block from where he initially spotted the truck, Sergeant Ipson discovered that a window of a store was broken out. The store owner was called to the scene. He indicated that an arc welder and several tool boxes were missing. Since these were the same items Sergeant Ipson had observed in the back of defendant’s truck, he requested other officers go to defendant’s home to keep it under surveillance. They watched defendant’s house until Sergeant Ipson arrived shortly after 1:00 a. m., when, without a warrant, he arrested the defendant and seized the evidence in the truck.

Defendant argues two propositions on appeal based on Article I, Section 14 of the Utah Constitution and Amendment IV of the United States Constitution. Those provisions are identical and state:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated ....

Defendant contends that the discovery of the stolen equipment in the truck constituted an unconstitutional search, and, second, that the subsequent seizure of the machinery without a warrant was unconstitutional.

Searches and seizures are per se unreasonable if concluded outside the judicial process and without a warrant, unless the exigencies of the situation justify an exception. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

We turn first to the contention that the officer’s looking into the camper window and discovering the stolen articles constituted an illegal search. The key issue implicit in the contention is whether there was a search in the constitutional sense of that term. It has long been the law that objects falling within the plain view of an officer from a position where he is entitled to be are not the subject of an unlawful search. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). “What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection.” Katz v. United States, supra, 389 U.S. at 351, 88 S.Ct. at 511. For an officer to look at what is in open view from a position lawfully accessible to the public cannot constitute an invasion of a reasonable expectancy of privacy. State v. Echevarrieta, Utah, 621 P.2d 709 (1980); United States v. Polk, 433 F.2d 644 (5th Cir. 1970).

It makes no difference that there was no probable cause to make an arrest upon the officer’s initial visit to defendant’s residence. The open pathway to the front door was an implied invitation to members of the public to enter thereon. Even though the officer harbored a suspicion that criminal activity had occurred, that did not render unlawful his looking, without a warrant, at that which was in clear sight. State v. Folkes, Utah, 565 P.2d 1125 (1977).

The constitutional interests protected by the prohibition against unlawful searches do not require the police to be less observant than the average person. Nor must a police officer avert his gaze from contraband because a criminal wishes to avoid detection. A desire to avoid detection of criminal activity does not ipso facto give rise to a protectable privacy interest.

Thus, an officer is not expected to ignore what is exposed to observation from a position where he is lawfully entitled to be, and he may view the interior of a vehicle from such a position. That does not constitute a “search” within the meaning of the constitutional provisions.¹ State v. Coffman, Utah, 584 P.2d 837 (1978); State v. Martinez, 28 Utah 2d 80, 498 P.2d 651 (1972); State v. Childs, 110 Ariz. 389, 519 P.2d 854 (1974); United States v. Polk, 433 F.2d 644 (5th Cir. 1970).

The defendant placed the stolen property in the back of the camper-truck so that it was plainly visible through an unobstructed window of the camper and obvious to anyone who happened to be approaching defendant’s front door. There is nothing in the circumstances that gave rise to a reasonable expectation of privacy. It was to be expected that the pathway to the front door might be used by strangers and that, should they do so, they might see into the camper. State v. Wilbourn, La., 364 So.2d 995 (1978), cert. denied, 444 U.S. 825, 100 S.Ct. 46, 62 L.Ed.2d 31 (1979).

Having lawfully entered upon defendant’s property for a purpose other than searching the truck, Ipson merely looked at that which was exposed through the window in the camper and open to his view. He observed equipment that had not been in the truck earlier that evening. This observation of the contents of the camper by looking through the window did not constitute a search, any more than observing the interior of a car through a window constitutes a search. United States v. Johnson, 506 F.2d 674 (8th Cir. 1974), cert. denied, 421 U.S. 917, 95 S.Ct. 1579, 43 L.Ed.2d 784 (1975); Williams v. United States, 404 F.2d 493 (5th Cir. 1968).

Furthermore, the use of a flashlight to assist the natural vision at night does not make an “observation” a “search.” United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927), which was cited with approval in Katz v. United States, 389 U.S. at 351, 88 S.Ct. at 511, is the seminal case. In Lee the Court stated:

[N]o search on the high seas is shown. The testimony of the boatswain shows that he used a searchlight. It is not shown that there was any exploration below decks or under hatches.... [T]he cases of liquor were on deck and . . . were discovered before the motorboat was boarded. Such use of a searchlight ... is not prohibited by the Constitution. [274 U.S. at 563, 47 S.Ct. at 748.]

Specifically it is not unconstitutional to use a flashlight to aid in viewing an automobile’s interior. United States v. Johnson, 506 F.2d 674 (8th Cir. 1974); Williams v. United States, 404 F.2d 493 (5th Cir. 1968); Daygee v. State, Alaska, 514 P.2d 1159 (1973); State v. Lafferty, Me., 309 A.2d 647 (1973); Scales v. State, 13 Md.App. 474, 284 A.2d 45 (1971). We emphasize, however, that we do not deal here with the use of electronic or other equipment designed to enable the user to invade areas where exclusion of the public and protection of privacy are to be reasonably expected. See Katz v. United States, supra.

Since the search was not unconstitutional, the subsequent seizure could not be “fruit of the poison tree,” and therefore suppressible. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Nevertheless, defendant contends on appeal that the warrantless seizure of the stolen articles was unconstitutional irrespective of the constitutionality of the search. But the sole contention argued on the motion to suppress in the trial court, and in the supporting memorandum, was that the initial viewing of the contents of the defendant’s truck was an illegal search and that therefore the items were tainted as fruit of the poisonous tree and suppressible.²

The asserted illegality of the seizure because of the failure of Ipson to obtain a warrant was not argued at the hearing on the motion to suppress, and the trial court did not address the issue which defendant now seeks to raise.³ Compare however Harris v. United States, 390 U.S. 234, 88 , 19 L.Ed.2d 1067 (1968); Williams v. United States, 404 F.2d 493 (5th Cir. 1968).

Generally, this Court will not rule on an issue raised on appeal for the first time. Jaramillo v. Turner, 24 Utah 2d 19, 465 P.2d 343 (1970); State v. Starlight Club, 17 Utah 2d 174, 406 P.2d 912 (1965). This rule is particularly applicable to motions to suppress which should be supported by precise averments, not conclusory allegations. Everhart v. State, 274 Md. 459, 337 A.2d 100 (1975). As stated in State v. Johnson, 16 Or.App. 560, 519 P.2d 1053 (1974):

At least as much specificity should be required in a pretrial objection to the admissibility of evidence, i. e., a motion to suppress, as is required in an oral objection made during the course of a trial. In fact, even more specificity could reasonably be required because the pretrial objection can be researched and written under relatively calm circumstances, as distinguished from an extemporaneous objection made in the heat of trial. [Id. 519 P.2d at 1057-58.]

There is nothing in the record to indicate that the point now urged upon this Court was unavailable or unknown to defendant at the time he filed his motion to suppress, and to entertain the point now would be to sanction the practice of withholding positions that should properly be presented to the trial court but which may be withheld for the purpose of seeking a reversal on appeal and a new trial or dismissal.

Generally, there is no justification for not presenting all available grounds in support of a motion to suppress, and in the absence of special circumstances, an appellate court will not rule on grounds, not addressed in the trial court. United States v. Castanon, 453 F.2d 932 (9th Cir. 1972), cert. denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972); United States v. Melendez, 355 F.2d 914 (7th Cir. 1966); Moreau v. State, Alaska, 588 P.2d 275 (1978); People v. Sirhan, 102 Cal.Rptr. 385, 7 Cal.3d 710, 497 P.2d 1121 (1972).

Affirmed. No costs awarded.

HALL and CROCKETT *, JJ., concur.

1 . “Plain view” is the term uniformly given to the doctrine invoked as justification for seizing evidence without a warrant at the time of an arrest. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Commonwealth v. Accaputo, - Mass. -, 404 N.E.2d 1204 (1980); Reeves v. State, Alaska, 599 P.2d 727 (1979). We use the term “open view” or “plain sight” to describe the applicable concept in the instant case and distinguish it from the “plain view” doctrine. See State v. Coffman, Utah, 584 P.2d 837 (1978); Davis v. United States, 327 F.2d 301 (9th Cir. 1964). The confusion engendered by use of the same term for different concepts is illustrated by the dissenting opinion’s application of the requirement that the incriminating nature of the evidence must be immediately apparent. That is a requirement that must be met to justify a warrantless seizure incident to an arrest, see Coolidge v. New Hampshire, supra, under the “plain view” doctrine.

2 . Defendant, in his motion to suppress evidence, gave “notice of his intention to move to suppress certain evidence from introduction at his trial which was obtained as the result of a search and seizure in violation of the Fourth and Fourteenth Amendment....” The only argument made in his memorandum in support of the motion to suppress evidence was that

The entry by Sgt. Ipson onto the Lee’s property and peering into the camper owned by Ted Lee was an unreasonable search in contravention of the Fourth and Fourteenth Amendments to the U.S. Constitution, Article I, § 14 of the Utah Constitution. The officer intruded upon defendant’s constitutionally protected expectation of privacy when he went onto defendant’s property and peered in defendant’s camper with no probable cause whatsoever to suspect him of criminal behavior. The lack of probable cause is sufficient to invalidate the search and suppress its fruits; yet if it were assumed for argument that there was probable cause to search, there was no excuse for a warrantless search of the truck.

This reference to a warrantless search and all allegations of an illegal search refer to the initial viewing of the interior of the truck.

3 . Defendant’s motion to suppress was denied in a memorandum decision stating in pertinent part: “[T]he opinion of the court that Sergeant Ipson’s entry onto the defendant’s property . . . and his looking into the truck and camper shell owned by the defendant, both with and without the aid of a flashlight, was not an unreasonable search violative of the defendant’s rights under the provisions of the Constitution of the United States and the Constitution of the State of Utah. ... No physical entry was made or attempted to be made of the truck or camper by Sergeant Ipson and his initial viewing of the suspicious contents of the camper was made at a time when he was either on the sidewalk in front of the pickup truck or else was in an area where he was and because of his intention to go to the door and speak to the defendant. After observing the additional contents of the camper and believing that there was a possibility that it had been obtained in a theft or burglary Sergeant Ipson desisted from actually going to the front door of the residence and he withdrew to do further investigation and gained the assistance of other officers. Under these circumstances, the court does not regard the conduct of Sergeant Ipson at the time and place just described as constituting an unreasonable search.”