State v. Kitchen

Decision Date19 December 1997
Docket Number970086,Nos. 970085,s. 970085
Citation1997 ND 241,572 N.W.2d 106
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Robert KITCHEN, Defendant and Appellant. STATE of North Dakota, Plaintiff and Appellee, v. Becky FRIEZ, n/k/a Becky Kitchen, Defendant and Appellant. Criminal
CourtNorth Dakota Supreme Court

Thomas F. Murtha, of Murtha & Murtha, Dickinson, for defendants and appellants.

Tom M. Henning, Assistant State's Attorney, Dickinson, for plaintiff and appellee.

NEUMANN, Justice.

¶1 Becky Lynn (Friez) Kitchen and Robert Kitchen appeal from the trial court's denial of their motion to suppress evidence. We affirm.

I

¶2 On January 19, 1996, Officer Jason Dellwo of the Dickinson Police Department was attempting to locate one Perry Metcalf for service of an arrest warrant. Officer Dellwo checked two other homes in the neighborhood and, after being joined by Officer Jackie Martin, stopped at the home of Robert Kitchen and Becky Friez, n/k/a Becky Kitchen (Becky and Robert have since married). The officers believed Metcalf might be at the Kitchens' home, because they had stopped him earlier while he was using Robert Kitchen's pickup.

¶3 The Kitchens' residence had one entrance, a narrow enclosed entryway with steps leading to an inner door approximately five or six feet away. The outer door was a metal storm/screen door with a large glass window. The outer door did not have a curtain or other window covering, and could only be locked from the inside. The officers could see the inner door from outside the outer door.

¶4 At approximately 5:00 p.m., the officers approached the outer door and rang the doorbell. Officer Dellwo testified he did not hear the doorbell ring. No one answered. After waiting what the trial court determined was a reasonable period of time, the officers, assuming the residents could not hear the doorbell because of loud music coming from the home, entered the enclosed entryway and proceeded down the steps toward the inner door. The parties dispute whether the police officers knocked on the inner door. Becky opened the inner door and met the officers in the entryway. The officers asked Becky about Metcalf. She said she did not know him, but that Robert might. Becky explained Robert was showering, and she went inside to get him.

¶5 When Becky opened the inner door, the officers could smell the odor of marijuana. While she was gone, they talked over the odor and decided they must take action. When Becky returned, they asked her if she had been smoking marijuana. She did not respond and attempted to close the inner door. At this point, the officers secured the premises and prevented Becky from closing the inner door. They waited for another officer to arrive, after which Officer Dellwo left to obtain a search warrant. Upon obtaining a search warrant, the officers searched the premises and seized marijuana and drug paraphernalia.

¶6 The Kitchens were charged with possession of a controlled substance, marijuana. The Kitchens moved to suppress the evidence obtained from the search, asserting their rights under the Fourth Amendment of the Constitution of the United States had been violated. They argued they had an expectation of privacy in the entryway to their home, and therefore, the officers' obtaining probable cause for a search warrant by smelling the marijuana while in their private entryway violated their right to be secure against unreasonable searches and seizures. After hearing the matter, the trial court denied the motion for suppression of evidence. The Kitchens entered a Rule 11, N.D.R.Crim.P., conditional plea of guilty, reserving their right to appeal.

II

¶7 The Kitchens contend the entryway to their residence was part of their home, affording them a reasonable expectation of privacy in that area. Based on that expectation of privacy, they argue the officers' warrantless entry into that part of their home, where the officers then smelled marijuana, was an illegal search under the Fourth Amendment, requiring suppression of the evidence gained thereafter.

¶8 We are asked to decide whether the Kitchens had a reasonable expectation of privacy in the enclosed entryway to their home, affording them Fourth Amendment protection.

III

¶9 The Fourth Amendment to the United States Constitution, made applicable by the Fourteenth Amendment, and Article I, section 8 of the North Dakota Constitution protects individuals from unreasonable searches and seizures. State v. Winkler, 552 N.W.2d 347, 351 (N.D.1996). When the government intrudes on an individual's reasonable expectation of privacy, a search is deemed to have occurred. Id. The government is required to obtain a search warrant before searching an area where an individual possesses a reasonable expectation of privacy, "subject only to a few specifically established and well-delineated exceptions." Id. (quoting Horton v. California, 496 U.S. 128, 133 n. 4, 110 S.Ct. 2301, 2306 n. 4, 110 L.Ed.2d 112, 120-21 n. 4 (1990) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967))). Absent such an exception, evidence gained in violation of the Fourth Amendment's protections against unreasonable searches and seizures is inadmissible under the exclusionary rule and must be suppressed. State v. Blumler, 458 N.W.2d 300, 302 (N.D.1990) (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). Any subsequent evidence gained as a result of the initial illegally acquired evidence is considered "fruit of the poisonous tree," and must likewise be suppressed, unless an exception to the warrant requirement for the search exists. Id. (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).

¶10 In order for the entryway to the Kitchens' home to be a protected area under the Fourth Amendment, the Kitchens must have a subjective expectation of privacy in their entryway that society would view as objectively reasonable. State v. Rydberg, 519 N.W.2d 306, 309 (N.D.1994) (relying on California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), a case in which the United States Supreme Court concluded both subjective and objective expectations are necessary when searching garbage); see also Katz, 389 U.S. at 361, 88 S.Ct. at 516, 19 L.Ed.2d. at 588, (Harlan, J., concurring) (discussing twofold requirement of subjective expectation of privacy that society recognizes as reasonable).

¶11 We will defer to a trial court's findings of fact in the disposition of a motion to suppress. State v. Ova, 539 N.W.2d 857, 858 (N.D.1995). Conflicts in testimony will be resolved in favor of affirmance, as we recognize the trial court is in a superior position to assess credibility of witnesses and weigh the evidence. Id. Generally, a trial court's decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court's findings, and if its decision is not contrary to the manifest weight of the evidence. State v. Winkler, 1997 ND 144, p 8, 567 N.W.2d 330; City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). After reviewing the record, we determine the trial court's factual findings are not against the manifest weight of the evidence.

¶12 Whether findings of fact meet a legal standard is a question of law. Ova, 539 N.W.2d at 858. While we do not conduct a de novo review of the findings of fact, questions of law are fully reviewable. Id. The record reflects the Kitchens asserted their subjective expectation of privacy in the entryway to their home. Whether the Kitchens' expectation of privacy is objectively reasonable will be reviewed de novo. State v. Carriere, 545 N.W.2d 773, 775 (N.D.1996). "Whether there is a reasonable expectation of privacy in a given area must be decided on a case-by-case basis." State v. Edgeberg, 188 Wis.2d 339, 524 N.W.2d 911, 915 (1994).

¶13 First, the significance of the Kitchens' assertion that the entryway is part of their home cannot be denied. The home is an area constitutionally protected, as "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639, 650 (1980) (citation omitted). In Payton, the Supreme Court reiterated the basic principle of Fourth Amendment law that warrantless searches and seizures inside a home are presumptively unreasonable. Id. at 586, 100 S.Ct. at 1380. However, the Court recognized that evidence left in a public place or in plain view involves no invasion of privacy and the warrantless seizure of such property is presumptively reasonable, assuming law enforcement had probable cause. Id. at 586-87, 100 S.Ct. at 1380. See also Brown v. State, 75 Md.App. 22, 540 A.2d 143, 149 (1988) (stating the front door area of house is entitled only to extremely limited Fourth Amendment protection because a great amount of privacy cannot be expected where the public was welcome).

¶14 The Payton Court defined the area protected inside the home, stating: "[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton, 445 U.S. at 590, 100 S.Ct. at 1382. But, what or where is the threshold to a house? Where should the line be drawn when a house has an enclosed porch, vestibule, or entryway attached to the home? We must look at the reasonableness of each situation, giving due consideration to the particular characteristics of the home in question: "The ultimate standard set forth in the Fourth Amendment is reasonableness." Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706, 713 (1973).

¶15 In assessing the reasonableness of the Kitchens' expectation of privacy, we first consider why law enforcement approached their door. The police went to...

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