Jessee v. State, 5524

• Decision Date: 29 January 1982
• Docket Number: No. 5524,5524
• Citation: 640 P.2d 56
• Parties: Jerry Lynn JESSEE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 56

640 P.2d 56

Jerry Lynn JESSEE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5524.

Supreme Court of Wyoming.

Jan. 29, 1982.

Rehearing Denied April 7, 1982.

See 643 P.2d 681.

Michael H. Schilling, Appellate Counsel, Wyoming Public Defender Program, Laramie, for appellant (defendant).

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, Allen C. Johnson, Senior Asst. Atty. Gen., and Michael L. Hubbard, Asst. Atty. Gen., (argued), for appellee (plaintiff).

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

RAPER, Justice.

The appellant was tried before a jury and found guilty of burglarizing a dwelling ¹ 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 suppressable (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 Coppock 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. Coppock 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 and 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,...