McCutcheon v. State

• Decision Date: 21 December 1979
• Docket Number: No. 5139,5139
• Parties: John McCUTCHEON, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 537

604 P.2d 537

John McCUTCHEON, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 5139.

Supreme Court of Wyoming.

Dec. 21, 1979.

Rehearing Denied Jan. 14, 1980.

Richard H. Honaker, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, and Harry G. Bondi, Deputy Public Defender, Casper, for appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Douglas J. Moench, Jr., Legal Intern, and Michael Huber, Deputy Pros. Atty., Natrona County, for appellee.

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

ROSE, Justice.

Appellant, John McCutcheon, was charged with burglarizing the Roadrunner Cafe in Casper, Wyoming, on September 7, 1978, in violation of § 6-7-201(a)(i), W.S.1977 , with burglarizing the garage of Casper policeman Bill Millay on September 3, 1978, also in violation of § 6-7-201(a)(i), W.S.1977, and with concealing stolen goods in violation of § 6-7-301, W.S.1977.

The Roadrunner Cafe burglary charge (District Court Criminal Action No. 7714), and the Millay garage burglary and concealing stolen goods charges (District Court Criminal Action No. 7738) were consolidated for trial.

Appellant's counsel moved to suppress evidence allegedly obtained pursuant to illegal searches and seizures under the Fourth Amendment of the Constitution of the United States, and Article 1, Section 4, of the Wyoming Constitution. That motion was heard and denied. The evidence was received at trial, and appellant was convicted of two counts of burglary and sentenced to two concurrent terms of five to eight years in the Wyoming State Penitentiary.

This appeal addresses the trial court's denial of appellant's motions to suppress illegally seized evidence. The evidence appellant objected to at trial and objects to on appeal includes all the evidence received which relates to the Millay burglary, Criminal Action No. 7738, together with the admission in Criminal Action No. 7714 of photographic exhibits of food items seized while officers were acting under the authority of a search warrant.

We will affirm.

At about noon on September 4, 1978, Casper policeman Bill Millay discovered that his garage had been broken into and several items, including a bench grinder, a car stereo and tape, two radios, and two car speakers had been taken sometime the previous day. On September 6, 1978, one of Millay's neighbors told him that he had seen "four or five kids" in a black Pontiac or Oldsmobile with a square taillight and no license plates, and that he heard one of the "kids" say, "Man, did we hit it big, we found a garage and its (sic) got tape players and everything in it."

On the following day, September 7, 1978, Millay searched for a car matching this description. About noon, he observed and followed a black Pontiac proceeding along a Casper street and "crept up on his bumper and noticed a set of speakers in the back window similar to mine." Millay traced the temporary license sticker on the car and found that it belonged to the appellant, John McCutcheon. Officer Millay then informed Casper Police Department Investigator John Snell "that he had seen some speakers in the rear deck of a vehicle" registered to John McCutcheon of 1960 Johnstone Road.

John McCutcheon and his father, Joe McCutcheon, were working on John's black Pontiac that same afternoon of September 7, 1978, and, when the McCutcheons, together with April Garner, left the vehicle at about 6:30 p. m. to go to a store and buy a set of brakes, the automobile was parked in the driveway at 1960 Johnstone Road.

Snell testified that, "In an attempt to obtain further information," he and Investigator James H. Cooper arrived at 1960 Johnstone Road at about 7:00 p. m., and walked onto the McCutcheon premises.

The appellee describes what happened next as follows:

" . . . Officer Snell proceeded up the driveway of the residence to ascertain whether anyone was at home. Enroute, he observed the speakers through the back windows of the black Pontiac, and the tape deck through the side windows . . ."

The appellant describes the happening in this manner:

" . . . They (Investigators Snell and Cooper) walked onto the McCutcheon premises, looked into the vehicle parked in the driveway, and saw a car stereo . . . and two speakers . . . in the vehicle . . ." ¹ Appellant, his father, and April Garner returned shortly after the arrival of Snell and Cooper, and at about the same time Police Officers Glenn Cashel and Dan Hodge appeared at 1960 Johnstone Road. Officer Snell testified that appellant gave him permission to enter and examine the items in the car after he, Snell, had informed appellant of his constitutional rights, including the admonition that he did not have to permit the police to search the vehicle. Shortly thereafter, appellant signed a written permission for the officer to search the residence.

Upon receiving appellant's permission, Investigator Snell entered the vehicle, inspected and tentatively identified the speakers and car stereo, and called Officer Millay to come to 1960 Johnstone Road to identify those items. Millay entered the vehicle "after I found out there had been a permission to search the vehicle" and examined and identified the car stereo and speakers as those which were taken from his garage.

The trial court denied appellant's motions to suppress the admission of the car stereo and speakers at trial on the grounds that the evidence was in plain view and that appellant had voluntarily consented to a search of the vehicle.

The remainder of the evidence received was obtained pursuant to a search warrant issued by a justice of the peace September 7, 1978. The affidavit in support of that search warrant was signed and sworn to by Investigator Dan Hodge and stated the following:

"On 9-7-78, Investigator of the Casper Police Dept. located an eight track tape player and two speakers in the vehicle of John McCutheon (sic) at 1960 Johnston (sic) Road, which were taken in a Burglary on 9-3-78. Investigators talked to April Garner who was with McCutheon (sic) and she stated to Officers that she was present during the burglary on 9-3-78 and that two of the items taken in the burglary are located at 528 West 9th,Apt9, (sic) Casper, Wy. She stated that on 9-7-78 she observed the portable eight track tape player, Montgomery Wards (sic) brand, which was taken in the Burglary, at that residence. She also stated that within the last five days she also observed the Shop Mate Grinder which was on a shelf in the closet at 528 9th, Apt.9 This Affiant wishes a night time warrant on the grounds that any delay in searching 528 West 9th Apt.9 might enable occupants to destroy or get rid of these items taken in the burglary when the occupants find out John McCuthion (sic) is in custody of the Casper Police Dept."

By motions to suppress, filed in both Criminal Actions Nos. 7738 and 7714, appellant alleged that the search warrant was invalid and that all evidence seized by its authority should be suppressed. The motions were denied.

The appellant delineates the issues for our decision as follows:

"1. Does the plain view doctrine excuse the search of Appellant's vehicle?

"2. Does a police Officer 'search' a vehicle when he walks up a private driveway, peers into the vehicle, and visually examines the contents thereof?

"3. Does a prior illegal search render a subsequent consent to a further search involuntary?

"4. If the search of Appellant's vehicle was illegal, was a subsequent apartment search conducted pursuant to a warrant also illegal as an exploitation of the prior illegal search?

"5. Will this Court adopt a 'citizen informant rule,' and if so, will the Court require an affidavit supporting a search warrant to affirmatively establish the status of an informant as a 'citizen informant'?"

Response to Issues Numbers 1 and 2

We respond to issues 1 and 2 by holding that the visual observation of the evidentiary items while the vehicle was in the driveway was not a constitutional search and therefore not prohibited. In so holding, we view the evidence and reasonable inferences to be drawn therefrom most favorably to the successful party. Johnson v. State, Wyo., 562 P.2d 1294, 1297 (1977), quoting from Blakely v. State, Wyo., 542 P.2d 857, 863 (1975), and Harris v. State, Wyo., 487 P.2d 800, 801 (1971), and citing, in further support, Bentley v. State, Wyo., 502 P.2d 203, 208 (1972).

The United States Supreme Court, other state courts, and this court have held that a police officer's observation of that which is in plain view from a position where he has a right to be is 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); and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, rehearing denied 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971). See, also, Lorenzana v. Superior Court of Los Angeles County, 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33 (1973), rehearing denied. We said in Alcala v. State, Wyo., 487 P.2d 448, 453 (1971):

"We consider it well settled that objects falling into the plain view of an officer who has a right to be where he is are subject to seizure and may be introduced in evidence. Belondon v. City of Casper, Wyo., 456 P.2d 238, 241; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067; State v. McMillan, 206 Kan. 3, 476 P.2d 612, 616.",

and footnoted still other citations for this proposition, which citations are: State v. Camper, Mo., 353 S.W.2d 676, 679; People v. Manzi, 38 Misc.2d 114, 237 N.Y.S.2d 738, 741; People v. Willard, 238 Cal.App.2d 292, 47 Cal.Rptr. 734, 743; and State v. Allred, 16 Utah 2d 41, 395 P.2d 535, 537.

Fully developed, the elements required for plain-view justification, according to Coolidge, supra, are:

1. The officers' presence must be proper.

2. The items observed must appear to the officer to be...