Parkhurst v. State

Decision Date03 June 1981
Docket NumberNo. 5299,5299
Citation628 P.2d 1369
PartiesDennis Randolph PARKHURST and Derrick Raymond Parkhurst, Appellants (Defendants), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Michael H. Schilling, Appellate Counsel, Wyoming Public Defender Program, Laramie, signed the brief and appeared in oral argument on behalf of the appellants.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, and Allen C. Johnson, Senior Asst. Atty. Gen., signed the brief of appellee. Allen C. Johnson, Sr. Asst. Atty. Gen., appeared in oral argument.

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

RAPER, Justice.

Appellants were tried by a jury and convicted of first degree murder and assault and battery with felonious intent. They challenge the conviction on three bases. First, they argue that their constitutional rights were violated when police officers stopped their vehicle without probable cause, and that therefore all evidence obtained as the result should have been suppressed. Second, they contend that the consent they gave to a search of their vehicle's trunk was obtained illegally and that, therefore, it was invalid, thus mandating the suppression of the evidence gathered during the search. Finally, they claimed that certain testimony by the arresting officer was impermissible comment upon the exercise of the appellants' constitutionally protected right of silence.

We will affirm.

At approximately 11:45 p. m. on October 29, 1978, the home of Dennis and Christina Baird, located in Glenrock, Wyoming, was entered by force. The assailants kicked open the front door and went inside. Wade Dugger, a house guest who was sleeping in the front room on a couch, awoke to the sound of a shotgun blast which hit the Bairds' dog as it ran into the room. Mr. Dugger stood up and he too was shot. The blast knocked him backwards into the adjoining bedroom in which the Baird children were sleeping. Dennis and Christina Baird jumped out of bed to investigate the commotion. As they approached the door into the front room, Dennis pushed his wife back into the bedroom and indicated that she should wait. He then went around the door and was instantly shot. His body, recoiling from the shotgun blast, landed at Christina's feet. Desperate for help, she headed out of the bedroom and then saw Derrick Parkhurst, one of the appellants, running out the front door. 1 When she went to check on her children, she discovered that Mr. Dugger was seriously injured. She asked if he was all right and he responded, "no," and then said, "Derrick." Ms. Baird then ran next door for help.

When the police arrived, a witness told them that he had seen two males fleeing the scene in a blue or green Ford Fairlane and that he had followed the car far enough to see it heading out of town towards Douglas, Wyoming. The police, upon entering the house, determined that Dennis Baird was dead but that Wade Dugger was still alive. While awaiting the arrival of an ambulance, Ms. Baird informed the police that Dennis and Derrick Parkhurst were the assailants. A police officer then asked Mr. Dugger if he knew who shot him. Unable to understand the response, the officer queried if it had been Derrick and Mr. Dugger indicated yes; Dugger survived to testify.

The Glenrock Police Department alerted the sheriff's office, which in turn broadcast a description of the two assailants' car. 2 The broadcast also noted that the vehicle was last seen heading north out of Glenrock on a back road leading to Douglas. The sheriff's office in Douglas dispatched Officer Hineman to patrol the back road from Glenrock at the point it leads into Douglas. Officer Hineman, while on patrol, saw a mid-60's vehicle going into Douglas at about a quarter to one, a. m. In order to get a better look, the officer made a U-turn and followed the car. He was then able to determine that the car was a blue Dodge with a license number of 8-4679, and that the car had two occupants. As the officer followed the vehicle onto an entrance ramp for I-25, he contacted City of Douglas Officer Dekmar, who was stationed on that highway, informed him of his intent to stop the suspects, and asked for backup.

When the stop was made by Officer Hineman, he positioned his car so that the car's headlights would shine on him as he approached the suspects' vehicle. As Officer Dekmar pulled up behind Officer Hineman's patrol car, he saw Officer Hineman walking towards the suspects' car. Dekmar then exited his vehicle and crossed over to the guardrail running parallel to the highway. Taking up a position there where he could observe Hineman and the subjects, he drew his weapon. Hineman, meanwhile, asked the driver for his license which when produced identified him as Dennis Parkhurst. The subject was then requested to get out of the car and stand in front of it with his hands on the hood. The officer was informed that the passenger was Derrick Parkhurst. Derrick was asked to also exit the vehicle and position himself in front of it. While doing so, he observed Officer Dekmar by the guardrail with his gun drawn. At this point, Officer Hineman questioned the suspects concerning their whereabouts prior to the stop. When Hineman walked back to his vehicle to radio the dispatcher, Dekmar holstered his gun and approached the suspects to determine if they had any weapons. When asked, Derrick indicated that there was a .22 and a shotgun in the trunk. Dekmar then tried to contact the county attorney by radio. Unable to, he returned to ask the suspects who owned the car. Dennis Parkhurst stated that he did. Dekmar requested permission to search the car. Dennis' reply was that he was no lawyer, but Derrick told him to go ahead and let the police search the car. Dekmar advised Dennis he did not have to be a lawyer and that he could either grant permission for the search or he could refuse. Finally, Dennis consented. The police then retrieved the keys from Dennis' pocket and conducted the search. In the trunk they found a .22 caliber rifle and 12-gauge shotgun which was later matched to the spent shells found at the scene of the murder. From the smell of the shotgun, it was determined that it had recently been fired. Hineman then advised both subjects they were under arrest. Officer Dekmar gave the appellants their Miranda rights as he patted them down and handcuffed them. While the guns were removed from their auto and it was impounded, the Parkhursts were taken in and booked.

Appellants sought before trial to have all evidence obtained as a result of the stop as well as the search suppressed on the basis of the unconstitutionality of the police officers' conduct. However, the trial judge denied their motion and admitted the evidence. Now on appeal the trial judge's ruling is challenged partly upon grounds emanating from the Fourth Amendment to the United States Constitution 3 and § 4, Art. I of the Wyoming Constitution 4 and partly upon grounds emanating from the Fifth Amendment to the United States Constitution 5 and § 11, Art. I of the Wyoming Constitution. 6 We shall consider the former grounds first.

I

The appellants' Fourth Amendment claim is directed to the seizure of their persons and the search of the automobile in which they were riding. The remedy they seek for the alleged violation of their rights is the invocation of the exclusionary rule barring the admission of all evidence obtained as a result of illegal police activity.

First, in order to assert a constitutional violation, one must have standing. This issue was considered by the United States Supreme Court in connection with the Fourth Amendment in Rakas v. Illinois, 1978, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, reh. denied 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83. There the Court concluded in order to obtain the benefit of the remedy, i. e. the exclusionary rule, an individual must first demonstrate that his legitimate expectation of privacy in that which was either searched or seized was violated. Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. See also Comment, Unreasonable Searches Under the Fourth Amendment: "the rule becomes 'curiouser and curiouser,' " 15 Land & Water L.Rev. 275 (1980). This is the first opportunity this court has had to consider this issue following Rakas. We agree that one seeking the imposition of the exclusionary rule must be claiming a violation of his/her own constitutional rights under the Fourth Amendment, United States Constitution, or § 4, Art. I, Wyoming Constitution. And where the accusation is that the police have improperly searched or seized something, the claimant must have had a legitimate expectation of privacy as to that something. Factors to be considered in making this determination include: (1) the precautions taken in order to maintain one's privacy; (2) the likely intent of the drafters of the United States and Wyoming Constitutions; (3) the property rights the claimant possessed in the invaded area; (4) the legitimacy of the individual's possession of or presence in the property which was searched or seized. Comment, supra, 15 LAND & WATER L.REV. AT 283, FN. 56, AND AT 295.7

In this case, we must conclude that the appellants did possess the requisite expectation of privacy. No one has ever challenged the existence of such in regard to one's own person, and properly so; therefore, appellants have standing to object to the seizure of their persons. Further, Dennis Parkhurst as owner of the vehicle which was searched had a legitimate expectation of privacy in his property, as would all property owners. And we find that Derrick Parkhurst as a guest in his brother's automobile could reasonably expect that the car in which he was a guest would be free from state encroachment. Thus, both appellants have standing to protest the search of the car's trunk under § 4, Art. I of the Wyoming Constitution.

Appellants...

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1 books & journal articles
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