Sayre v. State

Decision Date05 December 1984
Docket NumberNo. 3-184A26,3-184A26
Citation471 N.E.2d 708
PartiesJanet SAYRE, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Susan K. Carpenter, Public Defender, C.H. Gardner, Deputy Public Defender, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

On November 17, 1982 Officers Kern and Slayton of the Elkhart Police Department went to the defendant's house to question her regarding a theft. Officer Kern stated at the suppression hearing that he felt he had probable cause to arrest her at that time for theft but had not expected to arrest her for drug violations. Two uniformed police officers were positioned at the back door while Kern and Slayton approached the front door. The defendant's house is on a corner lot. The officers parked near the intersection, i.e. at an angle from the front door which faced the street. Kern and Slayton walked from their car directly to the front door. 1 Kern stated that he walked onto the front porch and reached up to knock. Slayton had been walking behind him and stopped 6 to 15 feet from the front door and 5 feet from a front window which had its curtains open. The officers had arrived at approximately 6:40 p.m. and testified that it was dusk outside. Lights were on inside the kitchen making the people inside it clearly visible to Slayton. He stated he did not get close to the window which had a shrubbery box in front of it. Officer Kern knocked on the front door and stated police officers were present when questioned by a female inside. The female reacted by shouting "Police!" and ran away from the door. At the same time Slayton saw people at a kitchen table move rapidly away with what appeared to be drug paraphernalia. The officers proceeded inside and arrested the people present. While a search warrant was obtained by telephone the officers waited inside to secure the house. After the search warrant was issued, the house was searched and various materials, later determined to be controlled substances, were seized. The defendant was acquitted of possession of controlled substances and found guilty of maintaining a common nuisance, a Class D felony, after trial by jury. She was sentenced to four years in prison with all four years suspended and placed on probation for four years on the condition she serve 90 days in the Elkhart County Security Center. The defendant now appeals.

The issues are:

1) Did the trial court err in admitting evidence which was seized illegally as a result of a warrantless search?

2) Did the trial court err in admitting evidence which the state did not disclose until one day before trial?

3) Did the trial court err in admitting evidence which the defendant claims was irrelevant?

4) Did the trial court err in admitting a purse containing a syringe because no foundation had been laid to connect it to the defendant?

5) Was there sufficient evidence to support the jury's guilty verdict on Count II, maintaining a common nuisance, and is a guilty verdict on Count II inconsistent with her acquittal on Count I, possession of controlled substances?

6) Did the trial court err in allowing the state to amend the information three days before trial?

Issue 1

The defendant asserts that she had a reasonable expectation of privacy not to be observed from her front yard and that the officer's view through the window was an illegal warrantless search which could not provide the probable cause for her subsequent arrest and the search warrant obtained shortly after her arrest.

The state maintains that the warrantless search was justified under the plain view doctrine as enunciated by the United States Supreme Court in Coolidge v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564.

The defendant argues that Slayton was not justified in being in his place of observation, i.e. on the front yard and not on the front walk, thereby failing the first element under Coolidge. As stated in May v. State (1977), 173 Ind.App. 482, 364 N.E.2d 172, a warrantless search may be justified if the officer's view is made from a place where he had a legal right to be.

Coolidge and its progeny cover the situation where a government agent, after an intrusion into a constitutionally protected area, sees contraband in plain view and seizes it without a search warrant covering the contraband seized. The Coolidge requirements are applied to determine whether the items so seized were obtained within a valid exception to the fourth amendment's prohibition of unreasonable searches and seizures. 1 W. LaFave, Search and Seizure, Section 2.2 at 242 (1978) (LaFave ). See State v. Kaaheena (1978), 59 Haw. 23, 28, 575 P.2d 462, 466. However, a close situation often confused with the plain view doctrine occurs when a police officer sees contraband from an area that is not constitutionally protected, i.e., before an intrusion, e.g. where a police officer sees something in an open field, Hester v. United States (1924), 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, Cornman v. State (1973), 156 Ind.App. 112, 294 N.E.2d 812; on the body of a person, United States v. Rizzo (7th Cir.1978), 583 F.2d 907; within a building, United States v. Morrow (7th Cir.1976), 541 F.2d 1229, Bruce v. State (1978), 268 Ind. 180, 375 N.E.2d 1042; or within a motor vehicle, Cobb v. State (1980), Ind., 412 N.E.2d 728. In these situations, sometimes referred to as "open view," Kaaheena, supra, no "search" in the constitutional sense has occurred. 1 LaFave at 243. Because there is no search, Coolidge need not be followed.

The threshold question for us is whether the police officer intruded upon a constitutionally protected area, i.e. an area where the defendant had an expectation of privacy protected under the fourth amendment. As the United States Supreme Court stated in Katz v. United States (1967), 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576:

"[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

The front window of the defendant's home was unobstructed by curtains which were open. It was dusk outside and Slayton observed people inside the illuminated kitchen. This situation is distinguishable from Lorenzana v. Superior Court of Los Angeles (1973), 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33 cited by the defendant. There, the police officers peered through a small opening in the closed drapes to observe activity inside. We find the situation here more factually similar to State v. Drumhiller (1984), 36 Wash.App. 592, 675 P.2d 631. Police officers there went to a house to investigate a burglary report. The officers parked down the street from the house and walked to the front. While passing an unshaded front window, the officers saw people inside in an illuminated room. The officers came closer to the window by walking into a shrubbery box and then observed what appeared to be cocaine use. One police officer stayed at the window while others went to the front door. The officer at the window observed a person move what appeared to be drugs out of sight. The officer then went inside and seized the hidden drugs. The court noted the officers were legitimately on the property to investigate a burglary and found that the defendants did not display a legitimate expectation of privacy by leaving the drapes open and concluded the police officers' actions were reasonable under the circumstances.

It is clear that the defendants did not display a reasonable expectation of privacy by leaving open the curtains on the front window, which is only a few feet from the front door.

The defendant attempts to use language from Coolidge to argue that Slayton's actions constituted an unconstitutional search because he looked into the window while standing in the front yard. As we noted above, Coolidge does not apply where there has been no initial intrusion into a constitutionally protected area. The defendant's argument in essence then is that the police officer was trespassing or in a place he had no right to be and therefore his view into the window from that vantage point was impermissible.

The Seventh Circuit Court of Appeals has stated that in similar circumstances the question is not whether a trespass has occurred but whether the police officer's actions were reasonable under the circumstances. United States v. Conner (7th Cir.1973), 478 F.2d 1320 (police officers may have stepped from a public alley onto private property to look through an open door). In United States v. Hanahan (7th Cir.1971), 442 F.2d 649, 654 the court found that if a police officer who looked through a garage door window had left the sidewalk and stepped onto the adjacent grass, it constituted "no more than a technical trespass on the part of the officer" which did not give rise to a fourth amendment violation. Similarly, the court in United States v. Johnson (D.C.Cir.1977), 561 F.2d 832 found that a police officer who went to a house investigating suspected drug activity and deviated a few steps from a walkway to look into a basement window was in a situation comparable to the technical trespass in Conner, supra.

The police officer's action was part of a reasonable investigation under the circumstances. Slayton testified that he walked behind Kern from the car to the front door. He stopped short of the front door and waited until Kern knocked on the door. While standing there in front of the window he observed the illegal activity inside. He did not approach closer to the window or peer into a small opening in drawn curtains. He observed the activity at the same moment Kern knocked and informed those...

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