State v. Calvillo
| Decision Date | 17 April 1990 |
| Docket Number | No. 11616,11616 |
| Citation | 110 N.M. 114,792 P.2d 1157,1990 NMCA 46 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Andrew CALVILLO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals his conviction for possession of a firearm by a felon. He has briefed three issues: (1) whether the trial court erred in failing to suppress evidence obtained as the result of an allegedly illegal search and seizure; (2) whether the prosecutor engaged in misconduct by purportedly commenting on defendant's right to remain silent; and (3) whether the trial court erred in refusing to give instructions concerning defense of property and defense of others. Issues concerning the sufficiency of the evidence raised in the docketing statement, but not briefed, are abandoned. State v. Fish, 102 N.M. 775, 701 [110 N.M. 116] P.2d 374 (Ct.App.1985). For the reasons that follow, we affirm.
In the early morning hours of July 19, 1988, Officer Rod Smith of the Hobbs Police Department received a complaint from Timothy Aten, defendant's next door neighbor. The complaint alleged that defendant fired a gun during a confrontation with Aten and two companions. Harvey Greer, Aten's stepbrother, testified that when he came home from work earlier that evening, he found that his door had been kicked and damaged. Aten told Greer that defendant had come over earlier that evening, fought with him over money, and had kicked in the door. Aten, Greer, and another man then went to defendant's residence. Aten was armed with a 2 X 4-inch piece of lumber. Greer knocked on the door. Defendant eventually came to the door and asked the three to leave. Aten yelled obscenities and racial epithets at defendant. Defendant went back into his house, put on the rest of his clothes, and left the house. The three men jumped into their car and followed defendant, catching up to him as he walked down an alley. During this time, defendant's wife and her six children also left the house and went to her mother's house. Defendant's wife, Maria Flores, testified that she left because she was afraid the three men might return. The three men continued their assault on defendant, shouting obscenities and throwing rocks from their car. Eventually, the three men drove away. Greer heard two gunshots in the vicinity soon thereafter, although he did not see defendant fire the shots. Sergeant Fuller and Officer Smith of the Hobbs Police Department also heard the shots while on patrol.
Sergeant Fuller and Officer Smith went to defendant's residence based on Aten's report of the shooting. They knocked on defendant's front door but received no response. Officer Smith and Sergeant Fuller then left the front door and began walking down a concrete driveway toward Greer's house. Greer testified the driveway was common to the two houses. As they were walking, Officer Smith directed Sergeant Fuller's attention to an open window in defendant's house. The room was illuminated by a bright streetlight or a light on a house adjacent to defendant's. The window was open; there was a screen hanging loosely on it but the window was easily seen through. The officers saw defendant lying on a bed on his back with a silver or brightly colored object in his hand. Officer Smith suspected the object was a pistol. Defendant appeared to be sleeping but Sergeant Fuller could not be sure of this.
The officers moved closer to positively identify the object in defendant's hand. A flashlight was shone into the window. Once Sergeant Fuller determined the object was indeed a gun, he recalled that defendant had a prior felony conviction. Officer Smith confirmed Sergeant Fuller's suspicion with a call to the police department. Sergeant Fuller testified that, while looking through defendant's window, he was at all times on the common driveway and outside of the fence enclosing defendant's property. Officer Smith testified that he was standing outside of the fence when he first noticed defendant's illuminated figure through the window. Officer Smith stated that he shone the flashlight on defendant, saw what appeared to be a pistol, moved closer to the window, again shone the light on defendant, and confirmed his suspicion about the gun. He could not recall whether he entered the fence enclosing defendant's yard at any time.
Regardless of whether Officer Smith actually went inside the fence, Sergeant Fuller unequivocally stated there was no need to go inside the fence to identify the object on defendant's chest. It is also clear that Officer Smith and Sergeant Fuller first noticed defendant and the gun while they were walking back to Greer's house on the common driveway. After consultation, the police decided to enter defendant's house rather than wait until morning to get a warrant because of the report that shots had been fired by defendant, and their concern for the safety of others in the area. When defendant failed to respond to loud knocks on the front door, the police removed the window screen, entered the house, and arrested defendant.
Defendant unsuccessfully moved to suppress the gun the police seized from him. He argues that the gun was illegally obtained as a result of the officers' shining a flashlight into his home. Alternatively, defendant contends that, even if the police had probable cause to search, the trial court incorrectly found that the exigent circumstances exception to the warrant requirement applied to this case. The state answers that (1) there was no fourth amendment "search" under the circumstances of this case; and (2) even if the officers' actions constituted a search, the search was justified under the plain view and exigent circumstances exceptions to the warrant requirement.
The touchstone of the fourth amendment analysis of the lawfulness of a search is whether the person has a constitutionally protected reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). The inquiry into whether the officers' actions were constitutionally appropriate in this case is twofold: (1) whether the officers' observations were a search, triggering the application of the "plain view" rule; and (2) whether the shining of the flashlight into defendant's window made viewing the gun an unconstitutional intrusion. We conclude that the officers' actions did not constitute a search within the meaning of the fourth amendment, inasmuch as the gun was in plain view.
The plain view rule has two meanings. State v. Powell, 99 N.M. 381, 658 P.2d 456 (Ct.App.1983). First, and most commonly, the term describes a seizure of evidence inadvertently discovered in the course of an intrusion for which there was prior justification, such as a search warrant. Id. The second plain view rule applies when no fourth amendment search has occurred at all. Id. It applies in those instances where an observation is made by an officer without a prior physical intrusion into a constitutionally protected area. Id. The mere looking at that which is open to view is not a search. State v. Blackwell, 76 N.M. 445, 415 P.2d 563 (1966). We believe this second type of plain view rule applies in the present case.
When an officer employs his natural senses from a place where he has a right to be, there is no search in the constitutional sense. Lorenzana v. Superior Court, 9 Cal.3d 626, 511 P.2d 33, 108 Cal.Rptr. 585 (1973). Similarly, "no justified reliance is present when a person's in-premises activities may be readily observed or heard by neighbors, so that it is not a search for an officer to see or hear those activities from a neighbor's property." 1 W. LaFave, Search and Seizure Sec. 2.3(c), at 391 (1987); see State v. Texeira, 62 Haw. 44, 609 P.2d 131 (1980). Moreover, a sidewalk, pathway, common entrance, or similar passageway offers an implied permission to the public to enter which necessarily negates any reasonable expectation of privacy concerning observations made there. Lorenzana v. Superior Court. The fourth amendment "has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares." California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 1812, 90 L.Ed.2d 210 (1986). Thus, in Ciraolo, the Supreme Court held that a warrantless naked-eye observation of a home's curtilage did not violate the fourth amendment. Likewise, in State v. Rogers, 100 N.M. 517, 673 P.2d 142 (Ct.App.1983), we held that the defendant did not have a justified expectation of privacy with respect to marijuana plants protruding through holes in his greenhouse roof to the extent of their visibility from the air.
We now turn to the facts of this case. From the common driveway, through the window, the officers saw defendant lying on his bed. The officers looked into the window just as defendant's neighbors could have observed him from the same vantage point. The officers observed that defendant was holding what appeared to be a gun. Under these circumstances, there was no fourth amendment search.
The second inquiry we must make is whether the flashlight the officers used to illuminate the gun in defendant's hand was an improper intrusion in violation of defendant's fourth amendment rights. We find the present case to be analogous to Rogers. In Rogers, the surveilling police officer flew over the defendant's property, using binoculars to confirm his suspicion that marijuana was growing on the property. The plants were visible without aid of the binoculars. In the present case, the gun could be viewed without a flashlight because there was a nearby light. The officers moved closer and shone a...
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