State v. Christensen

• Decision Date: 26 February 1998
• Docket Number: No. 23274,23274
• Citation: 131 Idaho 143,953 P.2d 583
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Ed L. CHRISTENSEN, Defendant-Appellant. Boise, October 1997 Term
• Court: Idaho Supreme Court

Page 583

953 P.2d 583

131 Idaho 143

STATE of Idaho, Plaintiff-Respondent, v. Ed L. CHRISTENSEN, Defendant-Appellant.

No. 23274.

Supreme Court of Idaho,

Boise, October 1997 Term.

Feb. 26, 1998.

Mark S. Moorer, Moscow, for Defendant-Appellant.

Alan G. Lance, Attorney General, Catherine O. Derden, Deputy Attorney General, Boise, for Plaintiff-Respondent. Catherine O. Derden argued.

TROUT, Chief Justice.

This is an appeal from the district court's decision to deny a motion to suppress evidence. The evidence was seized by virtue of a search warrant obtained using information gathered during a warrantless entry by police into the curtilage of the defendant's home.

I. BACKGROUND

On September 25, 1995, Detective Patrick Kelley of the Quad Cities Drug Task Force received a tip that someone was growing marijuana in a large greenhouse near milepost 350 in Latah County. The next day, Kelley contacted Detective Val Barber of the Moscow Police Department. Barber told Kelley that the only road with a milepost 350 was Highway 95. The two detectives then set off in Kelley's unmarked van to survey the area around milepost 350. Several residences were located in the area. The officers noticed that one, a mobile home belonging to appellant Ed L. Christensen, had a small glass lean-to (hot hut) attached to the back of it.

The officers decided to stop and question the residents of the houses starting with Christensen's. Kelley testified that the reason he picked Christensen's home was that it appeared to have been there the longest, so he thought the resident might know about the other houses in the area. Kelley said his intention was to make contact with the resident, and if the resident was friendly, ask for information about the other houses in the area. The detectives parked their van at the head of Christensen's driveway. Kelley told Barber to wait in the car while he questioned the resident. Kelley then removed his badge, gun and all other indicators that he was a police officer and proceeded down the driveway to the mobile home. To walk down the driveway, Kelley had to step over or around a closed but unlocked gate on which was posted a "no trespassing" sign. There was no "traditional fence" surrounding the property, but Christensen argues that shrubbery planted by him created a "green barrier."

As Kelley walked down the driveway, he testified that he made eye contact with Christensen through a bay window at the back of the mobile home. Kelley further testified, and the district court found, that after making eye contact, Christensen left the window and moved toward the back door. Because he assumed that Christensen was going to the back door, Kelley left the driveway and walked toward the back door of the mobile home. The hot hut was located just beyond the back door. To get to the back door, Kelley walked through an area containing weeds, old cars and appliances, an area the district court characterized as "covered with a mixture of grass, weeds and dirt." When Kelley was immediately behind a shop next to the mobile home, and approximately 20 feet from the hot hut, he testified that he could identify the contents of the hot hut as marijuana.

At this point, Christensen exited the mobile home through the back door, confronted Kelley and told him to leave. Kelley told Christensen that he was looking for a nearby home to repair a satellite dish. Christensen repeated his demand that Kelley leave, which Kelley did. Based on his observation of the marijuana in the hot hut, Kelley obtained a search warrant that was executed the next day. Christensen was arrested and charged with manufacturing a controlled substance.

Christensen filed a motion to suppress the evidence obtained using the search warrant alleging that the information used to secure the warrant had been obtained in violation of the Fourth Amendment of the United States Constitutions and Art. I, § 17 of the Idaho Constitution. After a hearing, the district court issued a memorandum opinion and order denying the motion to suppress. Christensen entered a conditional guilty plea to manufacturing marijuana, reserving the right to appeal the denial of his motion to suppress. The district court withheld judgment and placed Christensen on probation for three years. Christensen timely appealed.

II. STANDARD OF REVIEW

In reviewing a motion to suppress evidence, the trial court's findings of fact are overturned only if not supported by substantial evidence. State v. Weber, 116 Idaho 449, 452, 776 P.2d 458, 460-61 (1989). This Court exercises free review over the determination of whether, in light of the facts, the constitutional requirements for a search have been met. Id.

III. ART. I, § 17 OF THE IDAHO CONSTITUTION

The language of Art. I, § 17 of the Idaho Constitution closely parallels that of the Fourth Amendment. ¹ This similarity in language, however, does not require this Court to follow United States Supreme Court precedent in interpreting our own constitution.

The reason is the federal and state constitutions derive their power from independent sources. It is thus readily apparent that state courts are at liberty to find within the provisions of their own constitutions greater protection than is afforded under the federal constitution as interpreted by the United States Supreme Court. This is true even when the constitutional provisions implicated contain similar phraseology. Long gone are the days when state courts will blindly apply United States Supreme Court interpretation and methodology when in the process of interpreting their own constitutions.

State v. Newman, 108 Idaho 5, 10, 696 P.2d 856, 861, n. 6 (1985) (citation omitted).

Like the Fourth Amendment, the purpose of Art. I, § 17 is to protect Idaho citizens' reasonable expectation of privacy against arbitrary governmental intrusion. State v. Thompson, 114 Idaho 746, 760 P.2d 1162 (1988). To this end, warrantless searches are presumed to be unreasonable unless the search can be justified under one of the exceptions to the warrant requirement. State v. Reimer, 127 Idaho 214, 899 P.2d 427 (1995). There is no contention by the State that an exception to the warrant requirement applies to this case. Instead, the State argues that for the purposes of the Fourth Amendment and the Idaho Constitution no search took place.

A. Open View Doctrine.

Christensen argues that the search cannot be justified under the plain view exception to the warrant requirement. We agree, but for the reason that the plain view exception does not apply. The plain view exception allows police officers to make warrantless seizures of evidence viewed from a location where the officer has a right to be. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). Thus, the plain view exception applies to warrantless seizures of readily visible items, not warrantless searches. Warrantless searches are properly analyzed under the open view doctrine.

Under the open view doctrine, a police officer's observations made from a location open to the public do not constitute a search. This is because one cannot have a reasonable expectation of privacy in what is knowingly exposed to public view. Katz v United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Clark, 124 Idaho 308, 859 P.2d 344 (Ct.App.1993). The State argues that because Kelley observed the marijuana from a location open to the public, no search took place.

B. Visibility of the Hot Hut.

The State argues that Christensen could not have a reasonable expectation of privacy in the hot hut because, being visible from the highway and made of glass, the officers could have observed the marijuana with the use of binoculars. Although the record indicates that the officers had binoculars in their van, there is no evidence that they actually used them to look into the hot hut. Absent any competent evidence that the marijuana plants were in fact visible from the highway, we decline to uphold the search based upon speculation about what the officers might have been able to see.

C. Entry onto the Property.

Unlike many cases involving a search of property adjacent to a home, this case does not require that the Court determine if Kelley invaded the curtilage. The curtilage is that area immediately surrounding and associated with a residence in which a person has a reasonable expectation of privacy. State v. Webb, 130 Idaho 462, 943 P.2d 52 (1997). The State admits that by approaching Christensen's house by way of the driveway, Kelley...