State v. Holman

• Decision Date: 02 October 1985
• Docket Number: 14646,Nos. 14243,s. 14243
• Citation: 109 Idaho 382,707 P.2d 493
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Steven Jack HOLMAN, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 493

707 P.2d 493

109 Idaho 382

STATE of Idaho, Plaintiff-Respondent, v. Steven Jack HOLMAN, Defendant-Appellant.

Nos. 14243, 14646.

Court of Appeals of Idaho.

Oct. 2, 1985.

Steven C. Verby, Sandpoint, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.

This opinion supersedes our prior opinion issued on May 31, 1985, which is hereby withdrawn.

BURNETT, Judge.

These consolidated appeals arise from two related burglary prosecutions. In No. 14243, Steven Jack Holman appeals from a judgment of conviction for burglarizing the Moyie Cash Store at Moyie Springs, Idaho. In No. 14646, Holman appeals, by certification, from an order denying his motion to suppress evidence relating to an alleged burglary of the Hardy Boys Building Supply near Moyie Springs. Holman contends in both cases that evidence was seized during an unlawful search. He also argues that the jury was improperly instructed, and that other errors occurred, in the Moyie store case. For reasons explained below we vacate the judgment of conviction in the Moyie store case and remand for a new trial. In the Hardy Boys case we affirm, as modified, the order refusing to suppress evidence.

I

We begin with the search-and-seizure issue common to both cases. While investigating several burglaries, including those at issue here, the Boundary County Sheriff's Office received an anonymous tip that a person known as "Fat Jack" recently had sold stolen firearms in Montana. Upon inquiry, the sheriff found that a shotgun stolen from a Boundary County resident, and a power saw corresponding to a model reported stolen from the Hardy Boys store, had been sold at a pawn shop in Missoula, Montana. The pawn shop proprietor noted the name, physical description, date of birth and social security number shown on a driver's license exhibited by the seller. The name was Steven Jack Holman. The proprietor also observed the seller driving a white pickup truck with a camper shell. This truck was of interest to the Boundary County Sheriff because a similar vehicle had been observed near the Moyie store when it was burglarized. Tire tracks found at the Moyie store resembled those found at the scene of yet another burglary in the county.

The sheriff sent a reserve deputy, an employee in the county assessor's office, to the Bonner Lake Resort, where Holman was thought to reside. The deputy saw the white truck and learned that Holman resided with the resort operator in a mobile home on the premises. He also met Holman, who was introduced as "Fat Jack" and who matched the description earlier obtained.

The sheriff presented this information to a magistrate and obtained a warrant to search the resort for merchandise reported stolen. During the search, items allegedly taken from the Moyie store were found in an outbuilding, variously described by witnesses as a "cabin" or an "apartment," on the premises. Items allegedly taken from the Hardy Boys store were found in the mobile home. Additional evidence was found elsewhere on the resort grounds and in Holman's truck. However, evidence in the truck was suppressed by the district judge because the truck was held to be outside the scope of the warrant. The state does not challenge that ruling in this appeal.

A

In the Moyie store case, Holman unsuccessfully sought an order suppressing all items found in the "cabin." He contended that the warrant was defective and that the search was improperly conducted. As explained more fully in Part I-B below, the district judge upheld the warrant and the search. But he also ruled, in any event, that Holman lacked "standing" to challenge the search of the "cabin." We deem this ruling to be dispositive as far as the Moyie store case is concerned; and we agree, in substance, with the court's analysis.

The fourth amendment, and its analogue in article 1, § 17, of the Idaho Constitution, are not ubiquitous. They do not apply to all searches or seizures. In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Supreme Court held that the scope of the fourth amendment protection is determined by the privacy interests at stake. Justice Harlan, in a concurring opinion later adopted by the full Court in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), articulated the familiar dual test for determining whether an accused person's fourth amendment rights have been implicated by a search. The initial inquiry is whether the individual entertained a genuine expectation of privacy where the search occurred. The second question is whether the accused's subjective expectation of privacy is one which society is willing to recogonize as objectively reasonable. Katz v. United States, 389 U.S. at 361, 88 S.Ct. at 516-17.

In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme

Court incorporated the privacy concept of Katz into a modern formulation of the right to challenge a search on fourth amendment grounds. The Court, dispensing with the traditional rules of "standing," held that a search may be challenged when a personal interest under the fourth amendment is asserted and a legitimate expectation of privacy is shown to exist in the area searched or in the items seized. In United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), the Court, applying the rationale of Rakas, abolished any "automatic" standing for persons charged with unlawful possession of contraband or stolen property. We think the same rule logically would apply to one charged with a burglary resulting in theft of such property. Because Holman enjoys no "automatic" standing, we turn to the question of privacy.

When moving to suppress evidence, an accused has the threshold burden of showing that his legitimate privacy interests have been infringed. In this case, Holman did not testify during the suppression hearing. Neither did he testify previously at the preliminary hearing. Consequently, the motion to suppress was submitted without testimony by the moving party regarding the scope and reasonableness of privacy interests asserted. We will presume, for the sake of discussion, that Holman entertained a subjective expectation of privacy in the "cabin." But that is not enough. The extrinsic facts must demonstrate the expectation to be legitimate--that is, to be objectively reasonable.

Here, the "cabin" was not owned, leased or occupied by Holman. The resort owner used the structure for general storage and he permitted Holman to put things there. There was no lock on the "cabin" door. Holman presented no evidence that he possessed any authority to restrict, or that he ever undertook to restrict, access to the "cabin." The "cabin" was located some fifty to seventy-five yards away from the mobile home where Holman and the resort owner lived. Upon these facts, the district court was not persuaded that an objectively reasonable privacy interest existed. Neither are we.

Holman has cited several cases holding that a legitimate privacy interest may exist in outbuildings or in premises shared with other occupants. See generally 1 W. RINGEL, SEARCHES & SEIZURES, ARRESTS AND CONFESSIONS § 20.3(b)(1) (2d ed. 1985). We find the cases to be distinguishable. Most of them involve structures or places physically occupied, for varying periods of time, by the defendants. Here, as noted, the "cabin" was not occupied by Holman or anyone else. Perhaps the closest case cited by Holman is State v. Billups, 118 Ariz. 124, 575 P.2d 323 (1978). There, property was seized from a locked shed situated about ten feet from the defendant's house. Although the defendant's sister owned the shed, a key was kept in the defendant's house. Thus, in that case the assertion of a legitimate privacy interest was supported by the elements of close proximity and controlled access. Those elements are conspicuously absent in the present case.

Holman further contends that even if he had no legitimate expectation of privacy in the "cabin," he did have such an expectation in a container where stolen items were found. We acknowledge that in some circumstances a reasonable privacy interest may attach to a repository for other personal property. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). But such circumstances are not present here. The "container" in this case, a Thermos cooler, was one of the items stolen from the Moyie store. Holman made no colorable showing that he had a legitimate right to possession of the cooler. Neither did the cooler exhibit any indicia of an asserted privacy interest. We conclude that no legitimate interest was infringed by the search of the "cabin" or by the seizure of the cooler and its contents. Because all evidence introduced at the Moyie store trial came from the "cabin," our fourth amendment inquiry in that case stops here.

B

We now turn to the search-and-seizure issue as it relates to the Hardy Boys case. As noted, evidence pertinent to this case was found in the mobile home occupied by Holman and the resort owner. The district judge treated the living arrangement narrowly, confining Holman's occupancy to a single bedroom. Upon that basis he held that Holman had no reasonable expectation of privacy elsewhere in the mobile home. However, we do not believe the record in this case supports such a precise zoning of privacy interests within the trailer. We will presume, for the sake of discussion, that the search of the entire mobile home infringed upon a legitimate expectation of privacy and that it implicated Holman's fourth amendment rights.

Holman first argues that the warrant was issued without probable cause. The fourth amendment provides that "no warrant shall issue, but upon probable cause, supported by oath or affirmation." Similar language is found in article 1, § 17 of the Idaho Constitution...