State v. Johnson

• Decision Date: 23 January 1981
• Docket Number: Cr. N
• Citation: 301 N.W.2d 625
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Neil C. JOHNSON, Defendant and Appellant. o. 735.
• Court: North Dakota Supreme Court

Page 625

301 N.W.2d 625

STATE of North Dakota, Plaintiff and Appellee, v. Neil C. JOHNSON, Defendant and Appellant.

Cr. No. 735.

Supreme Court of North Dakota.

Jan. 23, 1981.

John R. Gregg, Bottineau, for defendant and appellant.

A. S. Benson, State's Atty., and Asmunder S. Benson III, Asst. State's Atty., Bottineau, for plaintiff and appellee; argued by Asmunder S. Benson III.

SAND, Justice.

This is an appeal by the defendant, Neil Johnson (Johnson), from a jury verdict of guilty for theft of property. Johnson alleges that the trial court erred by failing to suppress the State's introduction into evidence of a blue, portable air compressor because the deputy sheriff obtained the air compressor as the result of a warrantless search and seizure.

In December 1978 a blue, twin-cylinder air compressor belonging to Marc Nelson (Nelson) was stolen from Nelson's father's garage in Bottineau, North Dakota. Sometime in October 1979 Mrs. Carl Kroeplin told a Mrs. Williams that she had observed a blue air compressor outside a mobile home rented by Johnson from the Kroeplins. Mrs. Williams was aware of the theft of the air compressor and informed Nelson that there was an air compressor at Johnson's mobile home similar to the one stolen from him. On 27 Oct. 1979 Nelson went out to the defendant's mobile home by himself and recognized the air compressor as the one stolen from his father's garage. ¹ Nelson notified the Bottineau County sheriff's office and on Tuesday, 30 Oct. 1979, Nelson and deputy sheriff Roger Hall went out to the defendant's mobile home. Nelson identified the air compressor as his. The defendant was not home and nothing further was done at this time.

On 31 Oct. 1979 deputy Hall drove past Johnson's mobile home around noon and observed that Johnson's vehicle was not there. Later that day Hall returned to Johnson's mobile home and observed that Johnson was still not home. Hall then called Nelson and asked him to come out and help pick up the air compressor. The air compressor was then transported to the county shop in Bottineau. All activity leading up to and including the seizure of the air compressor was done without benefit of a warrant.

The defendant, at the time of the seizure, lived in one of two rental mobile homes located on land owned by Carl Kroeplin approximately 8 miles south of Bottineau and adjacent to what is referred to as the Gardena road. The two rental mobile homes were approximately 400 feet north of the Gardena road. The Kroeplin residence was approximately 100 yards north of the two rental mobile homes. A photograph of the area reveals that there were trees ² between the two mobile homes and the Kroeplin residence. A driveway to the Kroeplin residence was on the west side of and parallel to the two mobile homes. One of the mobile homes was next to the driveway and the home rented by defendant was approximately 25 feet east of that mobile home. On the west side of the mobile home rented by defendant there was an 8' X 7'5 enclosed entryway. The 3-foot long air compressor was next to the north side of this entryway and was not observable from the Gardena road or the part of the driveway south of the rental mobile homes. The air compressor was observable from the neighbor's mobile home and the Kroeplin's yard, as well as the part of the driveway north of the two mobile homes.

Carl Kroeplin testified at the suppression hearing that he maintained the lots occupied by the mobile homes and mowed the lawns around both mobile homes, including the area where the air compressor was kept.

Johnson was charged with theft of property in violation of § 12.1-23-02, North Dakota Century Code. Johnson by motion asked that the air compressor be returned to him and be suppressed as evidence against him because it was unlawfully seized. The district court, in a memorandum decision dated 17 Apr. 1980, denied Johnson's motion because it found there was no reasonable expectation of privacy as to the area where the air compressor was located. The air compressor was subsequently introduced into evidence at Johnson's trial, and a 12-person jury returned a verdict of guilty against Johnson. Johnson appealed from that verdict.

The first issue raised in this appeal is the threshold question of whether or not the activity of the deputy sheriff in this instance constituted a search and seizure within the protection of the fourth amendment to the United States Constitution. If there was a constitutionally protected area from search and seizure, then the mandate of the fourth amendment securing the people against unreasonable search and seizure requires a warrant, unless the search and seizure falls within a recognized exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

In Katz v. United States, supra, the United States Supreme Court defined a search and seizure within the protection of the fourth amendment as a violation of "privacy upon which he (Katz) justifiably relied." The standard which has evolved from Katz is that if an individual has a reasonable expectation of privacy in the area searched, or the materials seized, then a search and seizure within the protection of the fourth amendment has been conducted. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

This Court has previously delineated the following three basic premises in determining the constitutionality of a search:

"One, as stated in State v. Gagnon, 207 N.W.2d 260, 263 (N.D.1973), 'All searches made without a valid search warrant are unreasonable unless they are shown to come within one of the exceptions to the rule that a search must be made upon a valid search warrant. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).' To the same effect, Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

"Two, where a violation of the Fourth Amendment provision as to search and seizure is asserted, the burden of proof on a motion to suppress is on the State. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969 (1971), 26 L.Ed.2d 409 (1970). ³ (Footnote ours.)

"Three, ever since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), evidence obtained by search and seizure violative of the Fourth Amendment is, by virtue of the Due Process Clause of the Fourteenth Amendment, inadmissible in State courts. State v. Manning, 134 N.W.2d 91 (N.D.1965)." State v. Matthews, N.D., 216 N.W.2d 90 at 99.

These premises function within the framework of the use of the court-made exclusionary rule in instances in which there has been a violation of constitutional rights.

A substantial number of legal scholars and writers are questioning or doubting that the court-made exclusionary rule is accomplishing its stated purposes or objectives, or is worth the societal cost. Stone, Warden v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); and United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976). See also, Judicature, Vol. 62, No. 2, page 67, and Judicature Vol. 62, No. 5, page 214 (debates on the exclusionary rule between Judge Malcolm Wilkey, United States Court of Appeals, in opposition to the rule, and Yale Kamisar, Professor of Law, University of Michigan). While we may be impressed with the views of Judge Wilkey, we nevertheless must abide by the rule of law established by the United States Supreme Court and made applicable to the states.

Johnson asserts that he had a reasonable expectation of privacy as to the area immediately north of the entryway to his mobile home and to the air compressor located there so as to be protected by the fourth amendment. The State contends that Johnson had no reasonable expectation of privacy in the area around the mobile home.

In this instance there are several factors which lead us to conclude that Johnson did have a reasonable expectation of privacy as to the area north of the entryway to his mobile home and the air compressor.

The air compressor was behind the entryway and not visible from the Gardena road. The air compressor was visible from the neighbor's mobile home and the Kroeplin's yard, as well as the part of the private driveway to the Kroeplins which was north of the two mobile homes. There was and is considerable doubt as to the distance the air compressor was sufficiently visible so as to make a definite, reliable identification of it as the one stolen from Nelson.

With this in mind, we conclude that Johnson had a qualified expectation of privacy as to his neighbor in the adjacent mobile home and to his landlord, the Kroeplins. As to the general public, his expectation of privacy was unqualified. With reference to the neighbors and their invitees, Johnson's expectation of privacy was considerably reduced. Johnson could not, under the facts of this case, legally claim an unqualified expectation of privacy as to what could be observed by his neighbors or their invitees. While Johnson had a reduced expectation of privacy as to his neighbors, it does not necessarily follow that he had no expectation of privacy as to the general public.

The state's attorney relied heavily upon People v. Hopko, 79 Mich.App. 611, 262 N.W.2d 877 (1978), in support of the state's position. However, Hopko is readily distinguishable from the instant case.

In Hopko, a joint tenant invited the officer to come on the premises and led the officer into the back yard shared by the joint tenant with the defendant to investigate whether or not marijuana was growing there. The officer saw from the cotenant's garden area what appeared to be marijuana growing in the defendant's garden area and, wishing to confirm his view, called the tri-county metro narcotics squad for assistance. The narcotics squad arrived shortly, and...