State v. Kypreos

• Decision Date: 04 February 2002
• Docket Number: No. 47405-7-I.,47405-7-I.
• Citation: 110 Wash. App. 612,39 P.3d 371
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent/Cross-Appellant, v. Seth KYPREOS, Appellant/Cross-Respondent.

39 P.3d 371

110 Wash. App. 612

STATE of Washington, Respondent/Cross-Appellant, v. Seth KYPREOS, Appellant/Cross-Respondent.

No. 47405-7-I.

Court of Appeals of Washington, Division 1.

February 4, 2002.

David Bruce Koch, Nielsen Broman & Koch, P.L.L.C., Harlan Russell Dorfman, Seattle, for Appellant.

Rebecca Jane Quirk, Deputy Prosecuting Atty, Everett, for Respondent.

BAKER, J.

Seth Kypreos was convicted of unlawful possession of a firearm in the first degree after a gun was found in his possession during a warrantless search of a fifth wheel trailer. Kypreos was denied standing to challenge the search of the trailer which the police entered after discovering that it had been reported stolen. Kypreos alleges he was an overnight guest of the person he believed was the lawful owner of the trailer. Kypreos argues that he has automatic standing to challenge the search because he was charged with a possessory offense and he was in possession of the weapon at the time of the contested search. Further, he contends that the warrantless police intrusion into the trailer did not fall into any of the exceptions to the warrant requirement. We hold that the trial court used an incorrect standard to determine whether Kypreos had standing to object to the search. Thus, we reverse and remand.

I

Snohomish County Sheriff's deputies, who were looking for a stolen utility trailer and a woman named Stephanie Smithson who they believed was involved in drug activity, went to the property of Albert Odegard. They spoke with Odegard and his daughter Jamie about Smithson and the missing utility trailer.

While there, the deputies noticed a fifth wheel trailer and radioed in its description. They were advised that the registered owner had reported the trailer stolen. She reported that the trailer had served as her residence, and specifically requested that the trailer not be impounded. The deputies learned that Jamie had granted Smithson permission to park the trailer on her father's property.

Odegard told the deputies that Smithson and her boyfriend Kypreos had been living in the trailer. He said he wanted the trailer and all of the people associated with it to be removed from the property because of alleged drug activity associated with it. Jamie explained that Smithson had told her that she was buying the trailer, but did not have title yet because it was being mailed to her.

Upon learning that the trailer was stolen, one of the deputies knocked on the door of the trailer and entered. When he did not find anyone in the living area of the trailer, he drew his gun and opened the sliding door leading to the sleeping area. There, he discovered Kypreos in the bed. Once Kypreos was removed from the trailer and placed in handcuffs, the deputy searched the sleeping quarters and discovered a loaded .45 caliber automatic handgun in the bed.

Kypreos expressed surprise when he was told that the trailer was stolen. He stated that he had seen the bill of sale, and that it could not possibly be stolen. Kypreos was advised to leave the premises. The trailer was left on Odegard's property. Kypreos was subsequently charged with unlawful possession of the handgun.

Kypreos moved to suppress the evidence of the handgun, but the trial court concluded that Kypreos did not have standing to challenge the search. Kypreos was then found guilty at a stipulated trial of unlawful possession of a firearm in the first degree. He now appeals the denial of his motion to suppress.

II

The validity of a warrantless search is reviewed de novo.¹

Generally, a criminal defendant alleging an infringement of Fourth Amendment rights first has to show standing to raise the claim.² However, an "automatic standing" exception to this rule was created for defendants charged with a possessory offense. In Jones v. United States,³ federal officers arrested Jones in a friend's apartment where he was a guest after discovery of narcotics in the apartment.⁴ The court determined that Jones had standing to challenge the search on two alternative bases. The first became known as the automatic standing rule, which applies if (1) the offense with which he is charged involves possession as an essential element of the offense; and (2) the defendant was in possession of the contraband at the time of the contested search or seizure.⁵ The second basis relied on was the legitimately on the premises rule, which applies when (1) the defendant is legitimately on the premises where a search occurred; and (2) the fruits of the search are proposed to be used against him.⁶

In the later case of Rakas v. Illinois,⁷ the U.S. Supreme Court merged the concept of standing into Fourth Amendment privacy analysis.⁸Rakas abandoned the "legitimately on the premises" formulation in favor of the "legitimate expectation of privacy standard" because the Court wished to purge Fourth Amendment analysis of "arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like...."⁹ In the 1980 case of United States v. Salvucci,¹⁰ the Court completely abolished automatic standing in favor of the legitimate expectation of privacy standard. Under the legitimate expectation of privacy analysis, a defendant may challenge a search or seizure only when he or she possesses a legitimate personal privacy interest in the area searched or seized.¹¹

As the U.S. Supreme Court reformulated its earlier Fourth Amendment interpretations, state courts, including our own, have relied on their state constitutions for authority to provide more expansive protections against governmental searches and seizures.¹² These courts have usually employed a two-step approach. First, citing perceived shortcomings in the U.S. Supreme Court's current interpretation of the Fourth Amendment, the courts concluded that the legitimate expectation of privacy standard provides insufficient protection against government abuses.¹³ Having reached this conclusion, the courts then interpreted their state constitutions in a manner which provides a greater opportunity for persons charged with possessory crimes to challenge unreasonable searches and seizures.¹⁴ In this state, the supreme court first adopted a version of the automatic standing rule in State v. Michaels.¹⁵ The court held that a defendant has standing to challenge searches and seizures if he is legitimately on the premises where the search occurs and if the fruits of the search are proposed to be used against him.¹⁶ Thus Michaels adopted the rule as formulated in Jones.

Our court revisited the issue after the U.S. Supreme Court abandoned automatic standing in Salvucci. In the 1980 case of State v. Simpson,¹⁷ the court adhered to the automatic standing rule, stating that:

In our view, our constitution's privacy clause, with its specific affirmation of the privacy interests of all citizens, encompasses the right to assert a violation of privacy as a result of impermissible police conduct at least in cases where, as here, a defendant is charged with possession of the very item which was seized.

. . . .

Under these circumstances, we discern both a continuing policy basis and firm state constitutional grounds for adherence to the automatic standing rule. The rule is already established under our state constitution and has served our state well for 17 years.[¹⁸]

In Simpson, a stolen vehicle was parked and locked in front of the defendant's residence. The police unlocked the vehicle and entered it without a warrant to locate the vehicle's identification number. The court ruled that the defendant had automatic standing to challenge the search because (1) he had demonstrated a possessory intent toward the vehicle, and (2) he was charged with possession of the item seized. The court's plurality opinion does not include a "legitimately on the premises" analysis.

In the later case of State v. Zakel,¹⁹ our supreme court, again with a divided court, inferred that the automatic standing rule has continuing validity in this state, but determined that the doctrine was factually inapplicable.²⁰ At the court of appeals level in Zakel, this court had commented that automatic standing "was not intended as a means for defendants to acquire standing to challenge the search of an area where they had no legitimate right to be."²¹ The supreme court disagreed, and noted that "[t]he `legitimately on [the] premises' rationale, however, is a basis for standing wholly separate from automatic standing."²² The court further stated that under Simpson, a defendant need not have a legitimate right to be in a place to assert automatic standing.²³

Then, in State v. Williams,²⁴ our supreme court in a 5-4 decision inferred, without explicitly holding, that the automatic standing rule has continuing validity under our state constitution.²⁵ But the court determined that the automatic standing doctrine was inapplicable, in part because there was no direct relationship between the fruits of the search and the search the defendant sought to contest.²⁶ And, in reviewing the history of that doctrine in this state, the court noted that Michaels had held that application of the doctrine is proper where the "legitimately on the premises" test is satisfied.²⁷ Most recently, in State v. Magneson,²⁸ Division Two of this court characterized the automatic standing doctrine in a different manner: "(1) He was legitimately on the premises where the search occurred; (2) the State intends to use fruits of the search against him; and (3) he did not stipulate to facts that establish lack of a reasonable expectation of privacy in the premises searched or item seized."²⁹

In view of the caselaw on the subject, it is not surprising that Kypreos argues that automatic standing applies "if: (1) the offense with which he is charged involves possession as an `essential' element of the offense; and (2) the defendant was in possession of the contraband at the time of the contested search or seizure,"³⁰ whereas in...