State v. Martinez

• Decision Date: 30 March 1982
• Docket Number: No. 13715,13715
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Jose Alphonso MARTINEZ, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 555

643 P.2d 555

102 Idaho 875

The STATE of Idaho, Plaintiff-Respondent, v. Jose Alphonso MARTINEZ, Defendant-Appellant.

No. 13715.

Court of Appeals of Idaho.

March 30, 1982.

James C. Morfitt, Caldwell, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Lance Churchill, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

A jury found Jose Alphonso Martinez guilty of possession of stolen property, a felony, I.C. § 18-4612. The jury also found that he was a persistent violator of the law, I.C. § 19-2514. He appeals the stolen property conviction, alleging that conduct of the Sheriff of Canyon County violated his right to due process and denied him effective assistance of counsel and a fair trial. He also urges reversal of the persistent violator determination, contending that it was based upon evidence improperly admitted at trial. We affirm.

In September, 1979, the Owyhee County residence of Floyd Wood was burglarized. Several thousand dollars worth of property was taken, including sixty-three assorted types of firearms. Shortly after Wood reported the theft, the Sheriff of Canyon County received a tip from an informant that Martinez was keeping guns in a plywood box near his mobile home in Canyon County, and that the guns had been stolen during an Owyhee County burglary. The sheriff placed the Martinez home under surveillance.

For nearly two months, the surveillance team monitored the box and all activity around the mobile home from a neighboring residence. During the surveillance the officers observed Martinez remove rifles or shotguns from the box. On November 29, Martinez and another man were observed loading the box into the back of a pickup. When the pickup departed from the Martinez premises, the surveillance team notified the sheriff and he immediately set out to intercept the vehicle.

Ronnie Hoskins, owner and driver of the pickup truck, was granted immunity from prosecution and testified at trial. He stated that Martinez, an old friend, had asked him to use the pickup to move a large box of books. Hoskins agreed. Hoskins also consented to keep the box of books in his camp trailer on his mother's property until December, when Hoskins planned to use the trailer for a hunting trip. After the box was loaded into the back of the pickup, Martinez climbed into the pickup cab, carrying a white canvas gun case, and the two drove off towards Hoskins's mother's home.

Soon after they started, they were stopped by a roadblock set up by the sheriff and his officers. The officers removed the two men from the pickup and placed them under arrest. Hoskins signed a written consent to search his pickup, but informed the officers that the box belonged to Martinez. Martinez spoke up in agreement and told the sheriff to get a search warrant before opening the box. The box was taken into custody by the sheriff but was not opened at that time.

The pickup cab was searched and three loose weapons were found. The white canvas gun case was also discovered, though neither Hoskins nor Martinez asserted ownership of it. The officer who found the case did not open it, but handling it convinced him it contained firearms or pieces of firearms. The three loose weapons were checked through the National Crime Information Center computer and were determined not to be stolen articles.

Hoskins and Martinez were taken to the Canyon County jail, along with the pickup and its contents. The gun case was opened at the sheriff's office without a search warrant. It contained two dismantled shotguns. When the serial numbers of those guns were checked through the computer, they were found to be two of the firearms taken from Wood's residence in Owyhee County.

A search warrant was issued for the box, based upon the informant's tip, the surveillance records, and the discovery of the stolen firearms in the canvas gun case. Forty-one firearms were found in the box, all identified by serial numbers as having been stolen from Wood's residence.

I.

On appeal Martinez argues that the trial court erred in failing to suppress the evidence obtained from the warrantless search of the canvas gun case. He also urges exclusion of the fruits of the search-the forty-one weapons discovered in the box pursuant to the search warrant-because the warrant was partially based upon the evidence found in the gun case. At the time the gun case was seized, neither Hoskins nor Martinez claimed ownership. At the suppression hearing, Martinez presented no evidence to show he owned the gun case or had a right to possess it. In fact, the outside of the gun case had the name "Jim Jones" and a California address marked on it in large black letters. The police opened the gun case at the station believing it belonged to Hoskins and believing it was within the scope of Hoskins's consent to search the pickup. Only when Hoskins was interrogated in the jail after the bag had been opened did the police learn that Martinez had carried the gun case into the pickup. To claim the protection of the Fourth Amendment, a person must show he had a legitimate expectation of privacy in the invaded place. State v. Bottelson, 102 Idaho 90, 92, 625 P.2d 1093, 1095 (1981). Here, Martinez made no showing that he had a legitimate expectation of privacy in the gun case. Even assuming he had shown some legitimate right to possession of the gun case, we believe the trial court correctly denied the motion to suppress. The "plain view" exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize what clearly is incriminating evidence or contraband, when it is discovered in a place where the officer has a right to be. Washington v. Chrisman, --- U.S. ----, ----, 102 S.Ct. 812, 816, 70 L.Ed.2d 778 (1982); State v. Smith, 102 Idaho 108, 110, 626 P.2d 206, 210 (1981). Further, in Arkansas v. Sanders, 442 U.S. 753, 764 n. 13, 99 S.Ct. 2586, 2593 n. 13, 61 L.Ed.2d 235 (1979), a case involving the warrantless search of luggage seized from an automobile, the Supreme Court noted:

Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. (Emphasis supplied.)

Here, the sheriff's officers had the pickup owner's consent to search his pickup, and the gun case was found in plain view on the seat in the pickup cab. The officer who discovered the gun case identified it as a standard shotgun or rifle case and, upon handling it without opening it, he believed it contained firearms or pieces of firearms. We hold that there was no reasonable expectation of privacy in the gun case at the scene of the arrest. Arkansas v. Sanders, supra. It follows that because no reasonable or legitimate expectation of privacy attached to the gun case at the scene of the arrest, there was no reasonable expectation of privacy in it at the time it was opened at the sheriff's office.

The trial court correctly refused to suppress the evidence found in the gun case. Consequently, there is no merit to Martinez's contention that the evidence found in the box should be suppressed because the search warrant for the box was partially based on the discovery of the stolen guns in the gun case.

II.

While Martinez was incarcerated in the Canyon County jail, he was a suspect in an unsolved murder in Canyon County. He also had a prior criminal record. The sheriff, believing that Martinez posed a severe security risk, monitored and tape recorded all phone calls made by Martinez, including one call made to an attorney. Except for enumerated privileged communications, the mail Martinez both received and sent was photocopied. Martinez contends some of the photocopied mail contained information concerning the existence of his common law marriage to a woman who was a potential witness in the case. As a result of these activities, Martinez contends he was denied effective assistance of counsel because the prosecution had access to his confidential information and trial strategy. Martinez cites State v. Cory, 62 Wash.2d 371, 382 P.2d 1019 (1963) and Coplon v. United States, 191 F.2d 749 (D.C.Cir.1951), cert. den., 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952) as authority for dismissal of his case for interference with his right to counsel.

In State v. Cory, supra, the Washington Supreme Court found that police, using a hidden microphone, had listened to and taped conversations between Cory and his counsel. That court ordered dismissal of the charges against Cory after determining that a new trial would not afford him an adequate remedy for violation of his constitutional right to counsel. The extraordinary remedy of the Cory decision was later explained in the case of State v. Baker, 78 Wash.2d 327, 474 P.2d 254 (1970). It applies in Washington only when there has been prejudice that materially affects the right of the accused to a fair trial that cannot be remedied by holding a new trial. See also State v. Grant, 9 Wash.App. 260, 511 P.2d 1013 (1973).

The rule in Cory is inapposite here. The attorney Martinez called was not his trial counsel, as in Cory. Neither Martinez, the attorney, nor anyone from the sheriff's office testified as to the substance of that conversation. We will not assume that trial tactics or strategy were discussed by Martinez and an attorney who did not represent him in court in this matter. Government intrusion into the attorney-client relationship may be grounds for a new trial. Coplon v. United States, supra. However, a defendant must show substantial prejudice caused by the intrusion. United States v. Irwin, 612 F.2d 1182 (9th Cir. 1980). None of the information gathered through surveillance of Martinez's mail or phone calls was used as...