State v. Morris

• Decision Date: 28 May 1998
• Docket Number: No. 23171,23171
• Citation: 131 Idaho 562,961 P.2d 653
• Parties: STATE of Idaho, Plaintiff-Respondent-Cross Appellant, v. Darrel Wyatt MORRIS, Defendant-Appellant-Cross Respondent.
• Court: Idaho Court of Appeals

Page 653

961 P.2d 653

131 Idaho 562

STATE of Idaho, Plaintiff-Respondent-Cross Appellant, v.Darrel Wyatt MORRIS, Defendant-Appellant-Cross Respondent.

No. 23171.

Court of Appeals of Idaho.

May 28, 1998.

Review Denied Aug. 21, 1998.

Kehne Law Office, Boise, for appellant.Deborah A. Whipple argued.

Alan G. Lance, Attorney General; Catherine O. Derden, Deputy Attorney General, Boise, for respondent.Catherine O. Derden argued.

LANSING, Chief Judge.

Darrel Wyatt Morris appeals from a judgment of conviction and sentence imposed after a jury found him guilty of possession of methamphetamine, § 37-2731(c), and possession of drug paraphernalia, § 37-2734A.On appeal he argues that the district court erred in denying his motion to suppress evidence found in his home.He also asserts that the district court abused its discretion in imposing a unified seven-year sentence with three years determinate.

FACTS AND PROCEDURE

Evidence at the hearing on Morris's suppression motion revealed the following.Around 11:30 p.m. on May 18, 1995, Boise City police Officer Kyle Christensen arrested a woman for possession of controlled substances.In order to get more favorable treatment, the woman offered information about a drug dealer.She told Officer Christensen that a person named Darrel had called her earlier in the evening and said that he had two pounds of controlled substances and needed her help to sell it.She gave Darrel's address in Boise to Christensen.Acting on this tip, at about 2:30 in the morning of May 19, 1995, Christensen and another Boise police officer, Douglas Doney, went to the specified address, which was Morris's apartment.

The apartment was in a four-unit apartment building located in a residential neighborhood.The building faces west and sits on an unfenced corner lot.At the time of the search, Morris was the tenant in one of the basement apartments.On the north side of the building there were two concrete sidewalks.One was the public sidewalk running along the street at about a "car-length" from the building.¹The other was a narrower sidewalk directly abutting the building and running parallel to the public sidewalk.This smaller sidewalk starts at the driveway at the rear of the apartment building, goes along the side of the building and past a window in Morris's apartment, and connects with the public sidewalk on the street running in front of the apartment building.This smaller access sidewalk also leads to the entry to Morris's apartment.

Upon arriving at the apartment building, Officer Christensen walked down the access sidewalk, kneeled at the window and looked into Morris's apartment.According to Christensen, the window was not covered and the lights were on in the apartment.The officer saw two men at a table in the kitchen weighing and packaging white powder.²Officer Christensen then left the apartment to obtain a search warrant while Officer Doney remained at the scene to keep the apartment under surveillance.While Doney watched, several people entered and left the apartment.A search warrant was issued, and at about 6 a.m. several police officers entered the apartment, arrested Morris, and seized methamphetamine and various drug paraphernalia.

Morris filed a motion to suppress all evidence obtained in execution of the search warrant or as a result of Christensen's observations from outside Morris's window.The motion asserted that the observations were made and the warrant obtained in violation of state and federal constitutional prohibitions against unreasonable searches.The district court denied the motion.

After a jury trial, Morris was convicted of possession of methamphetamine and possession of drug paraphernalia.The district court imposed a unified seven-year sentence with a three-year minimum term of imprisonment.Morris now appeals to this Court, challenging the denial of his motion to suppress and the reasonableness of his sentence.

ANALYSIS

A.Fourth Amendment

Morris first argues that Officer Christensen's observation through the apartment window constituted an illegal search under the Fourth Amendment to the United States Constitution and that the warrant, which was issued based upon evidence gained from that observation, was therefore invalid.

In reviewing a ruling on a motion to suppress, we defer to the factual findings of the trial court unless they are clearly erroneous, but we freely review the trial court's determination as to whether, on the facts found, constitutional requirements have been satisfied.State v. Pick, 124 Idaho 601, 603, 861 P.2d 1266, 1268(Ct.App.1993);State v. Heinen, 114 Idaho 656, 658, 759 P.2d 947, 949(Ct.App.1988).The determination of what is reasonable in a search and seizure context is a question of law over which we exercise independent review.State v. McIntee, 124 Idaho 803, 804, 864 P.2d 641, 642(Ct.App.1993);Heinen, 114 Idaho at 658, 759 P.2d at 949.

The Fourth Amendment promises that "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated...."This constitutional guarantee protects the individual's legitimate expectations of privacy against intrusion by the government.Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576(1967);State v. Vasquez, 129 Idaho 129, 131, 922 P.2d 426, 428(Ct.App.1996);State v. Oakley, 119 Idaho 1006, 1007, 812 P.2d 313, 314(Ct.App.1991);State v. Limberhand, 117 Idaho 456, 460, 788 P.2d 857, 861(Ct.App.1990).The protection of a person's home against unreasonable searches extends to the home's "curtilage," the land immediately surrounding and associated with the residence.Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214(1984).See alsoUnited States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326(1987).

When assessing a claim of a Fourth Amendment violation, we may begin by asking whether the complainant exhibited an actual, subjective expectation of privacy and if so, whether that expectation of privacy is one that society is prepared to recognize as reasonable.Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220(1979);Katz, 389 U.S. at 360, 88 S.Ct. 507(Harlan, J. concurring);State v. Clark, 124 Idaho 308, 313, 859 P.2d 344, 340(Ct.App.1993);State v. Oakley, 119 Idaho at 1008, 812 P.2d at 315.The determination whether a particular citizen had a legitimate expectation of privacy depends upon the unique facts of each case.We therefore examine the citizen's efforts to protect his own privacy from observation by the general public, taking into account norms of social conduct and the nature of the premises.State v. Christensen, 131 Idaho 143, 953 P.2d 583(1998);Clark, 124 Idaho at 313-317, 859 P.2d at 349-353.

We conclude that Morris did not manifest an actual, subjective expectation of privacy in this case.The window through which Officer Christensen made his observation faced a public street and a public sidewalk as well as the access sidewalk along the side of the apartment building.This access walk was an area to which the public was impliedly invited."There is an implied invitation for the public to use access routes to the house, such as parking areas, driveways, sidewalks, or pathways to the entry, and there can be no reasonable expectation of privacy as to observations which can be made from such areas.Like other citizens, police with legitimate business are entitled to enter areas of the curtilage that are impliedly open to public use."Christensen, supra(quotingClark, 124 Idaho at 313, 859 P.2d at 349).See alsoState v. Rigoulot, 123 Idaho 267, 272, 846 P.2d 918, 923(Ct.App.1992).The window in question was at ground level (not in a window well) and was one to two feet high with a width greater than its height.Morris's interior lights were on and it was dark outside.Morris's apartment was in a multi-unit dwelling, which increases the amount of foot traffic that Morris could reasonably expect to pass by his window and, concomitantly, decreases the amount of privacy he could expect.Nonetheless, Morris left his window uncovered while he conducted his drug-related activity behind that window.These factors militate against a finding that Morris exhibited a subjective expectation of privacy or that any such expectation would have been reasonable.

Further, we do not find, as the defense suggests, that Officer Christensen's conduct was overly intrusive.Although in some circumstances kneeling down to look in a window in the early morning hours may violate a citizen's right to privacy, this is not such a case.As one commentator has explained, "[W]hen the officer is lawfully present in a place used by the public (e.g., the hallway of an apartment building), it is a search to engage in conduct which is offensive in its intrusiveness in the sense that it uncovers that which the resident may fairly be said to have sufficiently protected from scrutiny. "LAFAVE & ISRAEL, CRIMINAL PROCEDURE, § 3.2, p. 171(1984)(emphasis added).Thus, our determination of the acceptable degree of government intrusion into a citizen's home is inextricably intertwined with the citizen's actual attempts to safeguard his private affairs.Morris's window opened onto a sidewalk that he could expect to be used by other residents of the building and their visitors at any time of the day or night.He himself had several visitors using the sidewalk to his door on the night in question.Yet, Morris took no steps to cover the window in order to shield his activities from the view of passersby.It is well settled that "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."Katz at 361, 88 S.Ct. 507.We accordingly conclude that Officer Christensen's conduct did not infringe upon a privacy interest protected by the Fourth Amendment.³

B.Article I,...