State v. Olm

• Decision Date: 12 February 2010
• Docket Number: No. 2 CA-CR 2009-0254.,2 CA-CR 2009-0254.
• Citation: 224 P.3d 245
• Parties: The STATE of Arizona, Appellant, v. Ryan Ray OLM, Appellee.
• Court: Arizona Court of Appeals

224 P.3d 245

The STATE of Arizona, Appellant, v. Ryan Ray OLM, Appellee.

No. 2 CA-CR 2009-0254.

Court of Appeals of Arizona, Division 2, Department B.

February 12, 2010.

Barbara LaWall, Pima County Attorney By Jacob R. Lines, Tucson, Attorneys for Appellant.

Karp & Weiss, P.C. By Stephen M. Weiss, Tucson, Attorneys for Appellee.

OPINION

BRAMMER, Judge.

¶ 1 The state appeals the trial court's grant of Ryan Ray Olm's motion to suppress evidence obtained in a warrantless search of his vehicle. The state argues Olm had no protected privacy interest in the front yard of his home where the vehicle had been parked. Finding no error, we affirm.

Factual and Procedural Background

¶ 2 In reviewing the denial of a motion to suppress evidence, we consider only the evidence presented at the suppression hearing, State v. Blackmore, 186 Ariz. 630, 631, 925 P.2d 1347, 1348 (1996), and view that evidence in the light most favorable to upholding the trial court's ruling. State v. Rodriguez, 205 Ariz. 392, ¶ 34, 71 P.3d 919, 929 (App.2003). So viewed, a Tucson Police Department (TPD) officer, acting pursuant to instructions given him by TPD detectives, went to Olm's residence to "check the VIN [vehicle identification number] plate" of a black Mustang that previously had been seen there. When the officer arrived, Olm's black Mustang was parked in the residence's yard, to the left of a concrete walkway leading to the front door of the house from a public sidewalk adjacent to the public street. The Mustang was parked facing the residence, and the front end of the car was "about five or six feet" from the house. Olm testified he always parked his car in this fashion "[s]o nobody tampers with it."

¶ 3 The officer walked onto the yard, approximately ten to fifteen feet away from the concrete walkway, to the left side of the Mustang. He looked at the VIN plate through the Mustang's front windshield, and saw that the plate was slightly bent. The officer then went to the front door of the house and "tried to make contact with the residents." When no one responded, the officer contacted one of the detectives and reported the bent VIN plate on the Mustang. The detective then told the officer to seize the Mustang, and the Mustang was soon towed to an impound lot. After searching the Mustang while it was at the impound lot, and after acquiring from Olm the key to its ignition, a detective drove it to an automobile dealership for further inspection "to identify specifically what parts were nonstandard Mustang parts that were on the vehicle."

¶ 4 A grand jury charged Olm with theft by control of a vehicle, in violation of A.R.S. § 13-1802(A)(5), and "conducting a chop shop," in violation of A.R.S. § 13-4702(A)(5), by buying, selling, or possessing a vehicle with a "removed, destroyed, defaced, or otherwise altered" VIN. Olm filed a motion to suppress all the evidence discovered during and as a result of the inspection and search of the Mustang. After an evidentiary hearing, the trial court, in granting Olm's motion, determined the yard was part of the curtilage of Olm's residence and the officer had therefore conducted a warrantless search by "walking onto [Olm]'s private property for the purpose of viewing the VIN plate." The court granted the state's motion to dismiss the charges without prejudice, and this appeal followed. See A.R.S. § 13-4032(6).

Discussion

¶ 5 The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." "Unlawful entry of homes was the chief evil which the Fourth Amendment was designed to prevent." State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, 549 (1986). That protection extends in general to "the curtilage,' the land immediately surrounding and associated with the home." Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The test is whether the dwelling's resident has a "legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see also Katz v. United States, 389 U.S. 347, 360-61, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Warrantless searches, like the one here, are presumptively invalid, and the state bears the burden of proving their constitutionality. Ariz. R.Crim. P. 16.2(b); Rodriguez v. Arellano, 194 Ariz. 211, ¶¶ 9-10, 979 P.2d 539, 542 (App.1999). "A search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).

¶ 6 The state argues Olm had no reasonable expectation of privacy in his front yard and that the yard was not part of the home's curtilage. Although the state presents these concepts as two distinct issues, they are closely interrelated. If the yard was not part of the curtilage of Olm's house, he had no reasonable expectation of privacy in the area where the Mustang had been parked. And, as we will explain, if the yard was part of the curtilage, the pertinent question is whether the officer viewed the Mustang's VIN plate from a legal vantage point. Before we reach those questions, however, we must first determine the proper standard of review.

¶ 7 In reviewing a trial court's ruling on a motion to suppress, we defer to the trial court with respect to the factual determinations it made but review the court's legal conclusions de novo. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996). The state asserts the determination whether Olm had a reasonable expectation of privacy in the yard and whether the yard was included in the curtilage of his home are legal conclusions and therefore subject to our de novo review. Olm responds that, because those determinations are largely factual, we instead review for clear error. As Division One of this court stated in State v. Allen, 216 Ariz. 320, ¶ 15, 166 P.3d 111, 115 (App.2007), "[w]hether a particular expectation of privacy is recognized by society as objectively reasonable is a matter of constitutional law that we consider de novo." Thus, we review de novo whether Olm had a reasonable expectation of privacy.

¶ 8 As to the determination of the extent of the curtilage, the majority of courts we have surveyed view this also as a legal conclusion subject to de novo review. See, e.g., United States v. Davis, 530 F.3d 1069, 1077 (9th Cir.2008); United States v. Brown, 510 F.3d 57, 64 (1st Cir.2007); United States v. Cousins, 455 F.3d 1116, 1121 (10th Cir.2006); United States v. Breza, 308 F.3d 430, 435 (4th Cir.2002); State v. Fisher, 283 Kan. 272, 154 P.3d 455, 468 (2007); State v. Martwick, 231 Wis.2d 801, 604 N.W.2d 552, 558 (2000); but see United States v. Benish, 5 F.3d 20, 23-24 (3rd Cir.1993) (reviewing for clear error). Indeed, in United States v. Johnson, 256 F.3d 895, 909 n. 1 (9th Cir.2001), the Ninth Circuit Court of Appeals reversed its earlier decisions holding that curtilage issues were solely factual and concluded, based on the United States Supreme Court's decision in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), that such determinations are reviewed de novo.

¶ 9 The Supreme Court in Ornelas, when considering determinations of probable cause and reasonable suspicion, stated that review must be de novo because "the legal rules for [such determinations] acquire content only through application" and therefore "[i]ndependent review is ... necessary if appellate courts are to maintain control of, and to clarify, the legal principles." 517 U.S. at 697, 116 S.Ct. 1657. The Court also noted "de novo review tends to unify precedent and will come closer to providing law enforcement officers with a defined set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.'" Id. at 697-98, 116 S.Ct. 1657, quoting New York v. Belton, 453 U.S. 454, 458, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). In Johnson, the Ninth Circuit determined those considerations "apply with equal force to the determination of where the curtilage ends" and "there is no conceptual difference between calling an area curtilage' and telling an officer he had probable cause' or reasonable suspicion.'" 256 F.3d at 912. We agree with this analysis and conclude we must review de novo a trial court's determination whether an area falls within a residence's curtilage.

¶ 10 The state argues the front yard where the Mustang was parked was not part of the curtilage of Olm's house and thus he had no privacy interest in that area. See Oliver, 466 U.S. at 180, 104 S.Ct. 1735. In United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), the Supreme Court identified four factors relevant to determining whether an area is part of a home's curtilage: "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." In discussing these factors, we are mindful they are not to be "mechanically applied," and are merely "useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration — whether the area in question is so intimately tied to the home itself that it should be placed under the home's umbrella' of Fourth Amendment protection." Id. And, we emphasize that it is the state's burden to demonstrate the search was constitutionally sound. See Ariz. R.Crim. P. 16.2(b); Rodriguez, 194 Ariz. 211, ¶¶ 9-10, 979 P.2d at 542.

¶ 11 Here, the yard was not enclosed and Olm took no steps to protect it from observation. But the portion of the yard where Olm parked his Mustang directly...