Donald P. HUNTER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. 84-216.
Supreme Court of Wyoming.
Aug. 14, 1985.
715 P.2d 713
Roy McCormick, remaining in possession оf the ranch and receiving the income from it during his lifetime, does not defeat the vesting of title in Marie May. This is not an uncommon arrangement when the tenants of a joint tenancy deed are parent and child. The court improperly granted summary judgment.
II
There is no merit to appellant‘s first issue on appeal. Appellee asserted the invalidity of the deed in question on four theories, namely, incompetency of grantor, invalid delivery, invalidity due to fraud, and to quiet title against appellant. The determination that there was no valid delivery of the deed on the one cause of action rendered the issues moot in the other three causes.
The court having found for appellee on one of the theories and having declared the deed void, there was no purpose in proceeding on the other three theories to see if the court could find other reasons to declare the deed void. However, appellee is free in future proceedings to reаssert any one or more of the four theories set out in his original complaint for setting aside the deed.
Reversed and remanded for further proceedings not inconsistent with this opinion.
A.G. MсClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen., and Karen Maurer, Sp. Asst. Atty. Gen., for appellee.
Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.
Appellant was convicted after a trial to the court of a violation of
Appellant‘s issues on appeаl concern the warrantless search and seizure of the car and appellant‘s personal effects found within the car, and also the sufficiency of the evidence as to concealment.
We affirm.
FACTS
In the early morning hours of May 6, 1984 a police officer saw appellant driving a new model Cadillac Seville with Michigan license plates in the downtown area of Laramie. The officer ran a NCIC check on the car. Before the report came back, appellant flagged down the officer to inquire where he could purchase motor oil at that hour. The officer gave appellant a few suggestions, and appellant drоve off. The report eventually came back that the car appellant was driving was stolen, and the officer put out an alert to watch for the vehicle. Appellant was arrested off the interstate at the summit rest area a few miles east of Laramie, and the car was impounded.
When the police lieutenant came on duty the next morning, he reviewed the report on appellant. He was told that Michigan would probably not extradite appellant, but that the sheriff‘s office was requested to keep appellant in custody until official notification to that effect was received. The officer then telephoned the оwner of the Cadillac, Ms. Martin. He informed her of the location of the car and was in turn advised that several personal belongings of Ms. Martin had been in the car at the time it was stolen.
The officer obtained the keys to the vehicle from the sheriff‘s office and searched the car to see if any of Ms. Martin‘s things were still there. None of Ms. Martin‘s effects were recovered, but several containers were found, containing many items commonly used in the falsification of car titles. Prior to trial, and again at trial, appellant moved to have these items excluded from trial on the basis that either the search was illegal or the evidence had no probativе value. The motions were denied, the judge ruling that appellant had no standing to object to the search of a stolen car. The items were admitted to prove knowledge that the car was stolen.
SEARCH AND SEIZURE
Appellant contends that the search of the Cadillac violated his rights, both under the United States Constitution and the Wyoming Constitution. It is recognized that warrantless searches and seizures are unreasonable per se under both the
The general rule as to the warrantless search of automobiles, for the purposes of the
In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the Supreme Court considered the permissible scope of a search such as in the Carroll case. Ross involved the search of a car which wаs stopped after a tip that the car contained narcotics. The informant in the case had previously proven to be reliable, and the information given matched that observed by the officers. The officers stopped the car, and searched it. They found a bullet on the front seat, a pistol in the glove comрartment and a closed brown paper bag in the trunk. Upon opening the paper bag, a number of glassine bags containing a white powder were discovered. The car was then removed to police headquarters, where another search was performed. A zippered red leather pouch containing $3,200 in cash was found in the trunk. The white powder was later determined to be heroin. There was no question but what the officers could stop and search the car, including its trunk, because the requisite probable cause was evident. The question arose as to the search of the paper bag and leather pouch.
The Court, in Ross, noted the ruling of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), that the generаl principle was that closed packages and containers may not be searched without a warrant.
*** In sum, the Court in Chadwick declined to extend the rationale of the ‘automobile exception’ to permit a warrantless search of any movable container in a public place. (Footnote omitted.) United States v. Ross, supra, 102 S.Ct. at 2166.
However, Chadwick can be distinguished from Ross because it involvеd suspicion directed only at a footlocker, which was at some point placed in a car, unlike Ross where the suspicion was that the car contained narcotics within it. Thus, in Ross, the officers had probable cause to search the entire vehicle.
In reaching its result in Ross, the Court, noted that:
*** Indeed, prior to the decisions in Chadwick and Sanders, courts routinely had held that containers and packages found during a legitimate warrantless search of an automobile also could be searched without a warrant. (Footnote omitted.) 102 S.Ct. at 2170.
Further, the Court indicated that the practical consequences of the Carroll decision would be nullified if the permissible scope of such a search did not include containers found within the vehicle.
*** Contraband goods rarely are strewn across the trunk or floor of a car; since by their very nature such goods must be withheld from public view, they rarely can be placed in an automobile unless they are enclosed within some
form of container. *** (Footnote omitted.) 102 S.Ct. at 2170.
Finally, the Court determined that the scope of a warrantless search of a vehicle is not defined by the nature of the contаiner in which the contraband is held. It is instead defined by the object of the search and the places in which there is probable cause to believe it may be found.
“The exception recognized in Carroll is unquestionably one that is ‘specifically established and well delineated.’ We hold that the scope of the warrantless search authorized by that exception is nо broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” 102 S.Ct. at 2173.
In the case at bar, there was probable cause to believe that the car was stolen, and that it could contain stolen personal property of the vehicle‘s owner. The car also could have contained evidence which tended to show that a crime had been committed or which tended to show that a particular person had сommitted a crime.
“(b) Grounds for issuance.--A warrant may be issued under this rule to search and seize any property
“(1) Stolen or embezzled in violation of law; or
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“(4) When the property or things to be seized consist of any item, or constitute any evidence which tends to show a crime has been committed, or tends to show that a particular person has committed a crime.”
If a warrаnt had been issued, it certainly would have directed the officers to search for Ms. Martin‘s personal belongings which were stolen along with the car. Lieutenant Puls testified on cross-examination that he believed that the items he found in the vehicle belonged to the appellant, and that none of them resembled anything Ms. Martin had described to him. However, even though the officer might not have said so, there was no way to know whether or not Ms. Martin‘s belongings had been put in with the items that were believed to belong to Mr. Hunter, until they were opened. Once lawfully opened, the contents which did belong to Mr. Hunter were in plain view and subject to search.
Because there was рrobable cause to search the car and any closed containers found within the car, the search and seizure were not unreasonable, under either the
CONCEALMENT
Appellant‘s last issue is whether there is sufficient evidence to support the judge‘s finding that appellant concealed stolen property in the state of Wyoming. In making this determination, we view the evidence in the light most favorable to the prevailing party below, i.e., the State. Cutbirth v. State, Wyo., 663 P.2d 888 (1983).
Concealment is generally defined to mean “to prevent disclosure or recognition of” or “to place out оf sight.” Webster‘s New Collegiate Dictionary (1979). Appellant contends that there was no evidence that he concealed the vehicle in question as he drove it through downtown Laramie and flagged down a policeman; the license plate had not been changed, and no other alterations had been made to disguise thе car or hide its whereabouts.
When used in a legal sense, the word concealment means more than to place out of sight or to prevent recognition. It means to place out of sight of the owner, or to prevent recognition by the owner.
“The word ‘conceals’ in the statute was not used in a technical sense but includes all acts done which render the discovery or identification of property more diffi-
cult. State v. Ward, 49 Conn. 429, 442; Wertheimer v. State, 201 Ind. 572, 169 N.E. 40. The court‘s charge that the jury could conclude that the TV set was concealed if it believed testimony that the television set was placed by the defendant in a sun porch of his private home out of the view of the general public was correct. Concealment is not limited to proof that the stolen property was hidden or kept out of sight, it is enough if it is proven that the property was withheld from the owner and made difficult for the owner to discover and this includes acts or conduct which enables the one who received the stolen goods to convеrt the property to his own use. Commonwealth v. Matheson, 328 Mass. 371, 103 N.E.2d 714; State v. Crum, 255 La. 60, 229 So.2d 700; Wertheimer v. State, supra; 66 Am.Jur.2d, Receiving Stolen Property, § 4.” State v. Moynahan, 164 Conn. 560, 325 A.2d 199, 212 (1973), cert. denied 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973).
Certainly appellant was concealing the stolen vehicle from its lawful owner, who lived in Michigan, by driving said vehicle to Wyoming. It was unlikely that the owner would discover its whereabouts. There was more than sufficient evidence of concealment.
Affirmed.
THOMAS, Chief Justice, specially concurring.
I have no essential disagreement with the disposition of this сase as the majority has done. I would, however, be disposed to support the district judge in his conclusion that the appellant had no standing to object to the search and seizure of evidence in this case. It is my view that the focus in the context of standing to object to a search has come to be the legitimate exрectation of privacy of the accused in the premises or articles which are searched. Rakas v. State of Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), reh. denied 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979); Parkhurst v. State, Wyo., 628 P.2d 1369, 1374 (1981), cert. denied 454 U.S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981). If the legitimate expectation of privacy is a threshold concept with respect to standing then I contend that one in possession of a stolen motor vehicle must bear the burden at a suppression hearing, with rеspect to evidence obtained from that stolen motor vehicle, of demonstrating a legitimate expectation of privacy with respect to the stolen motor vehicle and its contents. I do not understand the record in this case as containing a satisfaction of that burden by the appellant. Furthermore, I think it is questionаble whether one in possession of a stolen motor vehicle could in most instances establish a reasonable expectation of privacy.