*1 contrary, it is authority some outdated,
rare, contrary mostly responsibilities views on the
enlightened Domestic Rela- parents.” Clark on
tions, 15.1, p. 495. § Urbach, Wyo. 73 P.2d Urbach v.
See (1937) (statutory grant A.L.R. inde- limitation court’s power is not powers), and McBride v. equitable
pendent
Lomheim, 144 N.W.2d 82 S.D. support substan-
(1966) (parent’s liability to may
tially handicapped daughter be en- action).
forced divorce the reasons indi-
My affirmance
cated. JESSEE, Appellant
Jerry Lynn
(Defendant), Appellee Wyoming,
The STATE
(Plaintiff).
No. 5524. Wyoming. Court of
Supreme 29, 1982.
Jan.
Rehearing 7, 1982. April Denied
See
“Whether subsequent seizure of addi- tional evidence was a direct result of the illegal Appellant’s search dwelling and whether the evidence seized is suppressa- illegal ble as fruits of an search.” [sic] We will affirm. ensuing a summary narrative is
the trial Portschy evidence. Fritz owned a Creek, trailer house on Beaver located five City about miles from Atlantic in Fre- County. mont He lived in Riverton and used the trailer pur- house for recreation poses such as fishing, weekends for hunting and as testified it away he was “home 1,1980, from home.” On November he and some friends and a go son went there to hunting and discovered and some of the out-buildings had been broken into and “ninety-eight percent” possessions of his gone. were Various locks had been broken gain Many items, to access. includ- ing an electric generator, were introduced Counsel, Schilling, Michael H. Appellate into evidence he able identify and was Wyoming Program, Public Defender Lara- given them. No one anyone had consent to mie, appellant (defendant). day report- use trailer. The next he' Freudenthal, Gen., F. Atty. Steven Ger- ed the break-in and theft an officer of Stack, Gen., ald Deputy Atty. A. Criminal up sheriff’s office and a list of made Division, Johnson, Allen C. Senior Asst. missing. items He also at that time identi- Gen., Hubbard, Atty. L. Michael Asst. fied the of his location trailer to the officer. Gen., Atty. (argued), (plaintiff). appellee incident, Prior to that on October Portschy a friend of Mr. had been ROSE, J., RAPER, Before C. THOM- hunting area deer and checked out AS, BROWN, ROONEY and JJ. usually trailer related facilities as he RAPER, Justice. Everything did. had been intact. appellant jury was tried before a sheriff, deputy Coppock, John inves- guilty burglarizing found a dwelling1 Sheriff, tigator County for the Fremont judge. and sentenced the trial ap- who had the report taken from Mr. pellant raises as issues: Portschy, along with deputy, another drove “Whether the search of the cabin that to the location of the trailer accordance occupying was Portschy’s carry violated his with Mr. direction to rights Neither, under investigation. however, the Fourth Amendment to their the United States Constitution and They Arti- familiar with the area. went I, cle Wyoming wrong point Section of Constitu- one direction at and then had tion and whether the evidence obtained to turn around and follow what is known pursuant point that search must be sup- Delight Miners Road to a where pressed. nearby. believed Beaver Creek 6-7-201(a)(i), possession 1. In violation of § W.S.1977: intent to steal or commit felony may imprisoned therein more Whoever, “(a) enters, intentionally or at- years: (14) than fourteen enter, tempts following places of “(i) Any building dwelling; or” person without consent of the in lawful rights. Appellant indicated he under- gate fence and da they came to a Eventually Coppock explained After his stood them. Trespassing.” Property No “Private marked nervous and findings, appellant became “Mazet,” they thought so It bore the name but, attorney when wanted to talk to Portschy wrong road. they were on phone, he could not Coppock pointed the land them that advised had not attorney He who his was. remember belonged to was located his trailer *3 further, if but he did ask he questioned not Mazet, another road. so took George Coppock re- going to be arrested. was to be an old appeared They came to what know, whereupon not sponded that he did piece plastic, used A abandoned cabin. give him until Coppock asked appellant opening, had broken a window to cover morning bring he would the next and blowing in the wind. There was loose and items, Appellant found. left. other barrier around the fence or other was no morning, The next November Cop- the cabin and They approached cabin. appellant’s vehicle at a service Coppock saw opening through the window pock looked appellant came in Hudson. When station pans, pots, silver- items: and saw numerous out, coming he he was asked if would stove, dishes, food, ware, sheepherders’ a Appellant sheriff’s office in Lander. skillet, five-gallon can and a red gray a responded in the affirmative and asked to attracted their can. These items two-gallon he was low on Coppock ride with because Portschy report- Mr. had attention because sheriff’s gas and without funds. At from his trail- ed items like these as stolen given Miran- appellant again was office idea who the cabin er. The officers had no interviewed, which was rights da all of flapping in the was belonged to. The door tape played jury. was to the recorded. went in. wind so guilt. confession of It amounted to a and its pictures of the cabin Coppock took interview, taped after Appellant, cabin but he A Bible was in the contents. gave permission Coppock to search the of the Bible photograph photo did not it. A appel- his automobile. After that cabin and produced by counsel was defense jail. placed Cop- lant was arrested pre- the Bible witness testified he had seen pock picked returned to the cabin and then littering viously during investigation up things Portschy the other had told him appellant’s van at It was in Willow Creek. missing. items were found in were Other had later been time. The Bible car, Jack appellant’s including a bottle of as a lost turned into the sheriff’s office whiskey a Re- Daniels bottle Chivas item, appellant. it to and he had returned re- gal whiskey, Portschy scotch which had discovery entry after was Bible ported generator as stolen. A was re- appellant with the first item that connected through trieved use of a search warrant Coppock the cabin and contents. confiscat- friend, appellant’s from the residence of property ed some of in the cabin: sil- At the Longtine, located east of Riverton. verware, knife, tablespoon, a a teaspoon, a a part Longtine, pawn trial in the business skillet, can, gas five-gallon a can and a time, brought appellant testified that had can, Portschy later iden- brown trash generator. him the tified as from his trailer. items stolen been, Longtine acquainted had since office, way On the to the sheriff’s back Delight occupied part with the Miners cabin Coppock go- vehicle recognized appellant’s he called one by appellant. time In fact road, ing stopped down and conversed owner, per- Kenny Cooper, alleged for result, appellant, with as a followed appellant stay for in the mission where he was appellant to a friend’s home granted. Appellant had worked which was Appellant left his car there and living. doing jobs. various Longtine off and on Coppock rode with back to the sheriff’s in the his own behalf. appellant office to talk about the items found testified on noted, follows, the discussion What here until otherwise cabin and the Bible. Before testimony. He summary began, Coppock read to his Miran- Ellis, tour, explained age guided that Jeff about who for the “Thanks don’t dig too him, gold or living gig you was the much Uncle “illegitimate with Sam will fifty percent. your take Send us product” relationship of an illicit between address get so we can touch. California his father and a Montana woman and there- Bob, Bunch, Richard, and Ernie.” fore his half-brother. Since mother else, marrying appeared someone better figured He the “California Bunch” had left appellant, for Jeff to live along with so he had it for him liquor some bottles of (the purportedly same been with him since when those ar- stolen from the cabin.) rangements Portschy made. He want They moved did not to leave generator in the cabin fear Wyoming April, holding someone After it, would steal so he Longtine. left it with jobs of various sorts he filed with the Unit- ed Management States Bureau Land His claim that he denied sheriff’s gold mining claim on Willow Creek. deputy guilt interrogated, when until *4 he was advised that Jeff was Ellis also to be by He was notified the Bureau of Land charged. arrested and Coppock go let him Management his claims were invalid appellant but was picked up in Hudson and mining and he had to off cease and move Jeff told that Ellis had been arrested for the property. He commenced a into move the burglary. Coppock he also said wanted Delight the Miners cabin. he After that illegal to know the activities of Frank picked probation was a up for violation Longtine, suspected of in hot dealing equip- resulting forgery charges from in California ment, firearms, hot Appellant whatever. and was to there returned California any knowledge. Appellant denied also was authorities. with Whatever business he had promised appellant if confessed that Jeff the authorities there was taken care not charged, Ellis would be appellant would he was allowed return He to Lander. charged not be with being an habitual crim- went camp to his on Willow move Creek to Coppock inal and proba- would recommend more camp of his stuff but found that his gave tion. He the statement because he there had smoldering been set fire—still had a twenty-year criminal record did not when A he arrived. things number of had want to see the young Ellis boy go to been stolen from him. He made list of a so, prison; he protect confessed to Jeff missing things, gave it to the sheriff and Ellis. This ended testimony. completed his move into the cabin. rebuttal, Jeff Ellis’ mother testified He gave claimed that a California hunter brother, appellant was not his half nor game him tag killing validation deer had or appellant she ever met his father. land, on thinking his he could collect a The hunter from California testified that he landowner’s fee iton from the Game had left the note and when last saw the he Fish gift grat- Commission. was out of things cabin there were a lot there not help given itude for hunting he had appellant the first time and after party. party past Portschy had taken his trail- hunting. giving er while He admitted He left go the cabin on October 23 deer tag landowner’s and said down and do some work for fix- Longtine, the deer had been shot two and a about half ing fence things and other and returned to from away miles the cabin. the cabin. given He claimed he had map sheriff’s office a get how to there. following testimony was elicited at arrived, When he things there were a lot of suppression hearing held about two in the cabin put someone had there includ- hearing prior months to trial. The was held ing an generator electric was “kind appellant taking positions— with the two —it like morning Christmas when ex- you are first there was an unconstitutional pecting cabin; Santa All Claus.” the various search of the and second that appel- things in evidence were there. voluntary He found lant’s confession was not note cup promises under a coffee which said: coerced relative would it, that area because or work live on was, though he and that prosecuted, not be BLM. It’s the national “belonged to on as an habitual prosecuted be
he would not
(a
site). He neverthe-
register,”
historical
criminal,
kept.
There is
promise
less moved into the cabin on October
appeal
respect
question on
no
with what food
had and borrowed
coercion, though appellant does ar-
alleged
The cabin was at one time Frank
utensils.
appel-
seizure led to
gue that the search and
Cooper
Longtine’s but sold to a Kenneth
poisoned
and it was
confession
lant’s
who resides in Nebraska. Afterwards
a result.
inadmissible as
in order
briefly
lived in it
and on weekends
by the
testimony presented
belonging to Frank
to work another claim
establishing a
which assumed the burden of
permission
have
Longtine. He claimed to
substantially
search was
lawful
Cooper, having
to use the cabin from
talked
presented
except
at the trial
that there was
just
suppression hearing
to him
before the
the area in
greater detail
laid out as to
Longtine’s residence. He could
at Frank
dilapi-
was located and its
which the cabin
doing
place
use the
the assessment
Deputy Coppock testified
dated condition.
got around to
Apparently
work.
all he
appeared to
an old
running into what
doing
putting plastic
window.
cabin;
signs
there were
indi-
no
abandoned
fences,
private property,
it to be
cating
counsel,
part
as
judge
The district
barricades,
hedges
property.
around the
suppression hearing,
went out and
though it
The cabin looked as
was about to
took
viewed the cabin area.
court
bedspring
rusted cans and a
collapse. Old
pictures,
three Polaroid
introduced
*5
building.
outside of the
were around the
photos were also
court’s exhibits. Other
rickety
flapping open
was
in the
door
sup-
a
session on the
introduced at
second
doing
crashing
so made a
wind and
pression. They vividly express better than
Coppock
sign
did not notice a
on the
sound.
testimony
the
the ramshackle condition of
“Dynamite. Danger.
door which read
No
the cabin and cabin site.
trespassing.”
one of the windows —no
On
judge,
The trial
in rendering his oral deci-
glass
only
piece
plastic
a
was
—there
sion, first advised that
the defendant
if he
blowing
which was torn loose and
about.
question
wished could submit the
and issues
through
He looked
the window and saw of unlawful search
jury
and seizure to the
various items similar to what had been tak-
upon proper
any
instructions because
deci-
trailer,
Portschy
samples
en from the
took
question
sion would involve a
of fact.
It is
by Portschy. The
and had them identified
noted from the instructions that no such
in, though
not look lived
there
inside did
instruction
by appellant
was offered
giv-
or
food,
were various items of
later identified
en.
Portschy.
as stolen from
The cabin had a
The trial
judge in
opinion
his
denying
impression
dirt
It was the
floor.
suppression, rendered from the bench at the
that
deputy sheriff
the stuff he saw had close of
hearing, gave
the
thoughtful atten-
been stashed there.
tion to the law and the facts. He had
(the
They
deputies)
samples
took
because obviously done his homework on
perti-
the
they were afraid the evidence would be
leading
nent
and controlling
By way
cases.
moved;
destroyed or
it was getting late in of
finding,
fact
he noted that it was believ-
the afternoon and the chill
get-
factor was
able that the law enforcement officers were
ting
Further,
below zero.
the
up
cabin is
in in the area in connection with a search for
hills,
area,
in a
eight
remote
miles from the Portschy place when,
more
chance
any highway and over forty miles from
purpose,
than
came on the
their headquarters at Lander.
further,
that
it was reasonable to nose
testified.
around the
He claimed that
cabin located in an area of his-
Coppock knew he
going
significance.
was
torical
to the Miners
From the outside there
Delight
because,
was
distinguishable
cabin
Cop-
when he told
evidence that
pack of
plans, Coppack
premises
secured,
occupied
had said he could
as an
“unreasonable searches and seizures.” Not
abode,
expected.
privacy
On the con-
trary,
appearance
forbidden,
one
all searches and
was
of abandon-
seizures are
but
ment,
plastic
with the
only
over
window
those that are unreasonable. Whether
flapping,
loose and
the door with no
or
lock
searches and seizures are unreasonable de-
latch, open
banging
wind. Rath-
pends to
upon
some extent at
least
discouraging
er than
entry, those conditions
procured
articles
circumstances un-
investigation.
invited
trial
point-
court
der which
are obtained. As to when a
ed out that
an obligation
officers have
judicial
search and seizure is reasonable is a
inquire into what could have been vandal-
question
general
and as a
rule searches not
progress.
ism in
The trial court noticed made under a search warrant are unreason-
practically
was
conceded that
George, Wyo.
able.
231 P.
goods observed were stolen from the
(1924).4
The burden is
the State
Portschy premises
discovery
but
to establish that a search and seizure is
was inadvertent and there was no unconsti-
reasonable, in the absence of a
war-
search
Furthermore,
tutional
intrusion.
the trial
rant. At the suppression hearing the trial
judge found that
there was
recognized
judge
rule
required
exigency of a reasonable threat of removal
go
carry
respon-
State to
forward and
or loss of evidence.
It
a cold day
was
once it
sibility
apparent
that the initial
heavy
chill factor and the cabin
was in
entry of the cabin was without the benefit
remote, semi-wild area.
discovery
process.
atmosphere
innocence;
made in an
material
seized was in plain view. The
Reasonableness of search
not ca
appellant had not
those
done
minimal
pable
precise
any
definition or
mechani
things
give
which would
the world notice
cal application.
requires
Each case
expressed any
expectation
reasonable
weighing of
particular
the need for the
of privacy,
from the
in the public
search
interest
even
public
large,
from the
hunters
of the personal rights
invasion
any others. The
expressly
court
held that
calls
search
for. Courts must probe the
person viewing
premises
reasonable
*6
particular intrusion,
the
scope of
the man
from the
as
entirety
outside
an
would rea-
sonably
on,
justifica
conclude
that
it was
ner in
it is carried
the
abandoned.
initiation,
its
place
tion for
and the
in which
Wolfish,
it is conducted. Bell v.
441 U.S.
Appellant’s
the
first claim is that
559,
520,
1861, 1884,
447,
99 S.Ct.
60 L.Ed.2d
property
suppressed
stolen
seized must be
(1979)
481
and cases there cited.
against appellant
as evidence
in that
judicial
on
Many of the
utterances
search
rights
of
cabin
his
search
violated
under
subject
and seizure have
with the
in a
dealt
the Fourth Amendment to the Constitution
not
to
of
right
context
related
4,
1,
“[t]he
of the United States2 and
Article
§
*
* *
people to be secure in their
in
houses
Wyoming
key
Constitution.3 The
words
* *
provisions
each of
are
but
in
these constitutional
rather
connection with
Amendment,
right
people
2. Fourth
Constitution of the Unit-
“The
of the
to be
in their
secure
houses,
against
persons,
papers
ed States:
and effects
and
shall
unreasonable
searches
seizures
not
right
people
“The
of the
be
to
secure in their
violated,
houses,
effects,
and
warrant
shall issue
persons,
papers,
be
but
against
and
cause,
probable
affidavit,
supported by
seizures,
not
unreasonable searches and
shall
particularly
describing
violated,
issue,
place
be
be
and no
shall
Warrants
cause,
upon probable
person
thing
supported by
searched or the
or
to be seized.”
Oath or
affirmation,
particularly describing
and
State, Wyo.,
also Neilson v.
599 P.2d
place
searched,
4.See
persons
to be
and
1326,
States,
v.
things
1330
Carroll United
267
to be seized.”
132, 147,
280, 283,
543,
L.Ed.
U.S.
45 S.Ct.
69
4,
1,
3. Section
of
Article
Constitution
the State
(1925).
Ohio, impose supra, plain-view was not intended doc L.Ed.2d the states rule different than when a applied trine is officer evidence the accused searching for recogni long-established Court’s “[t]his *7 inadvertently comes across nonetheless that un tion standards of reasonableness object. Coolidge v. incriminating New der the Amendment are not sus Fourth Procrustean[6] application Hampshire, 403 U.S. 91 S.Ct. ceptible of is However, plain view carried that Amendment’s L.Ed.2d 564 forward when States, point 5. None of the cited this United 88 S.Ct. cases here to (1967), phone have had to do of a house: State v. L.Ed.2d 576 booth. with search State, corral; George, supra, sheep Neilson automobile; supra, v. United explains “procrustean" Carroll is de- Webster Wolfish, automobile; body supra, cavity. supra, Procrustes, legendary Bell name of a rived from the by by upon and relied the Others cited ancient who forced vic- robber of Greece respect, parties equally germane by stretching lop- are or fit a certain bed tims to though they together applicable put legs. application lan- ping do In is their modern off subject guage dealing by disregard complete the vast of search with is marked of that which example, special and seizure. cases cited coun- For differences or circumstances individual Illinois, ruthlessly arbitrarily, sel. Rakas v. and vio- and often automobile; conformity Katz v. lently L.Ed.2d387 a doctrine. to forces enough justify roof sagging age, alone is not warrantless greying timber and evidence; exigent logs, seizure of circumstances together junk with rusty around, lying present.7 must also be giving appearance every of having been abandoned. The loose flapping piece of doctrine, support plain-view plastic piqued curiosity of the officers. adopt court has had recent occasion to point Their role at this would be that of it in apply federal view McCutcheon v. patroling law enforcement They officers. Wyo., P.2d knowledge had no of any activity unlawful exception plain elements for view as an normally in this uninhabited country. For require- to and in lieu of a search warrant knew, they inside, all someone could be ment were laid out: or place. dead sick taking vandalism (1) proper. The officer’s must be They much right had as to be curious and (2) appear The items observed must to be nose public. around as the They were possible evidence. standing property on of the United States (3) paid proposi- must Attention be they peeked when through the window tion is only applicable doctrine opening glass. was no The door was —there discovery the inadvertent of incrimina- swinging in the wind—there was lock— no ting evidence. fastening any no latch—no of sort. Under While the law of search and seizure a circumstances, they right had a to be constantly perplexing problem sham- and in there. bles,8 we are satisfied that there is The through view opening the window precedent clear disposing and authoritative personal showed various items property of present appeal without confusion or gave appearance of articles which dispute. description matched the given the list comprehensive array evi Portschy. them Mr. These items were produced dence suppression hearing at the possible evidence. judge held before the percep trial and his The discovery was They inadvertent. tive analysis prior pres to trial discloses the they looking were there because were support ence of the necessary all facts to Portschy’s Mr. for trailer and on the proper search and seizure search without a wrong it, road to reach and in a lost. sense warrant. They looking prop- were not for stolen First, right the officers had to where be erty. It strictly they accidental that they They belonging were. were on land bumped into this find. Their narrative of the United States of America. they As got they entirely how there is believable. area, Delight entered the Miners They had no idea of any relationship passed through gate of a fence where discovered to appellant loot until appeared sign declaring land Bible, found which also was in property United States. The cabin is plain sight. There exam- could be better region located land. ple luck inadvertence—more than historical interest in which are located a design. conceivable cabins, number of of early abandoned relics Now, exigencies about what prospecting activity. public freely Why one vicinity pokes traverses the situation? could not of them re- around in main, entering the ruins left before ever early- and structures from the in-the-century quest gold. photos other return Lander a search *8 vehicle; in question They demonstrate the cabin to be warrant? had one it practically verge collapse; nearing its on sod dusk and the chill factor was below also, annotation, 1067, interesting 7. See 29 L.Ed.2d 8. See a com- most and informative ment, McClain, objects “Search and Seizure: Observation of “Unreasonable Under Searches Supreme ‘Plain the Fourth ‘The Rule Court Cases.” Amendment: Becomes View’ — Curiouser’,” Curiousier XV Land (1980). Water 275 L.Rev. 64 though subjective from Lan- Jessee. Even belief forty-five miles They
zero.
country. Neither of the
in mountainous
of the law enforcement officers was con
der
clothed to stand
equipped
fact,
applied
officers
trary to that
the law must be
returned to town.
while the other
guard
In this
there was
to a residence.
instance
raise the risk that
For
to return would
both
justification
intru
no
warrantless
unknown,
thief,
would return and
then
While the ma
sion to seize
evidence.
evidence.
It was a
possible
remove
justifies
jority opinion
the search
weekend,
county prosecuting at-
neither the
application
plain-view exception
of the
except
judge
would be available
torney or
requirement,
warrant
I do not find that
out,
sought
returned to their
through being
analysis
there made accounts for
a-judge’s
least their advice and
offices or at
proposition
provi
the constitutional
might
he
be
signature obtained wherever
applicable
recognize
sions which are
here
just such
The circumstances were
found.
distinction between searches and warrant-
impractical
to obtain a search
it was
less intrusions to effect seizures.
G. M.
See
unnecessary
and so
in view of the
warrant
States,
Leasing Corp. v. United
building.
appearance
abandoned
338,
619, 629,
354, 97
Affirmed.
with a situation which is similar. The court THOMAS, Justice, specially concurring. primary requirement there notes that application plain-view exception agree I lessee’s conviction for bur- “(1) prior justification for intrusion.” glary not, should be affirmed. I do how- Chrisman, supra, v. P.2d ever, agree majori- with the rationale in the This, essence, primary is the element for ty opinion which leads to that result. The application plain-view exception as seizure of evidence from Jessee’s cabin State, Wyo., forth in set McCutcheon upheld exigent should not basis of P.2d 537 which is stated in the ma circumstances. Instead the court should re- justification “(1) jority opinion evaluate the for the exclusion- the officer’s ary exclusionary rule and hold that the rule proper.” Supreme must be As the Court of applicable is not here. noted, Washington Supreme Court “physi the United has said that States question I have no in this instance entry cal of the home is the chief evil the law officers blundered in enforcement wording which the of the Fourth effecting the seizure of the evidence. I Amendment is directed.” United States agree majority opinion with the insofar as Court, District United States discovery concludes that the of the stolen 2125, 2134, L.Ed.2d property in this instance was not unlawful. (1972). concept Pay This was reiterated in The unlawful conduct occurred when the York, ton v. New proceeded officers entered the cabin and 1371-80, God persuaded seize the See evidence. am occupied by supra. cabin in fact was a residence dard v.
65 majority opinion attempts to The basis affirming While that I would use for exigent applicable circumstances district court in this articulate case is that the exclu- intrusion, sionary rule justify applied in this instance which should not be to the agree any exigent I do that there were evidence from obtained con- justify sequently could this upheld circumstances that intru- the conviction can be obviously danger sion. There was no that basis. is no enforcement officers. There evi-
law my judgment the exclusionary rule in enter; any to they dence of consent were part has its legal utility. outlived and social pursuit fleeing suspect; not in hot of nor I am to language constrained reiterate they in an engaged responding to dissenting opinion included in a in case States, v. Steagald United emergency. 451 City Riverton, of Rodarte v. of Wyo., 552 204, 101 L.Ed.2d (1976): P.2d Louisiana, Vale v. (1981); “ 34- ** * ‘blessings Among liberty’ 1969, 1971-1973, ‘ * ** liberties,’ our is the right to Anthon, v. United States 648 F.2d be free from the criminal acts of others.* * * (10th 1981). appro- Cir. priate exigent circumstance the one is iso- present- “Courts must examine the issues majority opinion, lated is ed to them in the of the context needs of possible destruction of evidence. For * * * all the whom citizens serve. apt an exception discussion of this people this land suffer from more appropriately applied, manner in which it crime than ever have before Commonwealth, Va., see Keeter v. any more than the citizens of other coun- (1981). S.E.2d 841 try urgent have They world. My interpretation situations impact need be free from the of crime which exigent may this circumstance be in their any judicial lives. wisdom of present invoked is that there must be cir- inhibiting decision which has the effect real, cumstances which manifest a distin- charged the efforts of those with the guished speculative, possi- from a fancied or enforcement of law on behalf all us bility that absent the intrusion evidence questioned. must be We need to examine may normally be lost. It critically history would seem that the recent of our courts requires person during this some sovereignty which the individual * * * who accomplish could emphasized, destruction of the has been and we need removal, or its probable evidence cause we moving peril- to ask whether are not person present. believe that ously point such closer case, us, This rights dear, factor was not nor of all of which we hold so any was there good any probable pro- basis for are sacrificed in the interest of the ” * * * person cause to believe that (Foot- such a tection of each of us. present. The omitted.) failure of the law enforce-
66
341,
383,
652,
proof
34 S.Ct.
58 L.Ed.
burden of
on this issue is therefore
1915B, 834,
1915C,
presented
1177
squarely
by
L.R.A.
Ann.Cas.
not
the facts of
is,
(1914).
history
therefore,
The federal
this case. We therefore leave that mat-
pertinent
inquiry.
day, going
to the
ter to another
no further than
‘exception’
explicit-
to delineate the
itself
206,
In Elkins v. United
ly
recognize
and to
that where
propo-
1437,
(1960),
conduct in the form of civil relief also satis- enforcement practices. *11 judicial
fy imperative integrity. the of The As to those situations which are not in- per- fabric now jurisprudence of American tentional of rights invasions constitutional wrongdoer mits a solution in which the does faith, conducted in bad but which were go free, not the law enforcement officer upon good-faith based a reasonable belief of right who invades a constitutional of. officer proper the that conduct was un- likely individual is not the escape conse- circumstances, der the the civil action for fact, quences conduct. of his In the civil damages adequate is remedy. an As to a remedies solution to an innocent those instances in which the misconduct of person enjoy who would not otherwise accompanied the officers is intentional and remedy exclusionary the rule under even by faith, bad the exclusionary rule still though rights may his constitutional have pertain would protection as additional been grievously every rather invaded. In against unscrupulous the and overzealous. instance remedy adequately the civil meets The state not then complain should because wrong person the to a is charged done who it can and should deter its from officers so imperative judicial with a The of crime. acting. integrity is satisfied the by better structur- ing remedy of a civil for invasion consti- I premise upon would affirmance the rights by tutional than it is exclusionary the proposition that the rule exclusionary is not rule. applicable in this instance. would, therefore, I that conclude ex- clusionary only rule should apply those ROSE, Justice, dissenting. Chief situations in there which was an intentional emphasizing Additional facts need in this
invasion of rights the Fourth Amendment comedy nothing case —for the relief if else. of an person accused existed there It is the deputies contention of the sheriff good-faith by reasonable belief the law en- they appel- that did not know where forcement officer that the invasion was they lant’s cabin was and that stumbled proper. In which those instances in there upon quite by looking accident while did exist a good-faith reasonable and belief by the trailer of a man name that rights the invasion of the of the ac- Portschy support Amend- Fourth —this cused proper was I that would hold inadvertent-discovery ment contention. exclusionary rule should not be invoked be- day they The fact is that entered the cause its highly deterrent effect would be cabin, they were —and for some time had questionable. particular instance possession of which map been —in told good of the faith law enforcement offi- exactly appellant’s them where the cabin really cers not questioned. Although is located, that, only and not the struc- erroneous, their they belief was believed being had been as ture described them they doing right thing were under in the area an adobe cabin circumstances, and that belief was not was, fact, descrip- roof. This an accurate given unreasonable those circumstances. map description tion. then permit would a civil action previously given cabin had been to them individual law enforcement officers to ad- easy It is not me to see Jessee himself. just the invasion of the constitutional straight how—with a face —the State rights. Wyoming can contend that the officers remedy A civil an invoked looking Portschy’s were trail- really for Mr. instrument of new policy social is not to our and, inadvertently process, er in the came system jurisprudence. structuring upon the Jessee cabin. personal injuries causes of action for suggested I love it it is caused where products widely defective as- premises deputies appellant’s sumed had a salutary upon to have effect were on practices. manufacturing response piqued curiosity to their which was same salu- was located on the cabin testified he still had doubts whether triggered because though rea- he majority anyone living find it there even historical site. an curiosity say recognized he a Bible that it was this went on to sonable to believe being to “nose around” in which he found on the table as caused the officers proportions and, property who had—on a of historical this area — him that this was thus, upon prior came occasion—told when embarked where he lived. really Portschy for the investigation of Jessee lighter peeks little at the side Given these into some sort of robbery instead were —but judicial process for other rea- —and inquiry. historical apparent sons that will become find the *12 —I ap- light- majority opinion more to be erroneous in its becomes even The scenario to the to the law. I would hearted, plication we come of the facts possible, if when initial search of the cabin not the officers hold that question of whether or violated constitu- prejudicially Photo- thought the cabin was abandoned. rights and he should have been big Trespass- “No tional graphic show a exhibits granted front door. a new trial. ing” sign hanging over the plastic was off of window Some of Expectation Legitimate Was There a There and so the officers looked inside. Privacy? of things (if you of saw these kinds of the law A review of the state this) them ready suggested to are Amendment surrounding a claimed Fourth the cabin was abandoned: because, necessary my judg- in violation utensils, pots a kitchen bunch of ment, correctly majority opinion fails to pans; prevailing con- analyze the constitutional large a which there was a cabinet in cepts. food; dry amount of or concentrated The most recent discussions of constitu- stove; camp emanating tional search and seizure law skillet; a red teflon Supreme from both the United States Court a black skillet. underly- emphasize court that the Having deputy one tes- things, seen these ing question which must be answered is anyone if really tified that he did not know challenging whether the individual living justifiable expectation pri- there. search had a Illinois, vacy in the area searched. Rakas v. to “Check the officers then entered U.S. inside of the to make sure no one was cabin (1978); Wyo., Parkhurst v. 628 P.2d there,” such items and there observed that in We said Parkhurst which, following sup- as the the reader is rights guaran- order to claim a violation of posed infer, likely the more made it all teed the Fourth Amendment and Art. the officers believed the cabin to be Constitution,1 Wyoming of the § abandoned: challenging party must able to show a it; a bed with a bunch of clothes on legitimate privacy. 628 P.2d expectation of Bible; family Therefore, protections afford- at 1374. fishing equipment; only apply exclusionary ed rule food; “unreasonable searches” under the Fourth pot; coffee 1, 4, or Art. which searches Amendment § recently utensils that had been used. place in an must be shown to have taken legitimate expectation pri- Having came these additional indic- area where abandonment, vacy ators of one of the officers has attached.2 Illinois, supra, language applicable 1. For Rakas v. United States v. amend- See: Salvucci, majority opinion. ments 100 S.Ct. see nn. and 3 of the (1980); Kentucky, Rawlings L.Ed.2d 619 appellant In order for this to contend framers of both the United States Wy successfully illegally the cabin was oming Constitutions guarantee intended to searched, initially he must demonstrate a sanctity privacy of an individual legitimate expectation privacy in those home. Weeks v. United premises. majority opinion I read the to 383, 34 S.Ct. L.Ed. 652 at expecta- assume Jessee least had an Steagald v. United States, - U.S. -, privacy tion of in the interior of the cabin (1981). Also, L.Ed.2d 38 opinion for the reason that the sanctioned the United Supreme States Court decision plain-view exigent-cir- the search on that, Rakas Illinois notes by virtue of grounds. cumstance If this were right to exclude others an individual position majority there would be no will, likelihood, in all legitimate have a ex purpose discussing plain view and exi- pectation of privacy in property he owns or gent would, course, circumstances. This lawfully possesses. Illinois, Rakas v. supra, concepts speak be true because these 143, 12, at n. n. 12. exception to the exclusionary strictures of mind, would, With these rules in with- search and seizure in those circumstances hesitation, out conclude that the where it can be shown that the defendant justifiable had a expectation privacy expectation privacy premis- has an in the *13 the that, cabin. We held in Parkhurst un- however, that, es. suggest, light I would in 1, 4, der Art. Wyoming § Constitu- the trial judge’s of conclusion that ex- tion an legitimate presence individual’s pectation privacy appel- of existed in the the seized property in and of itself estab- cabin, necessary lant’s it is the decide legitimate lished a expectation privacy, of question. Indeed, 628 P.2d at n. 7. in this case In determining appellant whether the appellant right had established his expectation privacy cabin, had an of in the I right use the cabin as well as his to exclude guidelines adopted refer to the we in Park- others from its interior. though Even hurst. There we said that some of the judge trial contrary, found to the I conclude factors to be considered in determining a appearance that the of abandonment cannot person’s expectation (1) privacy of include: pivotal be the issue upon which a decision precautions taken in order to maintain here can be rendered. The record shows privacy; (2) one’s the likely intent of the that it was in fact not abandoned and that drafters of the United Wyoming States and appellant had established the cabin as Constitutions; (8) property rights am, therefore, his residence. I agree- possessed area; claimant (4) in the invaded ment with what majority’s must be the legitimacy possession of the individual’s assumption appellant legitimate had presence of or property in the which was expectation privacy of in the searched citing or seized. 628 P.2d at protections of the Fourth Amendment and Comment, from 15 Land & Water L.Rev. at 1, 4, Art. are applicable. therefore § fn. Applying and at 295.3 these clear, however, I guidelines, would make the record tells that it is appellant us that my belief that partial appellant’s expectation used the cabin as his of residence. He protected privacy had the windows with is limited to the cabin’s plastic cov- interior. ering and there This conclusion Trespassing” genesis was a “No finds its in the fact sign on the door to the cabin. The that the cabin itself public was located on domain, permission defendant had significance. from the owner in an area of historical Thus, of the cabin to although appellant reside there and it can could exclude oth- therefore lawfully interior, be said that he was in ers from the cabin’s he was not possession. Finally, by majori- possessed as noted right of a to exclude members of it ty, questioned has never been general public that the or the from the majority opinion. 3. n. 8 See: State, supra. Parkhurst v. required ments support generally support areas. find for this
surrounding factually in a similar case from judgment plain justification.4 claimed view While it Dias, Hawaii. of State is true that of these three Supreme Haw. 609 P.2d claim, plain-view elements will sustain a that the Court of Hawaii decided note, important majority opinion is as the justifiable expectation privacy had a does, Coolidge that in several limitations on was illegally the interior of a home that application the doctrine’s were identified. property, the state located on state because LaFave, Seizure, See: Search and Vol. possession of the acquiesced had in the 2.2, p. 244 These limitations were § squatters, property by 609 P.2d pointed up by plurali- Justice in his Stewart possession did court held that the fact of opinion Coolidge: ty public of the surround- not alter the nature implicit “The limits on the doctrine are ex- ing areas and therefore the statement of its rationale. first extend to the pectation privacy did not plain of these is that view alone never building, but this did not exterior of enough to justify the warrantless seizure privacy in the preclude expectation simply corollary of evidence. This is expectation Jessee’s claim to his interior. above, principle the familiar discussed interior seems even privacy in the cabin’s probable that no amount of cause can BLM stronger, since the cabin is located on justify a warrantless search or seizure government permission. By land with anal- ‘exigent absent circumstances.' Incontro- ogy although appel- we can conclude that testimony vertible of the senses that an protectable lant had a interest in the cabin incriminating object premises is on be- legitimate expec- lay he could not claim to a longing to a criminal suspect may estab- and, privacy adjacent tation of land possible proba- lish the fullest measure of case, compared facts in the Hawaii object ble But even cause. where the expectation privacy Jessee’s in the cab- *14 contraband, repeatedly this Court has that of the greater in’s interior was than stated and enforced the basic rule that Hawaiian here the cabin because police may not enter and make a was located on land with the Bureau’s BLM permission. (Emphasis warrantless seizure.”5 add- ed.) 403 U.S. at at 2039. S.Ct.
Was the Warrantless
Justifiable
Search
Under Plain View?
that,
From
this must be assumed
absent
prior justification
some
for the intrusion
previously, majority opinion
As noted
area,
into a constitutionally protected
upholds
by
the search of the cabin
reason of
plain-view
incriminating
encounter with
ev-
plain-view exception
to the warrant re-
justify
idence cannot
a warrantless seizure.
quirement.
leading
discussing
case
this
As
Steagald
noted
Justice Marshall in
exception
Coolidge
Hampshire,
v. New
States,
justification
United
such
for war-
U.S.
29 L.Ed.2d
S.Ct.
entry
(1971),
majority
we
rantless
can come from a consent to
which the
note
followed
enter,
Wyo.,
With the above in agree I can several other cabins in the vicinity, majority opinion applies the search of sheer coincidence investigate decided to the cabin under the gov- correct standards only the one containing the stolen items. erning plain-view justifications to the cab- In summary, sayI that the facts surround- My problems, however, in’s search. arise ing the officers’ investigation of the cabin because I simply agree am unable to and its contents support cannot case, conclusion the facts of applied this to the rules the discovery was inadvertent. I above, and standards discussed warrant would have held that the claim plain finding except that the entry initial into the view satisfy particular did not require- illegal cabin was and violative of ment of McCuteheon. rights. constitutional However, purposes only, of discussion I take issue with two conclusions assume, permit me to arguendo, that reached in the majority opinion. First of all, requirement McCuteheon inadvertence cannot conclude support that the facts complied would, nevertheless, *15 with. I finding hold part inadvertence on the there is insufficient police, nor evidence in the agree can I with the further satisfy exigent-circumstance record to conclusion that the entry warrantless requirement subsequent for a warrantless intrusion jus- seizure of the evidence was tified into the “exigent premises.8 interior of the circum- stances.” majority support The finding their of exi- State, gent
In
noting
officers,
McCuteheon v.
we
circumstances
that the
supra,
set out
requirements
evidence,
three
upon
for justifying
discovery
the dis-
feared that
covery of
plain-view
evidence under
if it
was not seized
it
immediately might be
doctrine, the
being
destroyed.
third of those
majority
that the
also seek
sup-
discovery be
port
inadvertent.
investigation took
possibility.
v.
a real
As stated
State
away,
46 miles
and the offi-
der was some
Dorson, supra:
frigid weather
clothed for the
cers were not
permit one of them
way
in a
which would
point
spe-
“The
must be able to
vicinity
the cabin while
to remain in the
cific and
facts from which it
articulable
These fac-
the other went for a warrant.
may
be determined that
the action
account but I do
exigencies
can all be taken into
tors
took was necessitated
that,
together,
taken
not believe
even
of the situation.”
trate’s disinterested determination to is- In the Matter of the ADOPTION OF justify sue a search warrant will the offi- CDT, CCT and Minors. in making cers a search without a war- ALT, Appellant (Respondent), rant would reduce the Amendment to a nullity people’s and leave the homes se- cure in the discretion of offi- KJD, Appellees DWD (Petitioners). 13-14, cers.” 333 S.Ct. at 369. No. C-6.
We jealously protect must the warrant re- Supreme Court of Wyoming. quirement constitutions, and, found in our so, must, doing we when the facts neces- Feb. sitate finding needed, that a warrant was exclude all evidence obtained as a result of unconstitutional, entry. warrantless
I would have held that the entry officers’
into the cabin violated constitu- rights
tional and that the items of evidence
seized should suppressed. have been It was so,
clear error not to do and I would have
reversed.
Lastly, I say should that I am not in
agreement with the position of Justice
Thomas where he abandoning advocates our position
historical with respect to the exclu-
sionary careful, rule. If this court is not we going chip
are away at the Fourth rights
Amendment of the American citizen day they
until —one disappeared will have — altogether. We must never forget rights forged
these out of the steel
and fire of experience bitter human that,
warns for all of may those who one
day need protecting arms of the crimi- justice
nal system (including me), you and
there ground must be pro- rules which will
tect unscrupulous, the overzea-
lous and their pretend wiles. To that these
threatening forces have not found and will way
not find their system into the is to eyes
close our reality, which we do at the collapsing greatest
risk of jus- criminal system
tice the mind of man has ever de-
vised.
notes
prepared
ment officers to
properly
be
The time now has
come
consider
premises
secure the
until a search warrant whether the exclusionary rule as articulated
could
qualify
be obtained does not
as an
George,
in State v.
Wyo.
P.
exigent
justifying
circumstance
warrantless
Peterson,
v.
(1924),
Wyo.
citing
seizure of evidence from a residence.
(1920),
194 P.