State v. Kao

No. 83-224
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985

STATE OF MONTANA,
Plaintiff and Respondent,
-VS-

KERMIT KAO,
Defendant and Appellant.

APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Robert Boyd, Judge presiding.

COUNSEL OF RECORD:
For Appellant:

Neil Halprin, Missoula, Montana

For Respondent:

Hon. Mike Greely, Attorney General, Helena, Montana
Ted Mizner, County Attorney, Deer Lodge, Montana

Submitted on Briefs: Nov. 20, 1984
Decided: March 28, 1985

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Clerk
Kr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant was charged in Powell County District Court
with escape, a felony, as the result of his walking away from
the Montana State Prison laundry on August 11, 1982. He was
convicted and given a four-year sentence to be served consec-
utively to the sentences he was already serving. We reverse
the conviction.
The decisive issue is whether the District Court commit-
ted reversible error in admitting evidence of a warrantless
search of the dwelling in which the defendant was discovered.
The pertinent facts are set forth in State of Montana v.
--
Francis Morris Kao, Supreme Court cause no. 83-222 (Kao I).
Francis Morris is now the wife of Kermit Kao, the defendant
--
in this case (Kao 11). Francis Kao appealed her conviction
for obstructing justice by concealment of Kermit Kao in her
residence in Deer Lodge, Montana, after his escape from the
prison. The facts will not be repeated.
In Kao I, this Court concluded that the search of Fran-
cis Kao's residence was illegal in the absence of a search
warrant, even though the searching officers had a warrant for
the arrest of Kermit Kao. In this appeal we must determine
whether admission in the trial of Kermit Kao of evidence
obtained in the illegal search was reversible error.
The unconstitutional search described in Kao I is no
less an unconstitutional search in Kao 11. Nonetheless, the
State argues that Kermit Kao does not have standing to chal-
lenge the constitutionality of that search. In State v. Dess
(Mont. 1982), 655 P.2d 149, 153, 39 St.Rep. 2231, 2235-36, we
discussed the standing requirement. We pointed out that an
illegal search violates only the rights of those who have a
legitimate expectation of privacy in the searched place. We
further pointed out that in State v. Allen (Mont. 1980) , 612
P.2d 199, 3 7 St.Rep. 919, a defendant who permanently resided
in his girlfriend's apartment had standing to challenge the
legality of the search. We also pointed out that in State v.
Isom (Mont. 1982), 641 P.2d 417, 39 St.Rep. 137, we held that
an overnight guest at his uncle's house had the right to
exclude others and therefore had standing to challenge the
lega-lity of the search.
In this case, Kermit Kao came to the house of Francis
Kao around midnight on August 11, 1982. He remained there
continually until the illegal search around 9 p.m. on August
14, 1982. The record discloses a close personal relationship
between Francis Kao and Kermit Kao which resulted in their
marriage. In addition, at the time of the sea-rchFrancis Kao
was carrying Kermit Kao's child. We conclude that Kermit Kao
had a legitimate expectation of privacy in Francis Kao's
residence and has standing to challenge the constitutionality
of the search.
The State argues that under Chapman v. California
(1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 706, admission
of the evidence was harmless error. The State emphasizes the
testimony of both Francis Kao and Kermit Kao and argues that
this testimony established all of the elements of the crime
of escape. Thus, the State contends the evidence obtained
from the illegal search was unnecessary for the conviction
and was not prejudicial. After reviewing the record, we
disagree with the State's conclusion.
The sequence of procedural events in this case is sig-
nificant. On January 6, 1983, a District Court hearing was
held on the motion to suppress. Immediately following argu-
ment on the motion, the District Court denied the motion to
suppress as to both Kao I and Kao 11. The trial of Kermit
Kao commenced on February 3, 1983. The State first presented
the testimony of the prison investigator and the sheriff who
pa-rticipatedin the illegal search. Those officers described
the search and the discovery of Kermit Kao in Francis Kao's
residence. Following completion of the State ' s case, both
Francis Kao and Kermit Kao testified for the defense regard-
ing the circumstances surrounding the escape. Their testimo-
ny disclosed problems in the relationship so serious in
Kermit Kao's mind that he concluded he had to talk personally
to Francis Kao. Both also testified about the illegal search
and the discovery of Kermit Kao in Francis Kao's residence.
The State argues that because of this testimony, the illegal
search should be disregarded.
The evidence obtained in the course of the illegal
search already had been presented to the jury when Kermit and
Francis Kao testified. It would be unjust to affirm the
conviction based upon their testimony. Had the illegal
evidence not been admitted, the defense of Kermit Rao might
have been entirely different. We conclude it was reversible
error to admit the evidence obtained by the warrantless
search of Francis Kao's residence.
The conviction of Kermit Kao is reversed. The cause is
remanded to the District Court for further proceedings con-
sistent with this opinion.

We concur: