November 13 2007
DA 06-0538
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 296
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CHARLES ROBERT DUNN,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-06-168
Honorable Douglas G. Harkin, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Shannon L. McDonald (argued),
Assistant Appellate Defender, Helena, Montana
For Appellee:
Honorable Mike McGrath, Attorney General, Sheri K. Sprigg (argued),
Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, County Attorney; Katie Harper, Deputy
County Attorney, Missoula, Montana
Heard and Submitted: June 13, 2007
Decided: November 13, 2007
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Appellant Charles Dunn (Dunn) appeals from the order of the Fourth Judicial
District Court, Missoula County, denying his motion to suppress evidence. We affirm.
¶2 We consider the following issue on appeal:
¶3 Did the District Court err by denying Dunn’s motion to suppress evidence based
upon a warrantless search of Dunn’s property?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On August 5, 2005, at approximately 4:00 a.m., Missoula County Sheriff’s
Deputies Tillman, Lloyd, and Kennedy, with Sergeant Orr, responded to a noise
complaint at Dunn’s residence on Hiberta Street in Missoula. The Dunn residence is
located on a one-acre lot, with the house on the front half of the lot. Trees and shrubbery
obscure the view of the house from Hiberta Street. A crescent shaped driveway, which
provides access to the front of the house from Hiberta Street, cuts through the trees in two
places. Driveways on either side of the house lead from the crescent shaped driveway to
a parking area in the back of the house. Beyond the parking area, a post and wire fence
encloses some portion of the backyard, and a fire pit is located inside the fenced area,
which is accessed by a large metal rod fence lodged in an open position.
¶5 Upon arriving at the residence, Sergeant Orr recognized the Dunn residence as one
they had responded to on multiple prior occasions to investigate noise complaints. The
officers observed that the inside of the house was dark and there was smoke rising from a
bonfire in the backyard. The officers could also hear voices and loud music coming from
the backyard. In an effort to make contact with the person responsible for the party, the
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officers proceeded down a driveway on the side of the house. As they entered the
backyard they observed an empty truck blaring music next to a bonfire in the fire pit area
of the backyard. The officers also observed approximately seven adult males standing
around the bonfire. In the darkness, one male began to approach the officers and Deputy
Tillman asked him to return to the bonfire. Deputy Tillman then asked another man to
turn off the music and asked who was responsible for the party. Dunn announced that it
was his party. Deputy Tillman asked for Dunn’s identification and ran his name through
the dispatch records. Dispatch responded that there was an outstanding arrest warrant for
Dunn and the officers arrested him. Pursuant to the arrest, Deputy Lloyd searched Dunn
and seized a “hash” pipe with marijuana, found on his person.
¶6 Dunn was subsequently charged in Justice Court of Missoula County with
criminal possession of dangerous drugs and criminal possession of drug paraphernalia.
Dunn sought to suppress the pipe and marijuana seized by the police as evidence illegally
obtained by a warrantless entry on his property. The Justice Court denied his motion, and
Dunn appealed to the District Court. Neither the Justice Court nor the District Court held
a hearing on the motion to suppress and both courts decided the motion on the basis of
briefs and attached exhibits. The factual record, therefore, is limited. The District Court
denied Dunn’s motion to suppress the evidence. Dunn appeals.
STANDARD OF REVIEW
¶7 We review the denial of a motion to suppress to determine if the district court’s
findings of fact are clearly erroneous and whether its interpretation and application of the
law is correct. State v. Pierce, 2005 MT 182, ¶ 12, 328 Mont. 33, ¶ 12, 116 P.3d 817,
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¶ 12. Findings are clearly erroneous if they are unsupported by substantial evidence, the
court misapprehended the effect of the evidence, or review of the record convinces us
that a mistake has been made. Pierce, ¶ 12.
DISCUSSION
¶8 Did the District Court err by denying Dunn’s motion to suppress evidence
based upon a warrantless search of Dunn’s property?
¶9 Dunn argues that the District Court erred when it denied his motion to suppress
because the evidence was a product of an illegal entry onto his property. Dunn asserts
that he has a reasonable expectation of privacy in his backyard and any entry by the
officers without a search warrant was unlawful because no exception to the search
warrant requirement exists on these facts. As such, Dunn claims that any evidence
gained as a result of the illegal entry should be suppressed.
¶10 In response, the State argues that given the circumstances, Dunn did not have a
reasonable expectation of privacy in his backyard area. In the alternative, the State
asserts that if Dunn did have a reasonable expectation of privacy in the fire pit area, the
warrantless entry was lawful under the “exigent circumstances” doctrine or the
“community caretaker” doctrine. Last, the State argues that if an exception to the warrant
requirement does not apply, the evidence seized is not a “fruit” of the intrusion.
¶11 The Fourth Amendment of the United States provides that persons shall be free
from unreasonable searches and seizures. The Montana Constitution contains nearly
identical language that also provides for an individual’s right to be free from
unreasonable searches and seizures. Mont. Const. art. II, § 11. The Montana
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Constitution, unlike the United States Constitution, also specifically enumerates an
individual’s right to privacy. Mont. Const. art. II, § 10. Accordingly, we have held that
the unique language of the Montana Constitution “affords citizens a greater right to
privacy, and therefore, broader protection than the Fourth Amendment in cases involving
searches of, or seizures from, private property.” State v. Bullock, 272 Mont. 361, 384,
901 P.2d 61, 75 (1995).
¶12 In determining if a search violated the Montana Constitution, we look to two
factors: “(1) whether the person has an actual expectation of privacy that society is
willing to recognize as objectively reasonable, and (2) the nature of the state’s intrusion.”
City of Whitefish v. Large, 2003 MT 322, ¶ 14, 318 Mont. 310, ¶ 14, 80 P.3d 427, ¶ 14.
Only where an objectively reasonable expectation of privacy has been intruded on by the
State, or the State’s entry was overly intrusive, do we consider if an unlawful entry is
permitted according to an enumerated exception to the warrant requirement. We thus
consider these factors in turn.
¶13 In ascertaining if a person has a legitimate expectation of privacy, we look to the
circumstances, including “the place of the investigation, the control exercised by the
person over the property[,] . . . and the extent to which the person took measures to
shield the property from public view, to communicate that entry is not permitted . . . .”
State v. Hubbel, 286 Mont. 200, 209, 951 P.2d 971, 977 (1997). In Bullock, we found
that a reasonable expectation of privacy in land may exist where the expectation is
evidenced by fencing, “No Trespassing” signs, or by other means indicating that entry is
not permitted. Bullock, 272 Mont. at 384, 901 P.2d at 76. We explained that “[w]hat a
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person knowingly exposes to the public is not protected, but what an individual seeks to
preserve as private, even in an area accessible to the public, may be constitutionally
protected.” Bullock, 272 Mont. at 375, 901 P.2d at 70. Pursuant thereto, we have
concluded that no reasonable expectation of privacy exists in several situations involving
space outside the home. See State v. Shults, 2006 MT 100, ¶ 16, 332 Mont. 130, ¶ 16,
136 P.3d 507, ¶ 16 (concluding no reasonable expectation of privacy for items inside a
wire fence but in plain view both in front and back of the house); City of Whitefish, ¶ 18
(concluding no reasonable expectation of privacy in a carport in a private condominium
association parking lot that was open to the public); State v. Tackitt, 2003 MT 81, ¶ 22,
315 Mont. 59, ¶ 22, 67 P.3d 295, ¶ 22 (stating no expectation of privacy in the area next
to the residence where a car was parked, when the defendant had taken no steps to
evidence a privacy expectation in the open and freely accessible area); Hubbel, 286
Mont. at 210, 951 P.2d at 977 (holding no reasonable expectation of privacy in property
leading to the front door). While each case differs as to our reasoning for determining
that there was or was not a reasonable expectation of privacy, what is clear is that
“[s]ociety’s recognition of the expectation of privacy as reasonable hinges on the unique
facts of each situation.” City of Whitefish, ¶ 16.
¶14 Here, Dunn did not have a reasonable expectation of privacy that society is
objectively willing to accept. First, we consider Dunn’s use of the property at the time of
the intrusion. When police arrived at 4:00 a.m., Dunn, with a group of approximately
seven people, was blaring music in the backyard from a car stereo. The party was
boisterous enough to cause a neighbor to call in a complaint. Pursuant to § 45-8-
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101(1)(b), MCA, Dunn was effectively engaged in disorderly conduct by “making loud
or unusual noises” that were disturbing the peace of the neighborhood. Because the
music was still playing when the officers arrived, an ongoing crime was occurring in the
officers’ presence. Second, an expectation of privacy must be objectively reasonable to
society. We find it improbable that society is willing to accept a privacy expectation as
“reasonable” where the individual uses his property to disturb the peace of others at 4:00
a.m. in the morning. Dunn was not conducting himself in a “private” manner, but rather,
to the contrary, his imposition upon other residents was a very public act. Given these
circumstances, we find that Dunn did not have an expectation of privacy in his backyard
at the time police arrived to investigate.
¶15 Next we consider the nature of the State’s intrusion. In Bullock, we found that the
State’s invasion was overly intrusive because the officers entered private property that
was fenced and gated, after ignoring posted warnings. 272 Mont. at 384, 901 P.2d at 76.
Conversely, in Hubbel, the Hubbels had not erected a fence around their property or
gated their driveway. 286 Mont. at 210, 951 P.2d at 977. There, we found that it was not
overly intrusive for the police to drive into the driveway, park in the area normally used
by visitors, travel up a walkway to the front porch, and seize evidence that was in plain
view. Hubbel, 286 Mont. at 210, 951 P.2d at 977. In City of Whitefish, we concluded
that the officers’ entry through the common-area parking lot was not overly intrusive in
the absence of no trespassing signs and gates. City of Whitefish, ¶ 20. As in the
determination of an objectively reasonable expectation of privacy, the determination of
whether an entry was overly intrusive is based on each case’s unique set of facts.
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¶16 Here, the officers entered Dunn’s property in response to a noise complaint. At
the time of entry, loud noise was continuing. Upon seeing that the front of the house was
dark and recognizing that the noise was coming from the backyard, the officers traveled
along the driveway toward the commotion. The officers used the same path that a visitor
would use in accessing the back of the house, and, once in the backyard parking area, the
truck playing the music, the bonfire, and the adults standing around the fire were in plain
view. This case is therefore analogous to our determination in Hubbel that entry by the
police was not overly intrusive where the police acted in the same manner as any casual
visitor. 286 Mont. at 210, 951 P.2d at 977. The officers here did not “ignore posted
warnings, hop fences, open gates, or slip through bushes intended to screen the home
from view.” Hubbel, 286 Mont. at 210, 951 P.2d at 977. Rather, the officers acted in a
manner consistent with investigating an ongoing noise complaint and remained on an
open and unobstructed path to the backyard. Thus, the nature of the intrusion here was
reasonable.
¶17 In sum, Dunn did not have a reasonable expectation of privacy given the unique
circumstances of this case. His ongoing disorderly conduct invited the police to
investigate the complaint, and the investigation was reasonable and non-intrusive under
these facts. Accordingly, we conclude that the District Court correctly applied the law
and properly denied Dunn’s motion to suppress.
¶18 Affirmed.
/S/ JIM RICE
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We concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS
Justice W. William Leaphart concurring.
¶19 I specially concur with the result reached by the Court although I would reach that
result for different reasons.
¶20 I conclude that, even assuming arguendo that the officers’ entry into Dunn’s
backyard violated his expectation of privacy, the discovery of the pipe was attenuated
from the allegedly illegal entry, and thus the pipe was admissible.
¶21 The officers did not observe the hash pipe as a direct result of their entering
Dunn’s backyard. Rather, they only discovered the pipe after running a check on Dunn’s
name and discovering that there was an outstanding warrant for his arrest. Upon
effectuating the arrest, they found the pipe. Thus, the evidence was the fruit of an
outstanding arrest warrant and was not the fruit of an illegal entry into Dunn’s backyard.
¶22 In State v. New, 276 Mont. 529, 536, 917 P.2d 919, 923 (1996), we set forth the
exceptions to the “fruit of the poisonous tree” doctrine:
[D]erivative evidence is admissible if i t is (1) attenuated from the
constitutional violation so as to remove its primary taint; (2) obtained from
an independent source; or (3) determined to be evidence which would have
been inevitably discovered apart from the constitutional violation.
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The United States Supreme Court recently affirmed that “exclusion may not be premised
on the mere fact that a constitutional violation was a ‘but-for’ cause of obtaining
evidence. Our cases show that but-for causality is only a necessary, not a sufficient,
condition for suppression.” Hudson v. Michigan, ___ U.S. ___, 126 S. Ct. 2159, 2164
(2006).
¶23 In U.S. v. Green, 111 F.3d 515 (7th Cir. 1997), the police learned the names of the
passengers in a car during an illegal traffic stop, ran a computer check, and found an
outstanding arrest warrant for one of the passengers. While the officers were conducting
an arrest, they searched the car and discovered cocaine and a gun. In denying the
defendant’s motion to suppress, the Seventh Circuit established the following test for
“attenuated connection”:
[T]he Supreme Court set forth three factors for determining whether the
causal chain has been sufficiently attenuated to dissipate the taint of the
illegal conduct: (1) the time elapsed between the illegality and the
acquisition of the evidence; (2) the presence of intervening circumstances;
and (3) the purpose and flagrancy of the official misconduct. In the final
analysis, however, the question is still whether the evidence came from “the
exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.”
Green, 111 F.3d at 521 (quoting Wong Sun v. U.S., 371 U.S. 471, 488, 83 S. Ct. 407, 417
(1963)).
¶24 The court in Green found that although the time period between the illegal stop
and the search of the car was brief, the lawful arrest constituted an intervening
circumstance. Since the police had not engaged in official misconduct, the cocaine and
the gun were not subject to the exclusionary rule. The Court explained:
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It would be startling to suggest that because the police illegally stopped an
automobile, they cannot arrest an occupant who is found to be wanted on a
warrant—in a sense requiring an official call of “Olly, Olly, Oxen Free.”
Because the arrest is lawful, a search incident to the arrest is also lawful.
The lawful arrest . . . constituted an intervening circumstance sufficient to
dissipate any taint cause by the illegal automobile stop.
Green, 111 F.3d at 521.
¶25 In Idaho v. Bigham, 117 P.3d 146 (Idaho App. 2005), the Court applied the
attenuation doctrine, concluding that the existence of Bigham’s outstanding arrest
warrant was an intervening circumstance. The court reasoned that “an officer’s act of
stopping and questioning a person who is walking down a residential street at 4:00 a.m. is
not outrageous, and the encounter, from initial contact to arrest, lasted only a few
minutes.” Bigham, 117 P.3d at 149. Further, the officer conducted a warrant check only
after he recalled that Bigham’s name was on a warrant list. The court thus concluded that
the taint from the alleged illegal seizure of Bigham was attenuated. Bigham, 117 P.3d at
149.
¶26 In McBath v. Alaska, 108 P.3d 241 (Alaska App. 2005), police officers learned the
name of the defendant during an arguably illegal investigative stop. They then ran a
warrants check, found an outstanding arrest warrant, executed the warrant and conducted
a search incident to arrest during which methamphetamine was discovered. The Alaska
court held that “any taint flowing from the arguably illegal investigative stop was too
attenuated to affect the admissibility of the methamphetamine.” McBath, 108 P.3d at
250. See also, Hall v. Wyo., 166 P.3d 875 (Wyo. 2007) (evidence collected during pat
down search was not fruit of illegal wiretap but of subsequent valid traffic stop).
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¶27 Applying the above principles to the present case, I conclude that execution of the
outstanding warrant was an “independent intervening circumstance” that dissipated the
taint of any arguably unlawful entry.
¶28 For the above reasons, I would affirm the denial of Dunn’s motion to suppress.
/S/ W. WILLIAM LEAPHART
Justice James C. Nelson joins the concurring opinion of Justice Leaphart.
/S/ JAMES C. NELSON
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