Appendix — Finch v. Oklahoma

APPENDIX A

THE COURT OF CRIMINAL APPEALS OF THE

STATE OF OKLAHOMA

[Fited May 11, 1982]

EUGENE FINCH and )

VEST... MAE FINCH,

Appellants,

-vs- No. F-80-541

THE STATE OF OKLAHOMA,

Appellee.

OPINION

ee

CORNISH, Judge:

The appellants appeal their convictions rendered in the

District Court of Muskogee County for Knowingly Con-

cealing Stolen Property. All cases were tried to the court

at one time. Eugene Finch was convicted in CRF-78-408

and CRF-78-409; Vesta Mae Finch was convicted in CRF-

79-12 and CRF-79-13. In each of the cases the appellants

both received concurrent five-year sentences with four

years suspended.

The appellants’ first three propositions deal with the

questions of whether the warrantless arrest of Eugene

Finch violated his constitutional rights; and whether the

warrantless seizure of stolen automobiles parked at the

appellants’ home was the result of an illegal search and

seizure.

Several vehicles suspected to have been stolen were

parked in the driveway of the appellants’ residence. Acting

on police information, the arresting officer, a highway pa-

trolman, observed the license tag numbers of the cars from

the street. He ran a check on the tag nuribers to confirm

that they were stolen. For three to four days the residence

was kept under surveillance because police believed that

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one of the stolen vehicles would soon be used to transport

stolen goods to Tulsa.

The trooper made the warrantless arrest within ap-

proximately three hours of learning that one of the resi-

dents was aware of the surveillance. He testified that it

took that amount of time to organize a group of local law

enforcement officers to drive to the scene.

Eugene Finch argues that the warrantless seizure of

the vehicles from his residence was unreasonable under the

Fourth Amendment and that the evidence relating to them

should have been excluded.

In evaluating the appellant’s Fourth Amendment claim

we turn to the leading case on the coverage of the Fourth

Amendment, Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967), where the Supreme Court held that

“(w)hat a person knowingly exposes to the public, even

in his own home or office, is not a subject of Fourth Amend-

ment protection.” The Supreme Court has also repeatedly

held that the primary objective of the Fourth Amendment

is not protection of property rights, but protection of pri-

vacy. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18

L.Ed.2d 782 (1967); Cardwell v. Lewis, 417 U.S. 533, 94

S.Ct. 2464, 41 L.Ed.2d 325 (1974).

In Tate v. State, 544 P.2d 531 (Okl.Cr. 1975), to deter-

mine whether a reasonable expectation of privacy existed,

we applied a test generally derived from Justice Harlan’s

concurring opinion in Katz, supra;

[T]here is a twofold requirement, first that a person

have exhibited an actual (subjective) expectation of

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that he exposes to the ‘plain view’ of outsiders are not

‘protected’ because no intention to keep them to himself

has been exhibited.”

A reasonable expectation of privacy, not common law

property distinctions, controls. the scope of the Fourth

Amendment. U.S. v. Magna, 512 F.2d 1169 (9th Cir.), cert.

denied, 423 U.S. 826, 96 S.Ct. 42, 46 L.Ed.2d 43 (1975).

There the Ninth Circuit wrote:

A driveway is only a semiprivate area. The expecta-

tion of privacy which a possessor of land may reason-

ably have while carrying on activities on his driveway

will generally depend upon the nature of the activities

and the degree of visibility from the street. It would

be equally unwise to hold, as a matter of law, that all

driveways are protected by the Fourth Amendment

from all penetrations by police officers as to hold that

no driveway is ever protected from police incursions.

The test in each case would be that of reasonableness,

beth the possessor’s expectations of privacy and of the

officers’ reasons for being on the driveway.

expectations of privacy are disappointed. United States v.

Polk, 433 F.2d 644 (5th Cir. 1970).

The record indicates that Eugene Finch did

tempt to preserve any privacy with regard to

vehicles which were parked in his driveway in

of the public. They were therefore not subject

amendment protection. See Dick v. State, 596

(Okl.Cr. 1979); Tate v. State, supra.

We likewise hold that there was no illegality in

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United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49

Salis aby (1980), tha Dagens Cow’ dette’ oe

that there was no reasonable expectation of privacy

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{APPENDIX}

doorway of one’s home; consequently, the warrantless fel-

ony arrest of the defendant, Santana, in her doorway did

not violate the Fourth Amendment:

While it may be true that under the common law of

property the threshold of one’s dwelling is “private,”

as is the yard surrounding the house, it is nonetheless

clear that under the cases interpreting the Fourth

Amendment Santana was in a ‘public’ place. She was

not in an area where she had any expectation of

privacy.

Additionally, the fact that the police might have had

sufficient time to obtain a warrant is not controlling. In

United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.

Ed.2d 598 (1976), the Supreme Court wrote that law en-

forcement officers may find it wise to seek arrest warrants

where practicable to do so; that their judgments about

probable cause may be more readily accepted where backed

by a warrant issued by a magistrate. But the Court further

stated:

[W]e decline to transform this judicial preference into

an unconstitutional rule when the judgment of the

Nation and Congress has for so long been to author-

ize warrantless public arrests on probable cause rather

than to encumber criminal prosecutions with endless

litigation with respect to the existence of exigent cir-

cumstances, whether it was practicable to get a war-

rant, whether the suspect was about to flee, and the

like.

We accordingly find no impropriety in the admission

of evidence and testimony relating to these issues.

Next the appellants complain that the verdict is not

supported by the evidence, claiming that the elements in

21 O.S.1971, § 1713(2) were not proven by the State. We

disagree. The evidence presented by the State was suf-

ficient to prove to the jury beyond a reasonable doubt that

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the appellants knew or had reasonable cause to believe that

the items were stolen. Where there is evidence from which

the trier of fact could conclude that the defendant was

guilty as charged, this Court will not interfere with the

verdict even though there may be sharp conflicts in the

evidence. Renfro v. State, 607 P.2d 703 (Okl.Cr. 1980).

Finally, the complaint of excessive punishment does

not warrant discussion.

The judgment and sentence is therefore AFFIRMED.

AN APPEAL FROM THE DISTRICT COURT OF

MUSKOGEE COUNTY, OKLAHOMA

THE HONORABLE LYLE BURRIS,

ASSOCIATE DISTRICT JUDGE

EUGENE FINCH and VESTA MAE FINCH, appellants,

were convicted for Knowingly Concealing Stolen Property

in the District Court of Muskogee County. Eugene Finch

was convicted in CRF-78-408 and CRF-78-409 and received

two five (5) year prison sentences, with four years sus-

pended on each; and appeals. Vesta Mae Finch was con-

victed in CRF-79-12 and CRF-79-13 and received two five

(5) years prison sentences, with four years suspended from

each; and appeals. AFFIRMED.

BILL SETTLE

MUSKOGEE, OKLAHOMA

Attorney for Appellant

JAN ERIC CARTWRIGHT

ATTORNEY GENERAL OF OKLAHOMA

TOMILOU GENTRY LIDDELL

ASSISTANT ATTORNEY GENERAL

STATE OF OKLAHOMA

OKLAHOMA CITY, OKLAHOMA

Attorney for Appellee

BUSSEY, J., CONCURS

BRETT, P.J., DISSENTS