State v. Timley

Page 264

975 P.2d 264

25 Kan.App.2d 779

STATE of Kansas, Appellee, v. Ronald E. TIMLEY, Sr., Appellant.

No. 78013.

Court of Appeals of Kansas.

Dec. 31, 1998.

Review Denied March 16, 1999.

Syllabus by the Court

1. An individual placed under arrest does not have a reasonable expectation of privacy in statements made to a companion while both are seated in a patrol car. Police recordings of individuals detained in a patrol car do not violate the Fourth Amendment to the United States Constitution or K.S.A. 22-2514 et seq. (the Kansas wiretapping statutes).

2. Police conduct which involves the surreptitious videotape recording of statements made by an individual who is under arrest to a companion when both are seated in a patrol car is not the functional equivalent of custodial interrogation. Under such circumstances, Miranda warnings are not required.

3. When a person knowingly associates himself with an unlawful venture and participates in a way which indicates he willfully is furthering the success of the venture, such evidence of guilt is sufficient to go to the jury.

Ezra Ginzburg, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for appellant.

James A. Brown, assistant district attorney, Joan M. Hamilton, district attorney, and Carla J. Stovall, attorney general, for appellee.

Before ELLIOTT, P.J., PIERRON and ROYSE, JJ.:

ROYSE, J.:

This is Ronald E. Timley, Sr.'s direct appeal from his convictions on charges of aggravated burglary, misdemeanor theft, criminal damage to property over $500, and obstructing legal process. He argues the district court erred by admitting certain videotaped statements into evidence and by failing to instruct on a lesser included offense. He further argues there was insufficient evidence to support his convictions on criminal damage to property and obstructing legal process.

On January 4, 1996, a neighbor noticed two black males running out of an elderly woman's home while carrying property. The neighbor called the police.

Officers Chapman and Hill responded to the call. They found Ronald Timley and Wayne Bruce in an alley behind the home. After a chase, the officers apprehended Timley and Bruce, handcuffed them, and placed them in the back seat of a patrol car.

The patrol car was equipped with a video camera. Officer Chapman removed a microphone from his uniform and placed it in the car. The officers started the camera and left the car. While alone in the car, Timley and Bruce made incriminating statements which were recorded on the videotape. During the trial, the tape was admitted into evidence over Timley's objection.

Timley's first argument on appeal is that the district court erred in admitting the videotaped statement. He contends admitting the videotape violated (1) his right to privacy, (2) his rights under Miranda, and (3) his constitutional right to confrontation.

Timley bases his privacy argument on the Fourth Amendment to the United States Constitution and on K.S.A. 22-2514 et seq. (the Kansas wiretapping statutes). He contends that he had a reasonable expectation of privacy while seated in the back seat of the patrol car. We disagree.

Under either the Fourth Amendment or the Kansas wiretapping statutes, the relevant inquiry is (1) whether Timley manifested a subjective expectation of privacy, and (2) if so, whether society is prepared to recognize that expectation as reasonable. See California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); U.S. v. Clark, 22 F.3d 799, 801 (8th Cir.1994); State v. Howard, 235 Kan. 236, 243, 679 P.2d 197 (1984).

While this case presents a question of first impression in Kansas, a number of other jurisdictions have already considered whether police recordings of an individual detained in a patrol car violate the Fourth Amendment. Those courts have uniformly rejected the Fourth Amendment challenge. For example in Clark, the Eighth Circuit Court of Appeals concluded that even if one assumes an individual has a subjective expectation of privacy under these circumstances, there is no reasonable expectation of privacy in statements made by one individual to another while both are seated in a patrol car:

"A marked police car is owned and operated by the state for the express purpose of ferreting out crime. It is essentially the trooper's office, and is frequently used as a temporary jail for housing and transporting arrestees and suspects. The general public has no reason to frequent the back seat of a patrol car, or to believe that it is a sanctuary for private discussions. A police car is not the kind of public place, like a phone booth [citation omitted], where a person should be able to reasonably expect that his conversation will not be monitored. In other words, allowing police to record statements made by individuals seated inside a patrol car does not intrude upon privacy and freedom to such an extent that it could be regarded as inconsistent with the aims of a free and open society." 22 F.3d at 801-02.

A number of other jurisdictions have joined the Eighth Circuit in concluding there is no reasonable expectation of privacy in a patrol car. United States v. McKinnon, 985 F.2d 525, 527-28 (11th Cir.), cert. denied 510 U.S. 843, 114 S.Ct. 130, 126 L.Ed.2d 94 (1993); People v. Todd, 26 Cal.App.3d 15, 17, 102 Cal.Rptr. 539 (1972); State v. Smith, 641 So.2d 849, 852 (Fla.1994); State v. Hussey, 469 So.2d 346, 350-351 (La.App. 2d Cir.1985); People v. Marland, 135 Mich.App. 297, 308, 355 N.W.2d 378 (1984); State v. Wischnofske, 129 Or.App. 231, 236-37, 878 P.2d 1130 (1994); State v. Ramirez, 535 N.W.2d 847, 850 (S.D.1995). See Carr, The Law of Electronic Surveillance, § 3.2(b)(1) (1998).

Timley argues that Clark should not be applied, because it inappropriately focuses on the place searched rather than the people subjected to the search or seizure. He notes that in Katz, the United States Supreme Court observed that "the Fourth Amendment protects people, not places." 389 U.S. at 351, 88 S.Ct. 507. Timley acknowledges, however, that the location of the search is one factor which may be considered in determining whether the individual has a reasonable expectation of privacy. See Mancusi v. DeForte, 392 U.S. 364, 368-69, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) (capacity to claim Fourth Amendment protection depends upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion). See, e.g., Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (no reasonable expectation of privacy in garbage bags left at the curb); State v. Worrell, 233 Kan. 968, 666 P.2d 703 (1983) (no reasonable expectation of privacy in the upper floors of a warehouse); State v. Gordon, 221 Kan. 253, 559 P.2d 312 (1977) (employer's premises); State v. Waldschmidt, 12 Kan.App.2d 284, 740 P.2d 617, rev. denied 242 Kan. 905 (1987) (open fields).

Timley also attempts to distinguish Clark on the grounds that he did not ask to be placed in the patrol car. Timley does not explain why one who is in custody should have a reasonable expectation of privacy, whereas one who voluntarily sits in a patrol car does not. See, e.g., United States v. McKinnon, 985 F.2d at 528 ("no persuasive distinction between pre-arrest and post-arrest situations"); Ramirez, 535 N.W.2d 847; Smith, 641 So.2d 849; Marland, 135 Mich.App. 297, 355 N.W.2d 378.

Finally, citing United States v. Hinckley, 672 F.2d 115 (D.C.Cir.1982), Timley argues that even a person confined in jail retains some Fourth Amendment protections. The Hinckley case involved a search of papers found in John Hinckley's cell while he was undergoing a pretrial mental evaluation following the attempted assassination of President Reagan. The court concluded that, under the circumstances, the search was an arbitrary invasion of Hinckley's right to privacy. 672 F.2d at 132.

Timley notes that the search in Hinckley did not comport with the prison's policy. From that fact, he infers that the State was required to show the officers here acted in accord with departmental policy when they recorded Timley's conversation. Such an inference is not warranted. The Hinckley decision discussed prison policy only in connection with the principle that courts give deference to prison administrators in the adoption and execution of policies needed to preserve order and discipline and maintain institutional security. 672 F.2d at 129. This case, however, did not turn on deference to administrative decisions, but on whether Timley reasonably expected that his conversation in a patrol car would be private. Hinckley is not on point.

For these reasons, we conclude that an individual placed under arrest does not have a reasonable expectation of privacy in statements made to a companion while both are seated in a patrol car. Police recordings of individuals detained in a patrol car do not violate the Fourth Amendment to the United States Constitution or K.S.A. 22-2514 et seq.

Timley's second argument is that the videotaped statements were taken in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Under Miranda, if a person in custody is to be interrogated, the person must first be informed of his rights. 384 U.S. at 444, 86 S.Ct. 1602. The Miranda rights come into play when a person "in custody is subjected to either express questioning or its functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

Because Timley did not raise this argument in the district court, it is not properly before us. See State v. Gardner, 264 Kan. 95, 106, 955 P.2d 1199 (1998). Timley contends, nevertheless, that we should consider the issue as one " 'necessary to serve the ends of justice or to prevent a denial of fundamental rights.' " State v. Bell, 258...