City of Whitefish v. Large11/25/2003
sion that as a matter of law one is within the former.
We conclude that the statutory safeguards that pertain to one's "home" do not encompass a carport attached to a condominium unit. Accordingly, Large was not within the protected area of her home or dwelling when she was found sleeping in her car, parked in her carport. Large's arrest was not in violation of § 46-6-105, MCA.
Large also claims her Montana constitutional right to be free from unreasonable searches and seizures was violated when the police found her asleep in her car in her carport within the lot lines of her condominium unit. At issue are the provisions of the Montana Constitution, Article II, Sections 10 and 11. They provide:
Section 10. Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest. Art. II, Sec. 10, Mont. Const.
Section 11. Searches and seizures. The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing.
Art. II, Sec. 11, Mont. Const.
In determining whether or not there was an unlawful search in violation of the Montana Constitution, we look at (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. State v. Hamilton , 2003 MT 71, 18, 314 Mont. 507, 18, 67 P.3d 871, 18. We address each part of this analysis as follows.
We set forth the principle that an individual may have an expectation of privacy in land beyond the curtilage of the home which society is willing to recognize as reasonable in State v. Bullock (1995), 272 Mont. 361, 384, 901 P.2d 61, 75. In Bullock the expectation was evidenced by fencing, "No Trespassing" signs, and a cabin placed on the far side of a hill so as not to be visible from the road. Bullock , 272 Mont. at 384, 901 P.2d at 75. An expectation of privacy can also be evidenced by some other means which indicate unmistakably that entry is not permitted. Bullock , 272 Mont. at 384, 901 P.2d at 76.
Society's recognition of the expectation of privacy as reasonable hinges on the unique facts of each situation. In State v. Tackitt, there was 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. State v. Tackitt, 2003 MT 81, 22, 315 Mont. 59, 22, 67 P.3d 295, 22 (although he did have a reasonable expectation of privacy in items stored in the car trunk). Similarly, the police were free to drive into a driveway and park in the parking area and walk on the walkway up to a front porch when no fencing or planting of shrubs shielded the home and no steps were taken to shield the porch from public view nor were steps taken to prevent casual visitors from walking to the front door. State v. Hubbel (1997) , 286 Mont. 200, 210, 951 P.2d 971, 977. In Boyer , we applied the analogy of the front porch to a boat's transom and we concluded there was no reasonable expectation of privacy in the transom because it was accessible and readily visible to the public. State v. Boyer, 2002 MT 33, 33, 308 Mont. 276, 33, 42 P.3d 771, 33.
It has been stipulated that the Wildwood is a private condominium association, whose parking and entry are scr
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