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City of Whitefish v. Large11/25/2003
eened off from the public. No signs indicate the parking lot is private or indicate entry into the lot is prohibited. Just as the police in Hubbel were free to park in the driveway and go on to the porch , and the warden in Boyer was free to place his foot on the boat's transom, the police here were free to enter into the Wildwood's commonly shared parking area. From that vantage point, they could clearly see Large's vehicle and determine its engine was running and music was playing.
Further, legislative enactments are an expression of which expectations of privacy society is willing to recognize as reasonable. In Boyer, we noted that the expectation of privacy in the live well of the boat was lessened because it was open, its only purpose was to hold river water and fish, and state law requires a person to produce one's catch when requested by a warden and authorizes wardens to inspect the catch. Boyer, 15, 33, 39. Similarly here, we note that state law prohibits driving under the influence on "all ways of the state open to the public." Sections 61-8-401 and -406, MCA. "Ways of the state open to the public" includes any "highway, road, alley, lane, parking area, or other public or private place adapted and fitted for public travel that is in common use by the public." Section 61-8-101, MCA. In Schwein , we applied that definition to uphold the conviction of a man found sleeping in his car parked in his privately leased parking space in front of his business. State v. Schwein , 2000 MT 371, 303 Mont. 450, 16 P.3d 373. In City of Billings v. Peete we looked to the legislative history of the statute to determine "ways of the state open to the public" was intended to preclude drunk driving in private parking lots, so long as the lot was fitted for public travel and in common use by the public. City of Billings v. Peete (1986), 224 Mont. 158, 161, 729 P.2d 1268, 1270. We have also concluded that "ways of the state open to the public" covered a privately owned, one lane right of way 3/10 of a mile long which provided access to three residences. State v. Weis (1997), 285 Mont. 41, 945 P.2d 900. Although these decisions do not involve claims of constitutional privacy, they nonetheless illustrate the point that, in light of enactments by the Montana legislature, society does not recognize a driver's expectation of privacy in "ways of the state open to the public," a term which encompasses private parking lots open to the public. Section 61-8-101, MCA. We conclude that Large did not have an expectation of privacy which society would be willing to recognize as reasonable thereby prohibiting the police from arresting her in her own carport.
We next consider the nature of the state's intrusion. In Bullock, it was overly intrusive when agents of the state proceeded past the "No Trespassing" signs and tread into areas which were gated and for which the agents had previously asked permission to enter. Bullock , 272 Mont. at 384, 901 P.2d at 76. In Hubbel it was not overly intrusive when the police parked in the area which would normally be used by visitors and walked up the walkway where they could see certain evidence and proceeded on to the front porch, where other evidence was plainly visible. Hubbel, 286 Mont. at 210, 951 P.2d at 977. In Boyer , we recognized a warden's intrusion onto a boat transom to inspect catch was minimal where the inspection was specifically authorized by law and focused on the live well. Boyer, 33, 42.
Here, the police did not proceed in the face of no trespassing signs nor did they open any gates. Indeed, from Large's description of her carport it would be comparable to the front porch in Hubbel . Casual visitors might easily walk through her carport to reach
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