DeMontmorency v. StateDeMontmorency v. State
This appeal presents an issue as to the parameters of the “open fields”1 exception to the warrant requirement of the
Acting on a tip that marijuana was being grown on appellant‘s property, two officers drove through an open gate into a pasture adjacent to appellant‘s property, parked their car, and crossed over a fence into a rough wooded portion of appellant‘s property. Prior to crossing the fence they did not see the growing marijuana, but it was seen by them after traveling a distance of some 300 feet inside the fence. From the point where the growing marijuana was found the officers could not see appellant‘s house trailer, which was located within the fenced property approximately 750 to 800 feet distant.2 After appellant was observed watering
Initially we accept appellant‘s contention that law enforcement officers trespassing3 in a constitutionally protected area cannot, absent some exception to the warrant requirement, justify the seizure of contraband on the ground that it is in “plain view.” State v. Morsman, 394 So.2d 408 (Fla. 1981); and see Ensor v. State, 403 So.2d 349 (Fla. 1981). We further accept appellant‘s contention that she is entitled to the protеction of the
[T]he special protection accorded by the
Fourth Amendment to the people in their “persons, houses, papers and effects,” is not extended to the open fields. The distinction between the latter and the house is as old as the common law. (Emphasis supplied)
It has been said that expectations of privacy are “inherent” in the common law concept of “curtilage.” United States v. Van Dyke, 643 F.2d 992 (4th Cir.1980). See United States ex rel. Saiken v. Bensinger, 546 F.2d 1292, 1296 (7th Cir.1976), cert. den. 431 U.S. 930, 97 S.Ct. 2633, 53 L.Ed.2d 245 (1977); and see also, Giddens v. State, 156 Ga. App. 258, 274 S.E.2d 595, 596 (1980), recognizing an expectation of privacy arising under “the traditional rules applied to one‘s dwelling or surrounding curtilage.”
If the search and seizure occurred within appellant‘s curtilage, then it is clear that the trial judge erred in failing to suppress the evidence. If not within the curtilage, then we must determine whether the trial judge correctly applied the “open fields” exception to the warrant requirement, particularly in light of the more recent standards concerning claimed
That expectation [of privacy] will be recognized as legitimate if a person has exhibited an actual (subjective) expectation of privacy, and the expectation is one that society is prepared to recognize as reasonable.
Thus, while we find courts expressly acknowledging the continued viability of the “open fields” doctrine as an exception to the
This court‘s decision in Phillips v. State, 177 So.2d 243 (Fla. 1st DCA 1965), although a pre-Katz decision, furnishes rather strong support for the trial judge‘s decision in this case that the search of appellant‘s land was not unlawful. Phillips held thаt a whiskey still located in an oak hammock 50 to 60 yards behind a dwelling was not within the curtilage, although the house and the still were on a parcel of some eight acres leased to the defendant for hog-raising purposes. In that case the court undertook to define the term “curtilage” as follows (Id. at 224):
It has been described as the yard, courtyard, or piece of ground lying around or near to a dwelling house, included within the same fence... . It means the yard or court for the protection and security of the mansion house; an enclosure belonging to a dwelling house... . For a structure or an enclosed parcel of ground which is separate and apart from one‘s dwelling to be regarded as the “curtilage,” it must be customarily used in connection with a person‘s dwelling, and it is not brought within the curtilage by the fact that the occupants of the dwelling make use of it on special occasions or in exceptional circumstances... . (citations omitted)
In Phillips, the court reasoned that the whiskey still was “disassociated from any purpose reasonably connected with the conduct of affairs incident to the normal use and occupancy of the dwelling,” (Id. at 245), and was therefore not within the curtilage. Later cases refer to the protected area as that portion of the premises “used in connection with a dwelling,” Antone v. State, 382 So.2d 1205 (Fla. 1980), or a part of the “area surrounding and related to the dwelling,” State v. Parker, supra.
Although the court decided in Norman v. State, supra, that the “open fields” exception of Hester v. United States, does not extend to “a warrantless search of a closed structure on fenced property” (379 So.2d at 647), we do not read in the opinion an absolute prohibition against warrantless searches and seizures on enclosed land. Furthermore, Norman v. State is clearly distinguishable from the case before us in that entry in that case was accоmplished by a sheriff who climbed a fence, after he found the gate locked, and observed marijuana inside a tobacco barn by peering through the window with the aid of a flashlight. There is no evidence in the present case of a gate, locked or otherwise, except for а gate located in front of the house trailer itself, and the marijuana in question was growing in a cleared patch of ground within a wooded area, not concealed in a closed building.
State v. Brady, 379 So.2d 1294 (Fla. 4th DCA 1980), obviously represents a rather firm view that enclosed occupied (perhaps even unoccupied) land cannot lawfully be subjected to search by trespassing officers. In Brady, entry was made by officers without a warrant onto 1,800 acres of land which was well fenced, locked and posted property, upon a portion of which the defendant lived in a trailer. Also, the Brady opinion points out that the deputies gained entrance to the proрerty by cutting with bolt cutters the chain lock on a gate. The opinion furnishes no further details as to proximity of the point of entry to the dwelling itself, nor is there further description of
Cases from the federal courts indicate that the open fields doctrine may be applicable to fenced as well as unfenced property. Martin v. United States, 155 F.2d 503 (5th Cir.1946); United States v. Diaz-Segovia, 457 F. Supp. 260 (D.C.Md. 1978); United States ex rel. Saiken v. Bensinger,7 supra; Fullbright v. United States, 392 F.2d 432 (10th Cir.1968), cert. den. 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 101 (1968); United States v. Greenhead, Inc., 256 F. Supp. 890 (N.D.Cal. 1966); Monnette v. United States, supra (footnote 3). See, however, United States v. Van Dyke, 643 F.2d 992 (4th Cir.1981),8 in which the court observed that the government cited no cases in which a building or area within an exclusionary fence surrounding a residence was found to be outside the curtilage, and further stated (Id. at 994):
Assuming that sheer distance could in some instances lead us to conclude that a particular area was outside the curtilage even though inside a fence surrounding a residence, this case does not present such a situation.
Giddens v. State, 156 Ga. App. 258, 274 S.E.2d 595 (1980), cert. denied Giddens v. Georgia, ___ U.S. ___, 101 S.Ct. 1733, 68 L.Ed.2d 222 (1981), on facts very similar to those in Norman v. State, supra, reached the opposite result. The facts in Giddens were that officers crossed a wire fеnce (four strands of barbed wire) onto a field upon which was a storage building containing marijuana. The officers also found marijuana growing amidst corn in the field. A gate to the field was locked, but this fact was unknown by the officers. The court held that the open fields doctrine survived Katz v. United States, supra, and concluded that any “expectation of privacy” the defendant had in regard to the field was not reasonable under the circumstances.9 See also United States v. Diaz-Segovia, supra.
Our conclusion from our examination of the cases is that it is by no means absolutely clear to what extent the open fields doctrine may be applied where property is fenced, particularly where the fence
To extend the concept of immunity from unreasonable search and seizure so as to prohibit the search of any property included in а fenced area in which a dwelling may be located without having first obtained a search warrant, would extend the protection afforded by the Constitution to an absurdity.11
Accordingly, the judgment and sentence appealed are AFFIRMED.
McCORD, J., and LILES, WOODIE A., Associate Judge (Ret.), concur.