Dissenting Opinion
Dissenting Opinion from Dismissal of Petition for Certiorari as improvidently granted
This Court issued the writ of certiorari to consider the propriety of the ruling by the Court of Special Appeals that the “loafing shed”
The Court of Appeals has a responsibility to decide any case properly presented that meets the threshold criteria: presenting issues that it is desirable and in the public interest to decide. That responsibility, as to any issue, may be triggered by such considerations as novelty, complexity, conflicting precedents, impact or importance and the breadth or extent thereof аnd likelihood of recurrence.
Once a “cert” worthy case has been accepted on certiorari, there must be a compelling reason not to decide it; it really must have been improvidently granted. Black’s Law Dictionary, Seventh Ed.1999, defines “improvident” as “of or relating to a judgment arrived at by using misleading information or a mistaken assumption.” Thus, when certiorari has been granted to address a particular issue, there being no other “cert” worthy issue, and briefing and argument have disclosed that the issue for which certiorari was granted is not, in fact, presented by the case, need not, or cannot, be reached on the merits, then it is appropriate to dismiss the petition as improvidently granted.
As we have seen, the Court granted review of two questions presented by the petitioner and, depending on the resolution of one of them, the first, one question presented by the State. The petitioner’s questions challenged the rulings by the Court of Special Appeals with respect to suppression issues. The first, in truth, the primary reason for the certiorari grant, involved defining the boundaries of the curtilage of a dwelling house and the second, the ability of a spouse under express instructions from the other spouse not to open a package, of which the police are aware, to consent to the search of that package. The facts in support of the petition for writ of certiorari demonstrate that both of these issues are, in fact, presented, that their viаbility and importance have not be diluted by subsequent events and that an issue subsumed in the first is a critically important one that should be addressed and decided.
The petitioner was charged with the murder of his parents after an investigation of their disappearance by the Frederick County Sheriffs Department discovered their bodies buried on his property. Suspicion focused on the petitioner, who had recently mоved back to Maryland after many years in Texas, when information developed from inquiries of family members and friends of the victims contradicted
The petitioner shipped a “cargo box” by air to his wife in Texas. She gave her consent to the police to search the “cargo box.” Before doing so, however, she informed the police that she had authority to “pick up the box from the airport, but not ... open it.” Recovered from the “cargo box” were two suitcases containing personal papers and jewelry belonging to the petitioner’s parents.
In his petition for writ of certiorari, the petitioner noted that the Court of Special Appeals ruled, relying on State v. Martin,
The petitioner also argued;
“... [T]he Court of Special Appeals did not even address a second argument advanced by Petitioner both in his brief and at oral argument — that the facts in United States v. Dunn,480 U.S. 294 ,107 S.Ct. 1134 ,94 L.Ed.2d 326 (1987), the leading Supreme Court case on the curtilage question and one on which the Court of Special Appeals relied, were significantly different from the instant facts and that, therefore, the police conduct countenanced in Dunn, supra, was significantly less egregious than that which occurred in the instant case. In Dunn, supra ‘[t]he officers walked under the barn’s overhang to the locked wooden gates and, shining a flashlight through the netting on top of the gates, peered into the barn.... The officers did not enter the barn.” Dunn, supra at 298,107 S.Ct. 1134 . Thus, the SupremeCourt said, “the officers’ use оf the beam of a flashlight, directed through the essentially open front of respondent’s barn, did not transform their observations into an unreasonable search and seizure within th meaning of the Fourth Amendment.” Dunn, supra. at 305, 107 S.Ct. 1134 . In stark contrast, in the instant case, the police did much more than peer into the loafing shed without entry and then go and seek a warrant — the police entered and excavated the floor of the shed through a lаyer of crushed stone and then through dirt until they unearthed a body. Only after this discovery of exactly what they came looking for did the police deign to secure a warrant to grant an imprimatur for their already completed activities.
“The ruling of the Court of Special Appeals sets a dangerous precedent in this case of first impression in this state. Besides ignoring substantial and well reasoned precedent frоm other states on the curtilage question, the Court of Special Appeals failed to limit the scope of what the police can do in searching non-curtilage areas of a person’s property. The instant case condoned an excavation for bodies but did not place any future limits on police conduct in that area, no matter how intrusive or even shocking. Review by this Court is therefore desirable and in the public interest.”
The same arguments, albeit somewhat more expansively, were made in the petitioner’s brief. With respect to the pure curtilage issue, the petitioner expanded upon the unauthorized and unconsented to police entry on his property, noting that it occurred on three occasions prior to the discovery of the bodies.
The petitioner also repeated his lament that the Court of Special Appeals failed to address the boundaries of police conduct in “open fields,” on private property that does not fall within the curtilage. Relying on Wayne R. LaFave, Search and Seizure, § 2.4(a) at 529-30 (3rd ed.1996) for the proposition that “non-curtilage intrusions that have been allowed usually involved only some form of sensory snooping occasionally accompanied by a minor physical entry,” he concludes:
“... [E]ven if the Court of Special Appeals was correct in its finding on the curtilage issue, which it was not, it would still be a Fourth Amendment violation to enter Petitioner’s shed without a warrant and dig a hole in the ground in search of evidence. After all, the Supreme Court tells us, ‘the touchstone of the Fourth Amendment is reasonableness.’ Florida v. Jimeno,500 U.S. 248 , 250,111 S.Ct. 1801 ,114 L.Ed.2d 297 (1991), citing Katz v. United States,389 U.S. 347 , 360,88 S.Ct. 507 ,19 L.Ed.2d 576 (1967). The conduct of the police in this case was simply not reasonable; accordingly,the judgment of the Court of Special Appeals must be reversed.”
The State understood and responded, not simply to the petitioner’s pure curtilage argument, but also to his open fields argument. With regard to the former, it spent eleven pages analyzing the Dunn test and its applicability to the case sub judice and explaining why the “loafing shed’ ” was not within the curtilage. The State spent six pages addressing the open fields doctrine. Indeed, the State concluded, “the critical inquiry is whether the loafing shed falls under the open fields doctrine or whether it was within the curtilage.”
The same analysis applies with respect to the consent issue. There simply is no doubt that it was raised and argued in the petition for writ of certiorari and then argued more expansively in the petitioner’s brief. And, as in the case of the curtilage issue, the State responded to that'argument at great length.
From the foregoing, it is clear that the issue of whether the “loafing shed” was within the curtilage was presented, and argued, in the petitioner’s petition for writ of certiorari and remained viable after briefing and argument. So, too, was the petitioner’s second argument, that non-curtilage propеrty enjoys Fourth Amendment protection, that searches of such property may not be conducted with impunity.
No misleading information was provided on the curtilage issue, the State certainly does not so contend, and there is, therefore, no basis for believing that the grant of certiorari to review this issue was based on a mistaken assumption. Nor has subsequent events rendered the issue less important or reduced its imрact. But assuming that the dismissal of the petition as to the status of the “loafing shed” could be justified on the basis of improvidence,
This Court issued the writ of certiorari after decision by the Court of Special Appeals. Consequently, we were not obliged to accept all of the questions presented for review; we could take for review only those that were independently “cert” worthy. That is precisely what we did. To be sure, the open fields issue was included as a part of the curtilage argument. That is as it should be, for the boundaries, for Fourth Amendment рurposes, of non-curtilage property is logically and analytically related to the question of what property is included in curtilage. That does not mean, however, that the questions are inextricably intertwined, so that the decision in one is dispositive of the other. In fact, the opposite is true, the open fields question need be resolved, reached, only if the property is not within the curtilage and, thus, сonstitutes “open fields.” The question,
The independent existence, relevance, impact and importance of that aspect of the curtilage issue that questions the need for limitations on the State conducted searches of private non-curtilage property make the issue “cert” worthy in its оwn right. This is particularly the case here, where the intrusiveness of the police is significantly more extensive than in those cases in which the Supreme Court of the United States considered the open fields doctrine and determined, under the facts and circumstances of those cases, that the trespass did not render the search and seizure without a warrant unreasonable, see Oliver v. United States,
Having demonstrated the “cert” worthiness of the open fields doctrine issue, I am hard pressed to discern the basis on which the majority has determined that it was improvidently granted. As indicated and demonstrated, it was presented, straightforwardly, in the “cert” petition and again in the brief. It was argued extensively by the State that the dichotomy between сurtilage and open fields was dispositive, that anything goes on private property that is not within the curtilage, the Fourth Amendment applying only to the curtilage, the direct opposite of the petitioner’s argument. Certainly, the novelty of the issue, the very factor that makes the case “cert” worthy, does not suffice; believing that the matter would not be reached because of assumptions made about the threshold issue, in this case, whether the “loafing shed” is within the curtilage, is not a basis, so long as the matter remains viable even when the threshold issue is resolved or avoided, whichever the case may be.
I have similar concerns with respect to the consent issue. As with the curtilage issue, it has independent “cert” worthiness; there is no interrelationship between the curtilage issue and the consent issue such that resolution of оne resolves the other or renders it moot. I can discern no basis for the dismissal of the consent issue.
On the morning that this case was heard, a young lawyer spent the first part of her argument thanking the Court for taking the case that she was arguing as the petitioner. At great length, she spoke of the importance of the issue, the complexity and the need for resolution for the guidance of bench and bar and, again, еxpressed her gratitude that the Court had granted certiorari to review it. Being of the view that there was no reason for the attorney to thank the Court for doing what it is mandated to do, I interrupted her, offering a simple, but what I thought was, and still think is an, accurate, explanation
Notes
. The investigating officer, a detective in the Frederick County Sheriff's Office, testified that a "lоafing shed" is a roofed building enclosed on three sides which is "typically a shelter that’s used to shelter animals on a farm.”
. The Court may issue the writ of certiorari before or after decision by the Court of Special Appeals. See Maryland Rule 8-302(a). Dismissal of the petition for writ of certiorari as improvidently granted is possible only when certiorari is granted after the decision by the Court of Special Appеals. Otherwise, the Court will be acting in lieu of the intermediate court in affording the appellant the one obligatory appeal to which any aggrieved litigant is entitled.
. On the first occasion, finding no one at home the officer remained on the property for about 15-20 minutes, walking through the garage area and observing the "loafing shed" and its environs. On the second, again no one being at home, the officer was there to "get a feel for where the property was.” On that occasion, he again looked at the “loafing shed” and its contents. It was on the third occasion that the cadaver dog was brought to the property.
. The only rationale that presents even a plausible basis for the dismissal of the petition as to the pure curtilage issue is the State’s argument, quoting Wilkes v. State,
. As we have seen, the police came onto the petitioner’s property uninvited and without consent on at least three occasions. To be sure, a police officer may enter premises to conduct an investigation and to speak with the owner of property, however, in this case, when it was learned that no one was at homе, he stayed on the premises looking around for 15 to 20 minutes. He returned to get a feel for where the property was and, later, to have a dog trained in the discovery of dead bodies walk the property.
Lead Opinion
ORDER.
The petition for writ of certiorari in the above-entitled case having been granted and argued, it is this 21st day of February, 2002.
ORDERED, by the Court of Appeals of Maryland, that the writ of certiorari be, and it is hereby, dismissed with costs, the petition having been improvidently granted.