LOGIUDICE v. THE STATE
39491
Supreme Court of Georgia
November 16, 1983
Rehearing Denied December 15, 1983
251 Ga. 711 | 309 S.E.2d 355
PER CURIAM.
After plenary consideration of this matter, it is found not to satisfy the criteria for the grant of certiorari and the writ is therefore vacated.
All the Justices concur, except Smith, J., who dissents.
DECIDED NOVEMBER 16, 1983 -- REHEARING DENIED DECEMBER 15, 1983.
Horn & Maloy, Bruce Maloy, for appellant.
Johnnie L. Caldwell, Jr., District Attorney, for appellee.
SMITH, Justice, dissenting.
I dissent from the court‘s dismissal of the grant of certiorari in this case. We granted certiorari to consider an important Fourth Amendment question: Whether the decision in Katz v. United States, 389 U. S. 347 (88 SC 507, 19 LE2d 576) (1967), modified the “open fields” doctrine first announced in Hester v. United States, 265 U. S. 57 (44 SC 445, 68 LE 898) (1924), to require a warrant for the search of a secluded field when a reasonable expectation of privacy can be shown to exist in that field. I believe that it did and, accordingly, would reverse.
Appellant Thomas LoGiudice was charged with possession of marijuana with intent to distribute in violation of
In 1979 appellant purchased a 345-acre tract of land bordering on Georgia Highway 74 in Upson County, eight miles east of Thomaston. In the summer of 1980, Upson County Sheriff Merrill Greathouse began receiving reports of activity on appellant‘s land. Bully McDaniel, owner of a package store located on Highway 74 near the property, told the sheriff he had heard heavy earth-moving equipment operating late at night on the land. An unidentified source reported that in the fall of 1980 appellant hired a local contractor to
Based on this information Sheriff Greathouse1 entered appellant‘s land sometime in the fall of 1980 to search for illegal marijuana plants. At the hearing on appellant‘s motion to suppress, the sheriff admitted climbing both barbed wire and welded fences when entering appellant‘s property on this occasion. He searched the area surrounding appellant‘s trailer but found no marijuana. Later that fall, Sheriff Greathouse conducted an aerial search of appellant‘s land. He was again unable to detect any illegal activity, but noticed that appellant was constructing a new fence around his land.
On July 6, 1981, acting on a tip from an unidentified source, the sheriff and several Georgia Bureau of Investigation agents again entered appellant‘s land without a warrant to search for marijuana. According to Sheriff Greathouse, the group entered by a back route by crossing a creek, climbing a barbed wire fence, and following an old logging road some 200 yards until they reached a clearing. There they discovered a half-acre field of marijuana. The plants were surrounded by dense chicken-wire fencing material and were visible only from a distance of ten feet or less. A 35-foot path led from the field through dense undergrowth to a travel trailer owned by appellant and occupied by Tammy Harms. The officers conducted a “stake-out” of the field, remaining there for four and one-half to six hours. While there they observed Ms. Harms come onto the field and “fondle” the marijuana plants. No arrests were made at this time. The officers returned to the field on the morning of July 7, 1981 and observed appellant, Ms. Harms and Stephen Karlovich on the field. A search warrant was obtained,2 and appellant, Harms and Karlovich were arrested.3
Evidence introduced at the suppression hearing showed that the
The Court of Appeals, citing Giddens v. State, 156 Ga. App. 258 (274 SE2d 595) (1980), affirmed the trial court‘s denial of appellant‘s motion to suppress. In so doing, the court relied on the “open fields” doctrine of Hester v. United States, supra. In Hester, federal revenue agents with prior information that Hester was trafficking in illegal moonshine whiskey hid near Hester‘s residence and observed him come out of the house and hand one Henderson a bottle of moonshine. The agents sounded an alarm. Hester grabbed a gallon jug from a nearby automobile, and he and Henderson fled on foot across a field, with the officers in pursuit. In their haste to escape the two suspects dropped the containers, which broke and were later determined to have contained illegal moonshine. On appeal of the trial court‘s refusal to suppress the agents’ testimony concerning what had transpired in the field, the Supreme Court rejected Hester‘s Fourth Amendment claim. In a short opinion, Justice Holmes wrote for a unanimous Court that “the 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.”5
In the sixty years since the decision in Hester, courts have, based on the above language, fashioned an exception to the Fourth Amendment‘s warrant requirement known as the “open fields” doctrine. Simply stated, that doctrine holds that the Constitution‘s protection of “persons, houses, papers, and effects” does not extend to activities conducted in any area beyond the curtilage of a home.
Based on these authorities, the state argues that a warrantless search of land beyond the curtilage can never violate the Fourth Amendment. This position -- which amounts to an assertion that the “open fields” doctrine may be used as carte blanche for warrantless searches of areas outside the curtilage -- is simply untenable. Close analysis of the Hester decision and subsequent developments in Fourth Amendment law demonstrate that the “open fields” doctrine does not apply to this case.
Hester was decided in 1924, prior to application of the Fourth Amendment to the states, Mapp v. Ohio, 367 U. S. 643 (81 SC 1684, 6 LE2d 1081) (1961), and before the advent of modern Fourth Amendment theory as exemplified by Katz v. United States, 389 U. S., supra. The Hester decision also predated the development of the “exigent circumstances” doctrine, see McDonald v. United States, 335 U. S. 451 (69 SC 191, 93 LE 153) (1948), the “hot pursuit” doctrine, see Warden v. Hayden, 387 U. S. 294 (87 SC 1642, 18 LE2d 782) (1967), and the “plain view” doctrine, see Coolidge v. New Hampshire, 403 U. S. 443 (91 SC 2022, 29 LE2d 564) (1971). Were Hester not on the books and if the same factual situation arose today, no court would need to create a special “open fields” exception to the Fourth Amendment. Today the case would turn on the doctrine of hot pursuit. Hester and his accomplice committed a crime in plain view of police who were legally in place. Based on the hot pursuit and exigent circumstances doctrines, the police could lawfully pursue and arrest the defendants. Any expectation of privacy possessed by Hester had evaporated, since police had probable cause to follow and arrest, either in the open fields or the house, as a crime was committed in plain view and the officers were located in a place they had a legal right to be. See United States v. Santana, 427 U. S. 38 (96 SC 2406, 49 LE2d 300) (1976); Warden v. Hayden, supra. Moreover, the oft-quoted “open fields” language of Hester was unnecessary to the Court‘s decision in that case. Central to the Court‘s analysis was its observation that the moonshine containers had been abandoned by the defendants prior to their inspection by revenue agents, so that the defendants could not complain of a search of the abandoned property. “The defendant‘s own acts, and those of his associates, disclosed the jug, the jar and the bottle -- and there was no seizure in
Cases decided since Hester v. United States provide support for this position. In Katz v. United States, 389 U. S., supra, the Court retreated from the “constitutionally protected area” analysis of Fourth Amendment issues epitomized by the Hester case and Olmstead v. United States, 277 U. S. 438 (48 SC 564, 72 LE 944) (1928). Instead the Court focused on the individual‘s reasonable expectation of privacy in a given situation. As the opinion in Katz states: “[T]he correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase ‘constitutionally protected area.‘... For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. [Cits.] But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” 389 U. S. at 350. In his concurrence in Katz, Justice Harlan formulated a test which has become the accepted standard for determining the applicability of the Fourth Amendment to a particular situation: “[T]here is a twofold requirement, first, that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” 389 U. S. at 361 (Harlan, J., concurring). The court has applied Harlan‘s test in subsequent decisions. See, e.g., Rakas v. Illinois, 439 U. S. 128 (99 SC 421, 58 LE2d 387) (1978).
Thus in Katz the Supreme Court for the first time recognized that the Fourth Amendment‘s protection of “persons, houses, papers, and effects, against unreasonable searches and seizures...” applies first and foremost to persons, not places. (Emphasis supplied.) Since Katz, the Supreme Court has time and time again reaffirmed that it is one‘s legitimate expectation of privacy, not the particular area searched or seized, which controls. See, e.g., United States v. Salvucci, 448 U. S. 83 (100 SC 2547, 65 LE2d 619) (1980);
In the years since Katz, the Supreme Court has not been called upon to address the continuing validity of the Hester decision.8 The Court has, however, cited Hester in two relatively recent decisions. In Air Pollution Variance Board v. Western Alfalfa Corp., 416 U. S. 861 (94 SC 2114, 40 LE2d 607) (1974), a state health inspector trespassed on the outdoor premises of a business establishment in order to conduct a pollution test of smoke being emitted from the factory‘s chimneys. Citing the Hester case, the Court held that the warrantless search was permissible, noting that “[t]he field inspector was on respondent‘s property but we are not advised that he was on premises from which the public was excluded... He had sighted what any one in the city who was near the plant could see in the sky -- plumes of smoke.” Id. at 865. I think that the circumstances of Western Alfalfa distinguish it from the present case. There the property in question was easily accessible and open to the public, whereas appellant in this case has taken elaborate precautions to exclude the public from his land. Unlike the inspector in Western Alfalfa, Sheriff Greathouse was not in an area accessible to or visible by the public when he made his observations. I agree with the court in State v. Thornton, 453 A2d 489 (Me. 1982), that the “open fields” doctrine is inapplicable where the observing officer is in a place where he has no right to be when the
The recent case of Dow Chemical Co. v. United States, 536 FSupp. 1355 (E.D.Mich. 1982) is particularly instructive in resolving the issues presented by this appeal. There the Environmental Protection Agency was conducting an investigation of a 2000-acre Dow manufacturing plant to check for excess pollutant emissions. Following an on-site inspection of the plant, the EPA hired an independent contractor to conduct aerial surveillance and take detailed photographs of the plant without Dow‘s knowledge. When Dow became aware of the flyover, it sued the EPA, claiming that the agency‘s warrantless aerial photography of its plant constituted an unreasonable search in violation of the Fourth Amendment. The court agreed, holding that Dow‘s maintenance of fences, locked gates, and elaborate security systems around its plant manifested its subjective expectation of privacy in the plant. The court continued: “The Fourth Amendment should not be read as to require the citizens or businesses of this nation to take unreasonable measures to protect themselves from surreptitious governmental searches. This Court is not prepared to conclude that Dow must build a dome over its entire plant before it can be said to have manifested or exhibited an expectation of privacy.” (Emphasis supplied.) Id. at 1365. The court concluded that Dow‘s manifested privacy expectation was one that society was prepared to accept as reasonable, and rejected the EPA‘s assertion of the “open fields” doctrine as justification for the search. Summary judgment was granted in favor of Dow, and an injunction entered prohibiting the EPA from conducting further aerial surveillance and photography of the Dow plant. See also Wheeler v. State, 659 SW2d 381 (Tex. Ct. Crim. App., decided 9/29/83).
In light of these authorities, I would hold that a per se application of the “open fields” doctrine to validate warrantless searches of land beyond the curtilage is unacceptable. Accord, Case Comment, United States v. Oliver, 20 Am. Crim. L. Rev. 485 (1983); Note, How Open Are Open Fields?, 14 U. Tol. L. Rev. 133 (1982). This is not to say that a warrantless search of a field will ordinarily violate
Another way of stating the same conclusion is this: For the “open fields” doctrine to apply, the searched area must truly be “open” -- that is, an area in which no one has exhibited a reasonable expectation of privacy. See Case Comment, United States v. Oliver, supra, at 493 (1983). Webster‘s Third New International Dictionary defines “open” as follows: “[S]o arranged or governed as to permit ingress, egress, or passage... having no enclosing or confining barrier... free from fences, boundaries, or other restrictive margins.” Common sense dictates that a field not meeting this definition is not “open” for purposes of application of a per se “open fields” exception to the Fourth Amendment. By no stretch of the imagination can appellant‘s land be characterized as “free from fences, boundaries, or other restrictive margins.”
Having rejected the per se approach used by the court below, it remains to answer the question posed by the Katz case: Whether, under these facts, appellant possessed a reasonable expectation of privacy in his fields that was violated by Sheriff Greathouse and the GBI. Katz dictates that we decide, first, whether appellant had an actual, subjective expectation of privacy; and second, whether this expectation is one that society is prepared to recognize as reasonable.
Plainly appellant‘s actions demonstrated a subjective expectation of privacy in his fields. His land was fenced at all borders, clearly posted “no trespassing,” and guarded by two locked gates at the main entrance. The two secluded fields located within appellant‘s property lines were surrounded by thick forests and undergrowth. Neither field was visible from public roads, neighboring property, or the air. It is difficult to imagine what other precautions appellant could have taken to protect his property against intruders, short of erecting a ten-foot barricade around the land, covering his entire farm with a dome, or posting guards at all borders of his property. Cf. Dow Chemical Co. v. United States, supra.
The second part of the Katz test asks whether appellant‘s expectation of privacy is one that society is prepared to recognize as reasonable. In applying this part of the test, courts have generally found reasonable expectations that are ” ‘normally shared by people in that setting’ ” and ” ‘fall within the limits of what society can
In this country, the use of fences and barricades has always played an important part in defining landowners’ right to privacy. In the 1800‘s in the Midwest and West, the open range was used by everyone. Violence erupted when squatters, farmers and cattle ranchers claimed the same land as their own. By the 1880‘s, it became a common practice to erect barbed-wire fences at one‘s claimed property line. See Billington, Westward Expansion, 595-98 (4th Ed. 1974). A landowner‘s erection of such a fence said, in effect: “This land is mine, I intend to put it to use, and I demand that all respect my ownership and privacy.” More recently, enactment of “no fence” laws in this country meant that a landowner no longer had to construct a fence to protect his farmlands and his privacy from another‘s domestic animals which are left to run free. See
One commentator has aptly observed that application of the Katz standard is, at bottom, “a value judgment. It is whether, if the particular form of surveillance practiced by police is permitted to go
In my view the Fourth Amendment at a minimum means that law enforcement officers may not conduct “fishing expeditions” on private, posted and fenced property, trespassing thereupon at will for a period of several months until they discover “open fields” containing incriminatory evidence. When conducted on fenced property, such activity is clearly inconsistent with the aims of a free and open society, and flies in the face of a reasonable, clearly exhibited expectation of privacy. Amsterdam, supra. Individuals in circumstances similar to LoGiudice‘s would, I believe, expect their privacy to be invaded only upon issuance of a valid search warrant. Moreover, this reasonable expectation of privacy would not unduly hamper legitimate law enforcement and investigative activities, such as verifiable tips from reliable informants, or aerial fly-over searches from appropriate heights. See, e.g., Reece v. State, 152 Ga. App. 760 (264 SE2d 258) (1979); People v. Sneed, 32 Cal. App. 3d 535, 108 Cal. Rptr. 146 (1973).
Because in this appeal the state has relied solely on the “open fields” exception in its attempts to validate the warrantless search of appellant‘s land, I will address other possible justifications for the search only briefly. The state, of course, assumes the burden of proving that an exception to the Fourth Amendment‘s general warrant requirement applies. United States v. Jeffers, 342 U. S. 48, 51 (72 SC 93, 96 LE 59) (1951);
It is inconceivable to me that this court would condone the outrageous, illegal investigative activities carried on by law enforcement officials in this case. To sanction this search is to say that law enforcement officers may freely trespass on fenced, posted, secluded rural property without regard for the privacy of persons under the Fourth Amendment. This view too easily defers to the judgment of officers of the law who are, after all, only human, and are sometimes overzealous in their pursuit of “the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U. S. 10, 14 (68 SC 367, 92 LE 436) (1948). Such a view also derogates unnecessarily from the importance of the rights and values the Fourth Amendment was designed by the founding fathers to protect -- rights just as important as freedom of religion, of speech and the press, the right to a jury trial and to trial counsel, due process, freedom from quartering soldiers in one‘s home in peacetime, and the other precious liberties safeguarded by the Bill of Rights.10 As Justice Brandeis pointed out in his famous dissent in Olmstead v. United States, 277 U. S. 438, supra, the Fourth Amendment guarantees “the right to be left alone -- the most comprehensive of rights and the right most valued by civilized men.” Id. at 478.
I would therefore reject the per se “open fields” doctrine employed by the Court of Appeals and sanctioned by this court in this and previous cases. Because the seized evidence was observed by officers who were in a place they had no right to be in violation of appellant‘s justifiable expectation of privacy, those officers’
In conclusion, I can only echo the sentiments of Justice Brennan: “Although I recognize that the traffic in illicit drugs is a matter of pressing national concern, that cannot excuse this Court from exercising its unflagging duty to strike down official activity that exceeds the confines of the Constitution. In discussing the Fourth Amendment in Coolidge v. New Hampshire, 403 U. S. 443, supra, Justice Stewart stated: ‘In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts.’ Id. at 455 (plurality opinion) We must not allow our zeal for effective law enforcement to blind us to the peril to our free society that lies in this Court‘s disregard of the protections afforded by the Fourth Amendment.” Florida v. Royer, ___ U. S. ___, (103 SC 1819, 75 LE2d 229) (1983) (Brennan, J., concurring specially).
I respectfully dissent.