*2 testified entered Rosenblum, Hollywood, Jerome M. minutes after Valdes ment within two Fla., petitioner-appellant. for possession the had in his entered and Shevin, Atty. Gen., Robert L. William from underneath black Rogers, Atty. Gen., Tallahassee, Asst. bag backyard. The and its tree Fla., respondent-appellee. for an- to a chemical were delivered contents pe- Purcel, alyst, Henry who testified at AINSWORTH, Before GODBOLDand bag contained titioner’s trial Judges. INGRAHAM, Circuit evidence, of this heroin. On the basis guilty pos- for jury Judge: INGRAHAM, Circuit sessing proscribed substance. appeals Fixel from Petitioner Robert peti- of his the district court’s dismissal appealed his conviction to Petitioner corpus. Fix- tion for habeas a writ of Appeals and that Florida el’s claim is that conviction was Without his conviction. affirmed court based on as a result evidence obtained relying court on the search illegal an search and seizure. was,, appeals seizure held that “[t]he - think, the lawful arrest.” April incident late (Fla. State, Joseph procured 256 So.2d Fixel v. a search war- A. Valdes home, App., Florida petitioner’s an rant render- apartment certiorari without four-unit Court denied in a ing opinion. Valdes, West, building, Key Florida. petitioned might writ habeas grab reach in weap- order to corpus in the United States District evidentiary must, items Court for the governed Southern course, District Flori- like rule. validity upheld da. The court ample justification, . There is
search because
felt
therefore,
for a search of the arres-
cause for Fixel’s arrest
person
was established
tee’s
and the area ‘within his
independently of the warrant. As the
construing
immediate
control’—
*3
substantially
arrest and search were
phrase to mean the area from within
contemporaneous, the court stated
might
gain possession
which he
of a
refusing
the trial court did not err in
weapon
or destructible evidence.”
suppress
regard
the heroin. With
Id. at 762-763. Measured
this
the court noted that “the
standard,
the facts of this case do not
record
clear
that the state abandoned support a lawful search of the black
the claim that
the seizure was made
shaving kit. When
Fix
Valdes entered
through the issuance of said warrant.”
home,
el’s
apartment,
inwas
Likewise,
analysis proceeds
our
on the
obviously not within reach of the black
premise that the search here was war-
backyard.
kit hidden in the
In
rantless.
deed, Knapp
obtained the
yard
brought
from
and
it inside the
I.
apartment.
simply
There is
no convinc
ing argument
shaving kit,
that the
con
The first issue is whether the
backyard
cealed in
building,
search
seizure that revealed the her
was within the “immediate control” of
oin can be sustained as
incident to
petitioner,
apart
who was inside the
lawful arrest.1 The
Court in
ment. Thus we cannot conclude that
California,
752,
Chimel v.
395 U.S.
89 S.
“the law enforcement officials on the
2034,
(1969),
Ct.
reasonable for the officer to door of his home. After Bell was re- search for and seize evidence moved from the to be be- taken person pre- magistrate, investigating in order to arrestee’s fore the began vent its or destruction. concealment home yard. Invalidating And the area an arrestee into which the officers’ search pe extremely suspicious 1. Probable cause for the initial arrest of actions of trips making An informer titioner Fixel was established. of his home large concealing day told law enforcement officials kit there on the quantity being light circumstances, sold on these of narcotics the arrest. these premises. Using informer, agents reasonably this same the of we think believe purchase mari ficers a controlled conducted that a crime been or was committed. pur although juana, Wong States, 471, it is not stated when the Sun v. United 407, (1963) ; Fur chase or if it was from Fixel. 9 occurred 83 L.Ed.2d thermore, Gonzalez-Perez, known traffickers narcotics v. 426 F.2d premises. leaving (5th Cir., 1970) ; been seen v. Mid Johnson importantly, (5th dlebrooks, Cir., 1967). But most the officers observed F.2d yard pre- meaning courtyard piece “yard, under the or other even broader standard, ground Chimel see v. United Preston included within the fence sur dwelling rounding 84 S.Ct. house.” v. Marullo Judge Clark, (1964), (5th 328 F.2d writing court, specifically quoting 1964), for the noted Webster’s Third Dictionary (1962). that “we have found no case that would New International permit yard. Molkenbur, this search F. to extend to See United States Cir, 1970); 2d The search clearly Davis, States too remote from 977-978 time (5th Cir, 1970); the arrest ex rel. be incident to that arrest. States Boyance Myers, began after Bell had been (3rd 1968); Cir, away Mul taken more and continued for than States lin, (4th Cir., F.2d Bell, two hours.” United su physically pra, Although When officers have invaded protected area, this either to seize evi Bell *4 facts more re reflect illegal dence or obtain a view of in activ time in mote than the ities, readily case, pe we have condemned such an stant we feel that the search of backyard invasion violative of as the Fourth titioner’s the exceeded limita Davis, Amendment. States v. tions enunciated Chimel. supra, 977; F.2d at 423 Texas v. Gon zales, 145, Cir., (5th 388 F.2d 147-148 II. 1968); States, Brock United 223 F.2d The second issue is whether (5th Cir, 1955); see Gil right Fixel’s unreasonable Beto, (5th Cir., 440 F.2d searches and seizures was offended physically the when officer entered his Applying prop these traditional backyard and seized and searched the erty concepts to the of the facts instant revealing thus the heroin. case,2 we are convinced that con Fixel’s person’s The sacredness of a home and right stitutional has been violated. Al right personal privacy his and indi though record the is unclear whether viduality paramount are considerations physically encroaching was aon country specifically pro in our and are constitutionally protected area when he by tected Fourth the Amendment. observations, made his initial it is abso protection, Fourth Amendment’s how lutely Knapp unlawfully clear en ever, just extends further than walls protected on a he croached area when physical structure of the home it actually backyard, entered the seized the immediately surrounding self. area black kit and searched it. Re closely dwelling related to is also gardless suspicious agents of how pro entitled to the Fourth- Amendment’s located on the were that contraband was surrounding defining tection. premises, justify fact alone this does protection, area entitled such petitioner’s historically helpful a search of courts have found concept curtilage, the common law search warrant.3 absence of a emphasize concepts defining 2. We the warrant issued os- such when tend to discard tensibly authorizing recog “right alone,” of Fixel’s to be let the individual’s apartment, they may nizing was not relied on either alone insufficient Appeals right. States, protect Florida Court of or the district court Katz this v. United 507, the search and the heroin. L.Ed.2d 576 seizure of Additionally, argument Gonzales, (1967) ; supra, in oral state con- Texas simply rely principles ceded that tiie such that on these warrant was not at 148. We backyard. establishing perime they it would authorize the search of the assist because guarantees Amendment as ters Fourth analysis holding they Therefore, 3. While our search here we feel relate to home. unnecessary largely property is unlawful founded to discuss the more nebulous law it is concepts, concept in- more recent decisions there could be a visual of whether government argues that, Freeman, supra, 426 F.2d at Nor assuming dwelling backyard open even that this is Fix is the area corri- as el’s and that home Fourth Amendment dor to salesmen or other businessmen protections normally might approach are such afforded tenants places, the of this multi-unit character course of their Polk trade. v. United relinquishment States, (9th Cir., residence results 291 F.2d right privacy relating 1961), after remand 314 F.2d backyard. (9th Cir., 1963). Because it is located This gov apartment building, home, four-unit he Fixel’s lived there and backyard building completely contends home ernment that Fixel’s protection not be entitled to the should usually removed from the street and surrounded curtilage pure of a afforded the link a chain fence. Hobson v. See ly private (8th motel or residence. Like a 226 F.2d large apartment backyard complex, Cir., 1955). enjoyment this While the area with is an common to or shared is not as exclusive the back- as neighbors tenants, open purely residence, private other of a this adjacent building public thus area is not as as the or shared guarantees yards corridors, within Fourth areas other common Stroble, apartment complex large Amendment. United States v. of a motel. 1970); Cir., (6th Contemporary concepts living such Freeman, dwellings Fix- multi-unit must not dilute ; 1970) right privacy any Marullo than el’s more 363; supra, absolutely required. F.2d at We believe that *5 backyard area of Fixel’s suffi- is States ex v. Wain home rel. Fletcher ciently private removed in and character wright, F.Supp. 276, (S.D.Fla., reasonably expect privacy. that he could' agree. We cannot Katz v. backyard Fixel’s home was .of (1967). S.Ct. by normally passageway used a common Knapp’s Thus actual invasion into this building’s gaining the tenants for access protected area and search of the apartments. the United States kit Fourth violates Amendment.4 peatedly Amendment in violation stated and of the Fourth enforced the basic rule trusión police may on in absence of an actual encroachment that the not enter make a the and premises. seizure.” the warrantless undisputed Knapp Id. at It is 468. that attempts justify actually backyard and The state the entered the and obtained “plain seizure of the based the kit on the kit. Because there was no war- that, argued authorizing encroachment, doctrine. It is when such an view” rant peti Knapp made his initial observations of seizure search and were unlawful. bag backyard, difficulty in tioner his he observed An additional with the con- state’s thus could seize This con and and search it. that tention is law officers enforcement unacceptable. “plain tention is As did not view” the narcotics contained Hamp Coolidge shaving kit, only suspicious Court delineated v. New but activi- shire, testimony 29 L.Ed. ties and itself. at (1971) clearly 2d : trial identify any object establishes that “ [Pjlain being placed . . . alone never view that was enough justify bag. attempt the warrantless seizure of taken out But corollary simply verify suspicions bag evidence. This is a that contained principle above, narcotics, Knapp premises, no familiar discussed that entered the seized justify bag amount cause can war- and searched it contravention ‘exigent petitioner’s rights. rantless search or seizure absent Fourth Amendment testimony urges “exigent circumstances.’ Incontrovertible The state also circum- incriminating object present of the senses that an stances” which the war- were premises belonging is on sus- criminal and rantless seizure. reasons may pect possible premises establish the fullest mea- if the had not entered the shaving kit, subsequent sure cause. But even where and sales seized object contraband, depleted this has re- narcotics would have evi- granted Finally, emphasize Fixel, do “[w]e has been at large throughout jail lengthy because a criminal from on bond not release so, proceedings to do or because we think we like state and federal gov- go so, courts, only unpunished do because must wise for his misapplication has offended constitutional crime ernment of the exclu- sionary principle in conduct of his case.”5 rule. Having search of concluded that pertinent fully, facts are forth set constitution- Fixel’s so offends they emphatically support because so af- petition principle, we order that his
al firmance of the conviction and denial granted. corpus for habeas corpus. habeas Department Valdes of the Sheriff’s Reversed. Key West, Florida, applied for a search AINSWORTH, Judge (dis- Circuit warrant Florida state court senting) : April for the Street, Petitioner Robert Fixel was convicted United front downstairs possession part in violation of heroin ment. His affidavit recited in was af- 398.03. His conviction Fla.Stat. follows: by Appeals firmed the Florida Court of Street, “I had 419 United have (3d Dist.), (1971), and cer- So.2d apartment, (a downstairs, Front denied the Florida tiorari was Su- structure), Key West, wooden Florida courts, preme Court. The Florida state past under surveillance for court, Appeals and trial Court of Su- During days. this time I ob- have Court, preme in- found no constitutional pushers known narcotic served firmity Having ex- conviction. leaving prem- users brought state hausted remedies Fixel I information ises. have received petition corpus, this which habeas informant this from reliable was denied district large quantity time there is a of mari- judge found, Flor- below who as had the drugs being kept huana and narcotic courts, ida no state viola- that there premises. on the I have sold tion in Fixel’s Constitution observed this from a short distance *6 conviction.1 premises enter informant de- panel majority opinion premises Now the aof and exit these scribed herein by of this way Fixel’s has decreed that the front entrance. Prior of prem- conviction was it was unlawful because these this informant alleged on an and ises, based unlawful search informant was searched and possession any type of seizure the contraband De- narcotics. was in spite overwhelming drug of Fixel’s evidence or narcotic marihuana. After strong guilt, observing and evidence of this informant exit these majority seizure, kept premises to effect the cause the informant I within corpus my sight concludes that habeas must be for a short distance. I then (Judge Eaton) dence. How have sold court in a well- The district disposed opinion after otherwise of the narcotics concluded: reasoned placed him he under arrest and was in officers the basis of the facts set out “On custody agree holding testimony in their ar- is inconceivable. After with the resting ample petitioner, agents exist- trial court that cause [state] process opportunity judicial to resort to the ed Fixel’s arrest without war- the issuance fear of of warrant without the trial court did rant. It follows depleting denying suppress See additional sales the evidence. Fixel’s motion to err Sokolow, here, the United States v. the circumstances evidence. Under substantially Cir., 3971). the search See also United States arrest and were Conner, (7th Cir., 1973). being contemporaneous. This the seizure so evidentiary items was not violative of tlie 5. Desist v. Amendment ahd said items of tlie Fourth (1909) peti- were, therefore, properly admitted at L.Ed.2d (Harlan, J., dissenting). tioner’s trial.” informant time searched this a second went to the front of 419 United Street suspected a matchbox where received he maintained surveillance. by marihuana described this infox'- police The sux'veillance purchased having as been within mant During lasted about minutes. conformatory premises. A test Sergeant time Detective saw five Valdes Test) (Duquomoise conducted on the people separately or six enter from time within the indi- substance matchbox apart- to time in the front downstairs the weed be mari- cated substance to (the ment United Street one for (tested) huana. This matchbox of warrant). which he held a search He being marihuana is introduced before also observed the defendant Fixel come judge sup- further evidence out of the front of the port of the affidavit. This infox’mant through sevex’aloccasions and walk past five fur- has within the months pathway apart- common between the two led nished information that has to 10 buildings yard. ment toward the back narcotic arrests.” picked up by then was the surveil- Sergeant Knapp lance of him who saw by A search warrant was issued go on three occasions court on the same date for the yard, back remove a black Street, 419 United front downstairs pile from a rubbish under a tree apartment. something take from it each time. Ser- Sergeant company Valdes geant Knapp could not see what was including police officers, with several kit, taken from the he would Sergeant Office, Sheriff’s have more been naive than we should ex- proceeded then to 419 United Street pect prudent policeman of a if he had arriving the warrant. at the execute On pertinent not realized all of the .under they engage in scene decided first to ad- occurring. circumstances what was property ditional surveillance. The property officers did not enter the Valdes; fact, well known to during time the surveillance. gx'andfather owned garage When Valdes returned to the many had been there Valdes times. Knapp told him he what had observed. six-apartment complex, of a consisted Knapp then walked around front up of (cid:127)made two 419 United houses: path- thence down the common apartments, with four a front Street way yard, into common back secured downstairs, downstairs, a back a fx’ont kit, joined the black Valdes upstairs upstairs apartment, and a back just entered the front downstairs consisted and 421 United which Street ment and executed the search warrant. apartments, of two one downstairs and The defendant Fixel was upstairs. one were not The two houses apartment and arrested with three other separated a fence but had common *7 persons. A search was of made the pathway them, between and there was apartment but no contraband was found. “big” yard in one back common for the The kit was found to contain six use of all the tenants of the packets eleven of heroin. ments, a chain link fence. surrounded At the corner of United and Du- Street The of Florida State does not contend val was house 1224 Duval Street a that the seizure of contraband narcotics immediately yard apartment which abutted the complex Street of the yard original back of 419 and 421 Unit- common was authorized the search urges Valdes ed Street. warrant. But it arrest- that the garage placed Sergeant Knapp ing probable in a cause, acted officers with 1224 Duval where he could over- Street that the seizure incident the ar- was yard rest, look common 419 and the back that the common of six- good apartment complex 421 Stx'eet. He had a view protected by United was not being yard, of illegal was observed which the Fourth Amendment daylight. activity at noon plain clear Valdes then of conducted view
487 police, A therefore that the seizure ises. reliable informant stated that large quantity no there a was Fixel likewise had rea- was of narcotics lawful. objects being kept expectation privacy premises. of sonable of sold pur of informant a in the rubbish a common back made controlled hidden yard, open use of all the chase of marihuana un tenants complex. supervision police der of of the officers. Then on a surveillance common majority opinion concedes that yard2 apartment complex, back there cause for initial was immediately serving preceding the of arrest of Fixel. majority opinion In footnote 1 of the warrant, police ample the search following find we reason to believe from their own obser statement: felony being a vation that was commit for initial ar “Probable cause presence ted in their and to act accord petitioner rest of Fixel was estab ingly. States, v. See Harris United 390 An informer told law enforce lished. 236, 234, 992, 993, U.S. 19 L. 88 S.Ct. large quantity a of ment officials (1968); Beto, Ed.2d 1067 5 Walker v. being sold on these narcotics was Cir., 1971, 1018, 1019; 437 F.2d informer,’ Using premises. this same Salvo, Cir., 1971, 5 controlled officers conducted a 474, 475. although purchase marijuana, it necessary under these was cir purchase occurred not stated when the police for the officers to cumstances se it from Fixel. Further if was for, cure search warrant Su more, in narcotics known traffickers preme Cooper Court said State leaving seen had been California, 58, 62, 788, 87 386 U.S. important premises. But most 791, 17 (1967): L.Ed.2d 730 extremely ly, the observed the say po suspicious mak “It is no answer to actions ing trips his home have obtained a war lice could rant, search ‘ concealing kit there is not he relevant test [t] light procure day of the arrest. whether is reasonable to on the circumstances, think the but whether these agents reasonably United States believe reasonable.’ 66, Rabinowitz, 56, commit had been or was 339 U.S. S. crime States, 435, Wong 430, L.Ed. 653.” ted. Sun v. Ct. 407, 471, 479, L.Ed.2d 83 S.Ct. U.S. if the facts Probable cause exists (1963); v. Gonza pru to the officer cause him as known (5th lez-Perez, 1283, 1286 offense has dent man believe Middlebrooks, 1970); Cir., Johnson committed; however, evidence suf been 1967).” required. guilt is not ficient Henry establish cause But there likewise 361 U.S. 168, 171, heroin for the seizure of the 80 S.Ct. Ohio, (1959). back Beck v. in the common See also State yard. are L. all the circumstances When 85 S.Ct. Brinegar
considered,
unrea-
(1964);
v. United
the seizure was
Ed.2d
intendment
69 S.Ct.
sonable within
(1949);
Amendment.
L.Ed. 1879
Fourth
days
Lipscomb, Cir., 1970,
for 30
F.
under
surveillance
States v.
been
*8
pushers
“prudent”
(the
and users
man
and known narcotics
2d
prem-
“reasonably”
per-
observed
believes the arrested
been
following
Freeman,
Cir.,
Compare
1273;
relative
2.
v.
cases
F.2d
though
areas, which,
1351;
Marullo v. United
of common
applicable
principle:
Cir.,
precisely
point,
are
ment denounce searches and does not all
seizures, only as are unreasona but such
ble.” Carroll United U.S.
132, 147,
280, 283,
(1925). Thus standard “[t]he ultimate set forth the Fourth Amendment is Dombrowski, Cady reasonableness.” al., STATE OF FLORIDA et Plaintiffs- Appellants, 413 U.S. 93 S.Ct. said, (1973). And as we example, Rags Caspar Secretary, WEINBERGER, W. dale, Cir., 1972, 24, 30: Health, Welfare, Education and Defendant-Appellee. its more usual “Reasonableness—as concomitant, No. 73-1728. cause—is technicalities, not on but founded Appeals, States Court of practical ‘factual and considerations Fifth Circuit. everyday life reasonable on which April 10, 1974. legal men, prudent techni- ” cians, act.’ apply indeed, case, This is slim exclusionary rule the facts as when clearly police that
recited show so contra- cause to seize the My strongly held belief narcotics.
band here reasonable
is that the seizure No
under facts and circumstances. presented. question is difficult law have resolved on should been case Coolidge majority’s disagree New Nevertheless, majority reliance on with the Hampshire, present 91 S.Ct. ia the case that there were no “exi- misplaced. (1971), gent Mr. Jus L.Ed.2d 564 circumstances” seizure. Stewart, opinion, majority author was care tice concludes that it is “inconceiv- Coolidge point “is disposed ful out not a case able” that Fixel could have involving goods police ob contraband or stolen contraband narcotics while the were jects (403 dangerous obtaining in themselves.” U.S. Fixel another since 472.) was then under arrest. Whether quoted emphasized contemporaneous also be should have been held without language Coolidge opinion (403 narcotics, seizure of the he whether opinion majority herein, 468) league might with others who make off with Reporter contraband, police in the un- and whether should key syllabi practical der there- numbers 23-25 and believe as a matter the contra- following: under indicate the band remain in would the kit under subjects tree, with three speculation, “Per Mr. Justice Stewart Jus- are all as is the concurring concurring majority’s view, certainly tices and one Justice not “inconceiv- judgment.” (Mr. duty preserve Harlan who Justice able.” The officers had a judgment declined con- taking prompt concurred and the evidence action quoted by part opinion amply justified in that cur them was and' reasonable present case.) majority in the under the circumstances. majority appears than a Thus less language. the Court concurred in cited