641 F.2d 1321 | 9th Cir. | 1981
Lead Opinion
The defendant-appellee, Michael Patrick Wheeler, is under indictment for five counts of violation of 18 U.S.C. § 922(h) (possession by a convicted felon of firearms shipped or transported in interstate commerce), and one count of violation of 21 U.S.C. § 841(a)(1) (possession of a controlled substance with intent to distribute). The physical evidence against Wheeler was seized on February 22, 1980, during the execution of a federal search warrant. Following a hearing, the district court ordered the evidence suppressed as being the fruit of a prior illegal search of Wheeler’s fenced yard by a San Diego County, California deputy sheriff. This is an appeal by the govern
I.
The case turns on the reasonableness, under the Fourth Amendment to the Constitution of the United States and, arguably, under California law,
When he arrived at 787B, Zuniga met Merguy, who had recently moved out of B. Merguy told Zuniga that certain property, belonging to the owner of the duplex, was missing from the garage at B; the owner was seeking recompense from Merguy for the loss. The owner happened to be at the scene, making repairs on B, and he, Zuniga, and Merguy met together in front of B to discuss the situation. From this conversation Zuniga gathered that the missing property was in the possession of Wheeler, the tenant in A. According to the owner, Merguy had told Wheeler he could have the property; therefore, said the owner, Merguy should pay for it. Merguy, on the other hand, denied that he had told Wheeler he could have the property, and disclaimed liability to the owner.
During this initial conversation, Zuniga determined that he was faced with a civil (i. e., private) dispute rather than a criminal matter. Zuniga testified that it is within his jurisdiction to investigate civil matters. After some further discussion with the owner and Merguy about how they might proceed toward resolution of their problem, Zuniga decided to try to contact Wheeler and bring him into the discussion, apparently with the thought that bringing all the parties face to face in his presence might clear things up quickly. Zuniga, the owner, and Merguy walked over to 787A. Passing the closed garage door, they approached the
The subsequent actions of Zuniga and other law enforcement officials are not here at issue. Zuniga told his superiors about the road signs and marijuana plant he had seen in Wheeler’s yard. After contacting the California Department of Transportation, Zuniga’s superiors concluded that possession of the road signs was probably unlawful. A state search warrant was obtained permitting the San Diego County police to search Wheeler’s premises for marijuana and its common accessories, and for road signs in good repair, and to seize the same if found. In the course of executing this warrant on February 8, 1980, the police observed three rifles in a gun rack in the den of Wheeler’s residence. A record check was subsequently run on Wheeler, and it was discovered that he had been convicted of a felony in California in 1971. Officials at the Bureau of Alcohol, Tobacco and Firearms were notified about the apparent violation of the federal firearms statutes; they obtained a federal warrant to search for' and seize the guns; and during the execution of that warrant on February 22, 1980, not only were the guns seized, but Wheeler was allegedly observed throwing a packet over his fence, which allegedly proved to contain methamphetamine. Wheeler concedes that if Zuniga’s February 2 observations of the road signs and marijuana plant were lawful, the evidence seized on February 22 is not subject to suppression; conversely, the government concedes that if
II.
The district court ordered the evidence suppressed because, it held (in an opinion delivered from the bench), Zuniga’s observations constituted an unreasonable search of Wheeler’s back yard, in which Wheeler had a subjective and objectively reasonable expectation of privacy. The district court rejected the government’s argument that Zuniga’s observations were lawful because they were inadvertent (i. e., unsoughtafter) observations of incriminating objects in plain view from places where Zuniga had the right to be under the circumstances, namely, next to the gate and on top of the tires. The court conceded that Zuniga’s observations were inadvertent and not directed toward the discovery of wrongdoing on the part of Wheeler: “He didn’t see anything wrong. He didn’t know anything was wrong. He wasn’t searching for any bad conduct of any kind .
III.
I conclude that the district court erred in rejecting the government’s “plain view” argument, that Zuniga’s observations were lawful because they were of objects in plain view from places where Zuniga had a right to be under the circumstances. The general rule is that such plain view observations do not constitute unreasonable searches,
I point out to begin with that it would be helpful, for purposes of analysis, to know whether or not Zuniga physically trespassed or entered on property rightfully in Wheeler’s possession. If he did not, I hardly see how it can be said that he did not have the right to be where he was when he made his observations.
The Eighth Circuit was confronted with a situation strikingly similar to the circumstances of the instant case in United States v. Anderson, 552 F.2d 1296 (8th Cir.1977). In Anderson, federal agents went to the home of one Wood, apparently after dark, to question him about a theft.
The agents rang the doorbell and knocked, but no one appeared. A light was visible inside the house and the agents heard a dog barking behind it. After waiting briefly, they walked around the house to determine if there was someone with the barking dog. As they walked along the side of the house, they noticed a lighted basement window partially covered by a shade. Glancing through the window, they saw [the stolen property]. After observing the [property], the agents proceeded to the back porch where they saw the dog alone. They then returned to the front of the house. No attempt to seize the [property was made at that time].
552 F.2d at 1298. The court held that the subsequent seizure of the stolen property pursuant to a warrant based on the agents’ observations was not the fruit of an illegal search. The court noted that the question of legality turned on a dual inquiry:
[F]irst, whether the agents’ observation was made in a place to which Wood’s expectation of privacy could reasonably be said to extend; and second, if so, whether the agents’ intrusion was justified by “some * * * legitimate reasons for being present unconnected with a search directed against the accused.” Coolidge v. New Hampshire, [403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971)].
552 F.2d at 1299-1300. The court went on to hold that:
[W]hen the agents entered Wood’s property, they invaded an area with respect to which he had a reasonable expectation of privacy protected by the Fourth Amendment. This initial intrusion was justified, however, by the agents’ legitimate objective of finding Wood to question him about the theft. See, e. g., United States v. Bradshaw, 490 F.2d 1097, 1100 (4th Cir.), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974); United States v. Hersh, 464 F.2d 228, 229-30 (9th Cir.), cert.denied, 409 U.S. 1008, 93 S.Ct. 442, 34 L.Ed.2d 301 (1972). We cannot say that the agents’ action in proceeding to the rear after receiving no answer at the front door was so incompatible with the scope of their original purpose that any evidence inadvertently seen by them*1327 must be excluded as the fruit of an illegal search. See United States v. Bradshaw, supra at 1100.
552 F.2d at 1300 (footnote omitted). In the omitted footnote the court held not clearly erroneous the trial court’s finding that the agents had not acted under a mere pretext for an illegal search when they proceeded to the back of the house to investigate the barking dog. 552 F.2d at 1300 n.5.
I find Anderson persuasive here; indeed, this case is even stronger than Anderson. Zuniga did not go to Wheeler’s home in the nighttime; he was called there at midmorning on a Saturday. He did not look into Wheeler’s residence; he merely looked into his yard. There can be no question about whether Zuniga acted under some pretext to search Wheeler’s premises; the district court’s uncontested finding is to the effect that when he approached Wheeler’s residence his sole purpose was to bring Wheeler into the discussion with the owner of the duplex and Merguy about what Zuniga had already determined was a purely civil matter. There is no evidence in the record that Wheeler had any “no trespassing” signs posted around the outside of his house or fence.
Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof— whether the questioner be a pollster, a salesman or an officer of the law.
Davis v. United States, 327 F.2d 301, 303 (9th Cir.1964). When Zuniga approached Wheeler’s residence he found the garage closed and the gate leading to the front door locked. Before knocking or calling out, he looked through the gap there in front of him to see if anyone was in the yard. He might have knocked or called out first instead, and perhaps thereby have obviated the need for looking; but I cannot say that he acted unreasonably by looking first; he might thereby have been able to direct his knocking or calling more intelligently, and he did only what any other visitor might have done. Wheeler could have prevented such expectable visual intrusions by somehow covering up the gap, but he did not do so; he thereby diminished his legitimate expectation of privacy from such visual intrusion. Similarly, it was apparently Wheeler who left the tires stacked next to his fence, where anyone passing by could climb up and look into his yard; Wheeler could have put the tires elsewhere in order to prevent this, but he did not do so. After knocking and calling unsuccessfully from in front of the garage, but after hearing the phone ring four times and stop, Zuniga climbed on top of the tires so he could call out more effectively over the fence toward the front door. He might have concluded from his earlier lack of success and the phone’s behavior that no one was at home; but I cannot say that his failure to come to that conclusion was unreasonable. Certainly the brief ringing of the phone was an enigma, as the district court itself observed; and if anyone was at home, Zuniga’s earlier failures to rouse him might well have been due to the poor position from which his efforts were directed. The tires were there to be climbed on; the position they offered was clearly better suited to Zuniga’s purpose of calling out for Wheeler; and the further intrusion on Wheeler’s property and privacy was minimal As in Anderson, I conclude that Zuniga’s action in climbing on the tires to try once more, from a better position, to get Wheeler’s attention, was not so incompatible with his legitimate purpose that the fruits of his inadvertent observations must be excluded as the fruits of an illegal search.
In sum, I conclude that Zuniga acted reasonably and so had the right to be where he was when he made the observations here challenged. Since the observations were of
REVERSED AND REMANDED.
. Before the Federal Rules of Evidence became effective on July 1, 1975, the rule in the Ninth Circuit was that the legality of searches and seizures by state officers had to be judged by both state and federal standards when challenged in federal prosecutions. See United States v. Grajeda, 570 F.2d 872 (9th Cir.1978) (Grajeda I). That rule was temporarily abandoned in Grajeda I, in view of Fed.R.Evid. 402, which provides that:
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
However, Grajeda I was later withdrawn, the court concluding that since the police activities in that case were lawful under both state and federal standards, it need not reach the question of the continuing validity of the traditional rule. United States v. Grajeda, 587 F.2d 1017 (9th Cir.1978) (Grajeda II). Since Grajeda II, the Ninth Circuit has at least twice again avoided the question of the validity of the traditional rule on similar grounds. United States v. Orozco, 590 F.2d 789, 792 n.1 (9th Cir.), cert. denied, 442 U.S. 920, 99 S.Ct. 2845, 61 L.Ed.2d 288 (1979); United States v. Chamberlain, 609 F.2d 1318, 1321 n.1 (9th Cir. 1979). We do the same here. We find no difference between federal and California law on the issues involved in this case. The California constitution contains a provision essentially identical to the Fourth Amendment at Art. I, sec. 13. See West’s Ann.Cal.Const. Art. I, § 13. The California courts have generally interpreted Art. I, sec. 13 conformably to the federal courts’ interpretations of the Fourth Amendment, although in isolated instances, unrelated to the factual circumstances of this case, Art. I, sec. 13 has been construed more strictly than the Fourth Amendment. See People v. Brisendine, 13 Cal.3d 528, 545-52, 119 Cal.Rptr. 315, 531 P.2d 1099 (1975).
. There was some question raised at the suppression hearing about whether Zuniga merely chanced to notice the road safety signs through the gap as he was walking toward the gate, or whether he deliberately peered through the gap. 1 assume that he deliberately looked.
. I mention this fact because, if I were to find that Zuniga acted lawfully in peering through the gap but that he acted unlawfully in climbing up on the tires, there would be some question about whether his lawful observations through the gap, by themselves, would have provided probable cause for the issuance of a warrant to search for road signs in good repair. See my discussion of the state search warrant executed on February 8, 1980, infra. Because I conclude that Zuniga acted unlawfully neither in looking through the gap nor in climbing up on the tires, 1 need not and do not consider this matter any further.
. Reporter’s Transcript (RT) at 57.
. RT at 56.
. RT at 53-54. As to the ringing phone, the district court said that:
Then, he heard the phone ring . .. approximately four times . . . lending more credence to the fact that no one was home.
I presume your argument is that, well, you could have let the phone ring a dozen times. On the other hand, if the person gets the wrong number, and realizes it, which I have done on many occasions, when the phone starts to ring, you hang up.
You know that really is a kind of enigma. RT at 54.
. It is sometimes said unqualifiedly that plain view observations from places where an officer has a right to be do not constitute “searches” at all within the meaning of the law of search and seizure. See e. g., United States v. Orozco, supra, and both federal and California cases cited therein. Such a characterization of plain view observations might be appropriate in
. Although I do not rest my holding on this point, I think it should be noted that the burden is on the party moving for the suppression of evidence to establish, at least prima facie, that the evidence is the fruit of an unlawful search or seizure. Only once such a prima facie case is made, by, e. g., establishing a warrantless intrusion on a protected area, does the burden shift to the government to show, e. g., that the intrusion was reasonable. United States v. Coleman, 628 F.2d 961, 965 (6th Cir.1980); United States v. Henry, 615 F.2d 1223, 1230 (9th Cir.1980).
. It would be pointless to pile up more than a short list of cases. See, e. g., United States v. Ortiz, 603 F.2d 76 (9th Cir. 1979) (visual observation of interior of gas station from a public place); United States v. Copien, supra (visual observation of interior of parked airplane with aid of flashlight); United States v. Martin, 509 F.2d 1211 (9th Cir.1975) (observation of activities within residence by sight, hearing and smell from adjoining yard with consent of neighbor); United States v. Fisch, 474 F.2d 1071 (9th Cir. 1973) (observations with naked ears of conversations in adjoining motel room); United States v. Honore, 450 F.2d 31 (9th Cir. 1971), cert. denied, 404 U.S. 1048, 92 S.Ct. 728, 30 L.Ed.2d 740 (1972) (visual observations of objects within residence through uncurtained window from public stairway); Ponce v. Craven, 409 F.2d 621 (9th Cir. 1969) (observations by unaided sight and hearing through partially open bathroom window of motel room from
Dissenting Opinion
dissenting:
Because the majority in this case places an untenably high burden on the private citizen in creating a legitimate expectation of privacy, I respectfully dissent. The two majority opinions, which rely on distinct although superficially similar analyses, will be discussed separately below.
I. Judge Hanson’s Opinion
As a starting point I assume, as Judge Hanson does, that the court below correctly characterized Zuniga’s actions as a search, albeit a search for a person. Doctrinally, we would thus seem to be placed squarely within the realm of the Supreme Court’s often quoted statement found in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1972), that “a search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’ ” Id. at 219, 93 S.Ct. at 2043 (ellipses in original), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). The exception Judge Hanson apparently relies on is the plain view doctrine, which authorizes warrantless seizures in certain limited circumstances.
A crucial element of the plain view doctrine is that there must have been a “prior justification for an intrusion in the course of which [the police officer] came across a piece of evidence incriminating the accused.” Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). Like Judge Hanson, I assume that Zuniga intruded on an area in which Wheeler had at least a limited reasonable expectation of privacy. Unlike Judge Hanson, I cannot find that a police officer’s legitimate desire to contact an individual in order to solve a civil dispute authorizes him to take such extreme steps as putting his eye next to a six foot privacy fence with a gate that the officer then knew was locked, peering through a small crack and subse
Clearly the officer’s legitimate purpose entitled him to knock on the garage and to call out to attempt to contact Wheeler (and I note that the officer testified on cross-examination that he did not call out to anyone on the other side of the fence until he was on top of the tires). But I cannot agree that the extraordinary steps taken by Zuniga can be justified as reasonable.
Judge Hanson attempts to buttress his argument by asserting that Wheeler’s privacy interest was limited, claiming that he could have sealed off the one inch crack where the fence met the building and removed the tires that Judge Hanson apparently considers to be an open invitation to passers-by to climb on in order to peer in. I cannot concur in the imposition of such a high burden on citizens’ attempts to preserve privacy. A six foot fence with a locked gate is not enough — apparently extraordinary efforts must be taken to close the gaps that may normally appear in such construction. If tires nearby are an invitation to passersby to climb, are not trees equally so? Or fire hydrants? To me this burden is much too great, and I accordingly must dissent.
II. Judge Choy’s Opinion
Judge Choy bases his opinion on the notion found in United States v. Orcozo, 590 F.2d 789, 792 (9th Cir.1979) and United States v. Copien, 541 F.2d 211, 214 (9th Cir.1976) that “visual observation by a law enforcement officer situated in a place where he has a right to be is not a search within the meaning of the fourth amendment.” Doctrinally, these cases involve situations in which, because there is no legitimate expectation of privacy, there is no fourth amendment right. Thus in Oreozo, “[t]he deputies’ looking through the windows of a vehicle parked on a public street did not violate appellant’s reasonable expectation of privacy; anyone walking past the vehicle could easily have observed the packages of cocaine and heroin.” 590 F.2d at 792. Similarly in Copien, this court refused to find that a legitimate expectation of privacy was violated when an agent saw marijuana debris (admittedly with the aid of a flashlight as it was night) through the back window of an airplane parked at a public airport, noting that “if privacy were desired here, Copien should have closed off the window from public view.” 541 F.2d at 215.
This case is clearly distinguishable. This is not an open vehicle parked on a public street — it is a home. Here Wheeler did close off the area from public view — he put up a six foot solid fence
I would affirm the district court.
. Although the plain view doctrine is formulated in terms of warrantless seizures, I have no intrinsic doctrinal difficulties with applying it to a situation where, as Judge Hanson concludes occurred here, evidence inadvertently discovered in plain view is used not to justify an on the spot seizure but to supply probable cause for a warrant.
. It is the nature of this behavior that causes me to find the Eighth Circuit’s Anderson case relied on by Judge Hanson to be distinguishable without having to evaluate its merit. To me there is a significant distinction between glancing through a window as one passes it and the far more strenuous and intrusive behavior involved here.
. Judge Choy finds that a six foot fence is not tall enough to create privacy — it “could easily be looked over by a person six feet or taller in height.” Assuming that most people have approximately four to five inches between their eyes and the top of their heads, and given the additional height necessary to look down over an obstacle such as a fence, it seems more realistic to believe that such a fence could be “easily” looked over only by individuals six feet five inches or taller (who, in order to see into the yard, would also have to be standing quite close to the fence). Given that less than one percent of the American adult population is six feet four inches or taller, see National Center for Health Statistics, U.S. Department of Health, Education and Welfare, Weight and Height of Adults 18-74 Years of Age: United States, 1971-74 27, I have to question strongly Judge Choy’s conclusion. To me, a fence that effectively screens out more than 99% of the population does create an expectation of privacy. I also take judicial notice of the fact that Chula Vista zoning ordinances limit the height of such fences to six feet. Wheeler has thus done all the law permits him to do in terms of fence height to create privacy. I cannot see how the majority can demand still more.
Concurrence Opinion
concurring in result:
I concur in the result reached by Judge Hanson but I base my decision on the cases alluded to in his footnote 7.
The activities of Officer Zuniga are not properly characterized as a search because he had a right to be where he was when he made the observations. Zuniga was with the landlord attempting to locate Wheeler to settle a civil dispute. “It is well settled that visual observation by a law enforcement officer situated in a place where he has a right to be is not a search within the meaning of the fourth amendment.” United States v. Orozco, 590 F.2d 789, 792 (9th Cir.1979); United States v. Copien, 541 F.2d 211, 214 (9th Cir.1976).
Wheeler had no legitimate expectation of privacy from visual intrusion into his yard. A six-foot fence such as Wheeler’s could easily be looked over by a person six feet or taller in height. In addition there was a gap in the fence through which anyone was able to see the yard and some of its contents. Wheeler also had tires stacked up next to the fence which any person passing by could stand on to look into the yard. I base my decision solely on these grounds and therefore do not reach the issue of whether an intrusion into an area where a person had an expectation of privacy can be justified by other legitimate reasons.
