Opinion
Court of Appeals No. A-8858.
July 21, 2010.
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge, Trial Court No. 3PA-02-0427 CR.
David R. Edgren, Edgren Law Offices, LLC, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
This case began when two fish and wildlife officers were directed to a small slough to investigate a possible habitat violation. The troopers followed excavator tracks to a flat-roofed shed on property owned by Shane Neuharth, where they noticed the odor of growing marijuana. The details of their search are more thoroughly described in our previous memorandum opinion in this matter. We remanded the case to the superior court to determine whether the troopers' activities were legitimate under the "open fields" doctrine as described in United States v. Dunn.
Neuharth v. State, Alaska App. Memorandum Opinion and Judgment No. 5264 (Sept. 19, 2007), 2007 WL 2745156.
Id. at 9, 2007 WL 2745156 at *5 (citing United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987)).
The Dunn case outlines four factors to determine whether property is within the unprotected area of the "open fields" or the protected curtilage of a home:
[T]he proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.
Dunn, 480 U.S. at 301, 107 S. Ct. at 1139.
The superior court held a post-remand hearing, took evidence, and permitted the parties to submit briefing before issuing a written decision detailing its findings on these four factors.
Considering the first factor — the proximity of the shed to the curtilage of the home — the superior court found that the distance between the flat-roofed shed and Neuharth's nearby cabin was sixty feet. Based on this estimate and photographs of the two buildings, the court concluded that the shed was not necessarily within the curtilage of the cabin.
On the second factor — whether the shed was included within an enclosure — the court found that there was no fence or any other boundary surrounding the cabin and the shed. Based on this finding and photographs of the property, the court concluded that the shed was not inside any enclosure surrounding the home.
Regarding the third factor — the nature of the shed's uses — the court found that the shed had no windows, that it was wrapped in tar paper, and that it appeared to be some kind of large storage unit or warehouse. The court found that the shed was actually used for a marijuana-growing operation, and concluded that the shed was not connected with the intimate activity of the home.
As to the final Dunn factor — the steps taken by Neuharth to protect the shed from observation — the court found that there was a "no trespassing" sign on the shed, but that there was no other fence, wall, shrubbery, or other boundary that obscured the shed from the observation of the public. The court therefore concluded that Neuharth had not taken any substantial steps to shield the shed from public observation. Based on these findings, the court concluded that the shed was not within the curtilage of Neuharth's nearby cabin.
The superior court's findings are not clearly erroneous; they are in fact supported by substantial evidence in the record. We note that there is conflicting authority regarding how close an outbuilding must be to fall within the curtilage of a nearby residence. But even considering this authority, we tend to agree with the ultimate decision of the superior court: The Dunn factors suggest that the shed in this case was not within the curtilage of Neuharth's cabin.
See United States v. Johnson, 256 F.3d 895, 911-13 (9th Cir. 2001) ("[T]he Dunn test is factual, to be . . . reviewed only for clear error . . . [but] the determination that a particular search did (or did not) occur within the curtilage must be reviewed de novo.").
Compare United States v. Brady, 993 F.2d 177, 178 (9th Cir. 1993) (sustaining warrantless search of outbuild in g forty-five feet from defendant's home), overruled on other grounds by United States v. Johnson, 256 F.3d 895 (9th Cir. 2001); United States v. Pace, 955 F.2d 270, 272-73 (5th Cir. 1992) (sustaining search of barn fifty to sixty feet from home); State v. Martwick, 604 N.W.2d 552, 554-55 (Wis. 2000) (sustaining discovery of plants found in plastic pails fifty to seventy-five feet from home); State v. Boyington, 714 A.2d 141, 143 (Me. 1998) (sustaining search of pond thirty to forty feet from home); with State v. Rogers, 638 A.2d 569, 573-74 (Vt. 1993) (holding garden was within curtilage of residence one hundred and fifty feet away); State v. Lange, 463 N.W.2d 390, 392 (Wis. App. 1990) (holding garden was within curtilage of home thirty feet away); State v. Russo, 683 P.2d 163, 165 (Or. App. 1984) (reversing a conviction based on discovery of growing marijuana plants one hundred and twenty feet from defendant's home).
In his supplemental brief, Neuharth argues that the "open fields" doctrine should not apply to lots in a residential subdivision. He cites no authority to support his argument, but we are nevertheless concerned about the scope of the open fields doctrine. The limits on investigative authority are not obvious: "An open field need be neither `open' nor a `field' as those terms are used in common speech." As such, this doctrine has "made it relatively easy for lower courts to conclude that exploration of open areas outside the curtilage does not constitute Fourth Amendment activity."
Oliver v. United States, 466 U.S. 170, 180 n. 11, 104 S. Ct. 1735, 1742 n. 11, 80 L. Ed. 2d 214 (1984).
1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 2.4(a) at 619 (4th ed. 2004) (footnotes omitted).
In its brief, the State notes an argument on this issue that Neuharth has not raised. The Alaska Supreme Court has recognized that article I, § 14 of the Alaska Constitution affords a broader protection than the Fourth Amendment of the United States Constitution because the Alaska clause specifically protects "other property" from unreasonable searches. The undeveloped portion of a residential lot could constitute "other property" subject to constitutional protection. However, to date, the application of this specific protection has been limited to business and commercial buildings.
Woods Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138, 148 (Alaska 1977).
Id. at 150-52.
It is Neuharth's burden to demonstrate that "something in the text, context, or history of the Alaska Constitution" suggests "that the Alaska Constitution affords greater protection than the corresponding provision of the Federal Constitution." But Neuharth has failed to raise any arguments sufficient to convince us to expand the constitutional protection for "other property" in the context of this case.
Harris v. State, 195 P.3d 161, 181 (Alaska App. 2008).
We therefore AFFIRM the decision of the superior court.