Summary
holding that a police officer conducted an unreasonable search where the officer searched a heavily boarded-up building "until he found cracks in the wall" and "[b]y maneuvering his body and shining his flashlight through the cracks . . . illuminated a small part of the building's interior"
Summary of this case from People v. GlickOpinion
No. 30PA87
Filed 2 June 1988
Searches and Seizures 25 — marijuana growing in building — deputy peering through cracks in wall — no probable cause for search warrant The decision of the U.S. Supreme Court in U.S. v. Dunn, 480 U.S. ___, does not require a reversal of the trial court's decision to grant defendant's motion to suppress evidence taken from his building where a deputy received a tip from an unreliable confidential informant that marijuana was growing in an old store building which was built into a hillside, the deputy went to the store at approximately 11:00 p.m. without a warrant, knocked on the front door, then climbed a hill to the back of the building and, using a flashlight, entered an open porch and knocked on one of the inside doors, searched the back wall until he found small cracks in the wall, illuminated a small part of the interior by maneuvering his body and his flashlight and observed marijuana plants, and then obtained a search warrant. The building's padlocked front door, nailed back doors, and boarded windows indicate that defendant had a subjective expectation of privacy in his building's interior, and this expectation was not unreasonable even though there were small cracks between the boards in the building's back wall.
ON discretionary review of a decision of the Court of Appeals, 86 N.C. App. 441, 358 S.E.2d 131 (1987), affirming an order entered by Gray, J., presiding at the 7 April 1986 Mixed Session of Superior Court, AVERY County, granting defendant's motion to suppress evidence seized by a law enforcement officer from a building defendant owned. Heard in the Supreme Court 11 February 1988.
Lacy H. Thornburg, Attorney General, by John H. Watters, Assistant Attorney General, for the state.
Beskind and Rudolf, P.A., by Thomas K. Maher, for defendant appellee.
Justice MITCHELL dissenting.
Justices MEYER and WEBB join in this dissenting opinion.
The sole issue this case presents is whether, in light of the United States Supreme Court's decision in Dunn v. United States, 480 U.S. ___, 94 L.Ed.2d 326 (1987), the Court of Appeals correctly upheld the trial court's decision to grant defendant's motion to suppress evidence seized from his building because the information furnishing probable cause for the search warrant was obtained in violation of the Fourth Amendment of the United States Constitution. We answer yes, and affirm the Court of Appeals.
I.
On 10 April 1986 Judge Gray conducted a hearing on defendant's motion to suppress evidence seized from a building he owned. After the hearing, he made findings of fact to which neither the state nor defendant except. He found that on 30 August 1985 B.R. Baker, Jr., a detective in the Avery County Sheriff's Department, received a telephone call from a confidential informant who said he had seen marijuana plants growing on the second floor of the old "Aldridge Store Building." The caller informed Detective Baker that the plants could be observed by looking through cracks in the building's back wall. Detective Baker concluded he lacked probable cause to obtain a search warrant because he knew the caller to be unreliable. At approximately 11 p.m. he went to the building, without a warrant, to investigate the caller's claims.
The building which Detective Baker investigated was a two-story frame structure built into a hillside. It was in poor repair when he made his inspection. The windows were boarded from the inside, the solid-wood front door was padlocked, and the back doors — one solid and the other with a paneless window covered by wood — were nailed shut. The back doors opened directly to the building's second floor from a porch which had a large open entrance. At the bottom of the wall between the porch doors were several cracks where the wooden boards did not join completely. These cracks were no more than one-quarter of an inch wide.
Detective Baker began his investigation by knocking on the front door. He then climbed the hill to the second-story porch, using a flashlight to guide his way along a little-used path. He entered the porch and knocked on one of the doors inside. Receiving no answer, he searched the back wall until he found cracks in the wall between the doors. By maneuvering his body and shining his flashlight through the cracks, Detective Baker illuminated a small part of the building's interior and saw marijuana plants. He returned to the Avery County Sheriff's Department, executed an affidavit, obtained a search warrant from a magistrate, returned to the premises and seized the marijuana.
After making these findings, Judge Gray concluded, as a matter of law, that Detective Baker's first inspection of the building constituted a warrantless search in violation of the Fourth Amendment. He determined defendant had a reasonable expectation of privacy in the premises searched. He further adjudged that the search fell within no exception to the Fourth Amendment's requirement of a valid warrant. On the basis of his factual findings and legal conclusions, Judge Gray granted defendant's motion to suppress.
The Court of Appeals affirmed Judge Gray's decision. State v. Tarantino, 83 N.C. App. 473, 350 S.E.2d 864 (1986). Subsequently, the United States Supreme Court decided United States v. Dunn, 480 U.S. ___, 94 L.Ed.2d 326. The state petitioned for discretionary review in light of the Dunn decision. We granted the state's petition and remanded the case to the Court of Appeals for further consideration in light of Dunn. The Court of Appeals reaffirmed its previous decision, holding that the facts in the present case and those in Dunn are sufficiently distinguishable such that Dunn's holding does not require a different result. State v. Tarantino, 86 N.C. App. at 442, 358 S.E.2d at 132.
II.
In Dunn the United States Supreme Court held that Drug Administration Enforcement agents did not violate the Fourth Amendment when they peered into the "essentially open front" of the defendant's barn and saw what they thought to be a drug laboratory. United States v. Dunn, 480 U.S. at ___, 94 L.Ed.2d at 334. The agents made their observations at night after crossing several fences encircling the barn, which was located about 60 yards from the defendant's ranch house residence. A locked wooden fence with a waist-high gate barred the agents from entering the barn. The barn's front section was open, covered only by netting material stretching from the barn's ceiling to the gate's top. By standing next to the netting and shining flashlights inside the barn, the agents acquired sufficient information to obtain a search warrant. Pursuant to the warrant, the agents seized chemicals and equipment and arrested the defendant. Id. at 94 L.Ed.2d at 332-34.
The primary issue confronting the Court in Dunn, as the Court of Appeals noted in its opinion below, was whether the agents' search violated the defendant's Fourth Amendment rights because the barn lay within the curtilage of his home. The Court held the barn did not lie within the house's curtilage, applying a four-part test drawn from prior cases. Id. at ___, 94 L.Ed.2d at 334. However one might view the Court's determination of the curtilage question in Dunn, it has no bearing in the instant case, for no curtilage question is here presented.
The second issue addressed in Dunn was whether the defendant possessed a reasonable expectation of privacy, independent from his home's curtilage, in the barn and its contents. The Court assumed, for argument's sake, that the barn itself could not be entered or its contents seized without a warrant, but went on to hold that the officers properly peered into its interior over the front gate. It reasoned, on the basis of its resolution of the curtilage question, that the officers lawfully approached and stood next to the barn because the land surrounding it was a constitutionally unprotected "open field." From this vantage point the officers rightfully used flashlights to peer through the netting material covering the barn's opening. The Court held "the officers' use of the beam of a flashlight, directed through the essentially open front of [the defendant's] barn, did not transform their observations into an unreasonable search within the meaning of the Fourth Amendment." United States v. Dunn, 480 U.S. at ___, 94 L.Ed.2d at 337. In so holding the Court drew support from its recent decision in California v. Ciraolo in which it stated "the Fourth Amendment `has never been extended to require law enforcement officers to shield their eyes when passing by a home on a public thoroughfare'." Id. at ___, 94 L.Ed.2d at 337 (quoting California v. Ciraolo, 476 U.S. 207, 213, 90 L.Ed.2d 210, 216 (1986)).
The Dunn decision, as the Court of Appeals correctly noted, does not alter the rule that the Fourth Amendment applies if a person exhibits a subjective expectation of privacy in the object of the challenged search, and that expectation is one which society is prepared to recognize as reasonable. O'Conner v. Ortega, 480 U.S. ___, ___, 90 L.Ed.2d 714, 722 (1987); California v. Ciraolo, 476 U.S. at 211, 90 L.Ed.2d at 215; Smith v. Maryland, 442 U.S. 735, 740, 61 L.Ed.2d 220, 226-27 (1979). The Fourth Amendment applies to non-residential buildings to the extent they are not exposed to the public. Marshall v. Barlow's Inc., 436 U.S. 307, 311, 56 L.Ed.2d 305, 310 (1978); United States v. Katz, 389 U.S. 347, 351-52, 19 L.Ed.2d 576, 582 (1967).
Consistent with this traditional approach, the Court in Dunn did not end its analysis by concluding the officers were in an open field when they made their observations; rather, it proceeded to examine the nature of the opening through which they made their observations to determine if this negated any reasonable expectation of privacy in the building's interior. Because the barn's interior was exposed to the public from an unprotected vantage point, the Court held that the officers' inspection was not a Fourth Amendment violation. United States v. Dunn, 480 U.S. at ___, 94 L.Ed.2d at 337.
Applying traditional Fourth Amendment analysis to the instant case, we agree with the Court of Appeals that the trial court correctly concluded defendant had a reasonable expectation of privacy in the building which Detective Baker inspected. The building's padlocked front door, nailed back doors, and boarded windows indicate that defendant had a subjective expectation of privacy in his building's interior. This expectation was not unreasonable even though there were small cracks between the boards in the building's back wall. The presence of tiny cracks near the floor on the interior wall of a second-floor porch is not the kind of exposure which serves to eliminate a reasonable expectation of privacy. To hold otherwise would result in an unfairly exacting standard. It would require owners of non-residential buildings who want to enjoy their Fourth Amendment rights to maintain their structures almost as airtight containers. The Supreme Court has never imposed such a standard, and we decline to do so in this case.
Nothing in the Supreme Court's Dunn decision suggests that an expectation of privacy is eliminated by quarter-inch cracks in the back wall of an otherwise sealed building. The inquiry in Dunn centered on the Fourth Amendment's requirements when law enforcement officials are faced with an open barn front obstructed only with see-through netting. The barn's interior was fully exposed to anyone standing next to the netting. United States v. Dunn, 480 U.S. at ___, 94 L.Ed.2d at 338 (Brennan, J., dissenting). Under these circumstances the Court declared it would not require the officers to "shield their eyes" from that which was exposed to public view. Id. at ___, 94 L.Ed.2d at 337.
By contrast, in the instant case, Detective Baker confronted a nearly solid wall when he entered defendant's porch. Boarded windows and nailed doors prohibited observation of the inside from all but the most rigorous scrutiny. To make his observations, Detective Baker had to bend and peer with a flashlight through quarter-inch cracks near the floor. Nothing indicates, as in Dunn, that had Detective Baker conducted his investigation during the day he could have viewed the building's interior without making the same searching inquiry. These facts distinguish this case from Dunn in a constitutionally significant way. Far from demanding Detective Baker to avert his eyes to avoid viewing the building's interior, the cracks near the porch floor required him to make a probing examination in order to see inside. Under these circumstances defendant's reasonable expectation of privacy remained intact.
Defendant argues that it was unlawful for Detective Baker to enter the porch without a warrant. We decline to assess this contention's merit. Assuming arguendo, that Detective Baker rightfully entered the porch, his subsequent action of peering into the building's interior was an impermissible warrantless search.
The reasonableness of defendant's expectation of privacy was not eliminated because the building's exterior evidenced a degree of neglect when Detective Baker made his observations. The Fourth Amendment's application to a non-residential building's interior is not diminished because its exterior reflects poor maintenance. See United States v. Burnette, 648 F.2d 1038, 1047 (9th Cir. 1983). On the contrary, the Fourth Amendment applies fully so long as the interior is not exposed to the public. Marshall v. Barlow's Inc., 436 U.S. at 311, 56 L.Ed.2d at 310; United States v. Katz, 389 U.S. at 351-52, 19 L.Ed.2d at 582. Because defendant did not expose the interior of his building to the public, the Fourth Amendment applied with full force.
Our decision is consistent with those of other jurisdictions. In Bradshaw v. United States, the Fourth Circuit held that the defendant's reasonable expectation of privacy in his truck's interior was not eliminated by the presence of a crack where the back doors did not fit snugly. 490 F.2d 1097, 1101 (4th Cir.), cert. denied, 419 U.S. 895, 42 L.Ed.2d 139 (1974). The court concluded that police officers violated the Fourth Amendment when they looked through the crack without a warrant, saw moonshine whiskey jugs, and seized them. The court acknowledged that the officers had a right to approach and stand next to the truck, but it concluded they went beyond lawful investigation when peering through the small space. Id. In State v. Kaaheena, the Hawaii Supreme Court concluded the defendant's Fourth Amendment rights were violated when the police stood on a crate and looked through a one-inch hole in the drapes and blinds of a building which housed a "commercial establishment and some rental apartments." 575 P.2d 462, 466 (1978). Although the police made their observations from a public vantage point, the court held that the search was impermissible because the defendant maintained his reasonable expectation of privacy in the building's interior. Id. at 467; see also Kroehler v. Scott, 391 F. Supp. 1114 (E.D.Pa. 1975) (violation of Fourth Amendment for officers to peer through small ceiling vents); Lorenzana v. Superior Court of Los Angeles County, 9 Cal.3d 626, 511 P.2d 33, 108 Cal.Rptr. 585 (1973) (officers violated Fourth Amendment by peering through drawn curtains); People v. Triggs, 8 Cal.3d 884, 506 P.2d 232, 106 Cal.Rptr. 408 (1973) (illegal search where officers in maintenance access area peered through vents); People v. Lovelace, 172 Cal.Rptr. 65, 116 Cal.App.3d 541 (1981) (reasonable expectation of privacy not eliminated by knotholes and cracks in six foot high wooden fence); State v. Biggar, 716 P.2d 493 (1986) (reasonable expectation of privacy not eliminated by crack one-half to one inch wide where toilet stall door did not close properly).
In conclusion, we agree with the Court of Appeals that the decision by the Supreme Court in United States v. Dunn does not require a reversal of the trial court's decision to grant defendant's motion to suppress evidence taken from his building. Both the trial court and the Court of Appeals reached the right result on the search issue for the right reasons. The decision below, therefore, is
Affirmed.