U.S. v. Wheeler

• Decision Date: 09 April 1981
• Docket Number: No. 80-1390,80-1390
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Michael Patrick WHEELER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1321

641 F.2d 1321

UNITED STATES of America, Plaintiff-Appellant, v. Michael Patrick WHEELER, Defendant-Appellee.

No. 80-1390.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1980.

Decided April 9, 1981.

George D. Hardy, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellant.

George C. Boisseau, Chula Vista, Cal., argued for defendant-appellee; Jan Ronis, Chula Vista, Cal., on brief.

Appeal from the United States District Court for the Southern District of California.

Before CHOY and NELSON, Circuit Judges, and HANSON, ^* Senior District Judge.

HANSON, Senior District Judge:

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 government under 18 U.S.C. § 3731, of the district court's suppression order. We reverse.

I.

The case turns on the reasonableness, under the Fourth Amendment to the Constitution of the United States and, arguably, under California law, ¹ of certain actions of deputy sheriff Leonard Zuniga on Saturday morning, February 2, 1980. While he was on routine patrol at about 10 o'clock that morning, Zuniga was ordered by radio to go to 787B Dorothy Court in Chula Vista to meet with one Merguy and take a report on an alleged burglary. 787B Dorothy Court is one half of a duplex. The defendant-appellee, Wheeler, lives in 787A, the other half of the same duplex. Wheeler's yard is completely surrounded by a solid six-foot wooden fence, which is attached to the side of the garage (where there is a gate) and extends from there around the yard. The front door of A is inside the fence. The only other entrance to A from the streetside of the house is through the garage, which was closed when Zuniga arrived at 787B to take his report.

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 gate in Wheeler's six-foot fence, heading for the front door of the house. The gate was closed and, as Zuniga concluded, locked on the inside. Zuniga could not see over the fence, being only five feet eight inches tall. There was, however, a gap of approximately one inch between the gate and the garage wall. Peering through this gap, Zuniga noticed several road safety signs, including a "pedestrian" sign and a big yellow sign that said "Flood," posted along the inside of the far part of the fence; he did not, however, see anyone in the part of the yard visible to him through the gap. ² Zuniga and the others knocked on the garage door, but no one came to answer. At this point the phone inside A rang about four times and stopped. Zuniga decided to try to get the attention of whomever might be in A by calling out. After some yelling from the area in front of the garage proved fruitless, Zuniga climbed on top of two tires that he found stacked next to the fence, so that he could call over the fence toward the front door. While he was calling from on top of the tires he had a clear view of Wheeler's yard. He saw, besides more road signs posted on the inside of the fence and on the garage wall, a marijuana plant growing toward the back of the yard. One of the road signs Zuniga saw from atop the tires had a National City, California ordinance printed on it. This was the first indication Zuniga had that some of the road signs posted in the yard had come from San Diego County. ³ Zuniga maintained his position on the tires for about two minutes, calling out for Wheeler. When he concluded that he would not be able to raise anyone in this way, he got down, told the owner and Merguy that they would simply have to pursue the matter of the missing property civilly, and went on his way. At no time did he make any attempt to climb over Wheeler's fence or otherwise enter farther on the property than has just been recounted.

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 Zuniga's observations were unlawful, the evidence must be suppressed.

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 " ⁴ But the court held nevertheless that the observations were made in the course of a search for Wheeler; and that they were not made from places where Zuniga had the right to be under the circumstances. This last conclusion was not based on the premise that Zuniga committed a physical trespass on Wheeler's property in order to look through the gap and over the fence: in its only remarks addressed to the matter of trespass, the court said that " from the pictures it would seem that he may have and he may not have because I can't tell where the property stops and where it doesn't." ⁵ Instead, the court held that whether or not he physically trespassed, Zuniga had no right to put his eye to the gap and climb on the tires because in doing so he was going to unreasonable lengths to try to rouse Wheeler. In the view of the district court, Zuniga didn't really need to see Wheeler at all in order to deal with the problem he was faced with, and therefore shouldn't have tried so hard to contact him; Zuniga should have been satisfied with knocking on the garage door and calling from in front of the garage; and especially after the phone rang four times and stopped, he should have concluded that no one was home and given up his efforts. ⁶ By going farther than this by looking through the gap and by climbing on top of the tires to call Zuniga unreasonably intruded visually on an area that Wheeler had obviously sought to and had taken reasonable steps to keep free of visual intrusion. This, the district court held, constituted an unreasonable search in violation of the Fourth Amendment, requiring the suppression of the fruit of Zuniga's observations, the evidence seized on February 22.

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...