People v. Scott

• Citation: 583 N.Y.S.2d 920,79 N.Y.2d 474,593 NE2d 1328
• Parties: , 593 N.E.2d 1328, 60 USLW 2655, 60 USLW 2656 The PEOPLE of the State of New York, Respondent, v. Guy F. SCOTT, Appellant. The PEOPLE of the State of New York, Respondent, v. George KETA, Appellant.
• Decision Date: 02 April 1992
• Court: New York Court of Appeals

Page 920

583 N.Y.S.2d 920

79 N.Y.2d 474, 593 N.E.2d 1328, 60

USLW 2655, 60 USLW 2656

The PEOPLE of the State of New York, Respondent, v. Guy F. SCOTT, Appellant.

The PEOPLE of the State of New York, Respondent, v. George KETA, Appellant.

Court of Appeals of New York.

April 2, 1992.

Terence L. Kindlon, Albany, for appellant in the first above-entitled action.

James E. Downey, Dist. Atty., Norwich, for respondent in the first above-entitled action.

Stephen R. Mahler, Kew Gardens, for appellant in the second above-entitled action.

Richard A. Brown, Dist. Atty. (Barbara D. Underwood and Michael O'Brien, New York City, of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

HANCOCK, Judge.

People v. Scott

In Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214, the Supreme Court fully reaffirmed the doctrine articulated in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898: that in areas outside the curtilage, an owner of "open fields" enjoys no Fourth Amendment protection. This is so, the Oliver majority held, even for secluded lands and notwithstanding efforts of the owner to exclude the public by erecting fences or posting "No Trespassing" signs. In this appeal by defendant from a conviction for illegally growing marihuana on his land, we address the question expressly left open in People v. Reynolds, 71 N.Y.2d 552, 528 N.Y.S.2d 15, 523 N.E.2d 291: whether the Supreme Court's categorical ruling in Oliver should be adopted as the law of this State under article I, § 12 of the New York State Constitution. For reasons which follow, we hold that the Oliver ruling does not adequately protect fundamental constitutional rights (see, People v. P.J. Video, 68 N.Y.2d 296, 303-306, 508 N.Y.S.2d 907, 501 N.E.2d 556) and we decline to adopt it. There should, therefore, be a reversal.

I

Defendant was convicted on his guilty plea in County Court of criminal possession of marihuana in the first degree. The plea followed the denial of defendant's motion to suppress the evidence of marihuana cultivation seized by State Police on the execution of a search warrant. The Appellate Division unanimously affirmed in a memorandum agreeing with County Court's conclusion that "defendant's act of posting no trespassing signs about every 20 to 30 feet around the perimeter of his property, which consisted of 165 acres of rural, hilly, undeveloped, uncultivated fields and woodlands except for defendant's cultivation of marihuana thereon, [did not establish] an expectation of privacy cognizable under the right to privacy protection of the 4th Amendment of the U.S. Constitution and article I, section 12 of the N.Y. Constitution" (People v. Scott, 169 A.D.2d 1023, 1024, 565 N.Y.S.2d 576).

The relevant facts upon which County Court denied suppression following the hearing are not in dispute. On August 23, 1988, the New York State Police with assistance from the Chenango County Sheriff's Department, executed a search warrant on property owned by the defendant. The application for the warrant included the "in camera" testimony of William Collar, a private citizen, who in the fall of 1987 had shot and wounded a deer and followed it onto defendant's property. He observed what appeared to be the remnants of a marihuana growing operation. When Collar entered the property again in July of 1988, he testified, he saw approximately 50 marihuana plants under cultivation. He reported this information to the State Police who requested that he obtain a leaf from one of the plants on the property. Collar did so. On August 22, 1988, Investigator Leslie Hyman of the State Police accompanied Collar to the site where Hyman personally observed the plants. None of the entries by Investigator Hyman or William Collar was with defendant's knowledge or permission.

In addition to the foregoing, the warrant application contained tax maps showing that the property belonged to defendant and a report of an anonymous telephone tip to the effect that defendant was growing marihuana on the property. The hearing court found that the property "was conspicuously marked with No Trespassing signs clearly visible and indeed observed by not only the confidential informant [William Collar] but the police units entering the property." The residence consisted of a mobile home with no utilities located near County Route 19, a two-lane road in the Town of Preston. The marihuana plants were not found within the curtilage of defendant's mobile home but some 300-400 yards away.

In denying the motion to suppress, the hearing court relied on the rationale of Oliver v. United States (supra) and held that the "intrusion by the confidential informant and police officer did not in any way infringe upon any of the personal or societal values that the Fourth Amendment was designed to protect against or article I section 12 of the State Constitution was designed to protect against."

The Appellate Division, in its affirmance, concluded that the "open fields doctrine upheld in Oliver is followed in New York" (id., at 1025, 565 N.Y.S.2d 576), citing its prior decision in People v. Joeger, 111 A.D.2d 944, 490 N.Y.S.2d 41, and our decision in People v. Reynolds, 71 N.Y.2d 552, 556, 528 N.Y.S.2d 15, 523 N.E.2d 291. The Appellate Division reasoned that inasmuch as the "marijuana * * * was clearly grown in an open, uncultivated field away from the curtilage of any residential structure * * *, defendant had no legitimate expectation of privacy" (id., 169 A.D.2d, at 1025, 565 N.Y.S.2d 576). Because defendant had no right of privacy under Oliver, it was of no moment, in the Court's view, whether Collar had become an agent of the police in reentering the property at their direction (id., at 1025-1026, 565 N.Y.S.2d 576). Defendant has appealed by leave. We now reverse.

II

There is nothing in People v. Reynolds, supra which inhibits our rejection of Oliver if we are persuaded that the proper safeguarding of fundamental constitutional rights requires that we do so (see, e.g., People v. P.J. Video, supra, 68 N.Y.2d, at 303-306, 508 N.Y.S.2d 907, 501 N.E.2d 556). In Reynolds, the Court pointed out that defendant made no claim that her property was bounded by fencing or marked by signs warning against trespass. Accordingly, it expressly declined to address the question of whether such obvious manifestations of an intention to exclude the public could--contrary to the Supreme Court's holding in Oliver --create an expectation of privacy cognizable under article I, § 12 of our State Constitution (see, People v. Reynolds, supra, 71 N.Y.2d at 556, 557, 558, 528 N.Y.S.2d 15, 523 N.E.2d 291; see also, id., at 559, 562-563, 528 N.Y.S.2d 15, 523 N.E.2d 291 [Hancock, Jr., J., dissenting].

Nor, contrary to the People's argument, is there any inconsistency in our adopting a more protective rule under our State Constitution in the present case than in our prior decisions involving rights protected by article I, § 12 (see, e.g., People v. Keta, majority opn, at 495-496, 496-497, at 933-934, 934-935 of 583 N.Y.S.2d at 1341-1342, 1342-1343 of 593 N.E.2d; People v. Dunn, 77 N.Y.2d 19, 24-25, 563 N.Y.S.2d 388, 564 N.E.2d 1054 [holding canine sniff to be an invasion of defendant's expectation of privacy under art. I, § 12]; People v. Torres, 74 N.Y.2d 224, 227, 544 N.Y.S.2d 796, 543 N.E.2d 61 [rejecting Supreme Court's expansive view of "stop and frisk" procedures as applied to automobiles]; Matter of Patchogue-Medford Congress of Teachers v. Board of Educ., 70 N.Y.2d 57, 65-69, 517 N.Y.S.2d 456, 510 N.E.2d 325 [holding that mandatory drug testing of teachers constituted an illegal search in violation of teachers' rights of personal privacy protected by N.Y. Const., art. I, § 12]; People v. P.J. Video, 68 N.Y.2d 296, 303-309, 508 N.Y.S.2d 907, 501 N.E.2d 556, supra [requiring standards more exacting than those demanded by Supreme Court for issuance of search warrant for videotapes as evidence in obscenity prosecution]; People v. Class, 67 N.Y.2d 431, 433, 503 N.Y.S.2d 313, 494 N.E.2d 444 [adhering on remand to earlier holding (see, People v. Class, 63 N.Y.2d 491, 494, 483 N.Y.S.2d 181, 472 N.E.2d 1009) that nonconsensual entry of automobile by police to inspect VIN number violated defendant's legitimate expectation of privacy under N.Y. Constitution article I, § 12 (citing, inter alia, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576]; People v. Gokey, 60 N.Y.2d 309, 312, 469 N.Y.S.2d 618, 457 N.E.2d 723; People v. Gleeson, 36 N.Y.2d 462, 369 N.Y.S.2d 113, 330 N.E.2d 72; see also, People v. Millan, 69 N.Y.2d 514, 519-522, n. 7, 516 N.Y.S.2d 168, 508 N.E.2d 903; People v. Stith, 69 N.Y.2d 313, 316, 514 N.Y.S.2d 201, 506 N.E.2d 911; People v. Johnson, 66 N.Y.2d 398, 407, 497 N.Y.S.2d 618, 488 N.E.2d 439; People v. Bigelow, 66 N.Y.2d 417, 426-427, 497 N.Y.S.2d 630, 488 N.E.2d 451; People v. Belton, 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745; People v. Elwell, 50 N.Y.2d 231, 234-242, 428 N.Y.S.2d 655, 406 N.E.2d 471)). ¹

III

In deciding whether our Court should adopt the absolute rule stated in Oliver, that decision must be considered in the light of the Supreme Court's prior Fourth Amendment holdings. In Oliver, the Court expressly reconfirmed its original "open fields" ruling in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, supra, a decision founded on a literal interpretation of the language of the Fourth Amendment. The Hester Court had upheld a warrantless search of a field by Federal agents, declaring that "the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects,' is not extended to the open fields" (id., at 59, 44 S.Ct. at 446 [emphasis added]. The Court, three years later in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944--holding that the Fourth Amendment did not apply to wiretap eavesdropping--endorsed Hester's literal interpretation...