Blalock v. State

• Decision Date: 03 October 1985
• Docket Number: Nos. 1085,s. 1085
• Citation: 483 N.E.2d 439
• Parties: William Haskell BLALOCK, Appellant, v. STATE of Indiana, Appellee. S 392, 1-1184 A 276.
• Court: Indiana Supreme Court

Page 439

483 N.E.2d 439

54 USLW 2222

William Haskell BLALOCK, Appellant, v. STATE of Indiana, Appellee.

Nos. 1085 S 392, 1-1184 A 276.

Supreme Court of Indiana.

Oct. 3, 1985.

Michael A. Douglass, O'Connor, Smith & Douglass, P.C., Brookville, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

Stephen J. Johnson, for amicus curiae Indiana Prosecuting Attorneys Assn.

Monica Foster, Indianapolis, for Indiana Public Defender Assn.

PIVARNIK, Justice.

This cause comes to us on a petition to transfer from the First District Court of Appeals brought by Appellee State of Indiana. William Haskell Blalock was found guilty in the Franklin Circuit Court of dealing in marijuana, a class C felony. Ind.Code Sec. 35-48-4-10(b)(2) (Burns 1985). Blalock was sentenced to a term of five (5) years and fined $500.00.

The Court of Appeals found on direct appeal that the warrantless aerial surveillance of Blalock's greenhouse violated his Fourth Amendment rights and the affidavit was insufficient to establish probable cause to justify issuance of a search warrant. Accordingly, the Court of Appeals reversed Blalock's conviction. Blalock v. State, (1985) Ind.App., 476 N.E.2d 901. Since we disagree with both conclusions we vacate the opinion of the Court of Appeals and affirm the trial court.

There is very little, if any, dispute in the facts. In November, 1982, Blalock purchased seventy-seven (77) acres of heavily wooded land in a relatively isolated portion of Franklin County. There were two structures on the property. Near the entrance to the property was a mobile home which Blalock apparently used as a residence. In addition, Blalock erected a large pole barn with steel siding and a steel roof in a remote section of the property. The barn had one narrow window in one of its doors. Annexed to one side of the barn and stretching the entire length of the barn was a greenhouse. Three walls of the greenhouse as well as its roof were covered with a translucent corrugated plastic paneling. The fourth wall was formed by the adjoining wall of the pole barn. The structure was enclosed on three sides by a chain link fence permitting access only to the pole barn's windowed door and large sliding door. Blalock had also constructed a large partition inside the fence which shielded the greenhouse portion of the structure from the view of anyone approaching on the only available access road.

In mid-June of 1983 Detective Wieholter of the Indiana State Police received information from an individual that the individual had helped construct a barn-like structure at the end of Frazor Road in Franklin County, and had been warned by the owner to say nothing about the building and act as if it did not exist. The information referred to the structure on Blalock's property.

Two Indiana State Police Officers, Detective Wieholter and Trooper Johnson, drove to the end of Frazor Road where they were confronted by a locked, heavy gauge metal fence preventing access to Blalock's property. From the padlocked gate the officers could see only what appeared to be a metal building, largely obstructed by trees. This was later discovered to be Blalock's mobile home. Arrangements were made for Trooper Johnson to take a flight in an Indiana State Police fixed wing airplane to view the area from the air. The plane was being used for routine fly overs of Franklin County to detect marijuana crops. Pilot Kelly and Trooper Johnson had been trained by the Federal Drug Enforcement Agency and other agencies on aerial identification of marijuana.

Kelly and Johnson flew over Blalock's property on August 19, 1983, circling the structure at an altitude of 800-900 feet. They clearly identified the structure as a greenhouse, as well as the chain link fence around the building, the isolated and remote location, and the absence of farm implements. Through the translucent roof of the greenhouse the officers were able to observe dark green plants of varying heights arranged in rows. Although they could not discern the number or shape of the leaves on the plants, based on the security precautions visible from the air, the remoteness of the area, and the color of plants visible under the translucent roof, the officers concluded marijuana was being grown inside Blalock's greenhouse. Photographs were taken of Blalock's property during the flights.

On August 21, Trooper Todd, also trained in aerial marijuana identification, flew over the same area with Pilot Kelly. Todd was not informed of either officer's suspicions or conclusions regarding the greenhouse. After the flight Todd concluded the greenhouse was being used for marijuana production.

On August 23, 1983 Officer Wieholter signed an affidavit for a search warrant prepared by the Franklin County Prosecuting Attorney. Based upon this affidavit a search warrant was issued for Blalock's pole barn and greenhouse. Officers executing the search warrant discovered a sophisticated greenhouse operation and large number of marijuana plants in various stages of maturity. Blalock's motion to suppress the evidence seized during the search of his pole barn and greenhouse was denied by the trial court.

I

Appellant claims the warrantless overflights by the police were in violation of the Fourth Amendment. All agree that the threshold inquiry in the Fourth Amendment analysis is whether or not a search has occurred. If no search has occurred it is irrelevant that the challenged governmental conduct is unreasonable. Only after finding that a certain governmental intrusion constitutes a search do Fourth Amendment safeguards become available.

In his concurring opinion in Katz v. United States, (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, Justice Harlan set forth the primary test articulated by the United States Supreme Court for discerning whether or not a search has occurred. The Katz test provides that the Fourth Amendment violation must establish that the defendant had an actual or subjective expectation of privacy and that the claimed expectation must be one which society recognizes as reasonable. Smith v. Maryland, (1979) 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220, 226; citing Katz, 389 U.S. 247, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 588 (Harlan, J., concurring). The significance of the subjective expectation of privacy is to show the defendant demonstrated a desire to exercise his right of privacy. This is necessary since if something is done in plain view of others with no effort to conceal it, there can be no claim of a Fourth Amendment violation.

The second prong of the Katz test, however, requires a determination of the reasonableness of the defendant's expectation of privacy. Id. In Oliver v. United States, (1984) 466 U.S. 170, 104 S.Ct. 1735, 1740, 1743, 80 L.Ed.2d 214, 223, 227, the United States Supreme Court held:

"The Fourth Amendment does not protect the merely subjective expectation of privacy, but only those expectations that society is prepared to recognize as reasonable.

* * *

* * *

The test of whether an expectation of privacy is legitimate for Fourth Amendment purposes is not whether the individual chooses to conceal assertedly 'private' activity; rather, the correct inquiry is whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment."

In Oliver the Court considered two cases with facts very similar to the case at bar. Regarding Oliver, police received reports that marijuana was being grown on the defendant's farm. Kentucky State Police narcotics agents arrived at the farm, drove past the defendant's house to a locked gate with a "no trespassing" sign, walked around the gate down a footpath, and found a field of marijuana over a mile from the defendant's house. In the companion case the Maine police received a tip that marijuana was being grown in the woods behind the defendant's residence. Police officers entered the woods by a path between the residence and a neighboring house and continued through the woods until they reached two marijuana patches fenced in by chicken wire and "no trespassing" signs.

In both cases the United States Supreme Court cited Hester v. United States, (1924) 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 in determining the "open fields" doctrine should be applied to ascertain whether the discovery and seizure of the marijuana was valid. In Hester the Supreme Court explained that Fourth Amendment protection is accorded to persons, houses, papers, and effects, but that the government's intrusion upon open fields is not an unreasonable search proscribed by the Fourth Amendment. Hester, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898, 900.

In light of Hester and Katz the Supreme Court in Oliver held:

"[A]s a practical matter these lands usually are accessible to the public and the police in ways that a home, an office, or a commercial structure would not be. It is not generally true that fences or no trespassing signs effectively bar the public from viewing open fields in rural areas.... For these reasons, the asserted expectation of privacy in open fields is not an expectation that society recognizes as reasonable." Oliver, --- U.S. at ----, 104 S.Ct. at 1741, 80 L.Ed.2d at 224-225.

The common law distinguished open fields from the curtilage, the area immediately surrounding the home, affording Fourth Amendment protection only to the curtilage, not neighboring open fields. Hester, 265 U.S. at 58, 44 S.Ct. at 446, 68 L.Ed. at 900. The reason for this was expressed well in Dow Chemical Co. v. United States, (1984 6th Cir.) 749 F.2d 307, 314, cert. granted --- U.S. ----, 105 S.Ct. 2700, 86 L.Ed.2d 716 (1985) wherein the Sixth Circuit refused to recognize a theory of industrial curtilage:

"The doctrine of curtilage is grounded in the peculiarly strong concepts of intimacy, personal autonomy and privacy associated with the home. The home is...