Divello v. State, 04A03-0201-CR-14.
| Citation | 782 N.E.2d 433 |
| Decision Date | 29 January 2003 |
| Docket Number | No. 04A03-0201-CR-14.,04A03-0201-CR-14. |
| Parties | James K. DIVELLO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Brian G. Dekker, O'Brien & Dekker, Lafayette, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
James K. Divello ("Divello") brings this discretionary interlocutory appeal from the Benton Circuit Court's denial of his Motion to Suppress. He raises two issues, which we restate as whether the warrantless entry and search of Divello's property violates the Fourth Amendment of the United States Constitution or Article I, Section 11 of the Indiana Constitution.
We reverse.
On October 2, 2001, at approximately 10:00 a.m., Deputy Matt Rosenbarger ("Deputy Rosenbarger") of the Benton County Sheriff's Department received a telephone call from an anonymous person who told Deputy Rosenbarger that Divello had recently harvested a substantial amount of marijuana and was dealing it out of his residence in Otterbein, Indiana. Def.'s Ex. Q, p. 3. The caller described the location of Divello's residence at 204 West First Street and stated that Divello also owned a house at 106 South Church Street, located just south of his residence. Def.'s Ex. Q, pp. 3-4. Deputy Rosenbarger then spoke with Indiana State Troopers Philip McBride ("Trooper McBride") and Mark Mitchell ("Trooper Mitchell") about the telephone call. They decided to go to Divello's residence at 204 West First Street in an attempt to speak with him. When they arrived at Divello's residence, Deputy Rosenbarger first knocked on the back door. A porch was located at this entrance, and a walkway led from the garage area to this porch. A sidewalk also led from the street to this porch. Divello later testified that it was normal for guests and visitors to use either this back door or the front door. Tr. p. 26. After receiving no answer, Deputy Rosenbarger went around to knock on the front door, while Trooper Mitchell continued to knock on the back door.
When the officers received no answer at the First Street residence, they walked through Divello's backyard and through an open gate in the privacy fence behind Divello's residence to gain access to the adjacent Church Street property also owned by Divello. Trooper McBride stated that they proceeded through the yard as a shortcut and not to gather any evidence. Tr. p. 116. By walking through this opening in the fence, the officers came out on the driveway of the Church Street property.
Trooper McBride noticed that a barn adjacent to the driveway of the Church Street property had an open door. He called into the barn to determine if anyone was inside. As Trooper McBride did this, Trooper Mitchell walked down the driveway to the front door and knocked to see if anyone was inside of the house. After he received no answer, Trooper Mitchell opened a gate in a privacy fence to the left of the front door in order to reach a side door and knocked on that door. He then returned to the front door and knocked; he again received no answer. Thereupon, Trooper Mitchell walked back down the driveway to the back of the house and looked in the windows of the house to determine if anyone was inside. When he reached the back of the house, he told the other officers that there had been no answer.
A truck was parked behind the house, partly in the grass and partly in the gravel, where the driveway wrapped around behind the house. It was located approximately four feet from the house. When Trooper Mitchell returned from the front of the house, he and Trooper McBride ran the license plate number on the truck to determine who owned it. While doing so, Deputy Rosenbarger walked around the truck, between the truck and the house, and looked underneath it. While he was between the truck and the house, he smelled the odor of marijuana coming from the southwest corner of the house. At that point, Troopers McBride and Mitchell came over and also smelled the marijuana. Trooper McBride stated that he had to get approximately eighteen inches away from the house in order to smell the odor of marijuana. Tr. p. 80. The officers then left, obtained the search warrant at issue in this case based on the probable cause of the marijuana odor, and then executed the warrant.
On October 12, 2001, Divello was charged with dealing marijuana,1 as a Class D felony, possession of marijuana,2 as a Class D felony, maintaining a common nuisance,3 as a Class D felony, and reckless possession of paraphernalia,4 as a Class A misdemeanor. He was also charged with an habitual substance offender enhancement and an habitual offender enhancement. Appellant's App. pp. 6, 8. On October 24, 2001, Divello filed a Motion to Suppress requesting the trial court to suppress all evidence obtained pursuant to the search warrant. Appellant's App. p. 10. He alleged that the entry and search of his property violated the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Indiana Constitution. Hearings on the motion were held on November 2, 2001 and November 5, 2001. On November 16, 2001, the trial court denied Divello's motion. Divello now appeals.
The standard of review for the denial of a motion to suppress evidence is similar to that regarding other sufficiency issues. Ammons v. State, 770 N.E.2d 927, 930 (Ind.Ct.App.2002). We determine whether the trial court's denial of the motion was supported by substantial evidence of probative value. Id. We will not reweigh the evidence, and any conflicting evidence is considered in a light most favorable to the trial court's decision. Id. "However, this review is different from other sufficiency matters in that we must also consider uncontested evidence that is favorable to the defendant." Id. (). Because we hold that the conduct at issue violated the Fourth Amendment of the United States Constitution, we do not consider Divello's Indiana Constitution claims.
Under the Fourth Amendment, our analysis focuses on whether a person has a "constitutionally protected reasonable expectation of privacy." VanWinkle v. State, 764 N.E.2d 258, 263 (Ind.Ct.App. 2002),trans. denied (quoting Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)). "An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home." Shultz v. State, 742 N.E.2d 961, 964 (Ind.Ct.App.2001),trans. denied (quoting Oliver, 466 U.S. at 178, 104 S.Ct. 1735). The area immediately surrounding one's home is known as "curtilage," a term derived from Medieval Latin for court or yard.5Oxford English Dictionary (J.A. Simpson & E.S.C. Weiner eds.) (2d ed. 1989).
When police enter onto private property in order to conduct an investigation or for another legitimate purpose and restrict their entry to places that other visitors would be expected to go, such as walkways, driveways, or porches, any observation made from these areas is permissible under the United States Constitution and the Fourth Amendment thereto. Shultz, 742 N.E.2d at 964. Accordingly, an individual does not have a reasonable expectation of privacy with regard to things or activities within a residence that may be observed by persons using their natural senses from places impliedly open to a visitor's entry. See, e.g., Lorenzana v. Superior Court, 9 Cal.3d 626, 108 Cal. Rptr. 585, 511 P.2d 33, 42 (1973), cited in 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 2.3(c) at 482-483 (3d. ed. 1996). In general, this means that "if police utilize `normal means of access to and egress from the house' for some legitimate purpose, such as to make inquiries of the occupant..., it is not a Fourth Amendment search for the police to see or hear or smell from that vantage point what is happening inside the dwelling." LAFAVE, § 2.3(c) at 483-484 (quoting Lorenzana, 108 Cal.Rptr. 585, 511 P.2d at 37). The implied invitation, however, extends only to those with legitimate business, and applies only to recognized access routes reasonable under the circumstances. State v. Cloutier, 544 A.2d 1277, 1280 (Me.1988).6
Divello argues that because the Church Street property is "set back from the street, that three sides of his property is [sic] surrounded by an eight foot privacy fence, and the fourth side is private property owned by the Lake Erie and Western Railway," he had an expectation of privacy. Br. of Appellant at 16. Divello contends that under these facts and circumstances his expectation was reasonable. Because the officers were within this area for which he had a reasonable expectation of privacy and without a warrant in order to observe/smell the marijuana odor, which served as probable cause for the warrant at issue, he argues the officers violated the Fourth Amendment. We agree.
In this case, the officers came to Divello's First Street residence to speak with him about an anonymous tip that Divello was growing marijuana on the property. An anonymous tip is insufficient to support the issuance of a warrant, see Jaggers v. State, 687 N.E.2d 180, 184 (Ind. 1997), or to justify an investigatory detention. See Washington v. State, 740 N.E.2d 1241, 1246 (Ind.Ct.App.2000),trans. denied. However, the investigation of an anonymous tip is clearly legitimate police activity so long as the investigation does not violate applicable constitutional provisions. Accordingly, legitimate police business brought the officers to Divello's property in this case, and justified their entry onto the First Street property to effectuate this business.
But, while the officers appropriately visited Divello's First Street residence to conduct legitimate police business, they failed to limit their...
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