Loguidice v. State

• Decision Date: 16 November 1983
• Docket Number: No. 39491,39491
• Citation: 309 S.E.2d 355,251 Ga. 711
• Parties: LoGIUDICE v. The STATE.
• Court: Georgia Supreme Court

Page 355

309 S.E.2d 355

251 Ga. 711

LoGIUDICE v. The STATE.

No. 39491.

Supreme Court of Georgia.

Nov. 16, 1983.

Rehearing Denied Dec. 15, 1983.

Case below, 164 Ga.App. 709, 297 S.E.2d 499.

W. Bruce Maloy, Atlanta, for Thomas F. LoGiudice.

Johnnie L. Caldwell, Jr., Dist. Atty., Thomaston, for the State.

PER CURIAM.

After plenary consideration of this matter, it is found not to satisfy the criteria for the grant of certiorari and the writ is therefore vacated.

All the Justices concur, except SMITH, J., dissenting.

SMITH, Justice, dissenting.

I dissent from the court's dismissal of the grant of certiorari in this case. We granted certiorari to consider an important Fourth Amendment question: Whether the decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), modified the "open fields" doctrine first announced in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), to require a warrant for the search of a secluded field when a reasonable expectation of privacy can be shown to exist in that field. I believe that it did and, accordingly, would reverse.

Appellant Thomas LoGiudice was charged with possession of marijuana with intent to distribute in violation of OCGA § 16-13-30 (Code Ann. § 79A-811). Prior to trial, he filed a motion to suppress which was denied, following a hearing, by the trial court. Appellant was convicted after a bench trial. On appeal, the Court of Appeals affirmed. LoGiudice v. State, 164 Ga.App. 709, 297 S.E.2d 499 (1982).

In 1979 appellant purchased a 345-acre tract of land bordering on Georgia Highway 74 in Upson County, eight miles east of Thomaston. In the summer of 1980, Upson County Sheriff Merrill Greathouse began receiving reports of activity on appellant's land. Bully McDaniel, owner of a package store located on Highway 74 near the property, told the sheriff he had heard heavy earth-moving equipment operating late at night on the land. An unidentified source reported that in the fall of 1980 appellant hired a local contractor to dig a well on the land, directed him to lay water pipe from the well some 300 yards through heavy woods, and then discharged him, explaining that he would complete the job himself.

Based on this information Sheriff Greathouse ¹ entered appellant's land sometime in the fall of 1980 to search for illegal marijuana plants. At the hearing on appellant's motion to suppress, the sheriff admitted climbing both barbed wire and welded fences when entering appellant's property on this occasion. He searched the area surrounding appellant's trailer but found no marijuana. Later that fall, Sheriff Greathouse conducted an aerial search of appellant's land. He was again unable to detect any illegal activity, but noticed that appellant was constructing a new fence around his land.

On July 6, 1981, acting on a tip from an unidentified source, the sheriff and several Georgia Bureau of Investigation agents again entered appellant's land without a warrant to search for marijuana. According to Sheriff Greathouse, the group entered by a back route by crossing a creek, climbing a barbed wire fence, and following an old logging road some 200 yards until they reached a clearing. There they discovered a half-acre field of marijuana. The plants were surrounded by dense chicken- wire fencing material and were visible only from a distance of ten feet or less. A 35-foot path led from the field through dense undergrowth to a travel trailer owned by appellant and occupied by Tammy Harms. The officers conducted a "stake-out" of the field, remaining there for four and one-half to six hours. While there they observed Ms. Harms come onto the field and "fondle" the marijuana plants. No arrests were made at this time. The officers returned to the field on the morning of July 7, 1981 and observed appellant, Ms. Harms and Stephen Karlovich on the field. A search warrant was obtained, ² and appellant, Harms and Karlovich were arrested. ³

Evidence introduced at the suppression hearing showed that the front entrance to LoGiudice's land was guarded by two locked, welded iron gates and posted with "no trespassing" signs; that the marijuana field was not visible from adjoining property or any public road, and was located 300 feet from appellant's nearest boundary line; that Sheriff Greathouse, while disclaiming prior knowledge of any "no trespassing" signs, was fully aware that he had climbed a fence or fences and entered appellant's land without his permission. ⁴

The Court of Appeals, citing Giddens v. State, 156 Ga.App. 258, 274 S.E.2d 595 (1980), affirmed the trial court's denial of appellant's motion to suppress. In so doing, the court relied on the "open fields" doctrine of Hester v. United States, supra. In Hester, federal revenue agents with prior information that Hester was trafficking in illegal moonshine whiskey hid near Hester's residence and observed him come out of the house and hand one Henderson a bottle of moonshine. The agents sounded an alarm. Hester grabbed a gallon jug from a nearby automobile, and he and Henderson fled on foot across a field, with the officers in pursuit. In their haste to escape the two suspects dropped the containers, which broke and were later determined to have contained illegal moonshine. On appeal of the trial court's refusal to suppress the agents' testimony concerning what had transpired in the field, the Supreme Court rejected Hester's Fourth Amendment claim. In a short opinion, Justice Holmes wrote for a unanimous Court 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. The distinction between the latter and the house is as old as the common law." ⁵

In the sixty years since the decision in Hester, courts have, based on the above language, fashioned an exception to the Fourth Amendment's warrant requirement known as the "open fields" doctrine. Simply stated, that doctrine holds that the Constitution's protection of "persons, houses, papers, and effects" does not extend to activities conducted in any area beyond the curtilage of a home. See United States v. Oliver, 686 F.2d 356, 363 (6th Cir.1982) (Keith, J., dissenting). The Court of Appeals has consistently applied a per se rule upholding warrantless searches which were conducted in areas outside a dwelling place or its curtilage. See, e.g., Olson v. State, 166 Ga.App. 104, 303 S.E.2d 309 (1983); Giddens v. State, supra; Quarles v. State 142 Ga.App. 394, 236 S.E.2d 139 (1977); Patterson v. State, 133 Ga.App. 742, 212 S.E.2d 858 (1975).

Based on these authorities, the state argues that a warrantless search of land beyond the curtilage can never violate the Fourth Amendment. This position--which amounts to an assertion that the "open fields" doctrine may be used as carte blanche for warrantless searches of areas outside the curtilage--is simply untenable. Close analysis of the Hester decision and subsequent developments in Fourth Amendment law demonstrate that the "open fields" doctrine does not apply to this case.

Hester was decided in 1924, prior to application of the Fourth Amendment to the states, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and before the advent of modern Fourth Amendment theory as exemplified by Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The Hester decision also predated the development of the "exigent circumstances" doctrine, see McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948), the "hot pursuit" doctrine, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), and the "plain view" doctrine, see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Were Hester not on the books and if the same factual situation arose today, no court would need to create a special "open fields" exception to the Fourth Amendment. Today the case would turn on the doctrine of hot pursuit. Hester and his accomplice committed a crime in plain view of police who were legally in place. Based on the hot pursuit and exigent circumstances doctrines, the police could lawfully pursue and arrest the defendants. Any expectation of privacy possessed by Hester had evaporated, since police had probable cause to follow and arrest, either in the open fields or the house, as a crime was committed in plain view and the officers were located in a place they had a legal right to be. See United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), Warden v. Hayden, supra. Moreover, the oft-quoted "open fields" language of Hester was unnecessary to the Court's decision in that case. Central to the Court's analysis was its observation that the moonshine containers had been abandoned by the defendants prior to their inspection by revenue agents, so that the defendants could not complain of a search of the abandoned property. "The defendant's own acts, and those of his associates, disclosed the jug, the jar and the bottle--and there was not seizure in the sense of the law when the officers examined the contents of each after it had been abandoned." 265 U.S. at 58, 44 S.Ct. at 446. For these reasons, it is unwise to rely on the outdated Hester decision in support of a sweeping "open fields" exception to the Fourth Amendment. ⁶

Cases decided since Hester v. United States provide support for this position. In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Court retreated from the "constitutionally protected area" analysis of Fourth Amendment issues epitomized by the Hester case and Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). Instead the Court focused on the individual's reasonable expectation of privacy in a given situation. As the opinion in Katz states: "[T]he correct solution of Fourth Amendment problems is not necessarily promoted by incantation...