Morse v. State
| Decision Date | 01 November 2007 |
| Docket Number | No. A07A1343.,A07A1343. |
| Parties | MORSE v. The STATE. |
| Court | Georgia Court of Appeals |
Ricky W. Morris Jr., Stockbridge, for appellant.
Tommy K. Floyd, District Attorney, Alicia C. Gant, Thomas R. McBerry, Assistant District Attorneys, for appellee.
Following a bench trial on stipulated facts, the trial court found William Conrad Morse guilty of seven counts of theft by receiving stolen property. Morse appeals, asserting that the trial court erred in denying his motion to suppress. He also argues that the trial court improperly admitted into evidence his pretrial statements to police. For reasons that follow, we affirm.
1. The parties do not dispute the facts found by the trial court. And where, as here, the facts involved in a motion to suppress are undisputed, we review the trial court's application of law to those facts de novo.1
The relevant facts show that a Butts County sheriff's deputy received a report from a witness who had seen a pickup truck parked late at night at a residential construction site. There had been several thefts from nearby construction sites, although nothing had been stolen from the site where the truck was observed. The witness provided the vehicle's tag number, and the deputy discovered that it was registered to Morse's wife.
The deputy subsequently spoke with Morse, who admitted that he had been at the construction site, but asserted that he was taking pictures of the house in order to "get ideas" for his own home construction project in Henry County. The deputy went to the Henry County location and found the construction site described by Morse. The site was fenced, and the gravel driveway was blocked by a locked gate. "No Trespassing" and "Beware of Dog" signs were posted at the entrance. The deputy nevertheless climbed over the locked gate and entered the property. Morse's unfinished house was framed but had no sheetrock or doors, and no one appeared to be living there.
The deputy observed a white trailer in front of the house. He recalled a "be on the lookout" alert two or three weeks earlier relating to a similar trailer that had been stolen. He checked the serial number of the trailer and determined that it was stolen. The deputy then contacted the Henry County Police Department for assistance.
The Henry County officer who responded also entered the property and inspected a Bobcat skid steer loader. He noticed that the metal plate bearing its vehicle identification number ("VIN") had been removed. The officer notified his superiors, who secured a search warrant for the premises. The search warrant was executed and various items of stolen property were seized.
Based on the evidence presented, the trial court denied Morse's motion to suppress. It concluded that the "open fields" doctrine authorized the initial warrantless entry onto the property and that the subsequently obtained search warrant permitted seizure of the contraband. Although concerned by the result, we are constrained by precedent to agree.
The Fourth Amendment to the United States Constitution preserves "[t]he right of the people to be secure in their persons, houses, papers, and effects" by prohibiting unreasonable searches and seizures.2 "[T]he touchstone of Amendment analysis . . . [is] whether a person has a constitutionally protected reasonable expectation of privacy."3 The protection afforded such expectation depends both upon (1) whether the individual has manifested a subjective expectation of privacy, and (2) whether society is willing to recognize that expectation as reasonable.4
The Amendment reflects "the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic."5 Thus, "[a] dwelling place, whether flimsy or firm, permanent or transient, is its inhabitant's unquestionable zone of privacy under the Fourth Amendment, for in his dwelling a citizen unquestionably is entitled to a reasonable expectation of privacy."6 The Fourth Amendment also protects the "curtilage" of a dwelling, defined as the area immediately surrounding the home that "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life."7
The United States Supreme Court, however, has refused to extend the protection to "open fields" that are not an immediate part of a dwelling, regardless of the property owner's subjective expectation of privacy.8 According to that Court, the search of an open field is "not one of those `unreasonable searches' proscribed by the text of the Fourth Amendment."9 In developing this doctrine, the Court has adopted a broad definition of the term "open fields," expanding it to include "any unoccupied or undeveloped area outside of the curtilage."10 The property "need be neither `open' nor a `field' as those terms are used in common speech," and it may be a thickly wooded area.11
In our view, there is something odious about the government in a free country intruding upon privately owned property without a warrant, consent, or exigent circumstances.12 But in Oliver v. United States, the Supreme Court concluded that "an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers."13 According to the Oliver majority, this is true even if the landowner takes steps to protect his privacy, such as by posting "No Trespassing" signs or erecting a fence.14 Although bound by the Oliver holding, we— like the Oliver dissenters—see "no reason why a government official should not be obliged to respect [these] unequivocal and universally understood manifestations of a landowner's desire for privacy."15 And we question how the Oliver majority could have concluded that an expectation of privacy in such property is unreasonable.16
The primary genesis for Oliver lies in Hester v. United States, an extremely abbreviated decision that approved government entry onto private land by stating, without supporting analysis, 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."17 The only citation for this statement is a vague reference to Blackstone. While Blackstone enjoys a hallowed position in English jurisprudence, he should not govern Fourth Amendment reasoning; our history is different.
After citing Hester's "open fields" doctrine, the Oliver Court further expanded the concept to property on which a landowner has taken steps to ensure privacy, broadly concluding that "an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home."18 What is the basis for Oliver's limited view of privacy? What has deeper roots in our tradition of privacy than private ownership? Indeed, respect for private property is so ingrained in our jurisprudence that it enjoys special protections.19
In this case, Morse took extensive steps to keep others from the property he owned. The right to own is the right to exclude.20 To conclude—as we must under Oliver—that he had no reasonable "expectation of privacy" strains credulity. Our Fourth Amendment analysis should focus on protecting against unwanted governmental intrusion. As explained by the Oliver dissenters, "[t]he Fourth Amendment, properly construed, embodies and gives effect to our collective sense of the degree to which men and women, in civilized society, are entitled `to be let alone' by their governments."21
The far-reaching "open fields" doctrine threatens the integrity of the Fourth Amendment22 and turns the concept of reasonable privacy expectation on its head. Nevertheless, stare decisis compels us to apply the doctrine in this case. The record shows that the Henry County property consisted not of Morse's dwelling, but of the area surrounding new, unfinished, and uninhabited construction. While the structure may have been on its way to becoming a constitutionally protected home, it was not a "dwelling" under the Fourth Amendment, nor did it have protected curtilage.23 And under governing case law, Morse's efforts to maintain his privacy through fences and signs did not afford the property Fourth Amendment protection.24 Pursuant to Oliver, the property fell within the "open fields" doctrine, and the officers' entry was authorized.25
Once the officers were lawfully on Morse's property, their examination of the machinery was proper.26 The Butts County deputy testified that he observed the serial number on the front portion of the trailer without having to manipulate the trailer in any way. Likewise, the second officer testified that he could readily see that the metal plate containing the Bobcat's VIN had been removed from the rear of the machine. "A police officer may seize what is in plain sight if, as here, he is in a place where he is constitutionally entitled to be."27 Observations made from such vantage point also were lawfully considered as part of the search warrant application.28 The trial court, therefore, properly denied Morse's motion to suppress the contraband found on his property.
2. Morse argues that his pretrial statements to police were fruits of an illegal arrest that should have been excluded from evidence. Morse, however, failed to object to the admission of his statements on this ground during the suppression hearing or at trial,29 and he thus has waived this issue on appeal.30
Judgment affirmed.
2. Morse's argument on appeal focuses on the "open fields" doctrine under the Fourth Amendment. He does not raise a separate state constitutional claim, and we need not address whether the entry onto his property violated the Georgia Constitution.
3. (Citation and punctuation omitted.)...
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