Powell v. State

• Decision Date: 01 August 2013
• Docket Number: 1D12–1036.,Nos. 1D12–244,s. 1D12–244
• Citation: 120 So.3d 577
• Parties: Russell C. POWELL, Appellant, v. STATE of Florida, Appellee. Benjamin P. Wilbourn, Appellant, v. State of Florida, Appellee.
• Court: Florida District Court of Appeals

120 So.3d 577

Russell C. POWELL, Appellant,

v.STATE of Florida, Appellee.

Benjamin P. Wilbourn, Appellant,

v.State of Florida, Appellee.

Nos. 1D12–244, 1D12–1036.

District Court of Appeal of Florida, First District.

May 22, 2013.

Opinion on Rehearing Aug. 1, 2013.

Nancy A. Daniels, Public Defender, Glenna Joyce Reeves and Steven L. Seliger, Assistant Public Defenders, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Angela R. Hensel and

Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, for Appellee.

MAKAR, J.

Our state and federal constitutions declare that homes—whether castles or cabins, mansions or mobile homes—are protected spaces that require a warrant or other lawful basis to justify a governmental intrusion. At issue in this case is whether police officers entering the property of Russell Powell and Benjamin Wilbourn and peering into a window of their mobile home late at night after receiving an anonymous tip an hour earlier that marijuana plants were inside was a search that violated the Fourth Amendment. Because the officers intruded into a constitutionally protected area without a warrant and peered into a window from a part of the property where they had no lawful right to be, an unconstitutional search occurred.

I.

Lafayette County is best described as sparsely inhabited with the second smallest population of Florida's 67 counties.¹ It is adjacent to the Big Bend ² coastal region of the state and comprises about 550 square miles of agrarian lands, primarily pastures and woodlands. Its entire eastern border is the celebrated Suwannee River and its western border originally was the Gulf of Mexico. The county was split in two in 1921, rendering it landlocked; Dixie County, created from its southern part, now claims the Gulf coast.

At approximately 8:57 p.m. on Wednesday, December 29, 2010, the Lafayette County Sheriff's Department, which has a total of about eight or nine officers, received an anonymous call, which it redirected to Deputy Phil Shea's cell phone. The caller said he had been at a party and saw marijuana plants, describing their location as “directly to the right when you enter through the front door of the mobile home.” He recently left the home and said that its residents were still there.

Deputy Shea immediately called Deputy Jaqueline Tysall, a school resource officer working back-up during the Christmas break, who accompanied him to the residence, both arriving at the property at approximately 10:17 p.m., a little over an hour after receipt of the anonymous call. Neither officer had sought a warrant to conduct a search of the mobile home.

The fenced property was “out in the country” in a “wooded area with pastures,” reachable via a gated dirt driveway. It was “full dark” when the officers arrived. The gate was open, and “No Trespassing” signs were not posted, so they entered and approached the mobile home intending to “question” its occupants to “see what they had to say.” As they drew near the single-wide mobile home, the officers saw a “little bonfire or campfire” in the yard with “drinks and stuff out there.” Lights were on inside the home and a dog was running loose in the yard. At the front of the mobile home, the deputies saw a “kind of a path to the front door” roughly outlined by scattered “junk and things” in the yard. The deputies followed the path and approached the front door where a single step up was located. They knocked, identifying themselves as police officers, but no one answered. Deputy Tysall thought she heard something rustling, so she and Deputy Shea entered the back yard where some cows were in a pen at the far side of the property. The officers then approached the home from the rear and knocked on its back door, announced themselves, and again obtained no response.

Deputy Shea then went back to the front of the mobile home where he decided to look in a window that was about two feet to the left of the front door. He did so, telling Deputy Tysall that he saw marijuana plants inside. Deputy Tysall decided to the look in the window to verify what Deputy Shea saw. To see in the window, she had to stand to the left of the front door, at eye level with the window, off of the single door step. Deputy Tysall agreed she “could not observe anything through that window if [she was] actually on the step knocking on the door.” From the vantage point away from the front door, their faces no more than a hand's length from the window pane, however, the deputies could see into the lighted living room area directly inside the window. By looking sharply to the right, they could see into the kitchen area back across the entryway—where the anonymous caller said the plants would be. There, under a table in the kitchen, the deputies saw a number of small marijuana plants under a grow light.

Next, Deputy Tysall called Deputy Geoffrey Condy, the county's sole narcotics investigator, who soon arrived. Deputies Tysall and Shea explained the situation, telling Deputy Condy what window to look in. Following suit, Deputy Condy looked in the window—his face a “couple of inches” from the glass—and confirmed that the plants appeared to be marijuana. He then called an assistant state attorney who, upon being apprised of the situation, advised the officers to enter and secure the home.

At about 10:45 p.m., the three deputies—still without a warrant—entered the home through the unlocked back door (the front was locked). Powell was in the back bedroom, awake on his bed; Wilbourn was in the bathroom. Both were arrested, handcuffed, and seated on their living room couch. “Unhappy” with the situation, they said little except to call the officers “trespassers.”

At this point, Deputies Condy and Shea decided to leave to get a search warrant; Deputy Tysall remained to secure the scene. After obtaining a warrant, a search of the home was conducted and an inventory compiled: ten marijuana plants six to eight inches tall; a seedling; a few pipes; two lamps, and a digital kitchen scale. Other than the pipes, the search under the warrant produced nothing beyond what had already been observed by the deputies by looking in the window and via their warrantless entry of the home.

The officers involved testified that the only basis for entering the property was the anonymous phone call; no other alleged criminal activities had been reported; no emergency or exigent circumstances existed; officers were not in “hot pursuit” of anyone; and no probable cause existed to arrest anyone (until after they looked in the window and saw the plants). No threats were made by Powell or Wilbourn; no weapons were found.

Powell and Wilbourn were charged with possession and manufacture of cannabis and possession of a device, the scales, used in the manufacturing process. Both filed dispositive motions to dismiss the charges, claiming all the evidence against them (i.e., the inventory) was obtained via unconstitutional searches of their home. The trial court held a suppression hearing at which Deputies Tysall and Condy testified (Deputy Shea no longer worked with the sheriff's department); three exhibits were entered (the search warrant, its supporting affidavit, and the inventory of the search). Powell and Wilbourn pled to the charges after the trial court summarily denied their motions, reserving their rights to lodge appeals, which we now address in this consolidated opinion.

II.

Powell and Wilbourn say it was error to deny their suppression motions because the evidence against them was obtained pursuant to two illegal searches of their home: the officers' incursion into their back yard and the officers' viewing of the marijuana plants by standing at and looking through the front window of their home. We address only that latter contention because it disposes of this case.

A.

The Fourth Amendment, which establishes the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures,” is often said to protect “people, not places” within its ambit. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). But we know from its text that the Fourth Amendment grants explicit protection to a special place: one's home.

With this focus in mind, Fourth Amendment analysis has evolved into two seemingly different, but somewhat interrelated, methods of identifying protectable interests. The more recently adopted formulation, also known at the Katz test, focuses on a person's expectation of privacy. 389 U.S. at 361, 88 S.Ct. 507. Justice Harlan's concurring opinion stated the test in its most familiar form: “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” Id. at 361, 88 S.Ct. 507 (Harlan, J., concurring). For the last forty years, Fourth Amendment jurisprudence has focused primarily on the Katz test and its subjective/objective privacy dichotomy.

A method of older lineage, known as the intrusion or trespassory test, ³ focuses on whether government agents engaged in an “unauthorized physical penetration” into a constitutionally protected area. Silverman v. United States, 365 U.S. 505, 509, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); see also Olmstead v. United States, 277 U.S. 438, 466, 48 S.Ct. 564, 72 L.Ed. 944 (1928), overruled in part by Katz, 389 U.S. 347, 88 S.Ct. 507 (1967). In its 2011 Term, the United States Supreme Court reenergized the intrusion approach used in Silverman and earlier cases. In United States v. Jones, ––– U.S. ––––, ––––, 132 S.Ct. 945, 952, 181 L.Ed.2d 911 (2012), the Court held that placing an electronic tracking device on a suspect's vehicle without consent was a trespass in violation of the Fourth Amendment. Id. at 949. In its holding, the Court explained that the “ Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law...